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"Episcopatus unus, cujus a singulis in solidum pars tenetur." — De TJn.it. Eccles. St. Cypr. "More especially we pray for the good estate of the Catholic Church." — English Prayer Book. " Certain it is, that this kingdom hath been best governed, and peace and quiet preserved, when both parties, that is, when the justices of the temporal courts and the ecclesiastical judges, have kept themselves within their proper jurisdiction, without encroaching or usurping upon one another."— Lord Coke. 3 Inst. 321. IJV TWO VOLUMES. Vol. II. LONDON : SWEET AND MAXWELL, LIMITED, 3, CHANCEEY LANE, STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE, ^Eato publisher*. 1895 LONDON : PEINTED BY 0. F. EOWOETH, GREAT NEW STREET, FETTER LANE, E.C. TABLE OF CONTENTS. Volume H. Part IV. Discipline of the Church. CHAP. PAGE L — Discipline over the Laity . . . . . . 827 — 835 II. — Discipline oyer the Clergy . . . . . . 836 — 839 III. — Offences of the Clergy .. .. .. 840 — 911 Sect. 1. Offences against Morality, &c 840 2. Offences against Religion 842 3. Simony , 854 4. Farming and Trafficking 882 5. Non- Residence 884 6. Pluralities 898 7. Miscellaneous Subjects 907 IY. — The Ecclesiastical Courts 912 — 933 V. — Officers of the Ecclesiastical Courts . . 934 — 954 Sect. 1. Advocate 934 2. Proctor 937 3. Register or Registrar , 940 4. Secretary 944 5. Notary Public 945 6. Apparitor 951 VI. — Procedure — Generally .. .. .. 955 — 1002 Sect. 1. Preliminary 955 2. Who may be Parties to a Suit 956 3. Mode of conducting a Suit 959 4. Sentence 965 5. Appeal 967 6. Letters of Request 980 7. Caveat 981 8. Citation 982 9. Libel and Allegation 990 10. Articles 991 11. Personal Answers 993 12. Costs 995 13. Rules of Court 998 14. Court Fees 1002 a2 iv TABLE OF CONTENTS. Part IV.— Discipline of the Church— continued. CHAP. PAGE VIL— Procedure under 1 & 2 Vict. c. 106 . . 1003—1012 VIII.— Procedure under 3 & 4 Vict. c. 86 . . . . 1013—1025 IX. — Procedure under the Public Worship Peculation Act, 1874 1026—1036 X. — Procedure under the Clergy Discipline Act, 1892 1037—1044 XI. — Visitation 1045—1063 Sect. 1. General Law 1045 2. Bishop's Triennial Visitation 1049 3. Archidiaconal Visitation 1051 4. Royal Visitation 1062 XII. — Ecclesiastical Censures .. .. .. 1064 — 1107 Sect. 1. Censuree sive Coercitiones Ecclesiasticae 1064 2. Admonition 1065 3. Penance 1065 4. Suspension 1072 5. Sequestration , 1074 6. Deprivation 1082 7. Degradation 1086 8. Excommunication and Process for Contempt 1087 9. Release and Pardon , 1105 XIII. — Eelations between Courts Spiritual and Temporal 1108—1119 Sect. 1. Limit of Ecclesiastical Jurisdiction , 1108 2. Prohibition 1112 3. Mandamus 1119 ♦ Part V. Property of the Church. CHAP. I. — Introductory .. .. 1120 — 1124 II. — Residence. Houses .. .. .. .. 1125 — 1146 Sect. 1. Introductory 1125 2. Of the Parochial Clergy 1125 3. Of Bishops, Deans and Canons 1143 TABLE OF CONTENTS. V Part V.— Property of the Church.— continued. CHAP. PAGE III. — Tithes and Rent-charges 1147 — 1237 Sect. 1. Introductory 1147 2. Of what things Tithes were paid 1150 3. Recovery of Tithes before Commutation 1159 4. The Tithe Commutation Acts 1161 5. Rent-charge substituted for Tithe 1163 6. Lammas Lands, Commons in Gross, Gated or Stinted Pastures 1177 7. Fruit and Hop Plantations 1181 8. Exemption of small Gardens and Tenements 1188 9. Personal, House, and Mineral Tithes 1189 10. Incidents to Tithe and Rent -charge 1194 11. Tithe and Rent -charge exchanged for Land 1196 12. Redemption of Rent- charge 1200 13. Merger of Rent -charge 1207 14. Former Mode of recovering Rent -charge 1212 15. Recovery under the Tithe Act, 1891 1216 16. Tithes in City of London 1223 17. Corn Rents under Local Acts 1231 18. Tithe Commission and Board of Agriculture 1236 IY. — Pensions, Offerings, Fees . . . . . . 1238 — 1253 Sect. 1. Pensions 1238 2. Offerings 1242 3. Fees 1250 V. — Waste and Dilapidations . . . . . . 1254 — 1280 Sect. 1. The General Law 1254 2. Ecclesiastical Dilapidations Acts 1264 VI. — Letting and Alienation .. .. .. 1281 — 1349 Sect. 1. The General Law before the Statutes of Victoria 1281 2. The Exchange of Church Property 1306 3. The Leasing Statutes of Victoria 1321 4. The Sale of Glebe by the Land Commission 1331 5. The Transfer of Property to the Ecclesiastical Commis- sioners 1336 6. The Extinguishment of old Leasehold Interests 1337 7. The Enfranchisement of Copyholds 1346 YH. — Charges on Benefices with Cure of Souls. . 1350 — 1354 Sect. 1. Benefices with Cure 1350 2. Benefices without Cure 1354 Yill. — Public Imposts . . . . . . . . . . 1355 — 1381 Sect. 1. First Fruits and Tenths 1355 2. Land Tax , 1364 3. Rates 1373 vi TABLE OF CONTENTS. Part VI. Fabrics and Officers of Fabrics of the Church. CHAP. PAGE I. INTRODUCTORY . . . . . . . . « . . . 1382 II. — Churches and Churchyards . . .. .. 1383 — 1449 Sect. 1. General Observations 1383 2. Consecration of Churches 1388 3. Chancel 1402 4. Aisle 1403 5. Churchyard 1405 G. Repairs, Alterations, and Faculties 1415 7. Church Seat 1424 8. Church Way 1444 9. Church Rate 1445 III. — Chapels 1450—1462 Sect. 1. Different kinds of Chapels 1450 2. Who may nominate to Chapels 1459 3. Modern Law as to Chapels to Public Institutions 1461 4. Chapels under Burial Acts 1462 IV. — Churchwardens . . . . . . . . 1463 — 1491 Sect. 1. General nature of their Office 1463 2. Who are exempted or disqualified 1467 3. Election 1469 4. Admission 1479 5. Official Acts of Churchwardens 1483 6. Proceedings by and against Churchwardens 1488 V.— Vestries 1492—1503 Sect. 1. What and where to be holden 1492 2. Acts regulating 1494 3. Mode of Procedure 1497 4. Select Vestries 1500 VI. — Church Trustees . . . . . . . . 1504, 1505 VII.— Minor Officers 1506 — 1522 Sect. 1. Parish Clerks 1506 2. Sextons 1516 3. Organists , 1519 4. Lay Readers , , 1521 TABLE OF CONTENTS. vii Part VII. Councils of the Church. CHAP. PAGE I. — General Councils 1523 — 1529 II. — Convocation 1530—1564 Sect. 1. History and Law before Henry VIII 1530 2. From the Time of Henry VIII. to that of Queen Victoria 1535 3. Forms of Procedure generally and in Upper House .... 1542 4. Forms of Procedure in Lower House 1547 5. General Powers and Privileges 1561 Part VIII. The Church in her Relation to Charities and Education. I. — Introductory 1565 II. — Charitable Trusts . . . . . t . . 1567 — 1587 Sect. 1. GeneraUy 1567 2. Law of Mortmain 1575 III. — Hospitals 1588—1593 IV. — Colleges and Universities 1594 — 1614 V.— Schools 1615—1633 Sect. 1. Origin and kinds of Schools 1615 2. Ecclesiastical Jurisdiction over Grammar Schools 1619 3. Recent Legislation 1625 VI. — Miscellaneous 1634 — 1637 viii TABLE OF CONTENTS. Part IX. Church Extension. CHAP. PAGE I. — Introductory 1638 — 1640 II. — Queen Anne's Bounty 1641—1657 III. — The Ecclesiastical Commissioners .. .. 1658 — 1675 IY. — The Augmentation of Benefices .. 1676 — 1702 Y. — The Building of Churches 1703 — 1719 VI.— The Division of Parishes 1720—1738 VII —Church Societies 1739—1748 Part X. Church of England in Relation to other Churches. CHAP. I. — Church in Ireland . , . , . . . . 1749 — 1759 II. — Church in Scotland 1760—1768 III. — Church in the Colonies .. .. 1769 — 1793 Sect. 1. History of the Establishment and Organization of the Church in the Colonies 1769 2. Legal Status of the Church in the Colomes 1782 3. Church in the West Indies 1790 4. Church in Canada 1791 IV. — Church in the East Indies .. .. .. 1794 — 1801 V. — Churches attached to Consulships . . . . 1802 — 1806 VI. — Colonial and Foreign Orders . . . . 1807 — 1818 INDEX 1820—1883 ECCLESIASTICAL LAW. PART IV. DISCIPLINE OF THE CHURCH. — ♦ — CHAPTEE I. DISCIPLINE OVER THE LAITY. In England the authority and power of the ecclesiastical courts Sources of the as to the laity is founded on a principle, recognized by the un- ^^^^ written common law, and in part by the statute law, that the tical courts. " ordinary ought in certain matters to administer justice over all persons pro salute animce. The sentence pronounced by such courts could be enforced only by excommunication, that is, by depriving the person sentenced — according to the greater or less severity of the sentence — of the benefit and use of all or of certain rites of the church. The common and the statute law at different epochs of our history further enforced the sentence by temporal punishments of different kinds. It is unnecessary now to mention how much jurisdiction over Extent of really secular matters the ecclesiastical courts under colour of this J'U11S" principle obtained. Indeed, as every act of a Christian man may 1 n* be said to have some reference to his duty towards Grod, it is difficult to say why, upon this principle, jurisdiction upon every subject should not be exercised by the spiritual court. The canon law founds the authority of the pope upon this principle, aided by passages of holy writ torn from their context, and miscon- strued wilfully or misunderstood grossly (a). The jurisdiction over testaments was, perhaps, the most strik- Civil juris- ing example of the application of this principle in England. diction. The office of Lord High Chancellor has long ceased to be holden by an ecclesiastic ; and the important jurisdiction over questions of marriage and testamentary law, retained by the (a) Phil. Intern. Law, toI. ii. pt. 8, chaps, iii., iv. r. vol. ii. 3 i 828 DISCIPLINE OF THE CHURCH. spiritual courts in England longer, I believe, than in any other European country, was transferred to a purely lay tribunal in 1857 (b). And, practically speaking, all civil jurisdiction as to the laity, except such as relates to the fabric and ornaments of the church, the churchyard, and churchwardens, has ceased to be Criminal exercised by the spiritual courts. They retain, however, their jurisdiction, criminal jurisdiction over the laity within certain limits. Every religious body must have some means of excluding from its membership those who transgress its rules and set at nought the terms of their communion with it. It must have the power of pronouncing that such persons are, partially or entirely, for a season or for ever, placed out of its communion, that is, excommunicated. No Christian church can be lawfully compelled to admit to her rites and sacraments those who are by rightful authority pronounced unworthy of them. The spiritual court in England exercises a jurisdiction in this matter founded, as it has been said, both on common and statute law. Before the passing of any statute, criminal proceedings might be taken in the spiritual court against a layman for certain offences against religion or morality. Canons of The Canons of 1603 dealt somewhat largely with the disci- 1603 pline of the laity. After the decision of Lord Hardwicke in Middleton v. Crofts (c), it may perhaps be doubted whether all these canons could be enforced ; though those which are declara- tory of law received in this country, as well as those fortified by statute, are certainly in force, more especially with respect to churchwardens and other ecclesiastical officers. It is unneces- sary to say that where these canons are in conflict with any statute, they are clearly inoperative. The laity whom these canons affect maybe classed under three heads. I. Impugners of the law relating to the church. II. Schismatics. III. Offenders generally against religion, morality, and good order in church (d) . IhoHv™™ °f L With resPect to the first category, the Canons of 1603 are relating to as follows :— tho Church. Canon 2. Can. 2. " Impugners of the King's Supremacy censured" (e). [This Canon is set out, supra, pp. 7 — 8.] (b) By 20 & 21 Vict. c. 77, as to testamentary cases ; and by 20 & 21 Vict. c. 85, as to matrimonial cases. (c) 2 Atk. p. 660 ; nom. Middle- ton v. Crofts, 2 Stra. p. 1056. Seo Reg. y. Allen, L. E., 8 Q. B. pp. 69, 75. (d) These canons, of course, also affect the clergy guilty of the of- fences condemned by them. (c) Vide supra, pp. 6 — 9. DISCIPLINE OVEK THE LAITY. Can. 3. "The Church of England, a true and Apostolical Church. Canon " Whosoever shall hereafter affirm, That the Church of Eng- land, 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, but only by the archbishop, after his repentance, and public revocation of this his wicked error." Can. 4. " Impugners of the Public Worship of God, established in Canon the Church of England, censured." [This Canon is set out, supra, p. 751.] Can. 5. "Impugners of the Articles of Religion, established in the Canon 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 provinces, and the whole clergy, in the convocation holden at London, in the year of our Lord Gk>d one thousand five hundred sixty-two, for avoiding diversities of opinions, and for the establishing of consent touching true religion, are in any part superstitious or erroneous, or such as he may not with a good conscience subscribe unto ; let him be excommunicated ip>so facto, and not restored, but only by the archbishop, after his re- pentance, and public revocation of such his wicked errors." Can. 6. "Impugners of the Rites and Ceremonies, established in the Canon Church of England, censured. " Whosoever shall hereafter affirm, That the rites and cere- monies of the Church of England by law established are wicked, antichristian, 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 requireth, subscribe unto them ; let him be excom- municated ipso facto, and not restored until he repent, and pub- licly revoke such his wicked errors." Can. 7. "Impugners of the Government of the Church of England Canon by Archbishops, Bishops, fyc, 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 antichristian, or repugnant to the Word of God ; let him be excommunicated ipso facto, and so continue until he repent, and publicly revoke such his wicked errors." 3i2 830 DISCIPLINE OF THE CHURCH. Canon 8. Can. 8. " Impugners of the Form of Consecrating and Ordering Archbishops, Bishops, fyc.,in the Church of England, censured" [This Canon is set out, supra, pp. 49 and 91.] Sc lismatics. II. With respect to the second category, those Canons are as follows : — Canon 9. Can. 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 Christian 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." Canon 10. Can. 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 Grod'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 excommunicated, and not restored until they repent, and publicly revoke such their wicked errors." Canon ii. Can. 11. " Maintainers of Conventicles censured. " Whosoever shall hereafter affirm or maintain, That there are within this realm other meetings, assemblies, or congrega- tions 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." Canon 12. Can. 12. " Maintainers of Constitutions 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 ruled and governed by them ; let them be ex- communicated ipso facto, and not be restored until they repent and publicly revoke those their wicked and anabaptistical errors." DISCIPLINE OVER THE LAITY. 831 Can. 110. "Schismatics to be presented. Canon no. "If the church-wardens, or quest-men, 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." Can. 65. "Ministers solemnly to denounce Recusants and Canon 65. 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 realm of England, as those also (especially of the better sort and condition) who for notorious contumacy or other notable crimes stand lawfully excommunicate (unless within three months immediately 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 excommuni- cate (/?), that others may be thereby both admonished to refrain their company and society, and excited the rather to procure out a writ Be excommunicato 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 certify the archbishop of the province of all and singular the premises aforesaid." Can. 66. "Ministers to confer with Recusants. Canon 66. "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 inform 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, (h) All publications, however, of this kind are now forbidden by 7 Will. 4 & 1 Yict. c. 45 : vide supra, p. 793. 832 DISCIPLINE OF THE CHURCH. persuasion, and all good means he can devise, to reclaim both them and all other within his diocese so affected." These Canons, so far as they respect recusants, are so affected by subsequent legislation as to be inoperative. Offenders jjj "With respect to the third category, the Canons, partly r^raSity, &c. supported by the statute law, are as follows : — Canon 109. By Can. 109, " If any offend their brethren either by adul- Sins punish- tery, whoredom, incest or drunkenness, or by swearing (7), able by ribaldry, usury, and any other uncleanness and wickedness of ordinary. life, the church-wardens or quest-men and side-men in their next presentment to their ordinaries, shall faithfully present all and every of the said 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." Certain In ancient times (according to Lord Coke) the king's courts, anciently an(^ esPec^a^J ^ne ^ee^s? bad power to inquire of and punish punishable in fornication and adultery ; and it appears often in the book of the court Domesday that the king had the fines assessed for those offences leet. which were assessed in the king's courts, and could not be inflicted in the court christian (h) . 13 Ed. l.st. 4. By 13 Edw. 1, st. 4, called the statute of Circamspccte agatis, No prohibi- it is enacted as follows : " The ldng to his judges sendeth greet- tion to the ^ng_ -rjse yourselves circumspectly in all matters concerning court in cases the Bishop of Norwich and his clergy ; not punishing them if of penance for they hold plea in court christian of such things as be meer deadly sin. spiritual, that is to wit, of penance enjoined by prelates for deadly sin ; as fornication, adultery and such like ; for the which sometimes corporeal penance, and sometimes pecuniary is enjoined, specially if a freeman be convict of such things In all cases afore rehearsed the spiritual judge shall have power to take knowledge, notwithstanding the king's prohibition." The Bishop of Norwich.'] — The Bishop of Norwich is put here only for example; for the statute extends to all the bishops within this realm (/). Fornication, Fornication, Adultery, and such like.] — Here are two examples in particular of matters merely spiritual, which have no mixtures of the temporalities, for the correction of these offences pro salute animce (m). And such like] — These are to be taken for offences of like nature as the two offences here particularly expressed be; as solicitation of any woman's chastity, which is lesser than these, and for incest, which is greater (n). chlstityi0n °f *n °ase °f ®aUisand v- Rigaud, it was the opinion of the (i) Swearing is further punished 7, A. by 19 Goo. 2, c. 21. (?) 2 Inst. p. 487. (7c) 2 Inst. p. 488 ; and see Cosin, (m) Ibid. p. 488. Ecclesite Anglicance Politia, Tab. (n) Ibid. ftc. DISCIPLINE OVER THE LAITY. 833 court that solicitation of chastity was of ecclesiastical cognizance, but yet it was thought that the prohibition to the ecclesiastical court ought to stand, because the person had been convicted on an indictment for an assault upon the woman with intent to ravish her, and after that, the woman had sued an action of assault and battery against him for the same olfence, which action was depending at the same time that the prosecution was in the spiritual court : for the force added to it, which is tem- poral, makes it cognizable by the temporal courts (0) . The court, however, proposed to hear the civilians upon the question : but afterwards, upon an apparent fault in the pleadings, gave judgment for the prohibition without hearing them. It is, how- Incontinence, ever, at least doubtful whether the ecclesiastical court might not have punished for the incontinence. In the case of Wheatley v. Fowler, in 1757 (p), Sir Geo. Lee enjoined penance on a methodist preacher for incontinence. In the case of Harris v. Hicks, a prohibition was moved for to Incest, the ecclesiastical court, where a suit was for incest, in marrying his first wife's sister, suggesting that the said second wife was dead, and by his said wife he had a son, to whom an estate was descended as heir to his mother, and that notwithstanding that he had pleaded this matter, they went on to annul the marriage and bastardize the issue. And by the court : A prohibition shall go as to annulling the marriage or bastardizing the issue, but they may proceed to punish the incest (q). In Burgess v. Burgess (r), and in Randall v. Vowles (s), cases of incest were adjudicated upon in the ecclesiastical courts. By 27 Geo. 3, c. 44, " no suit shall be commenced in any 27 G-eo. 3, ecclesiastical court for fornication or incontinence .... after c- 44- the expiration of eight calendar months from the time when J^sitation of such ofience shall have been committed ; nor .... for forni- cation at any time after the parties offending shall have law- fully inter-married" (t). Canons 112 of 1603, directing " non- communicants at Easter Canons 112 to be presented," has already been set out (u) ; and Canon 111, and 111. directing disturbers of Divine Service to be presented, has also been given (%). The jurisdiction of the Ecclesiastical Courts of England and Defamation. Wales in suits for defamation was taken away by the Act of 18 & 19 Vict. c. 41, brought in by Sir Eobert Phillimore, the 18 & 19 Vict- author of this work ; the preamble reciting that " the jurisdiction c' 41 ' of the ecclesiastical courts in suits for defamation has ceased to (0) Ld. Eaym. p. 809; Gibs, p. 1085. (p) 2 Lee, p. 376. (2) 2 Salk. p. 548. lr) 1 Consist, p. 393. (s) Infra, Chap. X. Sect. 3. (t) But it has been ruled by the House of Lords that this statute did not prevent the ordinary from purging the church of an incon- tinent clerk : vide nost, Burgoyne v. Free, 2 Add. p. 414 ; 2 Hagg. Eccl. pp. 456, 662. (w) Supra, p. 528. (x) Supra, p. 738. 834 DISCIPLINE OF THE CHURCH. be the means of enforcing the spiritual discipline of the Church, and has become grievous and oppressive to the subjects of this realm." In Ireland. The jurisdiction of the Irish ecclesiastical courts in suits for defamation was taken away in 1860 by the 23 & 24 Yict. c. 32. 23 & 24 Vict. The last-mentioned act also took away the jurisdiction of the c- 32 • ecclesiastical courts in England and Ireland in suits against lay- Brawling. men f or brawling (z) . 29 Car. 2, c. 9. By 29 Car. 2, c. 9, the act for taking away the writ de hceretico Blasphemy. comburendo, it is provided that (sect. 2) nothing in the act shall be construed to take away the jurisdiction of the ecclesiastical courts in cases of atheism, blasphemy, heresy or schism, but that they may proceed to punish the same by excommunication, &c. It may be doubtful how far their power in this respect has been taken away by the various toleration acts. Blasphemy is an offence punishable at common law and by statute, 9 Will. 3, c. 35, repealed in part by 53 Geo. 3, c. 160, s. 2 (a). On this subject the following cases may be referred to : The case of James Nailer (&), Bex v. Curl(c), Rex v. Worlston (d) , Rex v. Anart(e), Richard Bulton's case in 1794, Moxon's case in the Queen's Bench, Trinity Term, 1841, Gathercok's case(f), The case of a Mr. Jones at Paramatta, in New South Wales (g), and Cowan v. Milboum (h), where a contract for blasphemous pur- poses was holclen illegal and void. Perjury. If perjury be committed in a temporal cause, it is punishable only in the temporal courts ; but where it is committed in a spiritual cause, the spiritual judge has authority to inflict canoni- cal punishment, and prohibition will not go (*). 13 Ed. l, st. 4. For by the statute of Circumspecte agatis, 13 Edw. 1, st. 4, just cited, " For breaking an oath, it hath been granted that it shall be tried in a spiritual court, when money is not demanded, but a thing done for the punishment of sin ; in which case the spiritual judge shall have power to take knowledge, notwithstanding the king's prohibition." For although the case be spiritual, and the perjury is com- mitted in the spiritual court, yet the judge there can only punish pro salute animce ; but the party grieved by such perjury must recover his damages at the common law (It) . 5 Eliz. c. 9. In the statute of perjury, 5 Eliz. c. 9, s. 5, there is a proviso that the same shall not extend to any spiritual or ecclesiastical court ; but such offender as shall be guilty of perjury, or subor- (z) Vide supra, p. 741. (a) This latter statute is repealed by the Statute Law Revision Act, 1873 (36 & 37 Yict. c. 91), but with a saving which keeps alive its re- pealing force. (b) 1 State Trials, p. 802. fcl Stra. p. 788. (ri) Stra. p. 834. e) Black. W. p. 395. /) 2 Lewin, C. C. p. 337. [g) " The Daily News," April 17, 1871. (A) L. R., 2 Ex. p. 230. (i) Gibs. p. 1013 ; 1 Ought, p. 9 ; Keilwey, p. 39 b, 7. (A) Gibs. p. 1013. DISCIPLINE OVER THE LAITY. 835 nation of perjury, shall and may be punished by such usual and ordinary laws as heretofore has been, and yet is used and fre- quented in the said ecclesiastical court. In the statute 5 Eliz. c. 23, concerning the writ Be excom- 5 Eliz. o. 23. municato capiendo, perjury in the ecclesiastical court is specified as an offence (amongst others) for which a person may be excom- municated. In the case of The Bishop of St. David? 8 v. Lucy (/), it was said Perjury in an by Holt, C. J., It has been a question whether perjury in the ^u1seeskstical spiritual court can be tried in the temporal ; and in all the cases where it has been, the persons have been acquitted, and so it has been ended, but it is not yet settled. In Rex v. Lewis, (m)> an information was moved for against a clergyman, for perjury at his admission to a living, upon an affidavit that the presentation was simoniacal. But the court refused to grant it till he had been convicted of the simony. There are, however, authorities to show that perjury in any court, not excepting courts ecclesiastical, may be punished by indictment or information in the temporal courts (n), but it must be at common law as it is aided by 2 Greo. 2, c. 25, and not upon the statute 5 Eliz. c. 9. In Phillimore v. Machon (1876), (o) Lord Penzance said: Modern' view- Speaking generally .... it cannot, I think, be doubted ^c^n:1Q^1esr" that a recurrence to the punishment of the laity for the good iaity- ' v of their souls by the ecclesiastical courts would not be in harmony with modern ideas, or the position which eccle- siastical authority now occupies in this country. Nor do I think that the enforcement of such powers where they still exist, if they do exist, is likely to benefit the community. But in Mordaunt v. Moncre{ffe (p), in 1874, Kelly, C. B., reasoned upon the continuance of criminal jurisdiction for adultery in the ecclesiastical court; and in Martin v. Machonochie (q) (1879), Lord Coleridge, C. J., reasoned upon the continuance and exercise of this jurisdiction in cases of incest. The subjects of ecclesiastical courts, procedure and censures, Courts, applicable equally to laity and clergy, are considered more Procedure, particularly with reference to the discipline of the clergy in the ensures- following chapters. (I) Ld. Eaym. p. 451. (m) Stra. p. 70 ; vide infra, Part IV. Chap. III. Sect. III. (n) See Bex v. Green, 5 Mod. p. 348; 2 Roll. Abr. p. 257; 16 Vin. Abr. pp. 313, 314; Bex v. Vevelst, 3 Campb. p. 432 ; Beg. v. Chapman, 1 Denison, C. C. p. 432, and supra, p. 612; Phillimore v. Machon, 1 P. D. p. 480. (o) 1 P. D. 480. \p) 2 Sc. & Div. at p. 381. (?) L. K., 4 Q. B. D. at p. 770. 836 DISCIPLINE OF THE CHURCH. CHAPTEE II. DISCIPLINE OVER THE CLERGY. Introductory. Divisions of The important subject of the discipline of the clergy may be subject. properly treated of under the following heads : — I. The offences which are the subject of ecclesiastical discipline. II. The tribunals which exercise the jurisdiction. III. The general mode of procedure in courts ecclesiastical. IY. The nature of the censures inflicted by ecclesiastical discipline. Offences. I. The offences which are the subject of ecclesiastical discipline in the clergy are partly those which are also the subject of ecclesiastical discipline in the laity, partly other offences. They may be classified as follows : — (1.) Offences against morality — including offences against the criminal law of the land : (2.) Offences against religion — such as blasphemy, heresy, contravening the Thirty-nine Articles of Eeligion and depraving the Book of Common Prayer : (3.) Offences against particular laws of the church in this country — more or less carrying into effect the general law of the church — such as (A) non-residence, plurality of benefices and simony, or (B) such as regard the performance of public worship, both as to the place and as to the manner, as to matters of ritual, and the Statutes of Uniformity : (4.) Offences bringing scandal on the condition of the clerical status — (A) by the pursuit of certain secular employ- ments, such as farming beyond the fixed limitation — trading and the like; (B) generally by conduct un- becoming a clerk in holy orders, either in or out of church : (5.) Offences against the authority of the ordinary — such as contumacy or disobedience to the lawful commands of the ordinary or of his court : DISCIPLINE OVER THE CLERGY. 837 (6.) Offences relating to injuries done to the fabric or orna- ments of the church, or to alterations of them without a faculty or proper licence from the ordinary : (7.) Offences relating to the dilapidation of the house or buildings belonging to the benefice. II. The tribunals which exercise the jurisdiction over the Tribunals, clergy. These, except in cases where the law is administered by the bishop and archbishop in person, are at the present time the following : — (1.) A preliminary commission of inquiry issued by the bishop : (2.) The bishop himself with certain assessors, or a judge delegated by the bishop with certain assessors : (3.) The court of the archbishop, which exercises jurisdiction either in the first instance by letters of request, or as a court of appeal : (4.) The judge under the Public Worship Act, 1874. (5.) The consistory court of the diocese, under the Clergy Discipline Act, 1892. (6.) The last court of appeal, the Judicial Committee of the Privy Council, whose advice to the crown is usually enforced as a regular sentence by the means of an order in council : (7.) The jurisdiction exercised by the ordinary in his visita- tion : (8.) The jurisdiction of convocation (a) over persons, though apparently not without authority from statutes, may be considered as practically incapable of being put in force. III. The general mode of procedure in courts ecclesiastical. Procedure. In every ecclesiastical court there are two modes of procedure — the civil and the criminal. In criminal proceedings the office of the judge is promoted, the meaning of which is that inasmuch as all spiritual criminal jurisdiction is in the hands of the bishop or ordinary (judex ordinarius) , his office or function is set in motion, whenever these proceedings are instituted. His permission must therefore be obtained, as will be seen, before the criminal suit can be com- menced. The form of proceeding is by a recital of the offence charged, and the law violated by such offence, in a series of articles or counts. The object of all punishment inflicted by the ordinary — a term which is applicable to the bishop or his court — is the promotion of the soul's health by the reformation of the life and moral conduct, or the irreligious and heretical opinion, (a) See 1 Hale, P. C. pp. 389, 390 ; 1 Hawk. p. 6 ; Gibs. p. 353 ; vide post, Part VII. Chap. II. 838 DISCIPLINE OF THE CHURCH. of the guilty person. It is not unimportant to bear this object in mind, because it has laid in this country the foundation and furnished the limits of all coercive jurisdiction exercised by spiritual authority, as recognized, aided and enforced by the common law. Censures. IV. The nature of the censures. These are various in their degrees of severity, but the same in kind. (1.) Simple admonition to abstain for the future from the act or conduct censured. Disobedience, however, to this admonition assumes the grave character of contempt or contumacy, and is visited by a graver punishment : (2.) Penance : (3.) Suspension — ab ingressu ecclesim : (4.) Inhibition under the Public Worship Act, 1874 : (5.) Suspension ; relatively to cure of souls : (a) Limited or not as to its subject, — as suspension from office alone, or from office and benefice, that is, from the discharge of spiritual func- tions alone, or from this discharge and from receiving the fruits or emoluments appertain- ing to it : (b) Limited as to its duration from a short to a long period : (c) Accompanied or not by an order that after the period of suspension has expired the offender be not re-admitted to his office or benefice until he produce a certificate signed by three clerks in holy orders of the diocese, that he is reformed in his moral conduct, emendatus moribus, such certificate to be approved of by his ordinary : (6.) Sequestration of the profits of the benefice, either in some instances as a punishment per se, or as incidental to suspension from office and benefice : (7.) Deprivation — that is necessarily from office and benefice — and often, according to the practice in this country, accompanied by a prohibition to officiate within the limits of the depriving authority : (8.) Deposition from holy orders. (9.) Excommunication : (1) Attended with civil penalties : (2) Spiritual only : (10.) Degradation — which consists in a formal removal of the insignia of dress and ornament which mark the office of a clerk — a sentence practically disused in this country since the Eef ormation ; deprivation, as usually pronounced, or deposition, having in fact attained the same end : DISCIPLINE OVER THE CLERGY. 839 (11.) The withdrawal by the ordinary of his licence to officiate in his diocese, previously granted to a curate or a person having no benefice therein : (12.) The benefice becoming ijiso facto void on the committal of certain offences. In this Part the exercise of criminal jurisdiction over priests Subjects of and deacons only is considered, the mode of proceeding against tllis Part- accused bishops having been already treated of (b). It may be that the offence committed is punishable by statute and by general ecclesiastical law, and is cognizable both by courts of common and ecclesiastical law, though diver so intuitu. (b) Vide supra, pp. 65 — 74. 840 DISCIPLINE OF THE CHURCH. CHAPTER III. OFFENCES OF THE CLERGY. Sect. 1. — Offences against Morality, 8fc. 2. — Offences against Religion. 3. — Simony. 4. — Farming and Trafficking. 5 . — Non-Residen ce. 6. — Pluralities. 7. — Miscellaneous Subjects. Sect. 1. — Offences against Morality, fyc. Detailed ex- position of offences against the law. Offences against morality and the criminal law. Canon 75. Shunning vicious excesses. Clerical re- creations. The different heads under which the criminal offences of the clergy may be generally ranged have been already adverted to. It remains to make some more detailed mention of the law applicable to such offences. First, as to offences against morality generally, and against the criminal law of the land in particular. Besides the law contained in the general Canon Law and the English provincial constitutions, the 75th Canon of 1603 enacts that — " No ecclesiastical persons shall at any time, other than for their honest necessities, resort to any tavern 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 game. But at all times convenient, they shall hear or read somewhat of the holy Scriptures, or 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. " Nevertheless, Lord Coke says, by the common law of the land, clergymen may use reasonable recreations, in order to OFFENCES OF THE CLERGY. 841 make them fitter for the performance of their duty and office. And albeit spiritual persons (he says) are prohibited, by the canon law, to hunt ; yet by the common law they may use the recreation of hunting. And after the decease of every arch- bishop and bishop (amongst other things) the king, time out of mind, has had his kennel of hounds, or a composition for the same (a). Since the passing of the Clergy Discipline Act, 1840 (3 & 4 Yict. Cases since c. 86), various cases of clerks charged with immorality, includ- S1®1^. ing brawling (b) and drunkenness, have been tried. The number Act, 1840. is not large, having regard to the increase of the clergy in modern times ; but it is large relatively to cases of the same kind which happened during the interval between the reigns of Elizabeth and our present Queen. This result is also in great measure to be ascribed to the increased energy of discipline under the improved state of the ecclesiastical courts, and the introduction of viva voce evidence (c) . It is said that to charge an unbeneficed clergyman with (d) incontinency is not per se an actionable slander. (a) 4 Inst. 309. The 74th Canon and a constitution of Abp. Strat- ford in 1343 (Lind. 122), on the decent apparel of the clergy, may be here noticed ; but they are now obsolete. (6) The act 23 & 24 Vict. c. 32, which has taken away the juris- diction of the ecclesiastical courts over the laity for the offence of brawling, retains it for the dis- cipline of the clergy, (c) The following cases of offences of this class have found their way into the reports : — 3 Curt. Burder v. Hodgson Burdtr v. Speer Be Monckton . Brookes v. Cress well Trower v. Hurst . Kitson v. Loftus . Clarke v. Heathcote Farnall v. Craig . Bp, of Norwich v. Berney Bp. of Lincoln v. Day . Burder v. Langley Burder v. Hale Burder v. Puglie . Hussey v. Radcliffe Bp. of Hereford v. Thompson Horner v. Jones Exp. Rose .... Bp. of London v. Bonwell Burder v. O'Neill . Bp. of Norwich v. Pearse Mouncey y. Robinson ReA.B Borough v. Collins Bp. of Rochester v. Harris 4 N. C. p. 483. p. 822 1 N. C. p. 39. 3 Ibid. p. lv. 4 Ibid. p. 429 ; p. 606. 4 N. C. p. 52. 4 Ibid. p. 323. 4 Ibid. p. 321 ; 5 N. C. p. 557 36 L. J., Eccl.'p. 8. 4 N. C. p. 299. 1 Ibid. p. 542. 6 Ibid. p. 611. 1 Jur., N. S. p. 5 Ibid. p. 1014. 2 Eoberts. p. 595 ; 17 Jur. p. 190. 9 Jur. p. 167. 17 Ibid. p. 180 ; 18 Q. B. p. 751. 14 Moore, P. C. C. p. 395. 9 Jur., N. S. p. 1109. L. E,, 2 Adm. & Eccl. p. 281. 37 L. J., Eccl. p. 8. 11 P. D. p. 56. 15 Ibid. p. 81. 1893, P. p. 137. 5 Ibid. p. 544 ; 1 Eoberts. 1 Eoberts. p. 377. 6 Ibid. p. 682. 1171 (d) Qallway v. Marshall, 23 L. J., N. S., Ex. p. 78. DISCIPLINE OF THE CHURCH. Sect. 2. — Offences against Religion. The second head of offences relate to blasphemy, heresy, con- travention of the Thirty -nine Articles of Religion, and depraving the Book of Common Prayer. 1. With respect to Blasphemy. The statute of 29 Car. 2, c. 9, which abolished the writ de hceretico comburendo, provides that the archbishop, bishops and judges of ecclesiastical courts may still inflict excommunication, deprivation, degradation, and other ecclesiastical censures for the offence of blasphemy (e) . 2. As to Heresy. Dr. Burn says, " Heresy is taken to be a false opinion repug- nant to some point of doctrine clearly revealed in Scripture, and either absolutely essential to the Christian faith, or at least of most high importance. But it is impossible to set down all the particular errors which may properly be called heretical, con- cerning which there are and always have been so many intricate disputes ; however the following statute of 1 Eliz. c. 1, which erected the High Commission Court, having restrained the same from adjudging any points to be heretical, but such as are therein expressed; it hath been since generally holden, that although the High Commission Court was abolished by the statute of 16 Car. 1, c. 11, yet those rules will be good directions to ecclesiastical courts in relation to heresy" (/). This statute, by sect. 17 (sect. 36 in one edition), provided as follows : " Such person or persons to whom your Highness, your heirs and successors, shall hereafter by letters patent, under the great seal of England give authority to have or execute any jurisdiction, power, or authority spiritual . . . shall not in any wise have authority or power to adjudge any matter or cause to be heresy, but only such as heretofore have been determined, ordered, or adjudged to be heresy by the authority of the canonical Scriptures, or by the first four Greneral Councils, or any of them, or by any other Greneral Council wherein the same was declared heresy by the express and plain words of the said canonical Scriptures, or such as hereafter shall be ordered, judged, or determined to be heresy by the high court of parlia- ment of this realm, with the assent of the clergy in their Con- vocation.' ' And this is the first boundary that was set to the extent of heresy as to the matter thereof, what only shall be adjudged heresy (g). The ground of making which limitation was a retrospect to the times in which everything was adjudged heresy, that the Church of Rome thought fit to call by that name, how far soever in its own nature from being fundamental, or from being con- (e) Vide supra, p. 834. (/) 1 Hawk. p. 4. (•) 1 Hale, P. C. p. 406. (/) 1 Hale, P. C. p. 391 ; 1 Hawk, p. 6. (w) 3 Inst. p. 39. (n) 1 Hawk. p. 6. (0) Ibid. (p) 1 Hale, P. C. p. 392. (7) 1 Hawk. p. 7. (r) Ibid. See Attorney-General v. Pearson, 3 Mer. pp. 383 — 385. P. VOL. II. 844 DISCIPLINE OF THE CHURCH. How punish- able. Writ de hceretico com- burendo taken away. Ecclesiastical censures not taken away, but not to be used after recantation . spiritual court pro salute animce, aud think himself aggrieved, his proper remedy seems to be, to bring his appeal to a higher ecclesiastical court, and not to move for a prohibition from a temporal one, which, as it seems to be agreed, cannot regularly determine or discuss what shall be called heresy (s) . There is no doubt but that, at the common law, one convicted of heresy, and refusing to abjure it, or falling into it again after he had abjured it, might be burned by force of the writ de hceretico comburendo, which was grantable out of chancery upon a certificate of such conviction ; but it is said that he forfeited neither lands nor goods, because the proceedings against him were only^ro salute animce. But at this day, the said writ de hceretico comburendo is abolished by the statute 29 Car. 2, c. 9 ; and all the old statutes which gave a power to arrest or imprison persons for heresy, or introduced any forfeiture on that account, are repealed. By 29 Car. 2, c. 9, s. 1, it is enacted that " the writ commonly called breve de hceretico comburendo, with all process and pro- ceedings thereupon in order to the executing such writ, or following or depending thereupon, and all punishment by death, in pursuance of any ecclesiastical censures, be from henceforth utterly taken away and abolished." By sect. 2, it is provided, that " nothing in this act shall extend to take away or abridge the jurisdiction of protestant archbishops or bishops, or any other judges of any ecclesiastical courts, in case of atheism, blasphemy, heresy or schism, and other damnable doctrines and opinions ; but that they may proceed to punish the same according to his Majesty's eccle- siastical laws, by excommunication, deprivation, degradation, and other ecclesiastical censures not extending to death in such sort and no other, as they might have done before the making of this act." As they might have done before the making of this Act."] — Upon the abrogating of all the ancient statutes made against heretics, the cognizance of heresy and punishment of heretics returned into its ancient channel and bounds ; and now belongs to the archbishop, as metropolitan of the province, and to every bishop within his own proper diocese, who are to punish only by eccle- siastical censure?. And so (says Lord Coke) it was put in ure in all Queen Elizabeth's reign ; and so it was resolved by the chief justice, chief baron, and two other of the judges upon consultation, in 9 Jac. 1, in the case of Legate, the heretic (t). But as no person can be indicted or impeached for heresy before any temporal judge, or other that has temporal jurisdic- tion, so if a heretic be convicted of heresy, and recant, he may not be punished by the ecclesiastical law, as was resolved in 9 Jac. 1, in the case of Nicholas Fuller (u). (s) 1 Hawk. p. 7. (t) Gibs. p. 353 ; Legate's case, 2 lirownl. p. 41 ; 3 Inst. c. 5, p. 39; 12 Co. p. 93. (u) Gibs. p. 353; Fuller's case, 12 Co. p. 41. OFFENCES OF THE CLERGY. 845 3. As to contravention of the Thirty-nine Articles. By 13 Eliz. c. 12, s. 2, it is enacted that "If any person i3Eliz. c. 12, ecclesiastical, or which shall have ecclesiastical living, shall s- 2- advisedly maintain or affirm any doctrine directly contrary or Ec(?le9iastics repugnant to any of the said articles, and being convented doctrines before the bishop of the diocese or the ordinary or before the contrary to Queen's Highness commissioners in causes ecclesiastical shall g^aifbede- persist therein, or not revoke his error, or after such revocation prived. eftsoons affirm such untrue doctrine, such maintaining or affirm- ing and persisting or such eftsoons affirming shall be j ust cause to deprive such person of his ecclesiastical promotions ; and it shall be lawful to the bishop of the diocese or the ordinary, or the said commissioners to deprive such person so persisting, or lawfully convicted of such eftsoons affirming, and upon such sentence of deprivation pronounced, he shall be indeed de- prived. " The case of Polling v. Whiston (x), in 1712, is one of the most Felling v. remarkable cases of proceedings for contravention of the Thirty- Whiston. nine Articles in the last century. Since that time there has been the case of The King's Proctor The King's v. Stone {y) ; and since that numerous other cases. "stone * Y' In the case of The King's Proctor v. Stone, Lord Stowell said as follows : — " This offence is laid under the statute 13 Eliz. c. 12, ' for 1 advisedly maintaining or affirming doctrines directly contrary ' or repugnant to the articles of religion.' These articles are not the work of a dark age (as it has been represented) ; they are the production of men eminent for their erudition, and attach- ment to the purity of true religion. They were framed by the chief luminaries of the reformed church, with great care, in con- vocation, as containing fundamental truths deducible, in their judgment, from Scripture ; and the legislature has adopted and established them, as the doctrines of our church, down to the present time. " The purpose for which these articles were designed, is stated to be ' the avoiding the diversities of opinions, and the establish- 1 ing of consent touching true religion.' It is quite repugnant, therefore, to this intention, and to all rational interpretation to contend, as we have heard this day, that the construction of the articles should be left to the private persuasion of individuals, and that every one should be at liberty to preach doctrines con- trary to those, which the wisdom of the state, aided and instructed by the wisdom of the church, had adopted. It is the idlest of all conceits, that this is an obsolete act ; it is in daily use, ' viridi observant id' and as much in force as any in the whole statute book, and repeatedly recommended to our attention by the (x) 1 Com. p. 199; S. C. Winston's Gibs. p. 1007 ; Brodrick and Fre- case, published by himself, p. 147 ; mantle, p. 318. {>j) 1 Consist, p. 424. 3k2 846 DISCIPLINE OF THE CHURCH. injunctions of almost every Sovereign who has held the sceptre of these Realms. It is no business of mine, in this place, to vindicate the policy of any legislative act, but to enforce the observance of it. I cannot omit, however, to observe, that it is essential to the nature of every establishment, and necessary for the preservation of the interests of the Laity, as well as of the Clergy, that the preaching diversity of opinions shall not be fed out of the appointments of the Established Church ; since the Church itself would otherwise be overwhelmed with the variety of opinion, which must, in the great mass of human character, arise out of the infirmity of our common nature. For this purpose, it has been deemed expedient to the best interests of Christianity, that there should be an appointed liturgy, to which the offices of public worship should conform ; and as to preach- ing, that it should be according to those doctrines which the State has adopted, as the rational expositions of the Christian faith. It is of the utmost importance that this system should be maintained. For what would be the state and condition of public worship, if every man was at liberty to preach, from the pulpit of the Church, whatever doctrines he may think proper to hold? Miserable would be the condition of the laity if any such pretension could be maintained by the clergy. " It is said, that Scripture alone is sufficient. But though the clergy of the Church of England have been always eminently distinguished for their learning and piety, there may yet be, in such a number of persons, weak and imprudent and fanciful individuals. And what would be the condition of the Church, if such person might preach whatever doctrine he thinks proper to maintain ? As the law now is, every one goes to his paro- chial Church, with a certainty of not feeling any of his solemn opinions offended. If any person dissents, a remedy is provided by the mild and wise spirit of toleration which has prevailed in modern times, and which allows that he should join himself to persons of persuasions similar to his own. But that any Clergy- man should assume the liberty of inculcating his own private opinions, in direct opposition to the doctrines of the Established Church, in a place set apart for its own public worship, is not more contrary to the nature of a National Church than to all honest and rational conduct. Nor is this restraint inconsistent with Christian liberty ; for to what purpose is it directed, but to ensure, in the Established Church, that uniformity which tends to edification ; leaving individuals to go elsewhere according to the private persuasions they may entertain ? It is, therefore, a restraint essential to the security of the Church, and it would be a gross contradiction to its fundamental purpose to say, that it is liable to the reproach of persecution, if it does not pay its ministers for maintaining . doctrines contrary to its own. I think myself bound at the same time to declare, that it is not the duty nor inclination of this court to be minute and rigid in applying proceedings of this nature, and that if any article is OFFENCES OF THE CLERGY. really a subject of dubious interpretation, it would be highly improper, that this court should fix on one meaning, and prose- cute all those who hold a contrary opinion regarding its inter- pretation. It is a very different thing, where the authority of the articles is totally eluded, and the party deliberately declares the intention of teaching doctrines contrary to them." In the case of Hodgson v. Oakeley, in 1845 (s), an unbeneficed Hodgson clergyman being proceeded against under the general ecclesias- 0aJceleiJ- tical law for " maintaining and affirming, contrary to the true usual literal meaning of the Articles of the Established Church, all Roman doctrine," and being convicted thereof, was inhibited from performing any ministerial duty whatever, within the province of Canterbury, until he should retract his errors. It was holden, as the offence charged was for maintaining and affirming all Roman doctrine, not to be necessary to specify in the articles any doctrine in particular. In the case of Heath v. Burder, in 1862 (ex v. Lewis. against a clergyman for perjury at his admission to a living, upon an affidavit that the presentation was simoniacal. But the court refused to grant it till he had been convicted of the simony. To a declaration by A., an incoming, against B., an outgoing, Not simony to incumbent, for dilapidations to the rectory house and premises, contract on an B. pleaded that A., being rector of C, and B. incumbent of D., benefice?that it was agreed between them, with the consent of their respective there shall be patrons and diocesans, that they should exchange their respective 110 claim for livings, and "that A. should not call upon B. to pay for the dllHPldatlons- repairs in the declaration mentioned, or for any or either of them : " — the court held, upon motion for judgment non obstante veredicto on this plea, that it did not necessarily disclose a simoniacal contract : and that the court was bound to put the same construction upon the plea when brought before it on demurrer (o) . This case seems to have set at rest the doubt ex- pressed by the court in the earlier case of Downes v. Craig ( p). In the later case of Wright v. Davis (q), the plaintiff and Wright v. defendant, both incumbents, agreed to exchange benefices in I)avis- their then state and condition without any payment for dilapida- tions being made on either side. The Common Pleas Division and the Court of Appeal held that such an agreement was not simoniacal nor illegal. This case arose since The Ecclesiastical Dilapidations Act, 1871. A contract by the owner of the advowson of a rectory, such Not simony owner not being the incumbent of the rectory, for the sale of f°r seller of , * advowson not (0 Gibs. p. 802. (o) Goldham v. Edwards (1855), (m) This new Canon is given at 16 C. B. p. 437 ; 17 ib. p. 141. length at p. 351. (p) 9 M. & W. p. 166. ^ (n) Stra. p. 69 ; vide supra, p. (?) 1 C. P. D. p. 638. 835. P. VOL. IT. 3 L 860 DISCIPLINE OF THE CHURCH. being incum- bent to con- tract for payment of interest till avoidance. By 31 Eliz c. 6. Simoniacal the advowson, with a stipulation for the payment by him to the purchaser of interest on the purchase-money until a vacancy, is not simoniacal ; and the specific performance of such a contract was accordingly decreed (r) . 2. By 31 Eliz. c. 6, and herein as to Eesignation Bonds. By 31 Eliz. c. 6, s. 4 (s), "For the avoiding of simony and corruption in presentations, collations and donations of and to benefices dignities prebends and other livings and promotions ecclesiastical, and in admissions institutions and inductions to the same," it is enacted, "If any person or persons, bodies voideUtatl0riS Pon^ic and corporate, shall or do ... . for any sum of money, reward gift profit or benefit 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, present or collate any person to any benefice with cure of souls dignity prebend or living ecclesiastical or give or bestow the same for or in respect of any such corrupt cause or consideration, that then every such presentation collation gift and bestowing, and every admission institution investiture and induction thereupon, shall be utterly void frustrate and of none effect in law ; and then it shall and may be lawful for the queen's majesty, her heirs and successors, to present collate unto or give or bestow, every such benefice dignity prebend and living ecclesiastical for that one time or turn only; and that all and every person or persons bodies politic and corporate, that shall give or take any such sum of money reward gift or benefit directly or indirectly, or that shall take or make any such promise grant bond covenant or other assurance, shall forfeit and lose the double value of one year's profit of every such benefice dignity prebend and living ecclesiastical; and the person so corruptly taking pro- curing seeking or accepting any such benefice dignity prebend or living, shall thereupon and from thenceforth be adjudged a disabled person in law to have or enjoy the same benefice dignity prebend or living ecclesiastical" (t). Sect. 5. "If any person shall . . . . for any sum of money, reward gift profit or commodity whatsoever directly or in- directly (other than for usual and lawful fees), or for or by reason of any promise agreement grant covenant bond or other assurance of or for any sum of money reward gift profit or benefit whatsoever, directly or indirectly, admit institute instal induct invest or place any person in or to any benefice with cure of souls dignity prebend or other ecclesiastical Corrupt institution. (r) Hweeei v. Meredith (18G2), 6 Giff. p. 310; 31 L. J., N. S. (Ch.) p. 817. (•$) See the remarks of Lord Mansfield and Wilmot, J., on the public utility of the statutes forbid- ding simony : Bp. of Lincoln v. Wolforstan, 3 Burr. p. 1504. (t) See 3 Inst. p. 153; Winch- combe v. Bp. of Winchester, Hob. p. 1G5. OFFENCES OF THE CLERGY. 861 living, that then every such person so offending shall forfeit and lose the double value of one year's profit of every such benefice dignity prebend and living ecclesiastical ; and that thereupon immediately from and after the investing installation or induc- tion thereof had, the same benefice dignity prebend and living ecclesiastical shall be eftsoons merely void, and that the patron or person to whom the advowson gift presentation or collation shall by law appertain, shall and may by virtue of this act present or collate unto give and dispose of the same benefice, dignity prebend or living ecclesiastical, in such sort to all intents and purposes as if the party so admitted instituted, installed invested inducted or placed, had been or were natu- rally dead." Sect. 6. " Provided always, that no title to confer or present by lapse shall accrue upon any avoidance mentioned in this act, but after six months next after notice given of such avoidance by the ordinary to the patron." Sect. 7. "If any incumbent of any benefice with cure of souls Corrupt do or shall corruptly resign («) or exchange the same, or cor- resignation, ruptly take for or in respect of the resigning or exchanging the same, directly or indirectly, any pension sum of money or benefit whatsoever that then, as well the giver as the taker of any such pension sum of money or other benefit corruptly, shall lose double the value of the sum so given taken or had ; the one moiety as well thereof, as of the forfeiture of the double value of one year's profit before mentioned, to be to the queen's majesty, her heirs and successors, and the other to him or them that will sue for the same .... in any of her majesty's courts of record." Sect. 8. " Provided always, that this act, or any thing therein This act not contained, shall not in anywise extend to take away or restrain to affect any punishment, pain or penalty limited, prescribed or instituted e^e^ltical by the laws ecclesiastical, for any of the offences before in this court, act mentioned ; but that the same shall remain in force, and may be put in due execution, as it might be before the making of this act ; this act or anything therein contained to the con- trary thereof in anywise notwithstanding." Sect. 9. "If any person or persons whatsoever shall or do Corrupt .... receive or take any money fee or reward or any other ordination, profit, directly or indirectly, or shall take any promise agree- ment covenant bond or other assurance, to receive or have any money fee reward or any other profit, directly or indirectly, either to himself or themselves, or to any other of their or any of their friends (all ordinary and lawful fees only excepted) , for or to procure the ordaining or making of any minister or ministers (a?), or giving of any orders, or licence or licences to (u) Young v. Jones, E. T. 1782, et vide supra, p. 388. 4 Black. Com. p. 62, ed. Christian, (x) See Kircudbright v. Kircud- n. 8. See Reichel v. Bp. of Oxford, bright, 8 Yes. p. 53. 35 Ch. D. p. 48 ; 14 App. Oa. p. 259, 3l2 862 DISCIPLINE OF THE CHURCH. Simony is i:i fact men tioned in this act. preach, that then every person or persons so offending shall for every such offence forfeit and lose the sum of 40/ and the party so corruptly ordained or made minister, or taking orders, shall forfeit the sum of 10/. And if at any time within seven years next after such corrupt entering into the ministry or receiving of orders, he shall accept or take any benefice living or promotion ecclesiastical, that then immediately from and after the induction investing or installation thereof or thereunto had, the same shall he eftsoons merely void." The clause goes on to provide that the patron shall present as if the party had been naturally dead, and that one moiety of the for- feitures shall be to the queen, and the other to him that will sue in any of her majesty's courts of record. For avoiding of Simony. ,] — Almost all the authors who have treated of this subject, and even the learned judges in deliver- ing their resolutions in cases of simony, have asserted that there is no word of simony in this act ; and from thence a conclusion had been drawn in favour of the ecclesiastical jurisdiction, that the temporal courts have nothing to do with simony as such, or to define what shall be deemed simony and what not, but only to take cognizance of the particular corrupt contracts therein specified. Which consequence, although deducible perhaps from other premises, yet does not follow from the aforesaid observa- tion ; for it is plain here is the word simony ; and the mistake seems to have happened from this short preamble being inad- vertently printed at the end of the foregoing section, treating entirely of a different subject, so as to have been overlooked by the first person who made the observation, whom others have followed without examination. Donations.'] — For the like reason only (as it seems) a doubt was made in the case of Bawderock v. Machallar (y), in 2 Car. 1, whether this statute extends to donatives. Usurpations. If any Person or Persons.'] — If one who has no right, present by usurpation, and does it by reason of any corrupt contract or agreement, that presentation and the induction thereupon are hereby void ; for this statute extends to all patrons, as well by wrong as by right. In like manner, if when a church is void, the void turn is purchased, although the grant of a void turn, as being a thing in action, is of itself void, and the purchaser's presentee comes in quasi per usurpationem ; yet because it is by means of a simoniacal contract, it is as much simony as if the grant had not been void (%). Sale of next That the sale of a next presentation, the church being void, is or of advow- simoniacal, is a confirmed maxim of the common law (a) . If a Donatives. (y) Cro. Car. p. 330. (a) 1 Inst. p. 120; 3 Inst. p. 153; Baker v. Rogers, Cro. Eliz. p. 788. (a) Per Lord Ilardwicke, in Grey v. Uesketh, Amb. p. 268; Bp. of Lincoln v. Wolforstan, 1 Ittack. W. p. 490; 8. C, nom. WoJforstany.Bp. of Lincoln, 2 Wils. p. 174 ; S. C. 3 Burr. p. 1512; Leak v. Bp. of Coven- try, Cro. Eliz. p. 811, from which ca ses it would appear that if a patron sells the fee simple of an advowson after the avoidance, neither he nor his vendee can have a quare im- OFFENCES OF THE CLERGY. 8F3 benefice be sold while an action is pending for removing the son, church clerk of a person who has usurped the right of patronage, and hemS v0ld- such action be successful, the sale is simoniacal, for the church was never full of the clerk of the usurper (b). And it was holden by the Exchequer Chamber, reversing the decision of the Court of Queen's Bench, that the sale of the advowson of a living, the incumbency whereof was then voidable under the old law against pluralities, did not pass that presentation (c). But it is always now holden, that the sale of the next presentation of a living, the church being full, is valid, except where a clergy- man is the purchaser {(!.). It was formerly supposed that if the incumbent be in a dying As long as _ state, the sale was simoniacal (e) ; but the decision of the House ^{^g^f 1S of Lords in the case of Fo.r v. The Bishop of Chester (y) (reversing of next that of the Court of King's Bench (7/) ), established that such sale presentation is valid while the incumbent is alive and the church full. Chief *° ya^Jman Justice Best delivered the opinion of the judges in this important case, and the following extracts are made from the opinion : — " My lords, the question which your lordships have been pleased to put to the judges in this case is, ' Whether, upon the whole of the matters stated or referred to in the special verdict, the right to present to the rectory or parish church of AVilmslow, upon the death of the Reverend Joseph Bradshaw, was by law vested in Edward Vigor Eox, the plaintiff in error.' The judges who heard the argument at your lordships' bar are unanimously of opinion, that upon the whole matters stated or referred to in the special verdict, the right to present to the rectory or parish church of Wilmslow, upon the death of the Reverend Joseph Bradshaw, was by law vested in Edward Vigor Fox, the plaintiff in error " . . . . The church, in the present case, was full ; no clergy- man was privy to the agreement; and the living was not intended by the plaintiff in error, at the time he bought the presentation, for the clerk that he afterwards presented. But I would observe, that persons have recovered who appeared to be dying. The special verdict only states that the incumbent, at the time of the sale, was afflicted with a mortal disease, so that he was then in extreme danger of his life ; and his life was thereby greatly dispaired of ; and that he was so afflicted with such mortal disease, and in extreme danger of his life, and his life was and continued to be greatly dispaired of until his death, which happened at half -past eleven at night of the day on which pedit. Yide supra, p. 271 and ibid. (e) Smith v. Shclbourn, Cro. Eliz. note(?/); et vide Fox v. Bp. of p. 685 ; Winchcombe v. Bp. of Win- Chester, 6 Bing. p. 10. Chester, Hob. p. 165 ; Smith v. Sher- (b) Walker v. Hamersley, Skin. hone, Mo. p. 916. See Barret v. p. 90. Glubb, 2 Black. W. p. 1052 ; 19 (c) Alston y. Atlay, 7 A. & E. Vin. Abr. p. 458. pp. 289, 311 ; 6 Nev. & M. p. 686. (/) 6 Bing. p. 16. (d) Vide supra, p. 271, infra, p. (. As to visiting the Sick — Canon 67 (»). As to the Holy Communion — Canons 26, 27, 28, 71 (o). As to the Spiritual Discipline of his Flock — Canons 65, 66, 113, 114, 115 (p). As to the Observance of Sundays, Holydays and Fasts, etc.— Canons 13, 14, 15, 64, 72 (q). D. Restraints on unauthorized Action — Canons 72, 73 (r). E. Against serving a plurality of Churches in one Day — Canon 48, and 1 & 2 Vict. c. 106, s. 106 (s). F. Against officiating in private houses — Canon 71 (t). Officiating in private nouses. On this last-mentioned canon, and on the cognate subject of officiating ministering in the parish without the proper authority, there without have been several decisions. There is, indeed, no general autnorlty- principle of ecclesiastical law more firmly established than this : ^cumDen^in that it is not competent to any clergyman to officiate in any this respect, church or chapel within the limits of a parish without the con- how vindi- sent of the incumbent. ca e ' The leading cases on this cardinal point of ecclesiastical law, are: Keate v. The Bishop of London {u), reported as Trebec v. {d) They are treated of in detail in other parts of this work, to which the particular subjects which they embrace belong. U) Pp. 247, 423, supra. (/) Pp. 523, 746, 787, 788, supra. (g) Pp. 840, 841, supra. (h) Pp. 423, 788, supra. See, too, Bp. of Down and Connor v. Miller, 11 Ir. Ch. App. i., and 5 L. T. p. 30. (/) Page 512, supra. {k) Page 516, supra. P. VOL. II. (I) Pp. 496, 599, 623, 630, supra. (m) Pp. 487, 491, 496, 669, supra. (n) Page 648, supra. (o) Pp. 521, 522, 523, 528, supra. (p) Pp. 542, 831, supra. Part IV., Chap. XL, Sect. III., infra. (q) Pp. 762, 794, 806, 808, supra. Ir) Pp. 806, 853, supra. (s) Pp. 247, 431, supra. (t) Page 523, supra. (u) Serj. Hill's MSS. Vide supra, p. 250. 3 0 908 DISCIPLINE OF THE CHURCH. Keith (a?) ; The Duke of Portland v. Bingham (y) ; Carr v. Marsh (z) ; Moysey v. Hillcoat (a) ; Bliss v. Woods (b) ; Williams v. Brown (e) ; Hodgson v. Billon (d); Jones v. Jeff(c)\ Molyneux v. Bdgshaw (/) ; and Richards v. Fincher (■). However, this equity of granting for life amounts to no more As to grants than for one life ; and therefore where a bishop grants an office ^fe™^® for two or more lives, it must be upon the foot of custom, that one> is, because such patent has usually been for two or more lives, and had been so granted before the present act was made (s). The same is the law, and the reason of it, concerning grants As to grants of offices in reversion (that is, to have and enjoy such office, after m reversion, the death of the present grantee, for life) ; for there can be no pretence, that such second grant is necessary, or for the advantage of the bishopric ; and therefore nothing can make it legal but custom, and particularly instances, or an instance, of such grant before the making of the statute (t). But to the end that unquestionable grants of ancient esta- What makes blished offices may be good against the successor of a bishop ; &rant g°od- they must, in the first place, be grants of one office singly ; for two offices, which have been usually granted apart, cannot be granted by one patent, though to the same person : and, in the next place, they must be confirmed by the dean and chapter (though they be but for one life), because they are grants at common law and not warranted by this statute ; and must therefore pass as they usually did at common law before this statute (u). According to the usual course, as stated in Lord Mansfield's Confirmation judgment about to be given, the person appointed chancellor bF dean and or official obtains the confirmation of the bishop's grant by the 0 ap er' dean and chapter. His office then becomes a freehold for life. And if the office be ancient, its necessity is not material. Thus Trelawney v. in the case of Sir John Trelawney v. The Bishop of Winchester The BlshoP °f (30 Geo. 2) (*), Lord Mansfield, Chief Justice, delivered the Wwehester- (r) 1 Inst. p. 44 ; Bp. of Salis- bury's case, 10 Co. p. 61. (s) Gibs. pp. 735, 982; Jones v. Beau, 4 Mod. p. 16 ; Walker v. Sir John Lamb, Cro. Car. p. 258. (t) Gibs. p. 735 ; Young v. Fowler, Cro. Car. p. 555 ; Bp. of Salisbury's case, 10 Co. p. 62; and see 1 Inst. 3 b, note 5 ; Wilhughby v. Foster, Dyer, p. 80. (u) Gibs. p. 735; Scambler v. Waters, Cro. Eliz. p. 636; Bp. of Chichester v. Freedland, Cro. Car. p. 50. (x) Reported 1 Burr. p. 219, and Wilinot, p. 276. But the j udgnient 918 DISCIPLINE OF THE CHURCH. resolution of the court : — " The plaintiff brings his action of debt to recover 500/., being for five years' arrears of a salary of 100/. a year, for executing the office of ' great and chief steward of the bishop, and of conductor tcnentium of the bishop,' and as a fee annexed to those two offices. " This comes before the court upon a special verdict, the material facts of which are, that these offices are ancient offices, and existed before the statute of 1 Eliz. c. 19, and that they have been granted in the usual manner, and with the ancient fee ; that Bishop Trelawny by indenture granted this office to the plaintiff, his eldest son, for life ; that the dean and chapter confirmed this grant ; that every bishop since hath paid to the plaintiff this fee of 100/. a year, and that the defendant paid it for eleven years after he came to the bishopric ; and that this action is brought for five years accrued since : but the jury further find, that these several offices, at the time of making the said statute, were, and ever since have been, and still are, offices merely nominal; and that no duty, service, work or labour, attendance or business, ever was or is done in respect of these offices, as the defendant hath in his plea alleged. " This is the only doubt which the jury have, and upon this fact the whole question depends. " This case hath been argued several times, and we are all of the opinion which I shall now give. " At common law the bishop, with the confirmation of the dean and chapter, might exercise every act of ownership over the revenue of the see, and might bind his successors in the same manner as every tenant in fee might bind his heirs. The statute was made in restraint of this power. But patents or grants of offices, with the fees or the privileges annexed to them, are not mentioned therein ; nor are there any general words adapted to the case of offices. And yet there were not any bishoprics in the kingdom at that time, but what had some ancient offices annexed to them granted by the bishop. Had the legislature meant to restrain the granting of these offices, there must have been a special provision in the statute ; and as the general restraint is not extended to offices, there was no reason to make the excep- tion. Their continuing ancient offices was no injury or dilapi- dation to the bishopric. They brought no new charge upon the successor; and he accepted the bishopric charged with these offices as his predecessor had done, and the office and bishop continued subject to the same ancient fee. " The act had no retrospect. It was made on the 23rd of January in the 1 Eliz. The Bishop of Ely' 's case, H., 10 Eliz. (y), proves that the statute doth not extend to the grant of an office : where an annuity was recovered against the successor, upon the as here given differs in the wording p. 241.) For this reason it has been in some respects, and was probably preserved in full, taken by Dr. Burn from a MS. (y) Ley, p. 78, report. (See Burn, ed. 1781, Vol. 2, THE ECCLESIASTICAL COURTS. grant of the keeping of the bishop's house in Holborn, with the fee of 3/. : which grant was made after the beginning of the parliament, to which the act hath reference, to wit, on the 20 th of April in the first of Eliz. This was a grant of a new office with a new fee, made the very year the act took place ; and yet was held to be good, as not being restrained by the statute. It was extraordinary, if it was thought that the office of taking care of a house was necessary ; it was also extraordinary, to hold the fee of 3/. a year a reasonable fee, which considering the value of money at that time would amount to 30/. a year now ; and as extraordinary, as it was the grant of an office which never subsisted before : but the true ground was, the court did not think the grant of such offices within the statute (z). " T., 30 Eliz., Bolton's case (a). When the Bishop of Chester, after the said statute, granted to Bolton an annuity of five marks for counsel given and to be given, which was confirmed by the dean and chapter, the bishop died, and Bolton brought a writ of annuity against the successor ; the plaintiff had no judgment ; but the reason of that case was not that the office was within the statute, but that it was no office at all, but a voluntary thing to make election of one man to be his counsel, and that the grant of the salary was an alienation of the revenue of the bishopric. " In the case of The Archbishop of Canterbury, 43 Eliz. (b), the true distinction is taken : the archbishop granted the office of surveyor, with the ancient fee, to a parker : and further he granted to him pasture for two horses in a park : and the whole grant was adjudged void. This judgment was grounded upon the new addition made to the ancient fee. " The statute of 1 Jac. 1, c. 3, extends this same restraint to the king, which by the 1 Eliz. c. 19, was laid upon the subject. Yet the legislature did not interpose then in this case of grant- ing ancient offices ; and therefore we may presume they were satisfied that the bishop should continue to have this power. " The Bishoj) of Salisbury's case (c) came next in point of time. " From the 10 Eliz. to this day, no grant of a new office by a bishop with a new fee has been held good. Such a grant is within the 1 Eliz. c. 19, by construction ; for it is a colourable alienation. But a grant of an ancient office with an ancient fee is not within that statute, but remains at common law. And if such a grant is not within the statute, but stands as at common law, the utility or necessity of the office cannot be material. And there is no case since the 10 Eliz. that has turned upon these : the only questions have been, whether the grants were within the statute. t (2) But see on this Bp. Gibson's p. 60. view, Gibs. p. 735. (b) Cited Ley, p. To. (a) Cited Ley, p. 75 ; 10 Co. (r) 10 Co. p. 58. 920 DISCIPLINE OF THE CHURCH. " In the said case of the Bishop of Salisbury, it is not alleged in the pleadings, that the office was necessary. The fifth reso- lution in this case (d) is very material : Resolved, that the grant of an ancient office to one with an ancient fee, by a bishop, shall not bind his successor, unless confirmed by the dean and chapter : for such grants are not restrained by the statute of the 1 Eliz. c. 19, and therefore remain as at the common law, and by con- sequence ought to be confirmed by the dean and chapter. " If such grants remain as at the common law, the necessity of the office cannot be material. "In the case of The Bishop of Chichester and Freed land (e) , there were no allegations in the pleadings, whether the offices were necessary or not. "In the case of Young and Fowler, 14 Car. (/). Upon a special verdict, the jury do not find that the office (of register) was a necessary office : the question turned upon the grant in reversion. " Thus stood the construction, upon the reason, the words, and the practice of making these grants, until the 14 Car. " But besides the real ground upon which the case in 10 Co. 60, was determined, the counsel ex abundanti laboured to prove that the office was necessary ; but the arguments are so confused and inconsistent, that it is difficult to understand them. " In real truth, few of these offices (except judicial ones) are useful or necessary in any respect. None of them can be granted in reversion, unless they existed before the 1 Eliz., and then they remain as at common law ; and, however unnecessary they were, will bind the successor. " The case of Ridley and Poivnal, 27 Car. 2 (g), is the first case wherein it appeared to the court judicially that the office was necessary. But my Lord Hale, who understood what he read, and clearly distinguished, made no distinction upon the necessity of the office. " In the case of Jones and Beau (h), the issue out of chancery was, whether the office had been granted to two before the statute of the 1 Eliz. c. 19, but there is not a word whether necessary or not. " The present office is found never to have been more useful than at present; and yet the predecessors of the bishop have thought the grants of it valid, and have granted it to some of the greatest men in the kingdom, who accepted (t) it as valid ; and the succeeding bishops acquiesced, until the present bishop conceived a doubt thereupon. (d) 10 Co. p. 62. (e) Cro. Car. p. 47. (/) Cro. Car. p. 557. (g) 2 Lev. p. 136. h) 4 Mod. p. 16. (i) Sir John's grant was, to hold in as ample a manner as Eichard, Earl of Portland, Thomas Cary, George, Duke of Buckingham, Charles, Earl of Nottingham, Thomas, Duke of Norfolk, Philip, Earl of Pembroke and Montgomery, James, Duke of Ormond, or Henry, Earl of Clarendon, had holden : 1 Burr. p. 225. THE ECCLESIASTICAL COURTS. 921 " Upon the whole, we are unanimously of opinion : First, this being an ancient office, which existed before the statute, that it is not within it. And, secondly, that the utility or necessity of the office are not material : and this opinion we think agreeable to every judicial determination since the making of the said statute.' ' In the above cited case of Jones v. Beau, or Jones v. Beio (A-), Grant of or Jones v. Pugh (/), as it is more probably called, the grant of °eneral the office of vicar general to two was held good. t0 two. By Can. 125 of 1603, " All chancellors, commissaries, arch- Canon 125. deacons, officials, and all other exercising ecclesiastical jurisdic- Courts where tion, shall appoint such meet places for the keeping of their to be keP*- courts, by the assignment or approbation of the bishop of the diocese, as shall be convenient for entertainment 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." Approbation of the Bishop.'] — This is agreeable to the rule of the ancient canon law (m) . In The Bishop of St. David's v. Lucy it was alleged against the proceedings of the archbishop, that the bishop was cited to Lambeth before the archbishop himself, and not to the Court of Arches, upon which it was declared by the Court of King's Bench, that the archbishop may hold his court where he pleases, and may convene before himself, and sit judge himself ; and so may any other bishop ; for the power of a chancellor or vicar general is only delegated in case of the bishop (n). A constitution of Otho enjoins as follows : — " We do ordain, that archbishops, bishops and their officials, Seal of court, abbots, priors, deans, archdeacons and their officials, and deans rural, as also chancellors of cathedral churches, and all other colleges whatsoever, and convents either jointly with their rector or severally (according to their custom or statutes) shall have a seal, on which seal shall be engraved their several distinctions ; as the name of their dignity, office or college ; also their proper name (if it be an office perpetual), and so it shall be esteemed an authentic seal : but if the office is not perpetual, as that of rural deans and officials, then the seal shall have engraved upon it only the name of office ; and at the expiration of their office, they shall immediately and without difficulty resign it to those from whom they received the office " (o). By Can. 124, " No chancellor, commissary, archdeacon, Canon 124. 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 (h) Garth, p. 213. {n) 1 Salk. p. 134. Vide supra, (I) 2 Salk. p. 465 ; Gibs. p. 983. pp. 67—71. (m) Gibs. p. 1001. (o) Otho. Athon, pp. 67, 69. 922 DISCIPLINE OF THE CHURCH. exercising jurisdiction for him, and remaining within the juris- diction 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 " (p). Provincial The existing ecclesiastical courts are : First, the Courts of the Courts. Primates or Provincial Courts, being, in the province of Canter- bury, the Court of Arches or Supreme Ecclesiastical Court of Appeal ; the Court of the Yicar General, wherein bishops of the province are confirmed ; the Court of the Master of the Faculties, wherein cases relating to notaries public are heard ; the Court of Audience, and the Court of the Commissary of the Arch- bishop, which has jurisdiction over the diocese of the Archbishop, from which an appeal lies to the Court of Arches (q) . In the province of York, the Supreme Court, called the Chancery Court, the Consistory Court, and the Court of Audi- ence (r). Court of In these Courts of Audience the primates once exercised a Audience. considerable part of their jurisdiction. Sir Robert Phillimore, in the first edition of this work, added : " They are now I think obsolete, or at least only used on the rare occurrence of the trial of a bishop, as in the case of the Bishop of St. David's, deprived by the Archbishop of Canterbury in 1695 (s). But in this case the primate appears to have adopted the forms, procedure, seal and sentence of the Arches Court, and to have been attended by six bishops and by the judge of that court as his assessor. It has been supposed that a criminal suit against a bishop may be instituted in the Court of Arches. The late Archbishop Longley seems to have been of this opinion, which is perhaps counte- nanced by the language of the Provincial Constitutions cited by Oughton (t) and other writers ; but I am not aware of any such suit having been ever instituted. In Ireland a bishop has been deprived by a suit in the court of the archbishop brought ex officio promoto of his grace, not by a private person" (m). Since this passage was written this matter came up for dis- cussion in Read v. The Bishop of Lincoln (x). In the course of that case it was admitted by the counsel for the promoter, and stated by the archbishop, that the court then held, was not the Court of Audience. (p) A precedent of an indict- ment for counterfeiting the seal of the Arches Court, or (?) of the vicar general of the archbishop is given in ' ' Practick Part of the Office of a Justice of the Peace." (q) Aughtie v. Aughtie, 1 Phillim. p. 201 ; Fagg v. Lee, L. E., 4 Adm. & Eccl. p. i 35. So in France an appeal lay from the official of an Archbishop qua Bishop to his official qua Archbishop : and if the Arch- bishop were a Primate to a third official whom he had qua Primate : Fournier, Les Officialites au Moyen Age, p. 219. (r) As to the effect on these Courts of the Public Worship Regulation Act, vide infra, Part IY. Chap. IX. (s) Vide supra, pp. 67 — 71. \t) Vide infra, p. 924. (u) Vide supra, p. 74. [x) L. E., 14 P. D. p. 88. Vide supra, p. 73. THE ECCLESIASTICAL COURTS. 923 The Court of Audience, therefore, as has been already said, has fallen into desuetude. It was, however, distinct from the Court of Arches (y). The celebrated Zouch wrote in 1636 as follows : — " Inter Curias vero Archiepiscopi Cantuarensis primaria est Curia de Arcubus, ab Ecclesia arcuata quae Londini Beatse Yirgini Marioe dicata est, denominata ; cujus judex Decanus de Arcubus insignitur : Post earn Curia Auclientioe in Ecclesia Beati Pauli Londini habetur : qua3 etsi aaqualis sit jurisdictionis, inferior tamen cum antiquitate turn dignitate existimatur : ej usque judex causarum negotiorumque audientise Cantuarensis auditor seu officialis dicitur " (s). But Oughton, called by Lord Stowell " one of the oracles of our practice," writing in 1728 (a), "De Curia (olim) Audientiaa Cantuarensis," ends by saying, " Nullus autem a plurimis abhinc retroactis annis extitit Audientiaa Judex : utpote Forensis. Hoec itaque Curia Audientise Cantuarensis omnino jamdudum exolevit : Nisi quatenus Ipse (nonnunquam) Archiepiscopus in arduis (utputa deponendis Episcopis (b) aut similibus) audientiam suam celebrat in propria Persona et proprio in Palatio cum Auditore speciali, sive Auditoribus ad hoc specialiter constitutis, pro ista vice una secum assidentibus." Mr. Johnson says : " . . . the Archbishop of Canterbury had formerly his Court of Audience, in which at first were dis- jmtchecl all such matters, whether voluntary or contentious, as the archbishop thought fit to reserve for his own hearing. They who prepared evidence and other materials to lay before the archbishop, in order to his decision, were called auditors. After- wards this court was removed from the archbishop's palace, and the jurisdiction of it was exercised by the master or official of the audience, who held his court in the consistory place at St. Paul's. But these three great offices [of official principal of the archbishop, dean or judge of the peculiars and official of the audience] are and have been for a long time past united in one person, who keeps his court in Doctors' Commons Hall." (y) As to this distinction, see Statuta et Ordinationes Eev. in Christo, &c. W. Warham Archiep. Cantuar. in Curia Audientice apud Lambeth, edita, &c. "Imprimis Btatuimus quod nullus officium ad- vocati seu procuratoris in Cm- id Audieniice prcesuinat exercere nisi prius merit in advocatum vel pro- curatorem in Curia Cantuarensi admissus." " Constitutio Officialis Cantuarensis Curiae. Consistorialis de Arcubus pro tribunali sedens : Decrevit et statuit, de assensu et voluntate omnium existentium in dicta curia a bse n te Deca n o de A rc u bus , quod ab illo die, &c." In this con- P. VOL. II, stitution, therefore, the judge of the Arches is spoken of as judge of the consistorial court of the Arches, and makes rules in the absence of the Dean of the Arches. These constitutions are printed at the end of Lindwood, p. 76. It has been suggested that the Court of Audience was the Court in -which the Arch- bishop in pre-reformation times exercised his jurisdiction as legatus natus. (z) Descriptio juris et judicii ecclesiastici. Pars. iii. s. 3, p. 40. (a) 1 Ought. Prolegomena, cap. iii. p. xv. (?>) Vide supra, p. 922. 3 p 924 DISCIPLINE OF THE CHURCH. Courts of two Provinces. Court of Arches. Patent of the Official Principal of the Arches Court. " The Archbishop of York hath in like manner his Court of Audience "(c). The Provincial Courts of the Archbishop of Canterbury and the Archbishop of York are independent of each other; the process of one province not running into the other, but being sent, by a requisition, to the local authority for execution. The appeal from each of the provincial courts lies to the crown, which now exercises its authority through the Judicial Committee of the Privy Council. The Arches Court exercises the appellate jurisdiction from each of the diocesan courts within the province. It may also take original cognizance of causes, by letters of request from each of those courts. As to the judge of the Court of Arches, Oughton says (d) : — « p01TOj ille officialis archiepiscopi principalis cum ipso archie- piscopo quoad jurisdictionem sequiparatur : Dicitur enim, eandem esse dignitatem, et idem auditorium officialis et episcopi : Et, in foro judiciali, parem esse officialem archiepiscopi, ipsi archie- piscopo : quodque officialis principalis habet idem consis- torium, cum ipso archiepiscopo, tarn in eis quaa competunt archiepiscopo, jure legati, quam in his quse competunt jure metropolitico : et nonnunquam, episcoporum ordinarium esse dicitur" (e). In fact, as Gibson observes, the dean was originally the judge of thirteen peculiar parishes in London which were under the jurisdiction of the Archbishop of Canterbury (/) : the Official Principal of the Archbishop being often absent as ambassador on the continent, the Dean of the Arches became his substitute, and gradually the two offices became blended together ; but the legal title in the patent of the judge of the Arches is Official Principal (g). The patent of Sir Robert Phillimore, as judge of the Arches Court, ran as follows : " Charles Thomas, by Divine Providence Lord Archbishop of Canterbury, Primate of all England, and Metropolitan : To our beloved in Christ Sir Robert Joseph Phillimore, Knight, Q.C., Doctor of Civil Law, health and grace. We, trusting in your sound doctrine, good morals, purity of conscience, and in your special fidelity, circumspection and industry, do for us and our successors, archbishops of Canterbury, give and grant and by these presents confirm to you during the term of your natural life the office of Official Principal of the Arches Court of Canter- bury, London, now vacant, with all and singular the fees, wages, profits, advantages and emoluments to the said office howsoever belonging and appertaining, due or to grow due, as well by law (c) Johns, p. 281. (d) 1 Ought. Prolegomena, cap. ii. p. xi. (e) Vide supra, p. 73, and Lind. p. 277. (/) Vide supra, p. 214; 10Geo.4, c. 53. ((/) Gibs. p. 1004. THE ECCLESIASTICAL COUKTS. 925 as by custom, in the like ample manner and form as the Right Honorable Stephen Lushington, Doctor of Laws, or any other official of the said court heretofore obtained or possessed, or might or ought to have exercised, possessed or enjoyed the said office. And we do, for us and our successors, nominate, con- stitute and appoint you the said Sir Robert Joseph Phillimore, Knight, Doctor of Civil Law, Official Principal of the Arches Court of Canterbury, London, aforesaid, during the term of your natural life, and that you may the better know how and in what manner you are to behave yourself in the exercise of the said office, according to what is from law and custom to be known, grant, enjoin and commit the said office and everything above granted to you the said Sir Robert Joseph Phillimore, and to your surrogate or dej)uty surrogates or deputies to be approved of by us and our successors during the term of your natural life as aforesaid in the tenor of the words following, to wit, to receive in due form of law all and every the appeals interposed or to be interposed to our Arches Court of Canterbury, and all and every the complaints by law or custom devolved or to be devolved to the said court, and also to take cognizance of and proceed in all and every such causes or businesses of appeal and complaint, and in all and singular the causes or businesses whatsoever now depending undecided, or hereafter to be brought and examined in our said court, and to do, exercise and administer plenary justice according to the exigency of the law and to the statutes of this kingdom of Great Britain to all and singular the parties in the said suits now or hereafter to be controverted, and also receive in due form of law all and singular the appeals interposed or to be interposed from our Dean of the Arches or his surro- gate, deputy or commissary, and from all others whomsoever interposed to the audience of us and our jurisdiction of our church of Christ, Canterbury (h)) and finally to determine the said causes of appeal according to law and the custom of the said Arches Court anciently used. And, also, all and singular other things to do, perform and expedite, which to the said office of Official Principal by law are known to belong, or which in and concerning the premises may be fit and necessary, though by the nature thereof it might require a more special mandate. We do for ourselves and our successors give and grant to you the said Sir Robert Joseph Phillimore our power and authority legally to inflict any ecclesiastical censures whatsoever, as also of surrogat- ing, deputing and constituting any other person or persons in your place and stead, he or they being approved of by us and our successors for the performance of all and singular the premises. And we do for ourselves and our successors by these presents ordain, appoint and constitute you the said Sir Robert Joseph Phillimore, Knight, Doctor of Civil Law, Official Prin- cipal of the Arches Court of Canterbury, during the term of (70 See Boyd v. Phillpotts, L. E., 4 Adm. & Eccl. p. 297. 3 p 2 926 DISCIPLINE OF THE CHURCH. your natural life as aforesaid. In testimony whereof we have hereunto caused our archiepiscopal seal to be put. Given at Lambeth Palace this first day of August, in the year of our Lord 1867, and in the fifth year of our translation. Stamp O 35s. " C. T. (seal) Cantuar." {Confirmation.) " And we, the Dean and Chapter of the Cathedral and Metro- political Church of Christ, Canterbury, do by these presents, so far as in us lies, ratify and approve, and by our authority con- firm the foregoing patent or grant of the office of Official Prin- cipal of the Arches Court of Canterbury, London, with all fees, profits and advantages thereof late enjoyed by the Right Honorable Stephen Lushington, Doctor of Laws, now granted by His Grace Charles Thomas Lord Archbishop of Canterbury to Sir Bobert Joseph Phillimore, Knight, Doctor of Laws, for the term of his natural life, in manner in the foregoing writing or patent mentioned. And all things contained and specified in the writing or patent hereunto annexed, as above specified and expressed, as they are in the said patent or writing recited, so far as we may we do by our authority ratify and confirm by these 23resents. In witness whereof we have hereunto set our common seal. Dated in the Chapter House of us the said Dean and Chapter, the seventeenth day of September, in the year of our Lord one thousand eight hundred and sixty-seven." (Dean and Chapter's seal.) Style of judge The style and title of the judge of the Chancery Court of Court? York (the Provincial Court or Court of Appeal for cases within the province) was " Granville Harcourt Yernon, Master of Arts, Yicar General and Official Principal of the Most Reverend Father in God William, by Divine Providence Lord Archbishop of York, Primate of England and Metropolitan, lawfully autho- rized." The style and title of the judge of the Consistory Court of York (the Court of the Diocese) was " Granville Harcourt Yernon, Master of Arts, Official Principal of the Consistory Court of York, lawfully authorized." The court in which the judge sits is described as " the Con- sistory place within the Cathedral and Metropolitical Church of Saint Peter in York" (i). Diocesan Next in order are to be mentioned the Diocesan Courts, being Courts. the Consistorial Court of each diocese, exercising general juris- diction ; and the Court or Courts of one or more Commissaries (?') An appeal lies from the eccle- marriages. See statute of tho Isle siastical court of the Isle of Man of Man, 37 Vict., "An Act to to tho court at York. The eccle- transfer the jurisdiction of the siastical court of the Isle of Man Archdeacon of the Isle of Man to still retains the old jurisdiction of the Episcopal Court," the ordinary as to testaments and THE ECCLESIASTICAL COURTS. 927 appointed by the bishop, in certain dioceses, to exercise general jurisdiction within prescribed limits. Next, the Courts of Archdeacons, or their Officials, exercising Courts of general or limited jurisdictions, according to the terms of their Archdeacons, patents, or to local custom, or to the authority given by 6 & 7 Will. 4, c. 77, s. 19. The Diocesan Courts take cognizance of all ecclesiastical Jurisdiction of matters arising locally within their respective limits (j). ArXdcacon't The Archdeacon's Court is subordinate, with an appeal to the Courts. Diocesan Court, 6 & 7 Will. 4, c. 77, enacts, by sect. 19, " that all archdeacons .... shall have and exercise full and equal jurisdiction within their respective archdeaconries." It is probable that, under this authority, it would be compe- tent to every archdeacon to appoint, as many do, an Official with power to exercise the functions incident to that office, and to receive fees as such officer, which otherwise would be receivable by the archdeacon (k). The jurisdictions called "Peculiars" (/), once nearly 300 in Peculiars, number, are practically abolished by recent legislation (m) . They were, for the most part, introduced by the Pope into this country, and seem to have had for their principal object the curtailment of the bishop's legitimate authority in his diocese (n), an object which they certainly attained, to the great confusion of ecclesiastical jurisdiction for many years (o). Some deans and chapters still preserve their " Officials " (who Officials of were formerly judges exercising, in a great measure, episcopal deans and jurisdiction), as legal advisers and assessors in matters affecting c ap ers' the interests of the chapter, and in some cases still possessing [j) The Ecclesiastical Courts in Jersey and Guernsey are established by canons of A.D. 1623, confirmed by royal charter. The court in each island consists of the dean, or his commissary, and certain asses- sors chosen from among the bene- ficed clergy. The appeal is to the Bishop of Winchester in person, or, sede vacante, to the Archbishop of Canterbury in person (Bean of Jersey v. Rector of , 3 Moo. P. C. 0. p. 229 ; Falle's Csesarea, or an Account of the Island of Jersey, Chap. YIL, p. 304). (k) Tide supra, p. 200. As to the archdeacon of Man, vide supra, p. 926, n. (i). (/) See Parham v. Templar, 3 Phillim. p. 223. (m) Yide supra, p. 215. (n) An exception, confirming the rule of exemption, was made in cases of heresy, which being de causis major ion s appertained to the bishop, or the dean and chapter during a vacancy, or an inquisitor specially appointed by the Pope : Lind. p. 296 ; De Heeret. gloss / on " Ordinarii," " Episcopi in suis dicecesibus qui habent ordinariam jurisdictionem circa non exemptos sure dioecesis. Circa exemptos vero in sua dicecesi existentes habent jurisdictionem delegatam a Papa." The official principal or vicar general of the bishop, Lindwood says, had no cognizance of this cause. (o) Can. 126 of 1603 records that at that date " deans, archdeacons, prebendaries, parsons, vicars and others exercising ecclesiastical j uris- diction, claim liberty to prove the last wills and testaments of persons deceased within their several juris- dictions, having no known or certain registrars, nor public places to keep their records in." 928 DISCIPLINE OF THE CHURCH. perhaps some small jurisdiction as to matters connected with the fabric and interior arrangements of the cathedral. Chancellor. The word chancellor, though mentioned in two statutes of Elizabeth, in the Canons of 1603, and in several modern statutes (>'), is not mentioned, as Bishop Gibson observes, in the commission, and but rarely in our ancient records ; but seems to have grown into use in imitation of the like title in the state ; inasmuch as the proper office of a chancellor, as such, was to be keeper of the seals of the archbishop or bishop, as appears from divers entries in the registry of the archbishops of Canter- bury^). ^ffi which are distinguished in the commission by the titles of official principal and vicar general. The proper work of an official is, to hear causes between party and party, and formerly concerning wills, legacies, marriages, and the like, which are matters of temporal cognizance, but have been granted to the ecclesiastical courts by the concessions of princes. The proper work of a vicar general is, the exercise and administration of jurisdiction purely spiritual, by the authority and under the direction of the bishop, as visitation, correction of manners, granting institutions, and the like, with a general inspection of men and things, in order to the preserving of discipline and good government in the church (t). And although these two offices have been ordinarily granted together, yet we find in the acts and records of the several sees frequent appointments of vicars general separately, upon occa- sional absences of the archbishops or bishops (u) . For, according to Gibson, the vicar general was an officer occasionally constituted, when the bishop was called out of the diocese, by foreign embassies, or attendances in parliament, or other affairs whether public or private ; and being the repre- sentative of the bishop for that time, his commission contained in it all that power and jurisdiction which still rested in the bishop notwithstanding the appointment of an official, that is, the whole administration except the hearing of causes in the Consistory Court (x). Br. Sutton's In the second year of King Charles I., Dr. Sutton, chancellor case' of Gloucester, was sued before the high commissioners, for that he being a divine, and having never been brought up in the science of the civil or canon laws, nor having any understanding therein, took upon him the office of chancellor, contrary to the canons and constitutions of the church. Whereupon he prayed a prohibition in the Common Pleas, suggesting that he had a (r) 1 Eliz. c. 2, s. 11; 43 Eliz. (u) Gibson's Tracts, p. 110. The c. 4 ; 3 & 4 Vict. c. 86 ; 55 & 56 Archbishop of Canterbury has two Vict. c. 32, s. 1. separate offices: the Official Prin- fs) Gibs. p. 986. cipal and the Vicar General. [t) Gibs. p. xxii; Gibson's Tracts, (as) Gibs. p. xxiii. p. 108. THE ECCLESIASTICAL COURTS. 929 freehold in the chancellorship, and ought to enjoy the same for life ; but the court would not grant the prohibition ; because it belonged to the spiritual courts to examine the abilities of spiritual officers ; and so, though a lay person gains a freehold by his admission to a benefice, yet he may be sued in the spiritual court, and deprived for that cause (//). But of later days, when Dr. Jones, chancellor of Llandaff, Dr. Jones's was libelled against for ignorance, prohibition was prayed, and case- also obtained, upon this foot of freehold ; and when consultation was prayed, as in a case of mere ecclesiastical cognizance, and the prayer was supported by the precedent of Dr. Sutton, the court inclined against it, and denied Sutton's case to be law (s). By a constitution of Otho, judges ignorant of the law, in a Assessor, doubtful case, from which a prejudice may arise to either party, may, at the expense of both parties, call in the counsel of a learned assessor (a). Concerning the nature and extent of the power of chancellors, Jurisdiction as that name is understood at present, Bishop Stillingfleet says of chancellors, as follows : — " There is a difference in law and reason, between an ordinary power depending on an ancient prescription and composition, (as it is in several places in the deans and chapters within cer- tain precincts,) and an ordinary power in a substitute, as a chancellor or vicar general. For although such an officer hath the same court with the bishop, so that the legal acts of court are the bishop's acts by whose authority he sits there, so that no appeal lies from the bishop's officer to the bishop himself, but to the superior ; and although a commissary be allowed to have the power of the ordinary in testamentary causes, which were not originally of ecclesiastical jurisdiction .... yet in acts of spiritual and voluntary jurisdiction, the case is otherwise. For the bishop by appointing a chancellor doth not divest himself of his own ordinary power ; but he may delegate some parts of it by commission to others, which goes no farther than is expressed in it. For it is a very great mistake in any to think, that such who act by a delegated power, can have any more power than is given to them, where a special commission is required for the exercise of it. For by the general commission no other autho- rity passeth, but that of hearing causes : but all acts of voluntary jurisdiction require a special commission, which the bishop may restrain as he sees cause. For, as Lindwood saith, nothing passes virtute officii but the hearing of causes ; so that other acts depend upon the bishop's particular grant for that purpose. And the law nowhere determines the bounds of a chancellor's power as to such acts ; nor can it be supposed so to do, since it is but a delegated power : and it is in the right of him that {y) Gibs. p. 987 ; Litt. p. 22. (z) Gibs. p. 987 ; Jones v. Bp. of See Mobotham v. Trevor, 2 Brownl. Llandaff, 4 Mod. p. 27. p. 11. {a) Otho. Athon, p. 72. 930 DISCIPLINE OF THE CHURCH. deputes to circumscribe and limit it. Neither can use or custom enlarge such a power which depends upon another's will. And however by modern practice the patents for such places have passed for the life of the person to whom they were first granted ; yet it was not so by the ancient ecclesi- astical law of England. For Lindwood affirms, that a grant of jurisdiction ceaseth by the death of him who gave it : .... or else it could never pass into the dean and chapter sede vaeante, or to the guardian of the spiritualties. And he gives a good reason for it : Ke invitus hdbeat officialem sibi fortassis odio- sum. It is true, that by the statute 37 H. 8, c. 17, mere doctors of laws are made capable of exercising all manner of ecclesiastical jurisdiction. But it doth not assign the extent of their jurisdic- tion, but leaves it to the bishops themselves, from whom their authority is derived. And the law still distinguished between potestas ordinaria et delegata ; for the former supposeth a person to act in his own right, and not by deputation, which, I suppose, no chancellor or official will pretend to" (b). Jurisdiction Voluntary jurisdiction is exercised in matters which require contentirousnd no judicial proceeding, as [formerly] in granting probate of wills, letters of administration, [and now] sequestration of vacant benefices, institution, and such like ; contentious juris- diction is, where there is an action or judicial process, and con- sists in the hearing and determining of causes between party and party (° DISCIPLINE OF THE CHURCH. " According to the present rules of these courts, a candidate for admission, as an advocate, is required to deliver, into the office of the vicar general of the province of Canterbury, a certificate of his having taken the degree of Doctor of Laws, signed by the registrar of the university to which he belongs. A petition, praying that in consideration of such qualification the candidate may be admitted an advocate, is then presented to the archbishop, who issues his fiat for the admission of the applicant (b), directed to his vicar general, who thereupon causes a rescript or commission to be prepared, addressed to the Dean of the Arches, empowering and requiring him to admit the can- didate as an advocate of that court. To this a proviso is always added, ' that the person to be admitted shall not practise for one whole year from the date of his admission,' in order that, by attending during that interval, he may acquire a competent knowledge of the form of the proceedings in those courts. " On the day appointed for the admission, which is always one of the four regular sessions in each term of the Arches Court, the candidate is presented, by the two senior advocates, to the dean, who directs the archbishop's rescript to be read, and the oaths to be administered ; which being done, he is admitted into the number of advocates, according to the tenor of the rescript. " From the college of advocates the archbishop has always selected the judges of the archiepiscopal courts " (c). Modern The college was abolished in pursuance of 20 & 21 Vict. c anoes- c. 77, ss. 116, 117, when the probate and divorce courts were established. The ecclesiastical courts have latterly, ex necessitate rei, admitted barristers to practise in them ; but the archbishop's power to admit advocates remains. The Church Discipline Act, 3 & 4 Vict. c. 86, s. 7, enacts that where a clerk is to be proceeded against before the bishop, articles shall be drawn up against him, which are to be signed " by an advocate practising in Doctors' Commons." But after the dissolution of the College of Advocates the Court held that a barrister could sign instead of an advocate (cl) . (b) It seems that this was purely discretionary in the archbishop; and that he could not be compelled to direct the admission of a candi- date : Bex v. A bp. of Canterbury, 8 East, p. 213. (c) See 1 Phill. Intern. Law, pp. xxx — xlix, for the history of civilians in England, and of the College of Advocates. (d) Vide infra, Chap. VIII. OFFICERS OF THE ECCLESIASTICAL COURTS. 937 Sect. 2. — Proctor. In the Report of the Ecclesiastical Courts Commissioners of Report of 1832, it is said as follows :— CoSco" " Proctors in the ecclesiastical and admiralty courts discharge mi^srion> 1832. duties similar to those of solicitors and attornies in other courts. " In order to entitle a person to be admitted a proctor, to practise in the Court of Arches, it is required that he shall have served a clerkship of seven years, under articles, with one of the thirty-four senior proctors, who must be of five years' standing ; and who, by the rules of the court, is prohibited from taking a second clerk until the first shall have served five years ; except in the event of the death of a proctor, to whom a clerk may have been articled, before the term of his clerkship is com- pleted. In this case any other of the thirty-four senior proctors may take such clerk for the remainder of the term, although he himself may at the same time have a clerk of less than five years' standing. Before a clerk is permitted to be articled, he is required to produce a certificate of iris having made reasonable progress in classical education. " When the term of seven years is completed, the party is admitted a notary, by a faculty from the Archbishop of Canter- bury ; a petition is then presented to his grace, accompanied by a certificate, signed by three advocates and three proctors, that the party applying to be admitted has served, as articled clerk to a proctor of the court, for the full term of seven years. If this certificate is approved, the archbishop issues his fiat, and a com- mission is directed to the Dean of the Arches, by whom the party is admitted under the title of a supernumerary, with similar ceremonies to those observed on the admission of an advocate. " The proctor so admitted is qualified to commence business upon his own account immediately, but he is not entitled to take an articled clerk, until he shall have been for five years within the number of the thirty-four senior proctors." Proctors are officers established to represent in judgment the Proxies, parties who empower them (by warrant under their hands called a proxy) to appear for them, to explain their rights, to manage and instruct their cause, and to demand judgment (e). Two proxies are generally executed ; one authorizing the proctor to institute, the other to withdraw proceedings. They are signed by the parties, attested by two witnesses, and deposited in the registry of the court (/). The proctor, till such power be with- drawn, is dominus litis. (e) 2 Domat, Civil Law, bk. 2, tit. 5, sect. 2. (/) The nature of a proxy, how far requisite, and when it may be dispensed with, is considered in the following cases : — Kirkhouse v. Faivkencr, 2 Lee, p. 325 ; Pranlmrd v. Deacle, 1 Hagg. Eccl. p. 169; Fullerton v. Dixon, 4 Hagg. Eccl. p. 402 ; Hawhes v. Haivkes, 1 Hagg. 938 DISCIPLINE OF THE CHURCH. Canon 129. Canons 130, 131, 132, and 133. 53 Geo. 3, c. 127. Power of the ecclesiastical court over proctors. " A proctor by virtue of his proxy may be held by the court till after sentence, and till then it will not be sufficient for him to declare he proceeds no further for his party. But if an appeal is interposed, he is not bound to give an appeal so far. On the contrary, he cannot act without exhibiting a new proxy in the court of appeal " (cj). Old constitutions as to proctors and proxies will be found in Lindwood and Athon (h). By Can. 129 of 1603, " None shall procure in any cause what- soever, unless he be thereunto constituted and appointed by the party himself, either before the judge, or 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 authen- tical seal, and 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 register in the public registry of the said court. And if any register 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." Canons 130 and 131 relating to proctors have been already referred to (i). Canons 132, 133, also relate to proctors, but are quite obsolete. The Act 53 Geo. 3, c. 127, ss. 8, 9, 11, contains provisions with respect to proctors, forbidding them to allow their names to be used by persons not entitled to act as proctors (k), and imposing penalties on persons, not being duly enrolled, exer- cising the functions of a proctor. But it does not seem necessary to set out these sections, since modern legislation, which is about to be referred to, has admitted all solicitors to act as proctors. In Leigh's case in 2 Will. 3 (/), a proctor of Doctors' Com- mons, who had done business without the advice of an advocate, contrary to the canon, and refused to pay a tax of 10s. imposed upon him by order of the court towards the charges of the house, and was suspended from his office, prayed a mandamus in the Court of King's Bench to be restored : but it was denied, and said by the court, that officers are incident to all courts, and must partake of the nature of those several and respective courts in which they attend ; and the judges, or those who have the Eccl. p. 194; Cook v. Cowper, 2 Lee, pp. 388, 487 ; Suter v. Christie, 2 Add. p. 150. For the form of a proxy in a criminal suit, see note to Watson v. Thorj>, 1 Phillim. p. 273. (g) Dr. Battine's opinion, Mr. Toker's MSS. p. 357. See Obicini v. Bligh, 8 Bing. p. 352, as to the difference between a proctor and a solicitor or attorney. See also Cata- logue of Processes in the registry of the Court of Delegates, No. 679, a.d. 1707. (/<) Lind. p. 76; Otho. Athon, p. 61. (i) Vide supra, p. 934. (k) See Stephenson v. Higginson, 3 H. L. C. p. 638. (I) Gibs. p. 995 ; 3 Mod. p. 332. See 3 Bac. Abr. p. 264. OFFICERS OF THE ECCLESIASTICAL COURTS. 939 supreme authority in such courts, are the proper persons to cen- sure the behaviour of their own officers ; and if they should be mistaken, the King's Bench cannot relieve, for in all cases where such judges keep within their bounds, no other court can correct their errors in proceedings ; and if any wrong be done in this case, the party must appeal. The decisions have established the following propositions : — "Where a party regularly complains of gross extortion by his proctor, the court may punish the proctor by suspension or otherwise (m). In a case where a proctor had charged 88/. 4-5. 4r/., and the bill was referred to the registrar, who reported the proper charge to be 52/. 15s. 6<7., the court suspended the proctor for three months, and condemned him in costs : in this case it was the first time his conduct had been brought before the court, and there were other extenuating circumstances (n). A client is under all circumstances entitled to a detailed bill of costs from his proctor ; and where it has been long acquiesced in, and payment made after the close of the suit, he is not entitled to have it referred to the registrar for examination (o) . A proctor is do minus litis, and therefore responsible to the court for the purity of his proceedings (p). But the court has no power to decide what expenses are due between proctor and client, or to enforce payment of them ; but where costs are given against a party, the court, in order to carry its sentence into execution, is empowered to tax the costs and to enforce their payment. All that the court can do in the case of proctor and client is to refer the bill to the registrar for his examination ; this is merely in aid of justice, and for the convenience of suitors (q). Under the old law it was holden that the lawful admission of Admission proctors depends upon the usage and practice of the court into of Proctors- which they are admitted; and a decree of a judge of a diocesan court for the admission of proctors, contrary to the usage and practice of his court, was reversed on appeal to the Arches Court (r). The claim of a proctor in the Arches Court of Canterbury to practise in a diocesan court of the province, without having been formally admitted therein, was allowed (s) . Modern legislation has, as has already been stated, proceeded 33 & 34 Vict in the direction of admitting all solicitors to act as proctors. The °* 28; first step was taken by 33 & 34 Yict. c. 28, s. 20,^ which enacted aUowedto a< that " it shall be lawful for an attorney or solicitor to perform as proctors all such acts as appertain solely to the office of a proctor in any except in (m) Prentice v. Prentice, 3 PhilHm. p. 311; Peddle v. Toller, 3 Hagg. Eccl. p. 283. (n) In the goods of Lady Hatton Finch, 3 Hagg. Eccl. p. 255. (o) Peddle v. Toller, 3 Hagg. Eccl. p. 283. (p) My an v. Robinson, 2 Hagg. P. VOL. II. Eccl. p. 195. [q) Peddle v. Toller, 3 Hagg. Eccl. p. 289. Or) Fell v. Pond, 1 Eobcrts. p. 740; Fell v. Law, 12 Jur., N. S. p. 608. (s) BuUin v. Harris, 6 N. C. p. xxxix (Supp.) (1848). 3 Q 940 DISCIPLINE OF THE CHURCH. courts of Canterbury, York and London. 40 & 41 Vict, c. 25. Solicitors eligible to practise in all ecclesiastical courts. Proctors might still be appointed. ecclesiastical court other than the provincial courts of the Arch- bishops of Canterbury and of York, and the diocesan court of the Bishop of London, without incurring any forfeiture or penalty, and to make the same charges which a proctor would be entitled to make, and to recover the same, any enactment or enactments to the contrary notwithstanding." In the excepted courts solicitors remained incapable of prac- tising (t) till 40 & 41 Yict. c. 25, s. 17, which enacts as follows : " Any solicitor may practise in all courts and before all persons having or exercising power, authority, or jurisdiction in matters ecclesiastical in England, and shall be deemed to be duly quali- fied to practise and may practise in all matters relating to appli- cations to obtain notarial faculties, and generally shall have and may exercise all the powers and authorities, and shall be entitled to all the rights and privileges, and may fulfil all the functions and duties which appertain or belong to the office or profession of a proctor, whether in the provincial, diocesan, or other juris- diction in England." Though it may be that proctors may still be made and admitted by an ecclesiastical court, it is not probable that any such power will be exercised ; and when the remaining proctors have ceased to practise, the work will probably be done exclu- sively by solicitors. Sect. 3. — Register or Registrar (u). Canon 123. By Can. 123 of 1603, " No chancellor, commissary, arch- His presence deacon, official, or any other person using ecclesiastical jurisdic- "udiSact0 a ^0D' s^a^ sPee(^ any judicial act, either of contentious or ci ac . yoluntary jurisdiction, except he have the ordinary register 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 facto " (v). And this is according to the rule of the ancient canon law ; which, to prevent falsifications, requires the acts to be written by some public person (if he may be had) , or else by two other credible persons : and the credit which the canon law gives to a notary public is, that his testimony shall be equal to that of two witnesses (x). Canon 134. By Can. 134, " If any register, or his deputy or substitute When he may whatsoever, shall receive any certificate without the knowledge be suspended. an(j 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 (t) Burch v. Reid, 4 Adm. & Eccl. p. 112; Crisp V. Martin, 1 P. D. p. 302. (u) As to appointment to this office, yido supra, Part IV. Chap. IV. (v) See Bex v. Vereht, 3 Campb. p. 432. (x) Gibs. p. 996. As to his being a notary, vide infra, p. 945. OFFICERS OF THE ECCLESIASTICAL COURTS. 941 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 put in 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, any thing false or conceived by himself, not so ordered or decreed by the judge ; or in the transmission of processes to the judge ad quern, shall add or insert any falsehood or untruth, or omit any thing 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 council directly or indirectly with either of the parties in suit ; or in the execution of their office shall do ought else maliciously, or fraudulently, whereby the said ecclesiastical judge or his proceedings may be slandered or defamed : we will and ordain, that the said register, 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 How his office shall assign some other public notary to execute and discharge is to be sup- all things pertaining to his office, during the time of his said sUspen^™5 suspension." Dr. Harris says a registrar may be articled against " for Opinions on neglect of or refusal to do his duty, and might be censured for tllls Pomt- it by suspension from his office and deprivation if he persisted in his neglect or refusal." This is a very curious and learned opinion (//). Sir W. Wynne says, " If the registrar misbehaves in the duties of his office he is liable to be suspended and even deprived of it. But I do not think that the chancellor has power extra- judicially to exclude the registrar from the execution of any duty of his office, or to confer it upon any other person." " I do not think that the chancellor can appoint his seal-keeper to issue out licences without passing through the hands of his registrar. I think that usage of very many years will justify the registrar in taking an equal fee with the chancellor upon marriage licences, notwithstanding that his fee was less in the old table published in the 16th century" (s). Dr. Godolphin says, if there be a question between two Right to office persons touching several grants, which of them shall be register j° be tried at of the bishop's court ; this shall not be tried in the bishop's aw" court, but at the common law; for although the subjection circa quod be spiritual, yet the office itself is temporal (a). In the case of Rex v. Ward, in 4 Greo. 2, there was a Rex v. Ward. fy) Mr. Toker's MSS. p. 466. la) God. p. 125. (z) Mr. Toker's MSS. 467. 3 Q 2 942 DISCIPLINE OF THE CHURCH. Mandamus to mandamus to Dr. Ward, the commissary, to admit Henry admit. Dryden to be deputy register of the Archbishop of York's court : suggesting that Dr. Thomas Sharpe had been admitted to the office, to execute the same by himself or his deputy ; that he had appointed Dryden (who is averred to be a fit person) to be his deputy, whom the commissary had refused to admit, to the great damage of Dr. Sharpe who complains ; and therefore the writ commands the commissary to admit and swear Dryden, or show cause to the contrary. To this the commissary returns ; that long before the constituting Dryden to be deputy, John Sharpe and Thomas Sharpe were admitted to the office as principals, to hold for their lives, and the life of the survivor ; that they, in the year 1714, appointed John Shaw to be their deputy, who executed the office till J ohn Sharpe died ; that Thomas Sharpe survived, and on May 12, 1727, by a new appointment constituted Shaw his deputy, who was admitted, and executed the office until suspended in the manner after mentioned ; that Shaw at the time of his admission took an oath that he should justly and honestly execute the office, without favour or reward, and do every thing incumbent on the office, and not be an exactor or greedy of rewards ; and then sets forth the 134th canon ; and further, that while Shaw was deputy, several proctors of the court on the 16th of February, 1727, exhibited to the commissary several articles against him, com- plaining of divers misbehaviours in his office, contrary to several of the particulars set forth in the said canon ; that Shaw being summoned on the 6th of April, 1728, gave in his answer in writing (which is set forth) ; and then the return goes on, that forasmuch as it appeared to the commissary that the answer was insufficient, and that Shaw had confessed himself guilty of several omissions and extortions in the exercise of his office, therefore upon complaint thereof to the archbishop, he on the 21st of May, 1728, by his commission under his archiepiscopal seal directed to the commissary and reciting that Shaw had been guilty in the manner before mentioned, did therefore empower the commissary to suspend him and assume another notary public ; that by virtue thereof, he on the 24th of May, 1728, suspended Shaw for five years, and assumed Joseph Leech a notary public, who before the constituting Dryden to be deputy, took upon him and has ever since executed the office : that Shaw appealed, and in that appeal alleged, that on the 23rd of May, 1728, he resigned the office, and that Dr. Sharpe had appointed William Smith to be deputy ; that delegates were appointed, who on the 23rd of October, 1728, issued an inhibition to the commissary, that pending the appeal he should do nothing to the prejudice of the appellant; that the appeal remains un- determined ; and for these reasons he cannot admit Dryden to be the deputy of Dr. Sharpe. After argument, the court said : " Surely it is attempting too much, to support this as a good return ; the effect of a mandamus, as laid down, is certainly so, OFFICERS OF THE ECCLESIASTICAL COURTS. 943 that it gives no right. The canon only intended that the bishop should suspend where the principal would not revoke ; but an actual revocation is better than a suspension. It would be carrying the power of inhibitions a great way if we should allow them the force contended for by the return. We are therefore all of opinion, that the return is ill." Then exception was taken to the writ, that a mandamus would not lie for a deputy. But it was answered, that this is not a mandamus for the deputy, but for the principal to be admitted to have a deputy. Then it was further objected, that a mandamus does not lie for a spiritual office ; and for this were cited divers cases, where it was determined that a mandamus will not lie for a proctor, who belongs as much to the ecclesiastical court as the register does. Unto which it was answered, that this is not any objection ; a mandamus has been granted to admit an under-schoolmaster, and yet schoolmasters are within the canons of 1603 as well as registers ; so in the case of Mr. Folks, lately for the office of apparitor- general of the Archbishop of Canterbury (b) ; so it has been often granted for a parish clerk ; for a sexton ; so in like manner it was granted to restore Dr. Bentley to his degrees ; and to admit Dr. Sherlock to a prebend at Norwich ; and it is to be observed that no assize will lie for this office, therefore if the party has not this remedy he has none ; the reason why it was refused to a proctor was, because it did not appear what interest he had, but here appears a freehold. And the court said : " We all think this writ is good, notwithstanding the exceptions that have been taken, and therefore a peremptory mandamus must go " (c). In Rex v. The Bis/top of Gloucester the registrars of a diocese Rex v. The were authorized by their patent of office to appoint a deputy " to be approved of and allowed by the bishop," who, if he Mandamus should not approve of and allow the deputy named and pro- refusedtob posed to him, was empowered to nominate another with a deputy salary payable out of the profits of the registrarship. The regis- reffistrar. trars appointed a deputy, subject to the approval of the bishop, who declared that, " for good and sufficient reasons," which he did not specify, he disapproved of the party nominated. In that case the court refused a rule nisi for a mandamus to the bishop to admit the deputy (d). In the case of The Bishop of Bangor, who was prosecuted at Bishop of Ba the Shrewsbury Assizes in 1796, by the deputy registrar of the 9°r's case' Consistorial Court, for a riot and assault in forcibly taking possession of his room in the chapter house, Mr. Justice Heath intimated his doubt whether the bishop had the power of with- drawing his confirmation once given of this officer's appointment, and his strong opinion that at all events he must have recourse to a proceeding at common law. The jury, however, acquitted (b) Vide infra, p. 954. {(■) 2 Stra. p. 893. (rf) 2 B. & Ad. p. 158. 944 DISCIPLINE OF THE CHUiiCJl. the defendant. This case lias obtained great celebrity, from the speech delivered by Lord Erskine in his defence of the bishop ( baptisms, burials, under the statutes 1 & 2 Yict. c. 106, s. 116, and 52 Greo. 3, c. 146, s. 8, has been already men- tioned (//). Under 3 & 4 Yict. c. 113, ss. 88, 89, he is bound under penalties to register every order in council made under that act. He is entitled to no fees for so doing, but to fees on searches and copies. His duties under the Public Worship Begulation Act will be found in Chapter ix. of this Part. No vested The Act 10 & 11 Yict. c. 98, preventing new ecclesiastical rights. officers from acquiring vested rights, applies to registrars (i) . By 7 & 8 Yict. c. 68, s. 2, registrars are to make an annual return to the Secretary of State of all fees received by them, either for themselves or for the judges or other officers. By Retu Es by- sect. 3 they are also to make an annual return as to the state of their offices. ♦ — Nature of office. Mentioned in statutes. Fees of. Sect. 4. — Secretary. The office of secretary to a bishop is one of comparatively modern origin ; its duties are nowhere defined, and there seems no reason why the office, though a convenient one, should necessarily exist. Secretaries are, however, mentioned in 41 Greo. 3, c. 79, s. 14 (k). They are also mentioned in 1 & 2 Yict. c. 106, ss. 47, 131, where they are spoken of as officers having to do with the admission of spiritual persons to benefices or cathedral preferments, and provision is made for fixing their fees in these matters by Order in Council ; and their fees have been accordingly so fixed (/) . They are further mentioned in 30 & 31 Yict. c. 135, s. 1, as having duties and receiving fees on consecrations and ordina- (e) See the whole trial reported in vol. i. of Lord Erskine' s Speeches on Miscellaneous Subjects, p. 93. See as to the revocation of the ap- pointment of a deputy registrar, and the analogy of deputy recorder, Beg. v. Sutton, 10 Mod. p. 74. (./') 2 Lev. p. 136. ( right belong to the office of the judge, to assume and choose a notary for reducing the acts of court in every cause into writing, yet if he be a suspected person he may be refused by the litigants : for the use of a notary was intended, not only on account of the judge, to help his memory in the cause, but also that the litigants might not be injured by the judge (t). And, particularly, the office of a notary in a judicial cause is employed about three things : first, he ought to register and inrol all the judicial acts of the court, according to the decree and order of the judge, setting down in the act the very time and place of writing the same ; secondly, he ought to deliver to the parties, at their especial request, copies and exemplifications of all such judicial acts and proceedings as are there enacted and decreed ; and thirdly, he ought to retain and keep in his (t) Ayl. Par. p. 382. 950 DISCIPLINE OF THE CHURCH. Authenticity of his pro- ceedings. Stamps. Suit for im- properly act- ing as notary. custody the originals of such acts and proceedings, commonly called the protocols {itqutos xoWri, the notes, or first draughts (w)), the things first glued together (#). As a notary is a public person, so consequently all instru- ments made by him are called public instruments ; and a judicial register of record made by him is evidence in every court according to the civil and canon law. And a bishop's register establishes a perpetual proof and evidence, when it is found in the bishop's archives ; and credit is given not only to the original, but even to an authentic copy exemplified (?/). And one notary public is sufficient for the exemplification of any act ; no matter requiring more than one notary to attest it(z). And the rule of the canon law is, that where the testimony of two witnesses is required, one notary will do as well : units notarius cequipollet duobus testibus (a). By 54 & 55 Vict. c. 39, the faculty for admitting or autho- rizing any person to act as a notary in England shall be upon a 30/. stamp. And every notarial act shall be on a Is. stamp, except a protest of a bill of exchange or promissory note. In the Catalogue of Processes in the Delegates, from 1609 to 1823, will be found the following record: "No. 590. Williams v. Gentry. In lma inst. Off. Judicis (Bishop of St. David's) promoted by Gentry against Williams ; " as it should seem, for acting as notary without a regular faculty. Form of a Faculty aj)pointing a Notary Public. " , by Divine Providence Archbishop of Canterbury, Primate of all England, and Metropolitan, by authority of Parliament law- fully empowered for the purposes herein written : To our beloved in Christ , a literate person now residing , health and grace : We being trilling, by reason of [or, "Whereas it has been made known to our master of the faculties that there is an insuffi- cient number of notaries at : we- therefore, by reason of the premises, and of"~\ your merits, to confer on you a suitable title of promotion, do create you a public notary ; previous examination, and the other requisites, to be herein observed, having been had : And do out of our favour towards you admit you into the number and society of other notaries, to the end that you may henceforward in all places [clause of exception or limitation] exercise such office of notary : hereby decreeing, that full faith ought to be (u) Hoffman, Lexicon Univer- sale, v. Protocollum. (x) Novell, xlv., De Tabellioni- bus. (y) Ayl. Par. p. 386. (z) Ibid. («) Gibs. p. 996. " Besides I know thou art a public notary, and such stand in law for a dozen wit- nesses," is Massinger's allusion to this dictum, in the mouth of Sir Giles Overreach. — New Way to pay Old Debts, Act 5. OFFICERS OF THE ECCLESIASTICAL COURTS. 951 given, as well in judgment as thereout, to the instruments to be from this time made by you ; the oaths hereunder written having been by us, or our master of the faculties, first required of you and by you taken." [Here come the oaths of allegiance, of office, as by 6 & 7 Vict, c. 90, s. 7 ; and of service, if not under 3 & 4 Will. 4, c. 70.] " Provided always, that these presents do not avail you anything, unless duly registered and subscribed by the clerk of her Majesty for faculties in chancery. Given under the seal of our office of faculties, at Doctors' Commons, this day of , in the year of our Lord one thousand eight hundred and , and in the year of our translation." In the cases of Bering and Brooke v. Wright (May 4, 1836), Cases where and Soskim v. Greetham (February, 1838), caveats were entered bee^Trgued?8 against the grant of a faculty, and the causes were argued by counsel at Doctors' Commons before the Master of the Faculties. In the former case the faculty was granted, in the latter refused. There have been several cases of late years in which the ques- tion of the admission of notaries has been argued. The Melbourne Notaries have been several times before the Master, one time being the 10th of April, 1872. On the same day a case was argued relating to a Liverpool notary. On the 27th of July, 1871, a case of Stephenson and Oates v. Hearfield, relating to the admission of notaries at Great Grrimsby, was argued. The Sheffield Notaries (b), and the Neath Notaries have also given occasion to argument. The modern practice, in the case of district notaries, is for the Modern applicant for admission to file a memorial signed by himself, Practlce- and a further memorial of such of the principal inhabitants of the place where he intends to practise as will support his appli- cation. The memorial may be met by a counter memorial on the part of the opponents, and further memorials may be filed in reply. Affidavits are rarely used. Every application should be supported by a certificate of the fitness and good character of the applicant, signed by two notaries public. Individual notaries, and in some cases societies of notaries practising at a particular place, are admitted to oppose the grant of faculties to applicants. Sect. 6. — Apparitor. Apparitors (so called from that principal branch in their office, Who. which consists in summoning persons to appear) are officers (6) Nomine Smart v. Graham, 9 Jur., N. S. p. 387. 952 DISCIPLINE OF THE CHURCH. appointed to execute the proper orders and decrees of the court (c) . How ap- And these are chosen by the ecclesiastical judges respectively; pointed. w|10 SUSpen(j them for misbehaviour, but may not remove them at discretion, when they hold their office by patent. His office and The proper business and employment of an apparitor is, to dutj' attend in court, to receive such commands as the judge shall please to issue forth ; to convene and cite the defendants into court ; to admonish or cite the parties in the production of wit- nesses and the like ; and to make due return of the process by him executed (cl). For particular regulations in early times, see Otho. Athon, p. 63; and Boniface, Lind. p. 221. By 21 Hen. 8, c. 5, as well as by the 138th canon, apparitors are called summoners or sumners (e). Canon 138. By Can. 138 of 1603, " Forasmuch as we are desirous to redress such abuses and aggrievances as are said to grow by sumners 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 other 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 accus- tomed to have thirty years before the publishing these our present Constitutions. All which apparitors shall by themselves faithfully execute their offices; neither shall they under 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 promoters or informers for the court, neither shall they exact more fees than are in these our Constitutions formerly prescribed. And if either the number of the apparitors deputed shall exceed the assigned limitation, or any of the said apparitors shall offend in any of the premisses ; the persons deputing them, if they be bishops, shall upon admonition of their superior dis- charge the persons exceeding the number so limited ; if inferior ordinaries, they shall 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 experience the number of the said apparitors be too great in any diocese, in the judgment of the archbishop for the time being, they shall by him be so abridged, as he shall think meet and convenient." (c) Ayl. Par. p. 07. {d) Ibid. p. 68. (e) The word used in Chaucer, Canterbury Tales. OFFICERS OF THE ECCLESIASTICAL COURTS. 953 This canon was probably founded on the decrees in the Provincial Constitutions of Lindwood. Faithfully execute their Offices.] — If a monition be awarded to Cases on an apparitor, to summon a man, and he upon the return of the Can* 138- monition avers that he had summoned him, when in truth he had not, and the defendant be thereupon excommunicated ; an action on the case at common law will lie against the apparitor for the falsehood committed by him in his office, besides the punishment inflicted on him by the ecclesiastical court for such breach of trust ( /) . Office of Promoters or Informers for the Court.'] — The case of Car lion v. Mill, in 8 Car. 1, was an action upon the case, for that the defendant being an apparitor under the bishop of Exeter, maliciously, and without colour or cause of suspicion of incontinency, of his own proper malice, procured the plaintiff ex officio, upon pretence of fame of incontinency with one Edith (whereas there was no such fame nor just cause of suspicion) to be cited to the consistory court, and there to be at great charges and vexation until he was cleared by sentence ; which was to his great discredit, and cause of great expenses and losses ; for which the action is brought. Upon not guilty pleaded, and found for the plaintiff, it was moved in arrest of judgment, that in this case an action lies not ; for he did nothing but as an informer, and by virtue of his office. But all the court held, forasmuch as it is alleged that he did maliciously and without colour of suspicion cause him to be cited, upon pretence of fame where there was no offence committed, and it is averred that there was not any such fame, and he is found guilty thereof, therefore the action well lies (g). Neither shall they exact more Fees than are in these our Con- Canon 135. st it id ions formerly prescribed.'] — That is, in Can. 135 (h). These (f) Ayl. Par. p. 70; Pole v. Godfrey, 2 Bulst. p. 264. See Dr. Barker s case in the Star Chamber, cited in JRegina v. Ward, 2 Stra. p. 896. (ry) Cro. Car. p. 291 ; 1 Roll. Abr. p. 93. (A) Partly set forth at p. 106. The whole Can. is as follows : — "No Bishop, Suffragan, Chan- cellor, Commissary, Archdeacon, official, nor any other exercising ecclesiastical jurisdiction whatso- ever, nor any Registrar of any Ecclesiastical Courts, nor any mini- ster belonging 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 cer- tified to the Most Eevcrend Father in God, John, late Archbishop of Can- terbury in the year of our Lord God One thousand five hundred ninety and seven, and were by him Eatified and Approved, under pain that every such Judge, Officer or Minister of- fending 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 concerning the certainty of the said Pees or any of them, then those Pees shall be held for lawful, which the Archbishop of Canter- bury for the time being shall under his Hand approve, except the Sta- tutes of this Eealm before made, do in any Particular Case express some other Pees to be duo. Provided furthermore, that no Pee or Money 954 DISCIPLINE OF THE CHURCH. fees, if withheld, may be recovered in an action at law, but cannot be libelled for in the Ecclesiastical Court (i). Cases relating In Folks' case (It) it would seem that a mandamus lies to admit to* the archbishop's apparitor- general. See Beyner and Parker's case, upon the authority of a summoner, which was held not to extend to ordering a parson to pay tithes to a person to whom he had not paid them, although the bishop certified that accord- ing to 26 Hen. 8, c. 3 he had refused to pay them (/). No vested By 10 & 11 Vict, c. 98 and 38 & 39 Yict. c. 76, s. 2, apparitors interests. are ^0 j^j^ 0ffcQe subjeet to the pleasure of Parliament, and not to gain vested interests (m) . shall be received either by the Arch- Bishop, 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 pre- scribed." By Can. 136, "We do likewise constitute and appoint, That the Registers 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 Yiew and Per- usal thereof, and take a Copy of them ; the same Tables to be so set up before the Feast of the Nativity next ensuing. And if any Register 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 Table being once set up, if he shall at any time remove or suffer the same to be removed, hidden or any way hin- dred 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." Vide infra, Part IV. Chap. VI. Sect. 14. (i) Pearson v. Campion, Doug, p. 629. (Je) Cited 2 Stra. p. 877. (I) Mo. p. 541. (m) Vide supra, pp. 933, 945. ( 955 ) CHAPTER VI. PROCEDURE GENERALLY. Sect. 1. — Preliminary. 2. — Who may be Parties to a Suit. 3. — Mode of conducting a Suit. 4. — Sentence. 5. — Appeal. 6. — Letters of Request. 7. — Caveat. 8. — Citation. 9. — Libel and Allegation. 10. — Article*. 11. — Personal Answers. 12. — Costs. 13. — Rules of Court. 14. — Court Fees. Sect. 1. — Preliminary. The subject matter over which the Ecclesiastical Courts exercise Law of the jurisdiction has been considered generally (a). ecd^astical (a) Consult — I. As to the old Practice of the English Courts. 1. Praxis Francisci Clarke, per P. Bladen, V.P.D. (Lond. 1684.) 2. Repertoriuin Canonicum, or an Abridgment of the Ecclesiastical Laws of this Realm consistent with the Temporal, bv John Godolphin, LL.D. (Lond. 1687.) Chap. XL 3. Practice of the Ecclesiastical Courts, by H. Conset. (London, 1700.) 4. Ordo Judiciorum, per Thomam Oughton. (London, 1728.) The first part translated, with notes, by J. T. Law, M.A., Chancellor of Lichfield and Coventry. (London, 1831.) This author and Godolphin are called by Lord Stowell "the oracles of our own practice : " Briggs v. Morgan, 3 Phillim. p. 329. o. Titles Citation, Libel, &c, &c. P. VOL. Tl. in Ayliffe, Parergon Juris Canon- ici. (London, 1726.) 6. Similar titles in Gibson, Co- dex Juris Ecclesiastici. (Oxford, Clarendon Press, 1761.) 7. Cockburn, Clerks' Assistant. (London, 1800.) LT. As to the Practice of the Irish Courts. 1. Cunningham, Forms and Pre- cedents for Ecclesiastical Courts. (Dublin, 1834.) 2. Bullingbroke, Eccles. Laws, chapters 43 to 46. (Dublin, 1770.) ILT. As to Foreign Writers on the Practice of the Civil and Canon Law. 1. Gaill. Practicce Observationes. (Cologne, 1608.) 3 R 956 DISCIPLINE OF THE CHURCH. The object of this chapter is to give an outline of the mode of proceeding both in criminal and in civil suits in the Ecclesi- astical Court. Original _ There is a remarkable peculiarity which distinguishes certain miyCbe°f ^ suits in tlie Ecclesiastical Court from those which could be changed. brought in equity or at common law. It is this : the original object of a suit may be changed, and assume in the conclusion an entirely different shape from that in which it had been instituted. Thus under the old law a suit might be commenced against a woman for jactitation of marriage, and if her defence were that she was duly married, and this defence were estab- lished, the sentence would be a decree against the husband for a restitution of conjugal rights. A wife might sue for a restitu- tion of conjugal rights, and the defence of the husband might be that she had been guilty of adultery ; and if he succeeded the sentence would be a divorce d mensd et thoro against the wife. On the same principle a husband, against whom a wife had instituted a suit for divorce on the ground of cruelty, might plead her adultery in a responsive allegation (b), and was not compelled to take out any separate or cross citation for the purpose. On application for a faculty to remove articles put into a church without a faculty, those who appear in opposition may pray in the same suit for a faculty to confirm (c). The reconventio of the Roman Dutch law is a somewhat similar pro- ceeding. The two together have led to the introduction of "counterclaims" into the procedure of the High Court of Justice. Sect. 2. — Who may be Parties to a Suit. The Criminal Suit is open to every one whom the ordinary allows to promote his office, and the Civil Suit to every one showing an interest {d). 1. In a case in the Court of Arches, where a dissenter had 2. Durandus, Speculum cum Annot. Johannis Andrese. (Basle, 1574.) 3. "Speculum Aureum," called also ' ' Advocatorum Lumen," of Maranta. (Frankfurt on the Maine, 1586.) 4. Censura Forensis Theoretica Practica, by Simon Van Leewen. (Amsterdam.) An excellent work. 5. Fournier, Les Officialites au Moyen ago. (Paris, 1890.) 6. Esmein, Le Mariage en Droit Canonique. (Paris, 1891.) Pt. II. tit. 1, ch. 3; tit. 2, ch. 2; Pt. III. ch. 5. 7. The very full catalogue of writers on the Civil Law, practical and theoretical, given at the end of the first part of Macheldey, Lehr- buch des heutiges Eomischen Eechts (Giessen, 1838) may be also consulted. (6) Best v. Best, 1 Add. p. 411. (c) Gardner v. Ellis, L. E., 4 Adm. & Eccl. p. 265. See Bradford v. Fry, 4 P. D. p. 93, and 37 & 38 Yict. c. 85, s. 14. (d) Turner v. Meyers, 1 Consist, p. 415, note ; Fagg v. Lee, L. E., 4 Adm. & Eccl. p. 135 ; affirmed on app., 6 P. C. p. 38; Hansard v. Parishioners of Bethned Green, 4 P. D. p. 46. PROCEDURE — GENERALLY. 957 been permitted to promote the office of the judge against a excommu- clergyman, an objection was taken by the counsel for the latter mcatecl- against the institution of the suit by one who it appeared from the evidence was among those denounced by the 9th and 12th Canons of 1603 as schismatics, and therefore ipso facto excom- municate, it being contended that the 53 Geo. 3, c. 127, had only removed civil penalties from dissenters. The judge, how- ever, overruled the objection, holding that a person, even when excommunicated by sentence, was not now disabled from suing in the Ecclesiastical Courts. The Privy Council confirmed this sentence (e). But since 53 Geo. 3, c. 127, a party pronounced contumacious, and whose contempt has been signified at a preceding stage of the cause for disobedience to any order of the judge, cannot appear in court at a subsequent period, or prosecute an appeal from proceedings carried on in pcenam, until he has been absolved from his contempt, and taken the oath de parendo juri to his ordinary (/). An outlaw would have no persona standi in these courts (g). Outlaw. 2. All minors may bring suits by their guardian, elected for Minors, imbe- the purpose by the Ecclesiastical Courts ; lunatics by their com- ^^^onai mittee duly appointed. But the judge cannot compel a father to continue as a party in a suit when his son has become of age during its continuance ; if he attempt to do so, he will be liable to an action on the case at common law (/*). 3. Married women might, under the old law in certain cases, Married have instituted alone a civil suit in the ecclesiastical courts, as women- in a case of defamation, or in a legacy bequeathed to the separate use (i). 4. A person may sue and appeal (A*) in forma pauperis ; but Paupers. " to sue as a pauper is a great privilege of law ; it belongs only to the necessity arising from absolute poverty and from the (e) Mastin v. Escott, 2 Curt, p. 692; Escott v. Mastin, 4 Moo. P. C. C. p. 104 ; 1 N. C. p. 552. See also the case of Titchmarsh v. Chapman, 3 N. C. p. 387. (/) Lind. p. 266; X. ii. 25, 12; X. v. 39, 40; Doujat in Lancel. lib. 4, 319, 343. " Licet a censuris ecclesiae absolvitor, debet tamen etiam ipse praestare juramentuni de parendo mandatis ecclesioe, sicut ille qui absolute absolvitur," X. v. 39, 52, Yenerabili. " Ubi mani- festum est delictum, non conceditur absolutio, nisi previa cautione de parendo mandatis ecclesioe," Doujat in Lancel. 1. 4, 347. See F. N. B. p. 63; 2 Inst. p. 188; John Trolhpe's case, 8 Co. p. 68 ; and Re Hal ues, 1 Cr. & Ph. p. 31; 10 3 L. J., Ch. p. 108; 8. C., 10 L. J., Q. B. p. 34; nom. Req. v. Baines, 12 A. & E. p. 210(1841) : but if the contempt has not been signified, it would seem that it is purged by appearance and payment of costs : see Herbert v. Herbert, 2 Phillim. pp. 438, 439. (g) 1 Ought, p. 27. (h) Beaurain v. Scott, 3 Campb. p. 388. (?) Anon. 3 Salk. p. 288 ; Cham- berlaine v. Heiuson, 5 Mod. p. 70 ; Dominus Gerard v. Dominam Gerard, 1 Ld. Ray in. p. 72 ; Tar- rant v. Maivr, 1 Stra. p. 575 ; Capel v. Robarts, 3 Hagg. Eccl. p. 161, in note. (k) Grindall v. Grindall, 4 Hagg. Eccl. p. 1. 2 958 DISCIPLINE OF THE CHURCH. absence of any other mode of obtaining justice ; no person is entitled to the gratuitous labours of others who can furnish the means of providing them for himself : besides, it places the adverse party under great disadvantages, it takes away one of the principal checks upon vexatious litigation ; the legal claim to so great a privilege ought, therefore, to be clearly made out. It is a complete but not an uncommon misapprehension of the law to suppose that because a person is in insolvent circum- stances, and because he can truly swear that he is not worth 5/. after all his just debts are paid, that therefore he is entitled to be admitted, or, rather, to proceed as a pauper ; it is prima facie ground to admit him as such, but no more " (/). It would seem from the cases cited in this extract from Sir J. NicholPs judg- ment, that the criterion is the income, and not the debts, of the party ; for instance, where a person admits an income of 70/. per annum, and owes 200/. beyond his effects, he will not be admitted to sue as a pauper. A person erroneously admitted as a pauper may be dispaupered (m). Interveners. 5. Interveners in a suit are unknown to the common law, but the doctrine of the civil and canon law administered in the admiralty and ecclesiastical courts (n), is, " Tertius intervenire potest pro interesse suo in omni causa quce tangitbona aid personam suam " (o). In a matrimonial cause there might have been an intervention (p) at any time, even in the appeal ; but a person who has no interest cannot be permitted to intervene (q). In testamentary causes, it has been said, that " Interveners must take the cause in which they intervene as they find it at the time of such their intervention ; hence they can only of right do what they might have done had they been parties in the first instance, or had their intervention occurred in an earlier stage of the cause" (r). In a case of divorce, where the alleged marriage is denied to be valid, the court has permitted third parties who have estates expectant (inter alia) upon the issue of such marriage being declared illegitimate, to be cited to see pro- ceedings so far as relate to the marriage (s) ; but such parties cannot object to the manner in which the original citation in the cause was executed, nor can an intervener take an objection to the jurisdiction of the court if the principal parties litigant have submitted to it (t). In a faculty case an intervention has been allowed upon an appeal (u) . The passage on which the law of (7) The whole law on this subject is discussed in Lovekin v. Edivards, 1 Phillim. p. 179. (m) Lait v. Bailey, 2 Roberts, p. 150. (n) Clarke, Praxis Curiae Admi- ralitatis, tt. 34, 35. (o) 1 Ought, p. 28. (p) Dairy mple v. Dalrymple, 2 Consist, p. 137. {(]) Brotherton v. Uelh'er, 1 Lee, p. 599. (r) Clement v. Rhodes, 3 Add. p. 40. (s) Montague v. Montague, 2 Add. p. 372. (t) Donegal v. Chichester, 3 Phillim. pp. 580, 590 ; Donegal v. Donegal, 3 Phillim. pp. 597, 013. [u) Bradford v. Fry, 4 P. D. p. 93. PROCEDURE— GENERALLY. 959 intervention in appeals is founded appears in the Digest : — " A sententid inter alios dicta appellari non potest, nisi ex justd causa, veluti si quis in cohceredum prcejudicium se condemnari patitur, eel simile m huic causam, quamvis eel sine appellatione tatas est cohceres; item fidejussors pro co pro quo intervenerunt. Igitur et venditoris fidejussor etnptore ricto appcllabit, licet emptor et venditor acquiescent " (r). — *. — Sect. 3. — Mode of conducting a Suit. With the successive removal from the jurisdiction of the Modern Ecclesiastical Courts of causes as to tithes, marriages, wills, and changes as to intestacy, defamation and in large part dilapidations, the civil proce ure* business of the Ecclesiastical Courts has been much reduced. The criminal work as far as regards the discipline of the Clergy is the subject of four several procedures, established by the statutes 1 & 2 Yict. c. 106; 3 & 4 Yict. c. 86; 37 & 38 Yict. c. 85 ; and 55 & 56 Yict. c. 32, each of which will require a separate chapter. Nevertheless the old procedure remains important (a) for the remaining civil business, (b) for the criminal jurisdiction over the laity, and (c) as affording principles which underlie the statutory procedure and are required as a guide to much of its construction. Therefore it may be convenient in this section to give a general sketch of the forms to be observed in the conduct of a suit, both civil and criminal, in the Ecclesiastical Court. The old mode of procedure was framed upon a system which Frame and proceeded on written evidence taken before an examiner : But ends of old this has, for all practical purposes, been entirely altered by the sys em' statute which introduced viva voce evidence into the Ecclesiastical Courts (17 & 18 Yict. c. 47) ; and proceedings have been since conducted in substance as cases at nisi prius are conducted, though the names and forms of the pleadings are different, and the power remains of taking evidence before an examiner when necessary. The mode of commencing the suit and bringing the parties Citation, before the court is by a process called in the consistorial courts a citation, containing the name of the judge, the plaintiff, and name, residence, and diocese of the defendant ; the cause of action, and the time and place of appearance. In the Arches Court this process is called a decree. This citation, in ordinary cases, is prepared and signed by the proctor, and issued under seal of the court ; but in special cases the facts are alleged in what is termed an act of court, and upon those facts the judge _ (v) See Dig. xlix. ; De Appella- pleading now in use in the High tionibus, 5 ; Voet. Joh. Commen- Court of Justice was modelled on tarius ad Pandectas, 1. 5, ss. 34 — 36. that in use in the Admiralty Court, (x) See for a full account of the which again was derived from that old practice, Burn, ed. Phillimore, used in the Ecclesiastical Courts, tit. Practice, vol. 3. The mode of though considerably condensed. DISCIPLINE OF THE CHURCH. or his surrogate decrees the party to be cited, to which in certain cases is added an Intimation that if the party does not appear, or, appearing, does not show cause to the contrary, the court will proceed to do as therein set forth. These decrees or citations are signed by the registrar of the court. In some cases the citation also contains a monition, and the party cited is admonished to do something or otherwise to appear and show cause why he should not. The citation in duplex querela has both monition and intimation : and a citation with a monition has been adopted, but with doubtful regularity, in some other cases {y). The name of the first plea varies according to the description of the cause. In criminal proceedings the first plea is called articles, because it runs in the name of the judge, who articles and objects. In plenary causes, which are not criminal, the first plea is termed the libel, and runs in the name of the party or his proctor, who alleges and propounds the facts founding the demand. In testamentary causes the first plea was called an allegation. This first plea, though more comprehensive (especially in criminal suits), is analogous to the old declaration at common law, or bill in equity. But there is this characteristic difference, that all such pleas are broken into separate positions or articles, the facts upon which the party founds his demand being alleged under separate heads according to the subject-matter and the time in which they have occurred. Every subsequent plea, in all causes, whether responsive or rejoining, and by whatever party given in, is termed an allegation. Here it should be remarked, that before a plea of any kind, whether articles, libel or allegation, is admitted, it is open to the adverse party to object to its admission, either in the whole or in part ; in the whole, when the facts altogether, if taken to be true, will not entitle the party giving the plea to the demand which he makes, or to support the defence which he sets up (z) ; in part, if any of the facts pleaded are irrelevant to the matter in issue, or could not be proved by admissible evidence, or are incapable of proof. These objections are made and argued before the judge, and decided upon by him ; and his decision may be appealed from. For the purpose of the argument, all the facts capable of proof are assumed to be true ; they are, however, so assumed, merely for the argument, but are not so admitted in the cause ; for the party who offers the plea is no less bound afterwards to prove the facts ; and the party who objects to the plea is no less at liberty afterwards to contradict the facts. This proceeding is attended with great convenience in abridging the introduction of (?/) See Fogg v. Lee, L. E. 4 Aclm. (z) As to a libel of appeal, vide & Eccl, p. 135; 6 P. C. p. 38, and infra, p. 980. cases there cited. PROCEDURE — GENERALLY. 961 unnecessary and improper matter, to which parties themselves are generally too much disposed. They are apt to consider trivial circumstances to he important, and desire them to he inserted in the plea : a desire which neither the honest reluct- ance of the practitioners, nor the judicious advice of counsel, is always able to counteract : even the authority and vigilance of the court itself cannot altogether prevent redundant pleading, and can only check it by taking it into consideration on the question of costs. The proceedings just referred to have also the convenience of enabling parties, in many instances, to take the opinion of the court in a very summary way, particularly in amicable suits : if the facts are candidly stated, and the court, upon the plea being objected to, should be of opinion, that if proved, the facts either will or will not support the prayer of the plea ; in the one case, if the plea is admitted, the further opposition may be with- drawn ; in the other case, if the plea is rejected, the party offering it either abandons the suit, or appeals, in order to take the judgment of a superior tribunal. This course saves the expense and delay consequent upon proving the facts by wit- nesses, in cases where there exists no doubt of the facts being correctly alleged in pleas, and where the question between the parties is principally or perhaps altogether a question of law arising out of the facts so stated in plea. The plaintiff, or his proctor who brings in the libel, prays that Litis con- a day may be assigned for the defendant's or his proctor's tesiatw '> answer to it, and on such day assigned, the plaintiff or his proctor, in presence of the defendant or his proctor, requests the answer, the giving of which creates the litis contested io (a), which common lawyers call the issue (b). Such issue maybe either, different 1, simple affirmative, in which case there is of course an end of kmdsof- the suit ; or, 2, simple negative, consisting of a general denial of the libel; or what may be termed, 3, qualified affirmative or negative, in the language of Conset, " When the defendant doth indeed confess the fact, but yet adds some certain qualities or circumstances of this fact, which are silently passed over by the plaintiff, by reason of which omission of the circumstances of the fact it may be said to be different from the fact pro- pounded in the libel ; hence, though the defendant may not simply deny the fact, yet he may do it indirectly, while he shows the fact to be much otherwise than what is related by the plaintiff" (c). In causes of divorce the party used, generally, to (a) The origin of the phrase is to be traced to the primitive manners of the Romans. At the opening of the snit the defendant invoked some of the standers by as witnesses. This was called antestari or con- testari. See Festus de V. S. ; sub voce " Contestari." (b) Before issue given, a suit is not held to be commenced by the civil or canon law ; but from the return of the citation there is a lis pendens. See Ray v. Sherwood, 1 Curt. pp. 173, 193 ; Sherwood v. Ray, 1 Moo. P. C. C. p. 365. (c) See an instance in the special 962 DISCIPLINE OF THE CHURCH. Personal answers. Designation of witnesses. Responsive allegation. Term assigned for proof. Counter- allegation. Further pleadings. answer by confessing the fact of marriage, but otherwise con- testing the suit negatively. The plaintiff is, in all civil causes, entitled to what are called the personal answers of the defendant on oath, with this ex- ception, that the defendant is not bound to answer any criminal matter, though civiliter intentata, as the charge of adultery in a matrimonial suit. In criminal suits he cannot be called upon for answers at all. These personal answers should contain an answer of fact to all and every the positions or articles of the libel. Whatever parts of the libel the defendant has not admitted, in his personal answers, the plaintiff proceeds to prove by witnesses. The old practice was as follows : a notice, called a designation, was delivered to the defendants of their names, and the different articles on which it was intended to examine them ; he was, therefore, distinctly apprised of the points to which he should address his cross-examination of each witness, as well as the matters which it might be necessary for him to contradict or to explain by counterpleading. The mode of doing this, was to give in a responsive allega- tion (d) , which might be attended with the same consequences as the earlier plea, that is to say, objections to its admissibility, answers upon oath, and the examination of witnesses. The witnesses were examined secretly, and their depositions taken down by an examiner. Publication of the evidence was prayed by one party, and unless the party had not had time to prepare his interrogatories, or unless he alleged an allegation exceptive to the evidence, publication was decreed by the judge. The court might extend this time on reasonable cause beiog shown, and its duration must, too, of course, depend on the distance of the abode of the witnesses, the facility of reaching them, &c. Each term assigned was technically called an assignation, and the book in which the minutes of the court were kept by the registrar was called the assignation book. The term given for proof was called the term probatory. The court might also, on very strong reasons being shown, renew a lapsed term. A counter- allegation might be given in to the responsive allegation, and was subject to the same incidents and rules as the former. But in a rejoinder to a responsive allegation, the only facts strictly pleadable were those either contradictory to or explanatory of facts pleaded in the allegation to which it rejoined, and those noviter pewcnta to the jxroponent's knowledge ; though the court might, under certain circumstances, permit facts to be pleaded which did not come under these descriptions (e). Beyond this step the mere pleadings wrere rarely carried (/), but it report of Mastin v. Escott by Dr. Curteis, 1841, p. 3. id) This plea was sometimes con- founded by inferior Ecclesiastical Courts with the personal answers. e) Dew v. Clark, 2 Add. p. 102. /) A fourth allegation was ad- mitted by the judge of the Consis- PROCEDURE — GENERALLY, 963 should seem that the discretion of the judge and the advocate, and the apprehension of costs, rather than any positive rule, prevented further pleading. And here one exception should be mentioned ; it was always permitted to give in an allegation of facts " noviter perventa " to the knowledge of one of the parties in the suit, it being fully established to the satisfaction of the judge that such facts could not have been earlier known to the party now propounding them. For instance, in matrimonial causes it was allowed to plead acts of adultery committed since the institution of the suit, or before, such being shown to be noviter perventa. An exceptive allegation might also be given Exceptive under certain restrictions to the character of witnesses (g) . allegation. With the introduction of oral evidence taken at the hearing the practice of examining witnesses upon the libel first, then upon the responsive allegation, and then upon each subsequent allegation as it was given in, has disappeared ; and witnesses are now examined generally at the hearing upon the points left in issue by the pleadings and the personal answers. But the rules as to objecting to the admissibility of a pleading and as to requiring the personal answers of the other party remain. When the parties in a cause renounce all further allegations, Conclusion, unless exceptive, the cause is concluded against them, though it is still within the discretion of the court to allow further pleading by rescinding the conclusion (h). The instruments adopted by the Ecclesiastical Court for giving Citation, effect to its process are, first, citation or decree, as has been monition, and shown (7) ; secondly, monition, that is to say, granting to the comPulsoiy- party complaining an order monishing the party complained against to obey under pain of the law and contempt thereof; and, thirdly, compulsory : a writ to compel the attendance of a witness to undergo examination. Thus there may be a monition for personal answers, for bringing in scripts and scrolls, for payment of costs or alimony, to churchwardens to hold a vestry, to a clergyman to reside, &c, &c. (k). The difference between a citation and a monition seems to be, that the former requires a party to appear, the latter an act to be done. All writs require a certificate of their execution. Such certi- Certificate, ficate is indorsed on the instrument setting forth the day and torial Court of London, in Sarjeant V. Sarjeant, June 27th, 1834, on the ground that it afforded the judge better means of arriving at a just conclusion. For the exceptio of the Roman law, see Inst. 4, 13; Dig. 44, 1, § 1 ; for the replication Dig. 44, 1, § 1; Inst. 4, 14; and Dig. 12, 2, 9 ; for the duplicatio, Inst. 4, 14 ; Dig. 44, 1, § 1. Exceptive alle- gations have disappeared since the introduction of viva voce evidence. (g) See Evans v. Evans, 1 Con- sist, p. 75. (A) Middleton v. Middleton, 2 Hagg. Eccl. (Appendix), p. 135; Addams v. Kneebone, 2 Phillim. p. 124. (?) Vide supra, p. 959. (k) As to original monitions, vide supra, p. 960. 964 DISCIPLINE OF THE CHURCH. place of service, signed by the officer or person who served it. An affidavit of the truth of the certificate is also indorsed. Writ do con- The last resource of the ecclesiastical courts for the enforce- MMfo* Capi~ ment of their processes, is to obtain a writ " de contumace capiendo " or a sequestration. Process where If there should be no opportunity of effecting a personal not^rpe?-11" service °^ a citation or decree, proof of the fact is made by sonally served affidavit of the officer on returning the citation into court, upon before pro- which another decree issues, called a decree wis ct modis. This CpKna^ncon- decree is served if possible on the person, if not upon the house, tumacice. the last known place of residence, or the church- door, and by all ways and means likely to affect the party with the knowledge of its contents. Such decree is returned into court, with the certi- ficate of the apparitor as to the means which have been taken, and on the return of such citation wis ct modis (/), the court proceeds in pcenam contumacies ; and the proceedings thus neces- sarily conducted ex parte would be conclusive upon the party not appearing. An unsuccessful attempt was made to enforce upon the Ecclesiastical Court the necessity of applying for a significavit against the non-appearing party, instead of proceeding in pcenam during his absence ; but both the Courts of Queen's Bench and of Chancery refused a prohibition applied for on this amongst other grounds ; the lord chancellor remarking, that many courts proceeded to judgments in the absence of parties who were voluntarily absent (m). Appearance The party cited, to save his contumacy, may appear under under protest. protest, and may show cause against the citation ; for instance, that the court has no jurisdiction in the subject-matter, or that he is not amenable to that jurisdiction. This preliminary objection is heard upon petition and affidavits, and either the protest is allowed and the defendant dismissed, or the protest is overruled, and the defendant is assigned to appear absolutely. Costs, it should be remarked, are usually given against the unsuccessful party. Either party may appeal from the decision on this preliminary point ; or the defendant, should the judge decide against him on the question of jurisdiction, may apply to the High Court of J ustice for a prohibition. Initiatory The initiatory process in the Arches Court is by decree, which theArches *s f°unded on letters of request, or by citation, which is issued only on an appeal, except in suits for legacies, where the Court formerly had original cognizance, when once the will had been proved in the Prerogative Court. The first plea, as has been said, is termed a libel in civil, and articles in criminal suits, not an allegation, as in the Prerogative Court. Ac* ?n It seems proper to mention here that a very convenient and petition. x x " (I) In the Arches Court a further the Consistory of London, decree would issue to see proceed- (m) See Be Barnes, Ct. & Ph. ings, and endeavours would be p. 31 ; Meg. v. Baines, 12 A. & E. made to serve this upon the party : p. 210. but this is not thought necessary in PROCEDURE — GENERALLY. 965 summary mode of proceeding, called an act on petition, or an act of court, is often resorted to in these courts for the adjudica- tion of any incidental subject which may arise during or after the progress of a suit : such as the taxation of costs between party and party ; or on a preliminary matter, such as a question of domicil ; or an appearance under protest ; or formerly on the grant of an administration pendente lite (n). An act on petition is the form of proceeding by which a party may be compelled before the ordinary to take upon him the office of churchwarden, and in which a cause is heard whenever application for a faculty for the alteration or removal of a church, the erection of an organ or monument, &c, is opposed. Of this nature, too, are proceedings in a cause, which is of rare occurrence, before the Master of the Faculties, where the issue of a licence for a marriage is opposed, or in respect of the creation of a notary public. Proceedings on an act on petition must be so conducted as not to prejudice the defendant, if the more formal proceedings by plea and proof would have been in the particular case more regular (o). It is competent to either party to what is technically termed write to the act, that is, to reply by written statements and affidavits to the statement of the adversary, under of course a liability to costs for unnecessarily protracting the suit. This mode of proceeding is very simple, consisting of statements supported by affidavits, and argued by counsel. Proceedings in duplex querela should be by plea and proof and not by act on petition (p). A party proceeding for a civil remedy at the same time in the Election. Temporal and in the Ecclesiastical Courts may be put to his election (q). — ♦ — Sect. 4. — Sentenee. By the ancient canon law, sentence of suspension or excom- By canon law. munication ought not to be given without a previous admon- ition : unless the offence is such as in its own nature immediately requires such sentence. In Archbishop Arundel's Eegister, mention is made of an appeal from a sentence of suspension, as unjust for want of a canonical admonition (>■). And every sentence must be in writing ; otherwise it deserves not the name of a sentence, and needs not the formality of an appeal to («) See Bp. of Winchester v. Wix, D. p. 191. L. E., 3 Adm. & Eccl. p. 19. (?) Walsh y. Bp. of Lincoln, L. (o) Lease v. Kelly, 2 Boberts. R., 4 Adm. & Eccl. p. 242; and P- 510. cases there cited. ( p) Willis v. Bp. of Oxford, 2 P. (r) Gibs. p. 1046. 966 DISCIPLINE OF THE CHURCH. reverse it (s). And the sentence must be pronounced in the presence of both parties ; otherwise sentence given in the absence of one of the parties is void (7). A sentence is either definitive or interlocutory. Definitive. A definitive sentence is that which puts an end to the suit in controversy, and regards the principal matter in question. Interlocutory. An interlocutory sentence determines only some incident or emergent matter in the proceeding, as some exception, or the like, but does not affect the principal matter in controversy (u). Pinal inter- But according to modern practice, frequent use is made in the k)cutory Arches Court of what is termed a final interlocutory decree ; and the only difference between this and a sentence is, that the one (the sentence) is a decree itself under the hand of the judge making it ; and that the other, the interlocutory decree (and which should express that it is to have the force of a written sentence), is merely the statement of the registrar, acting as a notary public, that a decree (to such an effect or in such terms) was made by the judge. They are both equally effective, and therefore sometimes one is had and sometimes the other. Place of hear- The court must be held and sentence pronounced at a place mgandsen- is within the ambit of its jurisdiction (x). But where a suit proceeded to a sentence in the Commissary Court of Surrey, in which certain witnesses had been produced, sworn, and examined, in the diocese of London, without express consent given to time and place ; and on appeal objection was taken to the depositions of such witnesses, it was ruled that the objection could not be sustained, especially by reason that the appellant had acquiesced by his acts in what had been done, and that, as the facts were within his knowledge in the court below, and no objection taken, it was too late to object in the Appellate Court ( ?/) . Execution. The execution of the sentence, in case there be no appeal interposed, is either completed by the act of the court itself, or remains to be completed by the act of the party, in which cases execution is enforced by the compulsory process of contumacy, significavit and attachment (z). (s) Gibs. p. 1047. That is, by the canon law the sentence must be reduced to writing, and then pronounced in the presence of the parties by the judge standing. 2 Q. 1,8; 3 Q. 9, 11 ; Inst. Juris. Can. 3, 15. It may be pleaded briefly in the temporal courts, without showing the manner thereof and of their proceedings. Phillips v. Crawly, Preem. p. 84; Watts v. High Com- mission Court, 2 Bulst. p. 182. (t) Gibs. p. 1047. (w) Ayl. Par. p. 487. (x) See Sergeant v. Dale, 2 Q. B. D. p. 558 ; Hudson v. Tooth, 3 Q. B. D. p. 46 ; Ex parte Be La Bere, 22 Ch. D. p. 316; Green v. Lord Pen- zance, 7 Q. B. D. at p. 273 ; 6 App. Ca. p. 657 ; 10 Geo. 4, c. 53, as to Court of Peculiars. (y) Parkes v. Parkes, 2 Eoberts. p. 518. (2) Vide infra, Part IV., Chap. XII., Sect. 8. PROCEDURE — GENERALLY. 967 Sect. 5.— Appeal (a). An appeal is a provocation from an inferior to a superior The descrip- juclge, whereby the jurisdiction of the inferior judge is for a *^^n^ while suspended as to the cause from which such appeal is made, appeal, the cognizance of it having been transferred to the superior judge. It is laid down in the books of civil and canon law that an appeal, as well as a judicial process, derives its origin from the law of nations. Very ancient usage, it would seem, invented and introduced this right in order that no man might be injured by the injustice or unskilfulness of his judge, but that every person judicially aggrieved, whether principal litigant or not, provided it wrere his interest to have the sentence from which he appealed reversed, should be entitled to this remedy. Appeals have been therefore much favoured by all systems of jurisprudence, and the right of instituting them universally considered as sacred. Durandus expressly says that the right should be so esteemed by the judge appealed from (" reverenter ei deferat "), and that even in doubtful cases he should receive and admit an appeal. In the Ecclesias- tical Courts of this country, paupers have been allowed the right of appeal (b) . As to the early practice of the church upon this point with Appeals respect to its ordained ministers, it seems to have permitted a eier^y by°thee presbyter or deacon, excommunicated by his own bishop, to early practice appeal first to the metropolitan, from him to the provincial of the church, synod, and from that to the patriarch, from whom there lay no appeal except to a general council (c). There were no appeals to the pope out of England before the Origin of reign of King Stephen, when they were introduced by Henry ^0^gls to de Blois, bishop of Winchester, the pope's legate. Not but attempts had been made before that time to carry appeals to Rome, which were vigorously withstood by the nation, as appears by the complaint of the pope in the reign of Henry I. that the king would suffer no appeals to be made to him ; and before that, in the reign of William Eufus, the bishops and barons told Anselm (who was attempting it) that it was a thing- unheard of for any one to go to Rome (that is, by way of appeal), without the king's leave. And though this point was yielded in the reign of King Stephen, yet his successor Henry II. resumed and maintained it, as appears by the constitutions of Clarendon, which provide for the coarse of appeals within the realm, so as that further process be not made, without the king's (a) Stillingneet, Eccl.Oas.Vol.il. Eccl. B. 2, C. 16, s. 1G; X. ii. 28, PartILp.34; Ayl. Par. tit, Appeals, 59; 2 Q. 6, 30; Dig. 49, 1, 1. pp.71 — 84; Durandus, Speculum, (b) Qrindall v. Qrindall, 4 Hagg. Lib. II. Partic. 3 ; De Appell. cap. Eccl. p. 1. "Nunc dicemus;" Bingham, Orig. (r) Ooncil. Sardic. Can. 14. 968 DISCIPLINE OF THE CHURCH. assent (d). And afterwards, in the parliament of Northampton, the constitutions of Clarendon were renewed ; and in the reigns of Richard I. and King John, we find new complaints of the little regard paid to those appeals ; for which also divers persons were imprisoned in the reigns of Edward I., Edward II. and Edward III. (e). Nevertheless, appeals to Rome still obtained until the reign of king Henry VIII., when they were abolished by 24 Hen. 8, c. 12, and 25 Hen. 8, c. 19, here following : — 25 Hen. 8, By 24 Hen. 8, c. 12, ss. 1, 2, " all causes testamentary, causes c' 12, of matrimony, and divorces, rights of tithes, oblations, and Rome1 S t0 obventions," shall be finally determined within the king's juris- abolished. diction and authority, and not elsewhere : any foreign appeals to the see of Rome, or to any other foreign courts or potentates, to the let or impediment thereof in any wise notwithstanding. And if any person shall procure from the see of Rome or any other foreign court any appeal in any the causes aforesaid, or execute any process concerning the same, he shall incur a praemunire. 25 Hen. 8, And by 25 Hen. 8, c. 19, s. 4, no manner of appeals shall be c> 19, had out of this realm .... to the bishop or see of Rome, in any causes or matters whatsoever ; but all manner of appeals, of what nature or condition soever they be, shall be made and had after such form and condition, as is limited for appeals in causes of matrimony, tithes, oblations, and obventions, by a statute made since the beginning of this parliament. And if any per- son shall sue any appeal to the bishop or see of Rome, or procure or execute any process from thence ; he, his aiders, counsellors, and abettors, shall incur a praemunire. 24 Hen. 8, And by 24 Hen. 8, c. 12, s. 3, appeals within this realm shall c- 12- be in this form, and not otherwise ; " first, from the archdeacon Appeals to the Qr his officiai if the matter or cause be there begun, to the SGvcrcil courts respectively bishop diocesan of the said see. ... If it be commenced before ■within this the bishop diocesan or his commissary, then from the bishop realm. diocesan or his commissary, within fifteen days next ensuing the judgment or sentence given, to the archbishop .... and there to be definitely and finally ordered, decreed, and adjudged," without any other appeal whatsoever. If the matter, for any the causes aforesaid, " be commenced before the archdeacon of any archbishop, or his commissary, then the party grieved shall or may take his appeal, within fifteen days next after judgment or sentence there given, to the court of the arches, or audience of the same archbishop or archbishops ; and from the said court of the arches, or audience, within fifteen days then next ensuing after judgment or sen- tence there giveu, to the archbishop of the same province," there to be finally determined without any other appeal. (d) This assent might be with- se non divertat aliquis versus partes held and the appeals prohibited, extemas sine licentia regis. as we find in Registrum Brevium, (e) Gibs. p. 83 ; 4 Inst. p. 340. fo. 89, Be securitate invenienda quod PROCEDURE — GENERALLY. 969 If the matter be commenced, for any the causes aforesaid, before the archbishop, then the same shall be before him definitively determined, without any other appeal, provocation, or any other foreign process out of this realm to be sued to the let or derogation of the said judgment, sentence or decree, other- wise than is by this act limited ; " saving always the prerogative of the archbishop and church of Canterbury, in all the foresaid causes of appeals, to him and his successors, to be sued within this realm, in such and like wise as they have been accustomed and used to have heretofore " (/). Appeals within this Realm shall be in this Form."] — Which is to be done by demanding letters missive, called apostoli, from the judge a quo, to the judge ad quern (g). From the Archdeacon or his Official to the Bishop.] — And not From arch- per saltum to the archbishop : and this is agreeable to the rule ^™n's of the ancient canon law (h). The canon law, however, allowed an appeal to the pope, omisso medio (/'), and to his legates. Both an appellate and an original jurisdiction are said to belong to the Archbishop of Canterbury legationis jure (/<■). But this custom of appealing to the pope is said not to have obtained in France, where, if the bishops in council doubted of the ecclesiastical law, the appeal lay to the metropolitan in council, and from him to the primate, whose decision was final (/). The rule of the civil law is that appeals shall be made gradatim, and not per saltum (m). In the case of Robinson v. Godsalre, in 8 "Will. 3, it was Where arch- resolved by the court, that where an archdeacon has a peculiar ^2^as a jurisdiction, he is totally exempt from the power of the bishop, 1KCU ar' and the bishop cannot enter there and hold court. And in such case, if the party who lives in the peculiar be sued in the bishop's court, a prohibition shall be granted, for the statute intends that no suit shall be per saltum. But if the archdeacon has not a peculiar, then the bishop and he have concurrent jurisdiction, and the party may commence his suit either in the archdeacon's court or the bishop's ; and if he commence in the bishop's court, no prohibition shall be granted ; for if it should, it would confine the bishop's court to determine nothing but appeals, and render it incapable of having any causes originally commenced there (n). From the Bishop.] — This is to be extended to all who have Appeals from episcopal jurisdiction : as in the case of Johnson v. Let/, in 7 bishop's Will. 3, where the dean of Salisbury, in one of his peculiars, court- made letters of request to the Dean of the Arches, it was (/) These acts were repealed by 1 & 2 Phil. & Mar. c. 8, but revived by 1 Eliz. c. 1, with a proviso for two appeals then pending at Rome. (q) Gibs. p. 1035. fh) Gibs. p. 103G; X. ii. 28, 6G. (0 2, Q. G, c. 4, o, 6, et sea.; X. ii. 28, 7. (/.•) X. i. 30, 1. (/) 6, Q. 4, 3. (in) See Iluber, Pra?lectiones, Yol. III. p. 580; Dig. 49, 1, 21. Bockelmann, De Differentiis Jur. Civilis et Canonici, c. 79, in uotis. (n) Ld. Raym. p, 123. 970 DISCIPLINE OF THE CHURCH. objected, in order to obtain a prohibition, that this was per saltum, and that he ought to have made request to the Bishop of Salisbury, his immediate ordinary : but the plea was not allowed, because this was not (as in the case of an archidiaconal peculiar) subject to the jurisdiction of the ordinary, but imme- diately to the archbishop (o). From the Bishop or his Commissary, to the Archbishop.'] — And not from the bishop's official or commissary, to the bishop him- self ; for the reason given in the canon law, namely, lest (having both but one auditory) the appeal should seem to be made from the same person to the same person (p). 25 Hen. 8, By 25 Hen. 8, c. 19, s. 4, for lack of justice in the courts of °' 19' the archbishop, the party may appeal to the king in chancery ; archbishop^ anc^ uPon every such appeal, a commission shall be directed court. under the great seal to such persons as shall be named by the king, like as in case of appeal from the admiral's court, to hear and determine such appeals; whose sentence shall be definitive : and no further appeals to be had from the said commissioners. For lack of Justice in the Archbishops' Courts.'] — Such appeal lies not from a local visitor ; nor in any cause of a temporal nature ; nor did it lie from the high commission court when in being, because they themselves were the king's delegates, as acting by immediate commission from him, and there was no remedy against their sentences but a new commission to others, grantable in virtue of the royal prerogative and independent from this statute (q). The Party grieved may appeal to the King in Chancery.'] — And no commission of delegates, in any case of weight, used to be awarded, but upon petition preferred to the Lord Chancellor, who named the commissioners himself, to the end they might be persons of convenient quality, having regard to the weight of the cause and dignity of the court from which the appeal was (r). And sometimes for a supply of j ustice, on petition to the king, a special commission of delegacy issued, to begin the suit, and proceed originally in the cause ; as where the archbishop himself was interested, or the like (s). A Commission shall be directed under the Great Seal, to such Persons as shall be named by the King.] — These commissioners were usually some of the lords spiritual and temporal or both, and commonly one or more of the twelve judges, and one or more doctors of the civil law it) . And they were commonly called delegates (according to the language of the civil and canon law), on account of the special (o) Skin. p. 589 ; Gibs. p. 1035. (p) Gibs. p. 1036; VI. i. 4, 2, and li. 15, 3. (y) Wats. c. 6, pp. 52, 53. (r) Bacon's Law Tracts, ed. 1737, p. 294. (s) 1 Ought, p. 437. (t) Floyer, Practice, p. 20. PROCEDURE — GENERALLY. 971 review. commission or delegation they received from the king, for the hearing and determining every particular cause. Agreeably whereunto, their proceedings were according to the rules of the civil and ecclesiastical laws ; and on that account it has been particularly adjudged, that a suit there did not abate by the death of the parties : this being the course in the ecclesiastical courts. Also prohibitions went to them, as to an ecclesiastical court. But in the case of Stevenson v. Wood, in 10 Jac. 1 (m), the better opinion of the court was, that they could not grant letters of administration (?). Whose Sentence shall be definitive.'] — In the case of Saul v. Wilson, in 1689, it was said that there lies no appeal from a sen- tence in a court of delegates ; for they cannot have any original jurisdiction, because it is a matter grounded upon an act of parliament, and the act gives them none {//). But on a petition to the king in council, a commission of Commission review might be granted under the great seal, appointing new of judges, or adding more to the former judges, to revise, review, and rehear the cause (s). And hereupon Lord Coke observes, that albeit these statutes do upon certain appeals make the sentence definitive as to any appeal, and that no further appeal should be had ; yet the king after such a definitive sentence, as supreme head, may grant a commission of review, for two causes : 1. For that it is not restrained by the statute. 2. For that after a definitive sen- tence, the pope as supreme head by the canon law used to grant a commission ad reddendum ; and such authority as the pope had, claiming as supreme head, of right belongs to the crown, and is annexed thereunto by the statutes 26 Hen. 8, c. 1, and 1 Eliz. c. 1 (a). And so it was resolved in the King's Bench, in 39 Eliz., where the case was, that sentence being given in an ecclesiastical cause in the country, the party grieved appealed according to the act of 24 Hen. 8, c. 12, to the archbishop, before whom the first sentence was affirmed. "W "hereupon, according to the statute of 25 Hen. 8, c. 19, he appealed to the delegates : before whom both the former sentences were repealed and made void by definitive sentence. And thereupon the queen, as supreme head, granted a commission of review, ad revidendum the sentence of the delegates. And upon this matter a prohibi- tion was prayed in the King's Bench, pretending that the com- mission of review was against law, for that the sentence before the delegates was definitive by the statute of 2o Hen. 8, c. 19. But upon mature deliberation and debate the prohibition was denied : for that the commission for the causes abovesaid was resolved to be lawfully granted. In that case Coke says, he being then the queen's attorney, was of counsel to maintain the [u\ 2 Biilst. p. 2. («) See this point mnch discussed (x) Gibs. p. 1037. in the case of Poole y. The Bishop \y\ 2 Tern. p. 118. of London, 14 Moo. P. C. C. p. 202; (z) 1 Ought, p. 437. 7 Jut., N. S. p. 347. V. VOL. u, 3 s 972 DISCIPLINE OF THE CHURCH. 24 Hen. 8, c. 12. Appeal to the convocation, where the king is party. 2 & 3 Will. 4, c. 92. Appeals to be to Privy Council instead of to Delegates. queen's power. And precedents were cited in that court, in Michelotfs case, 29 Eliz., and in Goodman's case, and in Ilucfs case, in the same year (b). But a commission of review was matter of discretion, and not of right : and if it were a hard case, the chancellor would advise the crown not to grant it (c) . In the commission of review, there was sometimes a clause to admit other allegations and new matter, and to take proofs thereupon as well on the one part as on the other (d). By 24 Hen. 8, c. 12, s. 4, in case any cause, matter, or con- tention, for any the causes specified in the said statute, shall come in contention in any of the aforesaid courts which shall touch the king, his heirs or successors, the party grieved may appeal from any of the courts of this realm to the spiritual pre- lates, and other abbots and priors of the upper house, assembled and convocate by the king's writ in the convocation being, or next ensuing, within the province or provinces where the same matter or contention is or shall be begun, so that such appeal be within fifteen days after sentence given ; and the same to be there finally determined. It would seem that this section is no longer in force, but the point was not clearly decided (e). By 2 & 3 Will. 4, c. 92, s. 3, " It shall be lawful to and for every person who might heretofore, by virtue of either of the said recited acts, have appealed or made suit to his Majesty in his High Court of Chancery, to appeal or make suit to the King's Majesty, his heirs or successors in Council within such time, in such manner and subject to such rules, orders, and regulations for the due and more convenient proceeding as shall seem meet and necessary, and upon such security, if any, as his Majesty, his heirs and suc- cessors shall from time to time by Order in Council direct, and the King's Majesty, his heirs and successors in Council, shall thereupon have power to proceed to hear and determine every appeal and suit, so to be made by virtue of this act, and to make all such judgments, orders, and decrees in the matter of such appeal or suit, as might heretofore have been made by his Majesty's commissioners appointed by virtue of either of the hereinbefore recited acts, if this act had not been passed, and every such judgment, order and decree so to be made by the King's Majesty, his heirs and successors, shall have such and the like force and effect in all respects whatsoever, as the same respectively would have had if made and pronounced by the aforesaid High Court of Delegates, and every such (b) 4 Inst. p. 340. (c) Franklin's case, 2 P. YVms. p. 299 ; Eaglet( n v. Kingston, 8 Yes. p. 438. See Mathews y. Warner, 4 Ves. p. 186. In Henshaw v. Atkin- son, three commissions of adjuncts were granted. See also Lewis v. Btdkeley, 1 Lee, p. 191 ; Renault v. Saidnier, 1 Lee, pp. 214, 240; Rich v. Mouchett, 1 Hagg. Eccl. p. 318. (d) 1 Ought, p. 437. (e) Be Gorham v. Bp. of Exeter, 5 Ex. p. G30 ; Gorham v. Bp. of Exeter, 15 Q. B. p. 52 ; Bp. of Exeter y. Fust, 10 C. B. p. 102. See also 14 Jur. pp. 480, 522, 876; 19 L. J., Q. B. p. 279, C. P. p. 200, Ex. p. 376. PROCEDURE — GENERALLY. 973 judgment, order and decree shall be final and definitive, and No commis- no commission shall hereafter he granted or authorised to to^e hereafter review any judgment or decree to be made by virtue of this granted. Acfc"(/). By 3 & 4 Will. 4, c. 41, the Judicial Committee of the Privy 3 & 4 Will. 4, Council was formed. c- 4L The composition of this body has been altered from time to time. Members of As it now stands, by the joint effect of 3 & 4 Will. 4, c. 41, s. 1, Judicial 39 & 40 Yict. c. 59," ss. 6, 25, and 50 & 51 Vict, c. 70, s. 3, every 0ommittee- past or present lord president of the council, lord chancellor of Great Britain or of Ireland, lord of appeal in ordinary, judge of the High Court of Justice or Court of Appeal in England or in Ireland, or of the Court of Session in Scotland, being privy coun- cillors, are members ; and further, it is lawful for the Crown from time to time, by sign manual, " to appoint any two other persons, being privy councillors, to be members of the said committee." By sect. 3 of 3 & 4 Will. 4, c. 42, " All appeals or complaints 3 & 4 Will. 4, in the nature of appeals whatever, which, either by virtue of this c- 42- Act, or of any law, statute or custom, may be brought before A11 appeals to his Majesty or his Majesty in council from or in respect of the ^Majesty^to determination, sentence, rule or order of any court, judge or the judicial judicial officer, and all such appeals as are now pending and committee, unheard, shall, from and after the passing of this act, be referred hereon by his Majesty to the said judicial committee of his privy council, and such aj^peals, causes and matters shall be heard by the said judicial committee, and a report or recommendation thereon sha]l be made to his Majesty in council for his decision thereon as heretofore, in the same manner and form as has been heretofore the custom with respect to matters referred by his Majesty to the whole of his privy council or a committee thereof " (the nature of such report or recommendation being always stated in open court). By sect. 7, it shall be lawful for the judicial committee to Power to take examine witnesses by word of mouth, or to direct that the de- evidence, positions of any witness shall be taken in writing by the regis- trar of the privy council. By sect. 8, it shall be lawful for the judicial committee to direct that witnesses shall be examined or re-examined, and as to such facts as to the said committee shall seem fit ; and his Majesty in council may, on the recommendation of the said committee, remit the matter which shall be the subject of such To remit appeal to the court from the decision of which such appeal shall causes- have been made, and direct that such court shall rehear such matter, in such form, and either generally or upon certain points only, and upon such rehearing take such additional evidence, though before rejected, or reject such evidence before admitted, (/) But the Judicial Committee Hcbbert v. Purchas, L. R., 3 P. C. might apparently in special circum- p. G64. stances allow a rehearing. See 3s2 974 DISCIPLINE OF THE CHURCH. To direct issues. Costs. Reference to registrar. Subpoena. Time of appealing*. General powers of judicial committee. 6 & 7 Vict, c. 38. 7 & 8 Vict, c. 69. 14 & 15 Vict, c. 83. as shall be directed, or it may be directed that a feigned issue shall be tried in any court in any of his Majesty's dominions abroad. By sects. 10 — 13, the judicial committee may direct an issue to try any fact, may in certain cases direct depositions to be read at the trial of the issue, may make such orders as to the admis- sion of evidence as are made by the Court of Chancery, and may direct new trials. By sect. 15, costs are to be in the discretion of the judicial committee. By sect. 17, the judicial committee may refer matters to the registrar in the same manner as matters used by the Court of Chancery to be referred to a master ; and by sect. 18, the crown may from time to time appoint a registrar. By sect. 19, the attendance of witnesses and production of papers may be compelled by subpoena. Sect. 20. " All appeals to his Majesty in council shall be made within such times respectively within which the same may now be made, where such time shall be fixed by any law or usage, and where no such law or usage shall exist, then within such time as shall be ordered by his Majesty in council. . . By 6 & 7 Yict. c. 38, s. 2, "In respect of all incidents, emergents, dependents, and things adjoined to, arising out of, or connected with appeals from any ecclesiastical court," the judicial committee shall have full power (subject to rules) to make interlocutory orders and administer oaths, and do all such things as may be necessary, or as the judges of the court appealed from, or the judges delegate or con- delegates appointed under the great seal might have done. By sect. 7, " for better punishing contempts, compelling appearances, and enforcing judgments of her Majesty in council," and orders of the judicial committee, in appeals from the ecclesiastical courts, her Majesty in council and the judicial committee shall have the same powers of attachment and com- mittal as were then possessed by the High Court of Admiralty. By sect. 15, the judicial committee may make rules of prac- tice to be confirmed by the Queen in council. By the joint elfect of sect. 11 of this act and sect. 9 of 7 & 8 Yict. c. 69, all appeals to the privy council may be referred by a general order, which is made once a year in November, to the judicial committee, and no special order of reference is necessary. By sect. 12 of 7 & 8 Yict. c. 69, a further power of punishing contempts and enforcing orders by sequestration of the offender's goods and chattels is given. By 14 & 15 Yict. c. 83, s. 13, three members, " exclusive of the Lord President," form a quorum of the judicial committee (cj). ((/) As to the powers and practice of the Judicial Coininittee, see Macpherson, Practice of the Ju- dicial Committee, ch. x. ; Martin v. Machonochle, L. E., 3 P. C. p. 409; 7 Moo. P. C.C.,N. S. p. 239; Hebbert v. Purchas, L. E., 4 P. C. p. 301 ; et vide infra, Chap. XII. Section 4. PROCEDURE — GENERALLY. 075 The judicial committee had called in archbishops and bishops Episcopal being privy councillors as assessors in one or two ecclesiastical assessors- appeals. By 3 & 4 Vict. c. 86, s. 16, every archbishop or bishop who was a privy councillor was made a member of the com- mittee for such appeals, and one at least had to sit. But now, by 39 & 40 Vict. c. 59, s. 14, "Her Majesty may by order in 39 & 40 Vict, council, with the advice of the judicial committee of her Majesty's c* °9- privy council, or any five of them, of whom the Lord Chancellor shall be one, and of the archbishops and bishops being members of her Majesty's privy council, or any two of them, make rales for the attendance on the hearing of ecclesiastical cases as assessors of the said committee, of such number of the archbishops and bishops of the Church of England as may be determined by such rules. "The rules may provide for the assessors being appointed for one or more year or years, or by rotation or otherwise, and for filling up any temporary or other vacancies in the office of assessor. "Any rule made in pursuance of this section shall be laid before each House of Parliament within forty days after it is made if Parliament be then sitting, or if not then sitting, within forty days after the commencement of the then next session of Parliament. " If either House of Parliament present an address to her Majesty within forty days after any such rule has been laid before such House 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 thenceforth become void, but without prejudice, nevertheless, to the making of any other rule in its place, or to the validity of anything which may in the meantime have been done under any such rule." Eules were made under this Act by Order in Council of 15th Rules under November, 1876. They will be found in the Law Eeports (h). this Act. Now, therefore, in all ecclesiastical appeals there are episcopal assessors, but in none are there episcopal members of the judicial committee. The modern statutes, 3 & 4 Vict. c. 86, the Public Worship Appeals Act, 1874, and the Clergy Discipline Act, 1892, give an appeal to ™der modern the privy council. But there is no appeal for a curate from the decision of the archbishop confirming a revocation of his licence under 1 & 2 Vict. c. 106 (i). A question has been raised whether it is lawful or proper to Whether express in the judgment, as it is called, that is, in the reasons mlnor?ty of • * coinmit lgg given by the judicial committee for its report to the Queen in can express council, the fact that their lordships are or are not unanimous, dissent, or the further fact that particular members of the committee dissent ; and also whether, if this is not to be done, such individual members may make their dissent public. The controversy on this question reached an acute stage after (A) 2 P. D. p. 384. Moo. P. C. C. p. 2G2 ; 7 Jur., N. S. (?) Poole v. Bp. of London, 14 p. 347. 976 DISCIPLINE OF THE CHURCH. the decision in the case of Rhhdale v. Clifton (k) ; the late Lord Chief Baron Kelly having stated that he and two other members of the judicial committee (since known to be the late Lord Justice Amphlett, and the author of this book, Sir Robert Phillimore) had dissented from that part of the judgment which purported to condemn the Eucharistic vestments. The late Lord Chancellor Cairns took strongly the view that Lord Chief Baron Kelly had no right to reveal his dissent, and framed an order in council of the 4th of February, 1878, reciting an old order of the 20th of February, 1627 (when there was no judicial committee), and ordering that "the ancient rule and practice of the privy council shall be strictly adhered to, respected, and observed, in all appeals, causes, or matters referred by her majesty to the judicial committee of the privy council, or to any other committee or assembly of the privy council, and that no disclosure be made touching the matters treated of in council, and no publication made by any man how the particular voices and opinions went." Notwithstanding this order in council, Lord Chief Baron Kelly maintained that he had had a right to disclose his assent (/), and this view was supported by Mr. Finlason(w), and by Lord G-rimthorpe (n). Lord Selborne, on the other hand, has published a considerable pamphlet in support of the new order in council (o). The present editor, respectfully, but decidedly, has long been of opinion that, both on principle and with regard to precedents, the new order in council cannot be supported, and seeks to impose an illegal prohibition. He contributed, in a letter to The Times (p), several additional precedents which had hitherto escaped public notice, in which the dissent of members of the judicial committee from the conclusion of the majority had been publicly expressed (q). (k) 2 P. D. p. 276. (/) Kelly, Letter to the Lord High Chancellor. (m) Finlason, the Judicial Com- mittee of the Privy Council. (n) Grimthorpe, Letters to the Times, March 26, 1891 ; June 1, 1891. (o) Selborne, Judicial Procedure in the Privy Council. {p) Oct. 28, 1891. (q) The cases which have been collected on this subject are as follows : — First, as to statements that particular members dissented : Oorham case, Special Eeport by Moore ; Williams v. Bp. of Salisbury, and Wilson v. Fendall, 2 Moo. P. C. C, N. S. p. 375; Cowie v. Ren- frey, 5 Moo. P. C. C. p. 232 ; Cooper v. Bockett, 4 Moo. P. C. C. p. 452 ; and Shersly v. Ilibbert, 5 N. C. p. 477 ; where Ld. Brougham at the council table expressed his dis- sent. With this may be compared the statement of personal concur- rence of a member in Long v. Com- missioners of Claims, 2 Knapp, p. 59 ; and of the archbishop and bishop who were assessors in Liddell v. Westerton, Moore, Special Eeport. In the case of Michael v. Thomas, 5 N. C. p. 614, and Phillips v. Pit illips, Ibid. p. 440, after the judg- ment had been read at the table, individual members added explana- tions and limitations. Secondly,, as to statements that there was a divergence of opinion without giving the names of the dissen- tients : Craig v. Furnell, 6 N. C. p. 692 ; Sheppard v. Bennett, L. E., PROCEDURE GENERALLY. 977 The matter at present rests in this undecided state. During the appeal from an inferior Ecclesiastical Court to a Suspension of superior one, the sentence given by the inferior court or judge is j^.^^06 suspended. # # _ appeal. Thus, if a church be voidable by deprivation, and the eccle- siastical judge has actually pronounced a sentence of deprivation against the incumbent ; yet if the person deprived makes his appeal, the church is not actually void, so long as the appeal depends ; and if the sentence of deprivation upon the appeal be declared void, the clerk is perfect incumbent as before, without any new institution (r). And pending the appeal it is usual, at the instance of the Inhibition, appellant, for the superior court to grant an inhibition to stay the execution of the sentence in the inferior court until the appeal shall be determined. An inhibition is a writ to forbid a judge from farther proceed- ing in a cause depending before him. Inhibitions most com- monly issue from the higher court to the inferior on an appeal ; but there are likewise inhibitions on visitations (s) . Concerning which, by Can. 96 of 1603, it is ordained " that Canon 96. no inhibition shall be granted out of any court belonging to the Archbishop of Canterbury, at the instance of any party, unless it be subscribed by an advocate practising in the said court. . . . 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 ecclesias- tical jurisdiction at all, and if in the court or consistory of any bishop there be no advocate, then shall the subscription of a proctor practising in the same court be held sufficient " (t). And by Can. 97, " It is further ordered and decreed that Canon 97. henceforward no inhibition be granted by occasion of any inter- locutory decree, or in any cause of correction, 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 4 P. C. p. 351. On the other hand, unanimity was, in the early days of the judicial committee, frequently expressly stated. See Nation v. Paricute, 2 Knapp, p. 71 ; Le Gros V. Le Breton, Ibid. p. 182 ; Rajah v. Sorriah, Ibid. p. 263; Be Adam, 1 Moo. P. C. C. p. 477 ; Be Gould, 2 Moo. P. C. C. p. 192. Ld. Selborne agrees that this anonymous state- ment of unanimity or division is permissible. Reference has been made to the practice of the dele- gates. _ They gave no reasons for their judgment, but only pro- nounced the formal order that the sentence appealed from should be affirmed, reversed, or varied, as the case might be. Consequently no individual expression of opinion in court could take place, but there seems to have been no obligation of secrecy. See the statement of V.-C. Bruce in Cockroft v. Rawles, 4 Moo. P. C. C. at p. 249, and some instances referred to by Ld. Sel- borne. (r) Wats. c. 6, p. 52 ; Heath v. Attwood, Dyer, p. 240, B. ; P«cA-- marCs case, 6 Co. p. 18. (s) Termes de la Ley. (t) Vide supra, p. 169, 978 DISCIPLINE OF THE CHURCH. Peremption of appeal. "When an inhibition must precede an appeal. Its contents. Monition for transmission of process. Effect of inhibition. 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 inhi- bition, 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 register in the country, or his deputy, tendering him his fee. And if any judge or register 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 : and if any proctor, or other person whatsoever by his appointment, shall offend in any of the premisses, either by making or sending out any inhibition, contrary to the tenor of the said premisses, let him be removed from the exercise of his office for the space of a whole year, without hope of release or restoring." An appeal may be what is technically called perempted by certain acts done by the appellant or acquiesced in by him after the sentence complained of has been delivered, e.g. the receipt of costs ; but courts are not now disposed to countenance this doctrine unless the act which perempts be of a decided character (u). If an appeal be interposed from a grievance inflicted, or a definitive or interlocutory sentence pronounced by an inferior judge, an inhibition is first to be requested from the judge to whom it is appealed ; this inhibition usually contains a citation for the party who obtains the sentence, or at whose petition the grievance was imposed (called the party appellate), to answer in a cause of appeal ; and, by virtue of this inhibition, the judge from whom it is appealed, his registrar, and the party appellate, are to be inhibited, that they proceed not further to the execution of the sentence pronounced against the appellant, while this appeal depends, nor do any thing to his prejudice ; and this inhibition is to be certified to the judge to whom it is appealed, with a certificate thereupon, mentioning what day the party and judge were inhibited, and on what day the party appellate was cited to answer in this cause of appeal. There is also issued a monition for the transmission of the process in the court below, which is a separate instrument. The inhibition contains the substance of what is subsequently set forth in the libel of appeal, which is called the prcesertim of the appeal. The court, it should be observed, is not legally obliged to defer to an appeal till an inhibition is served ; nor is there any distinction whether all the acts be done on the day on which the appeal is asserted, or some on a subsequent day. And when the court has overruled (a) Brown v. Davenport, 11 Moo. P. C. C. p. 297 (1857). PROCEDURE— GENERALLY. 979 objections to the admission of an allegation, it lias admitted tbe allegation on the following court day, notwithstanding an appeal had in the interim been inserted (x). The general inclination of the court is to defer to the appeal ; but it will not do so where the delay may defeat the ends of justice (y). It has been holden Inhibition that the 97th canon inferred a discretion in the judge ad quern discretionary. to grant or refuse his inhibition (~). An attentat, in the language of the civil and canon laws, is Attentat, anything whatsoever wrongfully innovated or attempted in the suit by the judge d quo, pending an appeal ; but steps taken by the judge d quo on the same court day, but after an appeal entered, and subsequent thereto, but prior to the service of the inhibition are not holden to constitute an attentat (a). All the several acts of one court day constitute, with reference to attentats, but one act, notwithstanding an appeal intermediate between those acts (b). Appeals, as laid down in the books, are said to be of two Appeals: kinds, that is to say, they are judicial or extra-judicial; the first Judicial, from the sentence, the last from the acts and the extra-judicial judicial.a" decrees. The judicial appeal is made from the sentence of the judge, which is either definitive or interlocutory. The extra- judicial appeal may be interposed upon such grievances as any one may suffer, either by the judge's deferring to pronounce sentence or rejecting some material evidence, or immoderate taxation of charges ; sometimes, though rarely, from condemna- tion (c) in costs ; from the granting too short a time or delay wherein to do any act, &c, and also, as laid down in the books, from an unjust excommunication upon a false certificate of the citation, and denying the service to any one. An appeal must be instituted within fifteen days, and Time allowed prosecuted within a year or year and a day from the date of the for appealing, delivery of the sentence. There are three methods by which an appeal may be instituted : Modes of 1. By an appeal asserted viva voce, before the judge and the instituting registrar in open court, at the time of the delivery of the ^re- sentence, called an appeal apud acta, because taken down by the registrar in the act of court in the following form : " A. B. protested of a grievance, and of appealing, and instantly appealed." 2. By a protocol of appeal, which is an instrument attested by a notary public in the presence of two credible witnesses, or of one other notary, containing an outline of the proceedings in the court below, that is to say, such particulars as the time, place, judge, parties, and tenor of sentence. (x) Middleton v. Middleton, 2 1 P. D. p. 383. Hagg. Eccl. p. 141, Suppl. in notis. (a) Chichester v. Donegal, 1 Add. (.?/) See last case, and Chichester p. 22. V. Donegal, 1 Add. p. 21. (b) Ibid. (z) Herbert v. Herbert, 2 Philliin. (c) Lloyd and Clarke v. Poole, 3 p. 437 ; and see Ridsdale v. Clifton, Ilagg. Eecl. p. 477. 980 DISCIPLINE OF THE CHURCH. 3. By what must be called, for the sake of distinction, the appeal itself, viz., a more extended form of statement than the protocol, but signed and witnessed by the same persons. Appeal where Such being the different methods of instituting an appeal, it nothing should be further observed, that where a definitive sentence or remains to be n i • , n n -i i -. i done after nna*- interlocutory decree has been pronounced, and where sentence. nothing further remains to be done for the purpose of carrying the same into execution, as might be the case in matrimonial suits, the proctor, against whose party sentence is given, may, within fifteen days, enter a protocol before a notary public, and may prosecute his appeal by applying to the superior court for an inhibition at any time within a year, or, as some suppose, a -where some- year and a day, from the delivery of the sentence ; but if any- to t>? doeieainS ^ing remains to be done by the court after sentence, in order to carry it into effect, as by grant of probate or administration, by enforcing restitution of conjugal rights, payment of church rate, or of costs pronounced for, there being no appeal alleged apud acta, the party submitting to such judicial acts or orders would Power of the be barred of his right of appeal. Nor can the court (d) d quo judge a quo. dismiss, or perempt, or, otherwise than as above mentioned, affect the right of appeal where it has been alleged apud acta, although the party should delay to prosecute it ; any such Of the judge attempt would trespass on the province of the judge ad quern ; ad quem. the judge a quo can only proceed to carry his sentence into execution (e) . Parties. A judge acting ex officio mero may be made a party to the appeal ; not so, however, where he acts ad instant iam partis (/). Libel. The libel of appeal ought to agree with the inhibition (g) . It may be opposed, but only for errors on its face and in the dis- cretion of the judge (h). But the merits of an appeal are not to be discussed on objection to the admission of the libel (t). New evidence. New evidence is occasionally admitted on an appeal; but it must be shown to be of facts noviter perventa to the knowledge of the party (j) . Sect. 6. — Letters of Request. What they It has been said that the Arches Court may take original are. cognizance by letters of request of all causes which may be brought in a diocesan court of the province. The nature of (cZ) See Chichester v. Donegal, 1 (h) Ditcher v. Denison, A.D. 1856. Add. p. 22. (0 Boyd v. Philpotts, L. 1 ' . , 4 (e) See Bowles v. Boivles, Arches Adm. & Eccl. p. 325. See Kings- Court, 1841, 16th Feb. ford v. Kingsford, 3 Curt. p. 715. (f) Felly. Law, 1 Boberte. p. 726. (j) Fletcher v. Le Breton, 3 \g) Frankfort v. Frankfort, 3 Hagg. Eccl. p. 365. Curt. p. 715. PROCEDURE GENERALLY. 981 these remains to be explained. In any case, where a diocesan court within the province has a jurisdiction over the parties, the plaintiff may apply to the judge of such court for letters of request, in order that, as the case may be, the cause may be instituted in the Court of Arches or the Chancery Court of York; and when the judge of the court below has consented to sign such letters, and they have been accepted by the judge of the Arches Court or Court of York, a decree issues under his seal, calling upon the defendant to answer to the plaintiff in the suit instituted against him. The institution of a suit by letters of request does not fall under the prohibition of the " Bill of Citations," 23 Hen. 8, c. 9 (k). The effect of the provisions of 3 & 4 Viot. c. 86, as to letters of request, will be considered in the chapter on that act (/) . The Dean of Arches has declined to accept letters of request When presented jointly by the archdeacon and the chancellor of refused- Norwich The jurisdiction of the provincial court is strictly limited to Limit of the letters of request; and it cannot be called upon to try a Jurisdiction civil suit for a sum of money different from that stated to be in 0f request dispute in the letters of request (w). accepted. Letters of request are sometimes issued for other purposes than Letters of for sending the cause to another court : e.g. they are sent from ^Yjnftua0'' one judge to another to request him to examine witnesses out of vitissitudinis the jurisdiction of the former but in that of the latter (o), to obtentu. enforce a monition (p), &c. Sect. 7. — Caveat. A caveat is a caution entered in the spiritual court, to stop By canon law. licences, dispensations, faculties, institutions, and such like, from being granted without the knowledge of the party that enters it. And a caveat is of such validity by the canon law, that if an institution, administration, or the like, be granted pending such caveat, the same is void (q) . But not so by the common law. For by the common law, an By common admission, institution, probate (r), administration, or the like, law- (k) Tide infra, p. 985 ; and see Bolton v. Bolton, 1 Lev. p. 225 ; Jones v. Jones, Hob. p. 185 ; 2 Brownl. p. 27 ; Gibs. p. 1007. (0 Vide post, Part IV. Chap. VIII. (m) Steward v. Bateman, 3 Curt, p. 201. (n) Asterley v. Adams, L. R., 3 Adm. & Eccl. p. 361 ; apparently overruling Ha ices v. Pellatt, 2 Curt, p. 473. (o) 1 Ought, p. 150; 2 Ibid. p. 446; Gibs. p. 1003; Woods v. Woods, 2 Curt. p. 517; Fa rices v. Parkes, 2 Eoberts. at p. 528. (p) See Crowley v. Crowley, 3 Hagg. Eccl. p. 758. (7) AyL Par. pp. 145, 146 ; Price v. Parker, 1 Lev. p. 157 ; Newman v. Beaumond, Owen, p. 50. (r) As to probates, see Rex v. Bdteswood, 2 Stra. pp. S57, 956. 932 DISCIPLINE OF THE CHURCH. contrary to a caveat entered, shall stand good ; in the eye of which law, the caveat is said to be only a caution for the information of the court (like a caveat entered in Chancery against the passing of a patent, or formerly in the Common Pleas against the levying of a fine) ; but that it does not preserve the right untouched so as to null all subsequent proceedings, because it does not come from any superior ; nor has it ever been determined, that a bishop became a disturber, by giving institution without regard to a caveat ; on the con- trary, it was said by Coke and Doderidge, in the case of Hutchins v. Glover, in 14 Jac. 1, that they have nothing to do with a caveat in the common law (s). Effect of The mere entry of a caveat will not found a jurisdiction, for entry. ft might he entered with intent to deny the jurisdiction, and prevent the court from taking cognizance of the matter (t). A caveat against an inhibition has been entered, and the inhibition, after hearing counsel, refused (it). The proper course to be taken by the party wishing to proceed is to revoke the caveat, that is, enter a statement that he appears notwithstanding the caveat. If a ratepayer was dissatisfied with his assessment to a church rate, one of his remedies was to enter a caveat against its con- firmation by the ordinary (x). Sect. 8. — Citation. A citation is a judicial act, whereby the defendant, by authority of the judge (the plaintiff requesting it), is com- manded to appear, in order to enter into suit, at a certain day, in a place where justice is administered (y). Its contents. The Citation ought to contain — 1. The name of the judge, and his commission, if he be delegated; if he is an ordinary judge, then the style of the court where he is judge. 2. The name of him who is to be cited. 3. An appointed day and place where he must appear; which day ought either to be expressed particularly to be such a day of the week or month, or else only the next court day (or longer) from the date of the citation : and the time of appearance ought to be more or less, according to the distance of the place where they live. 4. The cause for which the suit is to be commenced (s). 5. The name Nature and form of. («) Cro. Jac. p. 463 ; Gibs. p. 778 ; 3 Bac. Abr. p. 466 ; Ayl. Par. pp. 145, 146. (t) France v. Aubrey, 2 Lee, p. 534 (w) Herbert v. Herbert, 2 Phillim. p. 430 ; Chichester y. Donegal, 1 Add. p. 23, n. (x) Watney v. Lambert, 4 Hagg. Eccl. at p. 87. (y) Conset, p. 26. (z) Semble, in showing the cause, PROCEDURE — GENERALLY. 983 of the party at whose instance the citation is obtained (a). 6. And also the residence and diocese of defendant, to show that he is not cited out of his diocese. By Can. 120 of 1603, "No bishop, chancellor, archdeacon, Canon 120. official, or other ecclesiastical judge, shall suffer any general Process of processes of quorum nominate be sent out of his court, except the |^^^mmfl names of all such as thereby are to be cited shall be first expressly entered by the hand of the register 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." The rule of the ancient canon law in which case was, that by the general clause quidam alii in citations, not more than three or four persons should be drawn into judgment ; whose names (quorum nomina) the person who obtained the citation was particularly to express, that there might be no room for fraud, in varying the names at pleasure (b). A company in London refusing to pay a church rate set upon Citation to a their hall, the master and wardens were cited into the Ecclesias- comPany- tical Court by their surnames and names of baptism, with the addition of master and wardens of the company of wax chandlers. And upon moving for a prohibition, because they were cited in their natural capacity, when it should have been in their politic capacity, the court held the citation to be good, because the body politic could not be cited, and there was no remedy but in this way : and a prohibition was denied (c) . The following extracts are copied from two manuscript Opinions of opinions of a very eminent civilian (the late Dr. Lawrence) upon •Dr* Lawrence. this subject. He was consulted as to the liability of the Com- pany of the Proprietors of the Birmingham Canal Navigation to pay church rates, and as to the mode of citing them. (1.) "As the citation is not before me, I cannot tell whether any or what special matter of defence may appear on the face of it ; but a citation addressed to a corporate body ought to call upon them to appear by their syndic, who is the party in the cause on their behalf. If the officers, or managers, or directors of the corporation against whom the citation issues, do not appoint a syndic in lawful form, or sufficiently instruct him, the ecclesiastical judge may compel them hy censures passed even to excommunication." Doctors' Commons, January, 1800. (2.) " The citation should be directed to the managing part of the company by their proper description, as well as to the company generally : as to the warden or masters, &c, of the Bank of England; or chairman, deputy chairman, directors, &c, of the East India Company. What is the proper legal it must bo shown, if it be a civil (a) Conset, p. 26. suit, that the party at whoso in- (b) Gibs. p. 1009. stance it is obtained has an interest. (c) Thusfidd v. Jones, Skin. Fafff/ v. Lee, L. 11., 4 Adm. & Eccl. p. 27. p. 135; 6 P. C. p. 38. 984 DISCIPLINE OF THE CHURCH. Opinion of Sir V. Gibbs. Misnomer of party. Other objections to citation. Misnomer of judge. In criminal suit how offence to be stated. description of the Birmingham Canal Company, I know not; but whatever it is, unless that citation be used, it is a nullity, and may be resisted with effect." Doctors' Commons, April, 1800. Sir Yicary Gibbs gave an opinion coinciding with that of Dr. Lawrence upon the same case. The citation of a party by an erroneous christian name, a simple misnomer or false addition, where there is no doubt as to the identity of the party, has been holden to be sufficient (d). An objection of this kind urged as a plea in abatement must be taken before issue, for, by giving issue, the party allows himself to be the party designed (e) ; and whoever alleges a misnomer is bound to assign the true name by which he means to abide, and against which he is not at liberty to aver (/) ; but a new citation must be taken out. Where the general law is to be relied npon, it is not neces- sary that it should be specifically stated in the citation (cj) ; and as to variance between the articles and citation, where the charge is substantially the same, and only a part of the charge is taken away, it will not be fatal. A citation has been holden sufficient, where it only called upon the party to bring in an administration, and to show cause why another should not be granted, and did not say to show cause why the original administration should not be revoked (k) ; but it has been holden void where it was taken out upon false pretences, and not served on the party against whom it had been entered (♦) . In a matrimonial suit it was holden that a citation issuing as " in a suit of nullity of marriage by reason of a former marriage," will not found a sentence of separation " by reason of an undue publication of banns," the woman being therein described as spinster ; the first husband having died subsequently to the publication of banns, but prior to the marriage (k). A wrong description of the judge either by his name or title is fatal to the citation, and to all proceedings founded on it, especially in criminal suits. And an error of this kind in a copy delivered to the proctor of the defendant has been holden to entitle the latter to be dismissed from the suit (/) . A citation in a cause of office must describe sufficiently the offence charged against the party, so as to show that it is a matter of ecclesiastical cognizance, but it need not minutely specify all the particulars of the offence which are to be charged in the articles (m). (d) Powell v. Burgh, 2 Lee, p. 517 ; Barham v. Bar ham, 1 Con- sist, p. 7 ; Griffiths v. Reed, 1 Hagg. Eccl. p. 196. (e) Williams v. Bott, 1 Consist, p. 3 ; Bowell v. Burgh, 2 Lee, p. 518. (/) Pritchard v. Daily, 1 Con- sist, p. 186. (g) Ilutchins v. Dermloe, 1 Con- sist, p. 172. (A) Beece v. Strafford, 1 Hagg. Eccl. p. 347. (?') Murphy v. Macarthy, 2 Lee, p. 529. Wright v. Elhvood, 2 Hagg. Eccl. p. 598. (I) Williams v. Bott, 1 Consist, p. 1. (m) Steward v. Francis, 3 Curt, p. 209. See, however, Sheppard v. PROCEDURE — GENERALLY. 985 In all cases of a process served on a minor, the court requires Service of, a certificate of its having been served in the presence of a onminor- natural and legal guardian of the minor ; or, at least, in that of some person or persons upon whom the actual care and custody of the minor, for the time being, has properly devolved (n). It has been said that a citation may be served mis et modis (o). Distinction There is some difference between this service and personal ser- between vice. A personal service may conclude both the party and the ^f^fs ^ court ; but a service mis et modis is a constructive service, and personal concludes the party, but does not conclude the court. The service, court on good and sufficient grounds may open the proceedings to get at the substantial justice of the case (p). It is laid down in the books, says Sir William Wynne, and is not to be denied, that parties may be put in contempt by a public citation only (q). By the ancient laws of the church, the metropolitan was for- Citing out of bidden to exercise judicial authority in the diocese of a compro- tlie dl0cese- vincial bishop, unless in case of appeal or vacancy. And therefore when Archbishop Peccham excommunicated the Bishop of Hereford for resisting this concurrent power, and affirming against the archbishop that he could not exercise any jurisdic- tion exclusive of the bishop within the bishop's own diocese, nor take cognizance of causes there per querelam, the archbishop defended his claim, not upon the common right of a metropoli- tan, but upon the peculiar privilege of the Church of Canterbury, that the Church of Canterbury enjoys such a privilege, that the archbishop for the time being may and ought to hear causes arising within the diocese of his suffragans, and that in the first instance. Which privilege probably sprung from the Arch- bishops of Canterbury being legati mti to the pope (r). But now, by 23 Hen. 8, c. 9, intituled, The Bill of Citations, 23 Hen. 8, sect. 1, reciting that "great numbers of the king's subjects, as °. 9- well men, wives, servants, as other the king's subjects, dwelling Q^ationsf in divers dioceses of this realm of England and Wales, have been at many times called by citations and other processes com- pulsory, to appear in the Arches, Audience, and other high courts of the archbishops of this realm, far from and out of the diocese where such men . . . be inhabited and dwell; and many times to answer to surmised and feigned causes, and suits of defamation, withholding of tithes, and such other like causes and matters, which have been sued more for malice and for vexation than for any just cause of suit ; and where certificate hath been made by the summoner, apparitor, or any such light literate person, that the party against whom any such citation Bennett, 39 L. J., P. C. p. 59; et infra, Part IV., Chap. YIII. (n) Cooper v. Green, 2 Add. p. 454. As to service of citation, see Othobon, Athon, pp. 63, 123 ; 1 Oughton, pp. 44, 40; Lind. pp. 81, 85. o) Vide supra, p. 964. p) Hcrhert v. Herbert, 2 Consist, p. 263 ; In the goods of Thomas Robinson, 3 Phillim. p. oil. (7) Elme v. De Costa, 1 Phillirn. p. 171. (r) Gibs. p. 1004. 986 DISCIPLINE OF THE CHURCH. hath been awarded, hath been eited or summoned, and there- upon the same party so certified to be cited or summoned hath not appeared according to the certificate, the same party there- fore hath been excommunicated, or at the least suspended from all divine services ; and thereupon before that he or she could be absolved, hath been compelled, not only to pay the fees of the court whereunto he or she was so called by citation or other process, amounting to the sum of 2s. or 20d. at the least ; but also to pay to the summoner, apparitor, or other light literate person by whom he or she was so certified to be summoned, for every mile being distant from the place where he or she then dwelled, unto the same court whereunto he or she was so cited or summoned to appear, 2d. ; to the great charge and impoverish- ment of the king's subjects, and to the great occasion of mis- behaviour and misliving of wives, women, and servants, and to the great impairment and diminution of their good names and honesties : " it is enacted, " that no manner of person shall be from henceforth cited or summoned, or otherwise called to appear, by himself or herself, or by any procurator, before any ordinary, archdeacon, commissary, official, or any other judge spiritual, out of the diocese or peculiar jurisdiction where the person who shall be cited . . . shall be inhabiting at the time of awarding or going forth of the same citation or summons, except that it shall be for, in, or upon any of the cases or causes hereafter written, that is to say, for any spiritual offence or cause committed or done, or omitted, forslewed, or neglected to be done contrary to right or duty by the bishop, archdeacon, commissary, official, or other persons having spiritual jurisdiction, or being a spiritual judge, or by any other person or persons within the diocese or other jurisdiction whereunto he or she shall be cited, or otherwise lawfully called to appear and answer; and except also it shall be upon matter or cause of appeal, or for other lawful cause, wherein any party shall find himself grieved or wronged by the ordinary or judge of the diocese or jurisdiction, or by any of his substitutes, officers or ministers, after the matter or cause there first com- menced and begun to be shewed unto the archbishop or bishop, or any other having peculiar jurisdiction, within whose province the diocese or place peculiar is ; or in case that the bishop or other immediate judge or ordinary dare not nor will not convent the party to be sued before him ; or in case that the bishop of the diocese or judge of the place, within whose juris- diction or before whom the suit by this act shall be commenced and prosecuted, be party directly or indirectly to the matter or cause of the same suit ; or in case that any bishop or any inferior judge, having under him jurisdiction in his own right and title, or by commission, make request or instance to the archbishop, bishop or other superior ordinary or judge, to take, treat, examine or determine the matter before him or his substi- tutes, and that to be done in cases only where the law civil or PROCEDURE — GENERALLY. 987 canon doth affirm execution of such request or instance of juris- diction to be lawful or tolerable ; upon pain of forfeiture, to every person by any ordinary, commissary, official or substitute, by virtue of his office or at the suit of any person to be cited or otherwise summoned or called contrary to this act, of double damages and costs." [This is to be recovered by action against the judge who cites] " and upon pain of forfeiture for every person so summoned, . . . . 10/.," half to the king, and half to him that will sue in any of the king's said courts. Sect. 2. " Provided always, that it shall be lawful to every Proviso in archbishop of this realm to call, cite or summon any person or j^f** of any persons inhabiting in any bishop's diocese within his province for causes of heresy, if the bishop or other ordinary immediate thereunto consent, or do not his duty in punishment of the same." Sects. 3 and 5 related to the prerogatives of the archbishops As to probate, in respect of the probate of testaments (*). Far from and out of the Diocese.'] — By reason of this expression in the preamble, it was doubted in 6 Jac. 1, whether the arch- bishop was not at liberty (notwithstanding this act) to cite the inhabitants of London and other neighbouring places of the same diocese, into his Court of Arches, which would be no more a grievance to the subject than the being cited into the Con- sistory of London, and could not properly be called a citing out of the diocese, since the Court of Arches is holden within the diocese of London. But all the justices of the Court of Common Pleas held, that the archbishop is restrained by this act from citing any inhabitants of London, besides his own peculiars, because the excusing the subject from travel and charges was not the only benefit intended by it, but also the benefit of appeals ; and by diocese in this statute, was understood jurisdic- tion, and as to the language of the preamble, that the enacting part of the statutes are in many cases of larger extent than their preambles are (t). But in Gobbet's case (u) in the next reign, where a composition between the Archbishop and the Bishop of London as to beginning causes in the Arches Court was referred to, the prohibition was denied. And in Ford v. Weldon («?), the Court being equally divided, no prohibition seems to have been granted. That no manner of Person shall be from henceforth cited.'] — But Privilege may if a man is cited out of his diocese, and appears, and sentence is be TvaiTed- given, or if he submits himself to the suit, he shall have no benefit by this statute, nor will a prohibition be granted (x). (a) By sect. 6, no spiritual judge is to take any sum or sums of money ' ' for the seal of any cita- tion ... to be awarded or obtained, than only 3c?." (0 Gibs. p. 1005. P. VOL. II. (u) Cro. Car. p. 339. (v) Sir T. Eaym. p. 91 ; 1 Keb. pp. 63S, 647, 651, 669. (x) Gibs. p. 1006 ; Vanacre v. Spleen, Carth. p. 33. 3 T DISCIPLINE OF THE CHURCH. "It is certainly true (says Sir John Nicholl) that both the canon and the statute law forbid the citing of parties out of their dioceses or peculiar jurisdictions. But it is equally true that the rule, at least in the statute law, was meant for the benefit of the subject, which benefit it hath uniformly, as far as I see, been held to provide for sufficiently, by giving defendants who are so cited a privilege of pleading to the jurisdiction. " Consequently, if a party who is so cited once waive that privilege by appearing and submitting to the suit, he or she is bound to the jurisdiction (g). Out of the Diocese.'] — And that, as it seems, whether the see be full or vacant. For in the 13 or 14 Jac. 1, in the case of one Pickover, it was resolved upon this statute that if a bishopric within the province of Canterbury be void, and so the juris- diction be devolved to the metropolitan, he must hold his court within the inferior diocese, for such causes as were by the ecclesiastical law to be holden before the inferior ordinary ; and the prothonotaries said, it had been so formerly resolved. But a little before this, in the 11 Jac. 1, the contrary was resolved, that is, where one was cited out of his diocese before the Archbishop of Canterbury as guardian of the spiritualties, not only prohibition was denied, but it was further said, that if he had been cited before him as metropolitan, it would have been granted upon this statute (z) . Or peculiar jurisdiction.'] — That is, whether they be cited out of such peculiar to the Arches, or before the ordinary within whose diocese the peculiar lies. And Coke said, that if a man be sued out of his diocese, yet if he be sued within his own proper peculiar, he is not within this statute (a). Where he shall be inhabiting.] — In 8 Jac. 1, an attorney in the King's Bench was sued in the Arches for a legacy ; and, for that he inhabited in the diocese of Peterborough, prohibition was prayed and granted ; because, though he remained here in term time, he was properly inhabiting within the jurisdiction of the bishop of Peterborough (b) . In the case of Wilmett v. Loid, in 5 Anne (c), a difference was taken by Holt, Chief Justice, where a man of another diocese is taken flagranti delicto: he said, where the party goes into another diocese, and is commorant there, and comes back casually into the first diocese, in such case the citation cannot be food ; for suppose a man comes casually into the diocese of iondon and commits a crime there, and then goes back to the (y) Chichester v. Donegal, 1 Add. p. 17; Donegal v. Donegal, 3 Phillim. p. 605 ; Drunkard v. Deacle, 1 Hagg. Eccl. p. 169. (z) Gibs. p. 1006. (a) Ibid. (b) Ibid. ; 2 Brownl. p. 12 ; see also Dr. BlackmorJs case, Hardr. p. 421 ; Westcote v. Harding, 1 Lev. p. 96 ; Jones v. Boyer, 2 Brownl. p. 27 ; Woodward v. Makepeace, 1 Salk. p. 164; Machin v. Maulton, 2 Salk. p. 548 ; Ld. Raym. pp. 452, 534. (c) Holt, p. 603. PROCEDURE — GENERALLY. 989 diocese where he dwells and then casually comes to London again, it seems that he cannot be here cited ; but if he had been cited before he left London, then that would be flagranti delicto. Immediate Judge or Ordinary dare not, nor will not, convict the Party.'] — In Archbishop Parker's register, we find the archbishop to have put benefices in another diocese under sequestration, by reason of the negligence of the ordinary ; but this is an act only of voluntary jurisdiction. And before the Reformation, we find the archbishop requiring bishops to proceed against particular persons in their dioceses, or show cause why himself should not proceed (d) . Be Party.] — If the cause be begun before the archbishop, though the bishop or other judge (who was party in the cause) dies whilst it is depending, and so the occasion ceases upon which it was first brought before the archbishop, yet he being in possession of it, it shall not be removed (c). For, per Doderidge, J., by the civil law the death of the plaintiff or defendant is not any abatement of the libel, but they have a revivor . . . . ; and the intent of the statute is not that such a cause should be remanded, whereby the plaintiff should lose the costs of his suit. By Can. 94 of 1603, " No dean of the Arches, nor official of the Canon 94. archbishop's consistory, nor any judge of the audience, shall henceforward in his own name, or in the name of the arch- bishop, either ex officio or at the instance of any party, originally cite, summon or any way compel, or procure to be cited, sum- moned 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 cognizance, 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 Hen. 8, c. 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." The return of the citation is either personally in court by him Return of the who executed the same, who certifies and makes oath how and in the oTd lawder what manner the defendant was cited ; or else it is by authentic certificate, which is a kind of solemn writing, drawn or con- firmed by some public authority, and ought chiefly to contain the name of the mandatory or person to whom it is directed, and the name of the judge who directed the same, with his proper style and title ; likewise the day and place in which the de- fendant was cited, and the causes for which he is cited ; in testimony whereof, some authentic seal ought to be put to it, of some archdeacon, official commissary or rural dean ; and it (d) Gibs. p. 1007. (e) Gibs. p. 1007; Bp. of Carl i < 'ase} Cro. Jac. p. 483. 3t2 990 DISCIPLINE OF THE CHURCH. ought to express that they set their seal thereunto at the special instigation and request of the mandatory. To all which certi- ficates, in all causes, as much credit is given as if the mandatory had personally made oath of the execution thereof. Modern According to modern practice, a certificate of the service of practice. citation is endorsed on that instrument, setting forth the day and place of its service on the party, signed by the person who served it : an affidavit of the truth of the certificate is also endorsed upon the instrument. Sect. 9. — Libel and Allegation. Nature of a A libel (/) is a declaration or charge, drawn up in writing, on the part of the plaintiff, unto which the defendant is obliged to answer (g) . For when the defendant appears upon the citation, then the libel ought to be exhibited by the plaintiff, and a copy of it delivered to the defendant (h). ^tH1en(; 5^ To which purpose it is enacted by 2 Hen. 5, stat. 1, c. 3, as Copy of libel ^°^ows : " Forasmuch as divers of the king's liege people be to be granted daily cited to appear in the spiritual court before spiritual to party cited, judges, there to answer to divers persons as well of things which touch freehold, debt, trespasses, covenants and other things, whereof the cognizance pertaineth to the court of our lord the king, as of matrimony and testament ; and when such persons so cited appear and demand a libel of that which against them is surmised to be informed, to give their answer thereunto, or otherwise to purchase of our lord the king a writ of prohibition according to their case ; which libel to them is denied by the said spiritual judges, to the intent that such persons should not be aided by any such writ, against the law, and to the great damage of such persons so impleaded : Our said lord the king, by the advice and assent of the lords spiritual and temporal, and at the request and instance of the commons, hath ordained and established, that at what time the libel is grantable by the law, it may be granted and delivered to the party without any difficulty'' (0- Principles of The same principles of law, as to the form and substance of lib^^rnd^il? ^ese P^easj govern both libel and allegation ; the allegation gationQ G" being, as has been shown, an answer to the libel, and in certain (/) Libellus, a little book, or shall go quousquc they deliver a copy, articles drawn out into a formal Anon., 2 Ld. Bayni. p. 999 ; 6 Mod. allegation. 3 Black Com. p. 99. p. 308 ; Syms v. Sehuood, 3 Keb. (g) Gibs. p. 1009. p. 565; Eegistrum Brevium, p. 58; h) Wood, p. 318. F. N. B. p. 43; Anon., 1 Yent. (i) See on this act, Anon., 2 Salk. p. 252. Vide infra, Chap. XIII., p. 553. In this case a prohibition Sect. 2. PROCEDURE — GENERALLY. 991 causes, such as church rates, frequently altogether omitted. It often happens that the court admits part of an allegation and rejects part, or orders the whole or part to be reformed. The court will sometimes, and in particular cases, delay the Delay to admission of a libel, in order to allow the party charged an admit libel, opportunity of stating any special matter in the way of protest, to induce the court to decline further proceedings in the case. The principle, qui ponit fatetur, that is, that he who sets up a Principle qui plea is bound by it, is invariably held. The contents of a libel ponit fatetur. or allegation are to be presumed, in the first instance, to be true, being admitted in order to proceed to proof ; and this maxim has been found in practice to be very beneficial to suitors, for if the facts alleged in the plea would not, if substantiated by evidence, entitle the party propounding them to the relief he prays, the cause is stopped in limine, and all further expense is saved. But the maxim does not go the length of supposing every syllable alleged to be true (k) . Proceedings in duplex querela should be by plea and proof, Pleading in that is by libel answered by allegation, with witnesses, and not duplex by act on petition and affidavits (/). querela' Sect. 10. — Articles. The statute 2 Hen. 5, stat. criminal case, as it does to libel (/»■) The introduction of viva voce evidence has rendered the doctrine on this subject of very inferior im- portance; but the following cases may be consulted : Briggs v. Mor- gan, 3 Phillim. p. 325; 2 Consist, p. 328 ; Grant v. Grant, in the Privy Council, Feb. 24th, 1840; Thoroldv. Thorold, 1 Phillim. p. 1, n. ; Croft v. Croft, 3 Hagg. Eccl. p. 310; Neeld v. Neeld, 4 Hagg. Eccl. p. 266 ; Montefiore v. Monte- fore, 2 Add. p. 354 ; Glegq v. Glegg, Consist, of London, Trinity Term, 1841 ; Blunt v. Harwood, 1 Curt, p. 648; Sandford v. Vaughan, 1 Phillim. p. 49 ; Bird v. Bird, 1 Lee, p. 531; Moore v. Hacket, 2 Lee, p. 86 ; Braddyll v. Jehen, 1 Lee, p. 568; Moore v. Moore, Feb. 6, 1840; Locke v. Denner, 1 Add. p. 356 ; Molony v. Molony, 2 Add. p. 249 ; Dew v. Clarke, 1 Add. p. 882; 2 Add. p. 102; Arbvn/ y. Ashe, 1 Hagg. Eccl. p. 214; Shand v. Gardiner, 1 Lee, p. 529 ; White 1, c. 3, applies to articles in a 2 Hen. 5, in a civil case (m) . v. White, 2 Lee, p. 20; Beeves v. Glover, 2 Lee, p. 270 ; Dickenson v. White, 1 Add. p. 490; Herbert v. Helyar, 1 Lee, p. 452; Moorsom v. Moorsom, 3 Hagg. Eccl. p. 97 ; X. ii. 27, 7 ; Lindo v. Belisario, 1 Consist, p. 220; Middletony. Mid- dleton, 2 Hagg. Eccl. (Appendix) p. 136 ; Smith v. Blake, 1 Hagg. Eccl. p. 88 ; Jones v. Jones, 1 Hagg. Eccl. p. 254 ; Well v. Webb, 1 Hagg. Eccl. p. 349 ; Brisco v. Brisco, 2 Add. p. 259 ; Hamerton v. Hamerton, 2 Hagg. Eccl. p. 24 ; Clement v. Rhodes, 3 Add. p. 41 ; Ingram v. Wyatt, 1 Hagg. Eccl. p. 101 ; Hal- ford v. Halford, 3 Phillim. p. 98. The case of Swift v. Swift, 4 Hagg. Eccl. p. 139, contains a specimen of a responsive allegation and a dis- cussion upon its admissibility. (/) Willis v. Bp. of Oxford, 2 P. D. p. 191. (m) Anon., Ld. Eaym. p. 442. Vide supra, p. 990. A copy must be delivered to party cited. 992 DISCIPLINE OF THE CHURCH. General requisites of articles. Effect of misnomer. When articles are to be exhibited. Amendment and admiss- ibility of articles. Where the ordinary has allowed his office, that is, the office of the judge is promoted, the whole transaction must he fairly and specifically stated, in order that the defendant may be enabled, without injustice to himself, to give an affirmative issue (n). The general words of articles are construed only to include subordinate charges ejusdem generis with the principal, while the prcesertim is looked to for the principal accusations (6) . The court cannot go beyond the particular offence charged, nor the articles beyond the citation (p). But in a criminal suit for incest, a marriage may be annulled although the citation is silent upon the subject (q). According to the practice, the promoter of the office of the judge is bound not only to give in articles, but also a correct copy to the defendant — an error in the copy being as fatal to the suit as an error in the original articles (r). It is not a fatal objection that the articles are exhibited in the name of the surrogate, and not of the judge (s), or in the name of the bishop instead of his official {t) ; but where the office of the judge is wrongly described, the error is fatal, and may be pleaded in bar of further proceedings (u). The general rule is, that articles must be brought in on the court day immediately subsequent to that on which the defendant has appeared (x). Articles once brought in may be reformed and amended under the direction of the court prior to their actual admission, but when they are once admitted and issue is joined, either party is bound by them ; and it must be borne in mind, that the promoter is not at liberty to drop in with charges one after another, with perhaps this single exception, that offences ejusdem generis sub- sequently committed may be pleaded in subsequent articles (y). But circumstances may justify the admission of further articles explanatory to a responsive allegation (2), or where it is clearly shown that they could not have been sooner pleaded (a). In a case where the original articles pleaded a certain trans- action without specification, the court allowed additional articles, leading the same transaction with greater minuteness, to be brought in afterwards (b). (n) Oliver v. Hobart, 1 Hagg. Eccl. p. 43; Lee v. Mathews, 3 Hagg. Eccl. p. 174; Moorsom v. Moorsom, 3 Hagg. Eccl. p. 97 ; Wynn v. Davies, 1 Curt. p. 89 ; Maidman v. Malpas, 1 Consist, p. 209. (0) Bennett v. Bonaker, 3 Hagg. Eccl. p. 25. (p) Breeks v. Woolfrey, 1 Curt, p. 880. (q) Chick v. Ramsdale, 4 Curt, p. 34. (r) Williams v. Bott, 1 Consist, p. 1 ; Thorpe v. Mansell, cited in note ; 1 Consist, p. 4. (s) Prankard v. Decide, 1 Hagg. Eccl. p. 178. (t) Maidman v. Malpas, 1 Consist, p. 209. (u) Williams v. Bott, 1 Consist, p. 1 ; vide supra, p. 984. (x) Bobie v. Masters, 3 Phillim. p. 175 ; Schultes v. Hodgson, 1 Add. p. 321. (y) Schultes v. Hodgson, 1 Add. p. 321. (z) Roper v. Roper, 3 Phillim. p. 97. (a) Moorsom v. Moorsom, 3 Hagg. Eccl. p. 97. (6) Madan v. Karr, 14 J ur. p. 275. PROCEDURE — GENERALLY. 993 If the articles contain a substantive charge, the court is bound When the to admit them, and cannot listen to a suggestion that they do to1admitb°Un rH SL a ©^ § rH- I ^ 02 O £ ^ . d © © 2 S 63 o ^, o » ^ 02 g -H-> O ■81=8 .3 © > rd - c 1+3 '8 ° © O -+-s O £h r— I © © -rt £ © ^3 5 S 2 © > o f-< -4-3 . -H-> 02 O ■s © 1 11 © a 53 o © , r3 • ■— • r O 02 'rB H o O o © ^ III =2 gfC ® 2 ^ Is ^ ° © ^ P-i - o CO ^ d ffl |h , £j 02 .2 O a © H rP o OTj rH © 3 §45 N § § goo ©6 £3 00 Ci o co 00 00 d © d d d under 5 issue •+-5 o HJ © ict. o O > > t> s> o . co . 00 . co co as I1 i— i i— < CO & . SQ CQ CO 4 o CO CO CO CO 111 CO o ^ g 7 ft O co © ! is 1 * O „ CD ^ o , V o CM d. fi o : 2 S i 1$ >T3 c3 1? O a o CO CO 6 S fi O O O o ^3 & o 'd co O ©^ g Ph O >1 4a © © 1 — 1 •s d d © Ph rP PhSO § H © C*5 CO CO 00 C3 rH 03 o o S3 3 B a i I PROCEDURE — GENERALLY. 999 Tt< odd O O 0) o o o O O d d O .co 5 04 '7. £5 o ^ o © 03 I © pi P3 o ft ^ © ^ °a . i— l 03 O «H © © O t» m 3 So 3 2 «S 3 o & ft n § § S b so f.9 s S © © O 03 o o +3 o co ©o o ft c o o © G S o o " ft , 2^3 iS 3 S © (3^ O 2 if g F ftQn § ~ O CO 03 3 •>-< o 03 ift*" o O © l« p © go .2lH 03 _.Si ^ H -5" B oj oQ § Is 03 © u 173 © "S ©-£ c2?^ 0 3 w o 3 3 PROCEDURE — GENERALLY. 1001 d o Si go 09 1 Asap Davi m QQ ft ! ft ft DQ ft © o © .a 1 ft 0 >o 3 I ^ S3 1 ft . o ft^ o 1-1 ^ — — g«H O 00 l, ft fa h3 Ph r~ & » © ei ^ S o o H S4 ft CO ft © •> p fa O 03 — ' cs ^ ft C£)J3 fa .5 _ o S 3 O GO Ph ° g . -PtHH 1-1 fa ^ d BO „ OS <5 P o> 38 o © © QQ — . S ft ^ © d ^ OS tC ;h CI 5^2 1 1 a ) Faculties 716, 717. i ft "CO i c 00 00 O o O p 3 Eccl. o ©o © m i 00 1 fa O o o 1782 ; p •S 1 in use ft a 5 36 £ 5 So I ftS © 2° ft ft © © © 53 ft © © d ft © 0 QQ © oo ©H © 00 I 1 © fa ' M CO •w' Ph >» 3 oo o d © ft' ft H © § £hh c3 ^ fa § g oo b O 5 d a © o ft ^ By 10 Greo. 4, c. 53, ss. 1 — 4, power was given to fix fees in the courts of the Archbishop of Canterbury and of the Bishop of London. By arch- The Archbishop of Canterbury has been recently advised that orderP'8 ^ *s comPe^en^ to him, under the power reserved to him by canon 135, to issue a new scale of fees for the diocesan courts within his province ; and he has accordingly published an order approving of a scale of fees " to be taken by the chancellors, official principals, commissaries, and registrars of the diocesan courts in the province of Canterbury, in the matters therein specified, until further order by us or our successors. " This order, dated the 22nd of July, 1889, was registered in the principal registry of the province on the 26th July in that year, and is also to be seen in every diocesan registry. Byl & 2 Vict. Under 1 & 2 Vict. c. 106, certain fees are provided for; by c. 106. g> on the licensing of curates ; and under s. 131, by Order in Council, on presentations, institutions, and inductions to bene- fices. These will be found in their proper places (a) . By 30 & 31 Under 30 & 31 Vict. c. 135, power was given to make fees, to Vict. c. i3o. confirmed by Order in Council, upon ordinations (b), consecra- tions of churches and churchyards and faculties (, upon affidavit, an excuse for not obeying the order, which the bishop considers insufficient, that is a sufficient hearing of the incumbent to authorize the bishop to sequestrate the benefice after the lapse of the thirty days. Under sect. 58, a benefice becomes void if it remain for the space of a year under sequestration for non-residence, the year commencing from the date of the decree of sequestration ; the case not falling within sect. 120, which provides that for all purposes of the act, except as therein otherwise provided, the year shall PROCEDURE UNDER 1 & 2 VICT. C. 106. 1007 commence on 1st January and be reckoned to 31st December, both inclusive. This was so holden on motion for prohibition by the Court of Queen's Bench and the Court of Exchequer ; and afterwards in an action brought by such incumbent against his successor for the income of the living (/.•) . 2. As to hearing the clerk before the sequestration issues. Before issue A writ of sequestration issued under this statute to compel a of seques- clergyman to reside on his benefice is not merely in the nature ra 10n' of a distress to compel residence, but is also a penal proceeding against him, as it is one step towards the forfeiture of the benefice. The bishop, therefore, ought to give the clergyman an opportunity of being heard before directing the sequestration. If, in obedience to a monition issued by the bishop, a clergyman goes into residence and again ceases to reside, the bishop may serve him with an order to reside ; but if that order be disobeyed, the bishop is not justified in directing a sequestration at once, and the sequestration will be void, unless before issuing it he gives the clergyman an opportunity of rebutting the supposed facts, or of offering lawful excuse for his disobedience to the order to reside (/). Sect. 55. " Every spiritual person to whom any such monition incumbents or order in writing shall be issued as aforesaid, who shall be at returning to the time of the issuing thereof absent from his benefice, contrary mo^iti^ to to the provisions of this act, but who shall forthwith obey such pay costs, monition or order, and the profits of whose benefice shall by reason of such obedience not be sequestered, shall nevertheless pay all costs, charges, and expenses incurred by reason of the issuing and serving such monition or order, and the pro- ceedings thereon shall not be stayed until such payment shall be made." Sect. 56. "If any spiritual person, not having a licence to Incumbent reside out of the limits of his benefice, nor having other returning to lawful cause of absence from the same, who after any such monition but monition or order as aforesaid requiring him to reside, and again absent- before or after any such sequestration as aforesaid, shall in ^jJPJ86^ obedience to any such monition or order have begun to reside months The"6 upon his benefice, shall afterwards, and before the expiration, bishop may, of twelve months next after the commencement of such resi- without fur- dence, wilfully absent himself from such benefice for the space seqUmtCT. 10D' of one month together, or to be accounted at several times, it shall be lawful for the bishop, without issuing any other monition or making any order, to sequester and apply the profits of such benefice, as before directed by this act, for the purpose of enforcing the residence of such spiritual person, according to the true intent of the original monition issued by the bishop as aforesaid ; and it shall be lawful for the bishop so to proceed in (fc) Ex parte Bartlett, 12 Jur. pp. (?) BonaJcer v. Evans, 16 Q. B. 728, 940; 3 Ex. p. 38; Barthtt y. p. 162; 20 L. J., Q. B. p. 137 Kirwood, 2 E. & B. p. 771 (1853). (1850). 1008 DISCIPLINE OF THE CHURCH. Reasons for remitting penalties for non -residence of a certain amount to be transmitted to the Queen in Council. Benefice con- tinuing* so sequestrated one year, or being twice so sequestrated within two years, to be- come void. like cases from time to time as often as occasion may require ; provided that in each such case such spiritual person may, within one month after the service upon him of the order for any such sequestration, appeal to the archbishop of the province, who shall make such, order relating thereto, or to the profits sequestered, or to any part thereof, as to him may seem just and proper, but nevertheless such sequestration shall be in force during such appeal." Sect. 57. " In every case in which any archbishop or bishop shall think proper, after proceeding by monition for the recovery of any penalty under this act for non-residence of more than one-third part of the yearly value of any benefice for any non- residence exceeding six months in the year, to remit the whole or any part of any such penalty, such archbishop shall forthwith transmit to Her Majesty in council, and such bishop shall forth- with transmit to the archbishop of the province to which he belongs, a statement of the nature and special circumstances of each case, and the reasons for the remission of any such penalty ; and it shall thereupon be lawful for Her Majesty in council, or for the archbishop, as the case may be, to allow or disallow such remission in whole or in part, in the same manner as is provided in this act with relation to the allowance or disallowance of licences of non-residence granted in cases not hereinbefore expressly enumerated ; Provided always, that the decision of the archbishop with respect to cases transmitted to him from a bishop shall be final." Sect. 58. " If the benefice of any spiritual person shall con- tinue for the space of one whole year under sequestration (m) issued under the provisions of this act for disobedience to the bishop's monition or order requiring such spiritual person to reside on his benefice, or if such spiritual person shall, under the provisions of this act, incur two such sequestrations in the space of two years, and shall not be relieved with respect to either of such sequestrations upon appeal, such benefice shall thereupon become void ; and it shall be lawful for the patron of such benefice to make donation or to present or nominate to the same as if such spiritual person were dead ; and the bishop, on such benefice so becoming void, shall give notice in writing under his hand to such patron, which notice shall either be delivered to such patron or left at his usual place of abode, or if such patron or place of abode shall be unknown, or shall be out of England, such notice shall be twice inserted in the London Grazette, and also twice in some newspaper printed and usually circulated in London, and in some other newspaper usually circulated in the neighbourhood of the place where such benefice is situate ; and for the purposes of lapse the avoidance of the benefice shall be reckoned from the day on which such notice shall have been delivered as aforesaid, or from the day on which six months shall have expired after the second publication of such notice in the (m) See Ex parte Bartktt, 12 Jur. p. 728; 3 Ex. p. 38; supra, p. 1007. PROCEDURE UNDER 1 & 2 VICT. C. 106. 1009 London Gazette, as the case may be ; and every such notice in the Gazette and newspapers shall state that the patron or the place of abode of the patron is unknown, or that he is said to be out of England, as the case may be, and that the benefice will lapse, at the furthest, after the expiration of one year, from the second publication thereof as aforesaid ; and upon any such avoidance it shall not be lawful for the patron to appoint by donation or present or nominate to such benefice so avoided the person by reason of whose non-residence the same was so avoided." Sects. 107, 108, 109, dealing with the powers of archbishops in their dioceses, with peculiars and with the abolition of con- current jurisdiction, have been already given at length (/?). Sect. 110. " Every sequestration issued under the provisions Sequestra - of this act shall have priority, and the sums to be thereby ^sa^nder recovered shall be paid and satisfied in preference to all other have priority, sequestrations, and the sums to be thereby recovered . . . except such sequestrations as shall have been issued before any seques- tration under this act under the provisions of an act passed " in 17 Geo. 3, " for promoting the residence of the parochial clergy, and the monies to be recovered by such excepted sequestrations respectively." Sect. 111. "All appeals under the provisions of this act to Appeals under any archbishop shall be in writing signed by the party appeal- tllis act- ing, and in order to discourage frivolous appeals, no pro- ceedings shall be had in any such appeal until the appellant shall, if required, have given security, in such form and to such amount as the archbishop shall direct, of payment to the bishop of such costs as shall be awarded by the archbishop if he shall decide against the appellant ; and, after such security, if required, shall have been given, the said archbishop shall forth- with, either by himself or by some commissioner or commis- sioners appointed under his hand from among the other bishops of his province, make or cause to be made inquiry into the matter complained of, and shall after such inquiry, and in the latter case after a report in writing from his said commissioner or commissioners, give his decision in such appeal in writing under his hand ; and when he shall decide the merits of the appeal against the appellant, he shall also award and direct whether any and what amount of costs shall be paid by the appellant to the bishop respondent ; and in like manner, when he shall decide in favour of the appellant, he shall also award and direct whether any and what amount of costs shall be paid by the bishop respondent to the appellant. Sect. 112. " In all cases in which proceedings under this act Regulations are directed to be by monition and sequestration, such monition respecting shall issue under the hand and seal of the bishop, and such momtlons* monition, and any other instrument or notice issued in pursu- ance of the provisions of this act, and not otherwise specially (>?) Tide supra, pp. 440, 441. 1010 DISCIPLINE OF THE CHURCH. Personal service of monition. Return of. Cause shown against. Issue, service, and return of seques- tration. Sequestration not to issue after monition to reside, until service of order. Penalties against spiritual per- sons under this act, when and how to be recovered. provided for, shall be served personally upon the spiritual person therein named or to whom it shall be directed, by showing the original to him and leaving with him a true copy thereof, or, in case such spiritual person cannot be found, by leaving a true copy thereof at his usual or last known place of residence, and by affixing another copy thereof upon the church door of the parish in which such place of residence shall be situate, and also, in the case of such monition, by leaving another copy thereof with the officiating minister, or one of the churchwardens of the said parish, and also by affixing another copy thereof on the church door of the parish in which the benefice of such spiritual person shall be situate ; and such monition or other instrument, or notice as aforesaid, shall, immediately after the service thereof, be returned into the consistorial court of such bishop, and be there filed, together with an affidavit of the time and manner in which the same shall have been served ; and thereupon, in case of such monition, it shall be competent to the party monished to show cause, by affidavit or otherwise, as the case may require, why a sequestration should not issue according to the tenor of such monition ; and if such spiritual person shall not, within the time assigned by such monition, show sufficient cause to the con- trary, such sequestration shall issue under the seal of the con- sistorial court of such bishop, and shall be served and returned into the registry of such court in like manner as is hereinbefore directed with respect to monitions issued under the provisions of this act." Sect. 113. " Provided always, that in any case of non-residence in which a monition shall have been served upon any spiritual person under the provisions of this act, requiring such spiritual person to reside on his benefice, no sequestration shall issue until an order requiring such spiritual person to proceed and reside upon such benefice within thirty days, as hereinbefore enacted, shall have been served upon him in the same manner as is hereinbefore directed as to the service of monitions." With respect to the recovery of penalties and forfeitures under sect. 32, mentioned in a former chapter (o), the provisions are as follows : — Sect. 114. "All penalties and forfeitures which shall be incurred under this act by any spiritual person holding a benefice shall and may be sued for and recovered in the court of the bishop of the diocese in which such benefice is situate, and by some person duly authorized for that purpose by such bishop by writing under his hand and seal, and in no other court, and by or at the instance of no other person whatever; and the payment of every such penalty or forfeiture, together with the reasonable expense incurred in recovering the same, shall and may be enforced by monition and sequestration ; and it shall and may be lawful for such bishop, by any order made for that purpose in writing under his hand, and to be registered in («) Part IV. Chap. III. Sect. 5, p. 887, supra. PROCEDURE UNDER 1 & 2 VICT. C. 106. 1011 the registry of the diocese, which the registrar is hereby required to do, to direct that every such penalty or forfeiture so recovered Application as aforesaid, and which shall not have been remitted in whole of penalties or in part, or so much thereof as shall not have been remitted, recovere ■ shall be applied towards the augmentation or improvement of such benefice or of the house of residence thereof, or of any of the buildings or appurtenances thereof." A suit to recover a penalty against a beneficed clergyman Not a criminal under this act for non-residence is a civil and not a criminal suit- suit or proceeding, and, therefore, need not be brought under 3 & 4 Yict. c. 86 (p). Sect. 117. "All penalties and forfeitures under this act Recovery of incurred by persons not spiritual, or by spiritual persons not penalties holding benefices, shall be sued for and recovered by any person ^eno? laJ" who will sue for the same by action of debt in any of her unbeneficed majesty's courts of record at Westminster." clergymen. Sect. 118. "No penalty shall be recovered against any Penalties not spiritual person, under the provisions of this act, other or further f^0^^1^ than those which such spiritual person may have incurred subse- one ye™. an quent to the first day of January in the year immediately pre- ceding the year in which such proceedings shall be commenced." Sect. 119. "All penalties recovered under the provisions of Application this act, the application of which is not specially directed ofPenalties- thereby, shall be paid over to the treasurer of the governors of the bounty of Queen Anne, to be applied to the purposes of the said bounty." As to fees and other matters: Sect. 115. "All fees, charges, Recovery of costs and expenses incurred or directed to be paid by any fees». &c by spiritual person holding any benefice under the provisions of ^queStraaon. this act, which shall remain unpaid for the period of twenty-one days after demand thereof in writing delivered to or left at the usual or last place of abode of such spiritual person may be recovered by monition and sequestration : Provided always, that it shall be lawful for the person or persons of whom any such fees, costs, charges and expenses shall be so demanded to apply to the bishop of the diocese to order the taxation thereof, and such bishop shall thereupon order some proper person to tax and settle the same ; and the certificate of allowance, by the person Their taxa- so to be appointed, of such fees, costs, charges and expenses so tion- to be taxed, shall be final." Sect. 116. "If the registrar of any diocese shall refuse or Penalty on neglect to make any entry, or to do any other matter or thing ™°J^™T for prescribed by this act, he shall forfeit for every such refusal or ° neglect the sum of five pounds." By sect. 120, " The year shall be deemed to commence on the Commence- first day of J" anuary, and be reckoned therefrom to the thirty- JJJJ^^0^1" first day of December, both inclusive"^); and by sect. 121, year.0n ° ° {p) Bluck v. Backham, 1 Roberts. (q) Sed vide supra, p. 100G; Ex p. 367 (1845); 5 Moo. P. C. C. p. parte Bartlett, 12 Jur. p. 728; 3 Ex. 305 ; Backham v. Bluck, 9 Q. B. p. p. 38 ; Bartlett v. Kirwood, 2 E. & 13. 691. P. 771. 1012 DISCIPLINE OF THE CHURCH. How months to be calcu- lated. Statements, how to be verified. Before whom affidavits may be made. " The months therein named shall be taken to be calendar months, except in any case in which any month or months are to be made up of different periods less than a month, and in every such case thirty days shall be deemed a month." Sect. 123. "When authority is given by this act to any archbishop or bishop to require any statement or facts to be verified by evidence, or to inquire or to cause inquiry to be made into any facts, such archbishop or bishop may require any such statement or any of such facts to be verified in such manner as the said archbishop or bishop shall see fit; and when any oath, affidavit or affirmation, or solemn declaration is or may be by or in pursuance of the provisions of this act required to be made, such oath, affidavit, or affirmation or solemn declaration shall and may be made either before such archbishop or bishop, or the commissioner or commissioners, or one of them, of such archbishop or bishop respectively, or before some ecclesiastical judge or his surrogate, or before a justice of the peace, or before a . . . master extraordinary in chancery (r), who are hereby authorized and empowered in all and every of the case3 aforesaid to administer such oath, affidavit and affirmation, or to take such declaration, as the case may be." (r) Now, a commissioner for oaths. ( 1013 ) CHAPTER VIII. PROCEDURE UNDER 3 & 4 VlCT. C. 86. This " Act for better enforcing Church Discipline " passed in Variety 0f 1843, was, with the exception of a now repealed act (the i Hen. 7, statutory c. 4), the first statute passed by the state in aid of the discipline proce ure' of the clergy in matters of morality. It was not, however, con- fined to offences against morality, but provided a procedure for all kinds of clerical offences. After having given rise to much costly litigation, it had at last been pretty well construed and expounded by judicial decision, and had been worked by the ecclesiastical officials as a fairly satisfactory and efficient piece of machinery. In 1874 the Legislature, in a panic, passed the Public Worship Regulation Act, giving a concurrent procedure in matters of ritual. And in 1892, was passed, unwisely as the editor thinks, the Clergy Discipline Act, 1892, creating a new and exclusive procedure for cases of morality. The act of 1843, which had cost so much money and toil to interpret and make workable, now remains only for doctrinal cases, simony, breaches of official duty, some cases difficult to classify, and ritual ; and as to this last only as an optional procedure : and the discipline of the clergy is now to be enforced by four separate systems with varying courts — the system provided by 1 & 2 Vict. c. 106, and the other three mentioned in this paragraph. To these might be added a fifth, i.e., that in use in cases of dilapidations. Turning now to the several provisions of the Act of 1843. First (though the enactment comes nearly at the end of the act), it is to be observed that it enacts as follows : — As to criminal suits generally — Sect. 23. " No criminal suit or proceeding against a clerk in No suit holy orders of the United Church of England and Ireland, for against a any offence against the laws ecclesiastical (a), shall be instituted in any ecclesiastical court otherwise than is hereinbefore enacted except as Or provided " (b). herein pro- vided. (a) In Rachham v. Bhick (1 Vict. c. 106, ss. 33, 114, was not a Koberts. p. 367; 5 Moo . P. C. 0. " criminal suit or proceeding." p. 305 ; 9Q. B. p. 691) it was liolden (b) This clause has taken away that a proceeding to recover penal- any power which the ordinary, qua ties for non-residence under 1 & 2 visitor, might have possessed of do- 1014 DISCIPLINE OF THE CHURCH. Not to affect authority of bishop out of court. Suits to be commenced within two years. Proviso. When the time begins to run. Reference to offences without the two years, how far allowed. Secondly, it is provided — the provision is perhaps difficult to construe and apply — As to the personal powers of the ordinary — Sect. 25. " Nothing in this act contained shall he construed to affect any authority over the clergy of the respective provinces or dioceses which the archbishops or bishops of England and "Wales may now, according to law, exercise personally and without process in court." Any authority of the bishop exercised out of court is no bar to the institution of proceedings under this act (c). Thirdly, as to limitation of time — This statute limits the time within which a clerk may be prosecuted under its provisions, a limitation introduced there by positive law for the first time to the theory of clerical disci- pline. It is provided by sect. 20, " Every suit or proceeding against any such clerk in holy orders for any offence against the laws ecclesiastical shall be commenced within two years after the commission of the offence, in respect of 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 com- mission of the offence in respect of which such suit or proceeding shall be so brought." It has been finally ruled by the Privy Council and the Court of Arches, reversing the decision of the Archbishop of Canter- bury acting for the Bishop of Bath and Wells, that the com- mencement of the suit dates from the service of the citation upon the accused clerk and not from the date of the issue of a preliminary commission (d) . This case exhausts all the learn- ing on the subject ; see also Sherivood v. Ray(e), Brookes v. Cresswell (/) ; and as to the application of this section to the 68th Canon, Titchmarsh v. Chapman (g). The offence for which the clerk is articled must have been committed within the two years preceding the service of the citation, but it does not follow that offences without that limit may not be given in evidence as rendering probable the commis- priving a clerk summarie et sine fiyurd judicii ; and this power is not preserved by sect. 25 : Beg. v. A bp. of York, 2 Q. B. p. 1 ; 2 G. & D. p. 202. But see the case of the Dean of Wells, Walrond v. Pollard, Dyer, p. 273, et vide supra, p. 166. The Public "Worship Regulation Act excludes the operation of this clause for matters within its compass. (c) Ex parte Denison, 4 E. & B. p. 292; 3 C. L. E. 247. (d) Denison v. Ditcher, Deane & Swabey, p. 334; 11 Moo. P. C. C. p. 324. (e) 1 Moo. P. C. C. p. 353. (/) 1 Roberts, p. 606. {g) 3 Curt. p. 715. PEOCEDURE UNDER 3 & 4 VICT. C. 86. lOlo sion of an offence within the limits (It). For an analogous decision see The Duke of Norfolk's Case (t). See also The Bishop of Hereford x. Thompson (j). The general rule at common law seems to be that the limited time begins to run from the moment when the injury complained of is so complete as to enable the injured party to take legal proceedings. It is further provided, however, by sect. 21, that the act 27 Geo. 3, 27 Geo. 3, c. 44, " does not and shall not extend to the time of J *J • JjJ*^ the commencement of suits or proceedings against spiritual against persons for any of the offences in the said act named " (k). spiritual per- Fourthly, as to preferments subject to the provisions of this ^^0^^" act — Sect. 2. " Unless it shall otherwise appear from the context, Definition of the term ' preferment,' when used in this act, shall be construed \}e terms to comprehend every deanery, archdeaconry, prebend, canonry, ment,"" office of minor canon, priest vicar, or vicar choral in holy "bishop," orders (/), and every precentorship, treasurership, sub-deanery, jV^*"„ ^ chancellorship of the church, and other dignity and office in any 'J< diocese." cathedral or collegiate church, and every mastership, warden- ship, 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 1 bishop/ when used in this act, shall be construed to comprehend ' archbishop ; ' and the word ' diocese,' when used in this act, shall be construed to comprehend all places to which the jurisdiction of any bishop extends under and for the purposes of an act 1 & 2 Yict. c. 106 " (m). Fifthly, all places formerly exempt and peculiar, not subject Power of to their proper ordinary, are made subiect to him for the pur- arc"n bishops t>\t • , J 1 and bishops as poses 0± this act. _ to exempt or Sect. 22. " Every archbishop and bishop within the limit of peculiar whose province or diocese respectively any place, district or pre- iJjJJJJJjjJ pre" [h) Martin v. Jackson, Arches, chapter of York passed sentence of 1870, in which the point was as- deprivation on a vicar choral who suined but not argued. was in holy orders. An appeal was (?) 12 Howell, State Trials, p. 927. prosecuted to the Archbishop of {j) 2 Eoberts. p. 595; 17 Jur. York, as visitor, and to the Court P- 190. < of Delegates. Both these tribunals (k) Tide supra, p. 833 ; Free v. confirmed the original sentence of Burgoyne, 2 Bligh, N. S. p. 65, the dean and chapter. See printed 6 B. & C. p. 538, and p. 1018, Catalogue of Proces ses in the Be- infra, gistry of the High Court of Dele- [l) All the vicars choral of St. gates from 1609 to 1823, p. 45, Paul's are laymen, and so are many n. 801 — Case of Boughton, Vicar vicars choral in other cathedrals : Choral in York 'Cathedral. these, therefore, it would seem, must (m) Tide supra, Part I V. Chap, still remain under the control of YII. the visitor. In 1716, the dean and 1016 DISCIPLINE OF THE CHURCH. Analogy of 1 Eliz. c. 2. Provisions of act not to interfere with persons insti- tuting suits to establish a civil right, or before archbishop under 23 Hen. 8, c. 9. ferment, 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 by them respectively of the provisions and purposes of this act, and for enforcing the same with regard thereto respectively, as such archbishop and bishop respectively would have used and exercised if the same were not exempt or peculiar, but were subject in all respects to the jurisdiction of such archbishop or bishop ; and where any place, district, or preferment, exempt or 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 chapel of the place, district, or pre- ferment 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 juris- diction of such archbishop or bishop respectively, and the same, for all the purposes 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 t o any archbishopric or bishopric, though locally situate in another diocese, shall con- tinue 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 " (m). The Act of Uniformity, 1 Eliz. c. 2, had already, by sect. 4, empowered bishops and their officers to proceed for the purpose of enforcing that act in places otherwise exempt from their jurisdiction (n). Sixthly, as to civil suits instituted in a criminal form — Sect. 19. " Provided always that nothing hereinbefore con- tained shall prevent any person from instituting as voluntary promoter, or from prosecuting, in such form and manner and in such court as he might have done before the passing of this act, any suit which, though in form criminal, shall have the effect of asserting, ascertaining, or establishing any civil right (o), 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 pursuance of a statute passed in the twenty-third year of the reign of king Henry the Eighth, {m) Yide supra, p. 215. (n) Yide supra, p. 754. (o) A suit against a clergyman claiming notwithstanding the_ in- cumbent's dissent to officiate in a private chapel within the parish is not within the reservation in this section ; but must be brought in the regular way, under 3 & 4 Yict. c. 86 : Richards v. Fincher, L. E., 4 Adm. & Eccl. p. 107. PROCEDURE UNDER 3 & 4 VICT. C. 86. 1017 intituled ' An Act that no person shall be cited out of the diocese where he or she dwelleth, except in certain cases ' " (p). Having considered the extent and limitation of the operation of the statute, we will now state the means which it employs for effecting the end which it has in view, namely, the discipline of the clergy. The statute provides for the trial of an accused clerk as Modes of follows :— triaL 1. The bishop may issue a commission of inquiry. 2. If that commission report that there is a prima facie ground for further proceedings, — 3. The bishop may try the case himself with certain assessors ; 4. Or may appoint a commissary to hear the case ; 5. Or may, after issuing the commission, and before articles are filed, send the case to be heard by the court of the province ; 6. Or may pronounce sentence, with the consent of the accused and party complaining, without further proceedings ; 7. Or may, without issuing any commission, send the case to be tried in the first instance by the court of the province. From the sentence of the bishop or his commissary an appeal Appeal, lies to the court of the province. From the sentence of the court of the province, whether acting as a court of appeal or as a court of first instance, an appeal lies to the Judicial Committee of the Privy Council. The enactments of the statute relative to these matters are as follows : — 1. As regards the issuing and working of the commission. Sect. 3. " In every case of any clerk in holy orders of the Bishop may- United Church of England and Ireland who may be charged j^ggeio^c0°fm" with any offence against the laws ecclesiastical, or concerning ^q^y.0 whom there may exist 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 Members of one shall be his vicar-general, or an archdeacon or rural dean 8^cl1 commis- within the diocese, for the purpose of making inquiry as to the grounds of such charge or report : Provided always, that notice of the intention to issue such commission under the hand of the bishop, containing an intimation of the nature of the offence, together with the names, addition, and residence of the party on What notice whose application or motion such commission shall be about to must be Pre- issue, shall be sent by the bishop to the party accused fourteen vl0Ufc y glven" days at least before such commission shall issue." The accused clerk is, however, not entitled to be heard as of No prelimi- nary right of (l>) Tide supra, pp. 9So, 9S6. sion. 1018 DISCIPLINE OF THE CHURCH. objection to promoter. "What are offences. Discretion of bishop as to allowing the promotion of his office. Vicar-general mentioned in act. Limit of power of com- missioners. Notice of intended commission. Proceedings right in objection in a preliminary way to the character of the party on whose application or motion the commission is to issue (p). The question how far " a clerk in holy orders " can, for the purposes of this act, relieve himself from his responsibility to the ordinary, has been considered (q) . The having caused a " scandal or evil report " is, in the case of a clerk, an offence per so (r) ; and for this reason, and for the sake of purging the church from such scandal, proceedings may be taken in the Ecclesiastical Court, against a clerk, when they could not be taken because of 27 Greo. 3, c. 44, against a lay- man at all, or against a clergyman pro salute animce is), before the passing of this act (t). The words " it shall be lawful," construed with the other words " if he shall think fit," and the whole tenor of the act, do not take away the discretion of the ordinary as to permitting or refusing his office to be promoted, or in other words, a criminal suit to be instituted, against a clerk (it). It was, however, in an early case holden that, if the bishop has allowed a commission to issue at the instance of a promoter, he has no longer a discre- tionary power, but must allow further proceedings to be taken if the promoter insist (x). But the decision in Reg. v. The Bishop of Oxford throws doubt on this. It should be observed that the word " vicar-general " is used in this section, and not " official principal," as if the act con- templated these two offices being holden by separate persons, though since the Reformation they have, as a matter of fact, been always united in the office of " chancellor " (y). The commissioners are bound to confine their inquiry to offences committed within the diocese of the bishop who issues the com- mission (s). In the case of a bishop found incompetent under the now repealed act, 6 & 7 Yict. c. 62, all proceedings had nevertheless to be taken in his name («). The " notice" only indicates the intention to institute proceed- ings, and such intention may be abandoned ; and where no com- mission has issued according to the notice, the issue of letters of request is considered as superseding that notice (b). Sect. 4. " It shall be lawful for the said commissioners or any (p) Ex parte Edwards, L. E., 9 Ch. App. p. 138. (q) Vide supra, p. 911. (r) Burder v. — , 3 Curt. p. 822 ; Borough v. Collins, 12 P. D. p. 81. (s) Free v. Burgoyne, 2 Bligh. N. S. p. 65; 6 B. & C. p. 538. (t) Vide supra, section 21, at p. 1015. [u) This is now finally settled by the decision of the House of Lords in Beg. v. Bp. of Oxford, 5 App. Ca. p. 245, reported also in the Courts below, 4 Q. B. D. p. 245, and p. 525. The older cases are Beg. v. Bp. of Chichester, 2 E. & E. p. 209 ; Martin v. Mackonochie, L. E., 2 Adm. & Eccl. p. 116; Elphinstone V. Purchas, L. E., 3 P. C. p. 245. (x) Beg. v. Abp. of Canterbury, 6 E. & B. p. 546. (y) Vide supra, p. 928. (z) Homer v. Jones, 9 Jur. p. 167. (a) Brookes v. Cresswell, 4 N. C. p. 429. (b) Sanders v. Head, 2 N. C. p. 355 ; 3 Curt. pp. 32, 565 ; Head y. Sanders, 4 Moo. P. C. C. p. 186. PROCEDURE UNDER 3 & 4 VICT. C. 86. 1019 three of them to examine upon oath, or upon solemn affirmation of the com- in cases where an affirmation or declaration is allowed by law missloners- instead of an oath, which oath or affirmation or declaration re- spectively 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 prima 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 his agent, to attend the proceedings of the commission, and to examine any of the witnesses ; and all such preliminary pro- ceedings 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 consideration 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." It seems that where the case is afterwards sent by letters of After letters request to the court of the province, that court cannot take any ^f^^ n° cognizance of any defects in the mode of proceeding before the commission commissioners (c) . material. Sect. 5. " The said commissioners or any three of them shall JJePor* ^ transmit to the bishop under their hands and seals, the deposi- tions of witnesses taken before them, and also a report of the opinion of the majority of the commissioners present at such inquiry, whether or not there be sufficient prima facie ground for instituting proceedings against the party accused ; and such report shall be filed in the registry of the diocese ; and 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 (d) , 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 two-pence for each folio of ninety words." As to proceedings after the report — Sect. 6. " In all cases where proceedings shall have been Bishop may (c) Bonwell v. Bp. of London, 14 p. 59. Moo. P. C. C. p. 395 ; Simpson v. (d) See Sheppard v. Bennett, L. Flamank, L. R,, 1 P. C. p. 463; R., 2 Adm. & Eccl. p. 335. Sheppard v. Bennett, 39 L. J., Eccl. P. VOL. II. 3 X the commis- pronounce 1020 DISCIPLINE OF THE CHURCH. sentence, by- consent, -with- out further proceedings. What is a lawful sen- tence. Articles and depositions to be filed. Signature of barrister to articles. As to docu- ments not produced to commis- sioners. commenced under this act against any such clerk, it shall be lawful for the bishop of any diocese within which such clerk may hold any preferment, with the consent of such clerk and of the party complaining, if any, first obtained in writing, to pro- nounce, without any further proceedings, such 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 pronounced after a hearing, according to the provisions of this act, and may be enforced by the like means." A " sentence which might be pronounced in due course of law " may include a condition that at the expiration of the period of suspension decreed the clerk should procure a certifi- cate, signed by three beneficed clergymen, of his good behaviour and morals during his suspension, and that such certificate should be approved of by the bishop before the suspension was taken off (e) . Sect. 7. " If the commissioners shall report that there is suffi- cient prima facie ground for instituting proceedings, and if the bishop of any diocese within which the party accused may hold any preferment, or the party complaining shall thereupon think 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 commissioners, 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 payment of a reasonable sum for the same, not exceeding two-pence for each folio of ninety words." The words " by an advocate practising in Doctors Com- mons " must be considered as directory only, and the direction can no longer be complied with, as the College of Advocates has legally ceased to exist ; and it seems that the articles may now be signed by any barrister (/) . In a proceeding against a clerk the bishop sent all the docu- ments connected with the case, whether produced before the commissioners or not, to the registry. When the case came before the Court of Arches an application was made to the court to direct the registrar to allow the clerk access to certain of these documents, which were stated to refer to some charges which had been abandoned. These documents had not been produced before the commissioners. It was holden that, as by sections 5 and 7 of this statute the clerk was entitled to be furnished only (e) Ex parte Rose, 18 Q. B. p. 751. (/) Mouncey v. Robinson, 37 L. See Morris v. Ogden, L. E., 4 C. P. J., Eccl. p. 8 ; vide supra, p. 936. p. 687. PROCEDURE UNDER 3 & 4 VICT. C. 86. 1021 with the evidence given before the commissioners, the applica- tion must be rejected (g). Sect. 8. " A copy of the articles so filed shall be forthwith Service of served upon the party accused, by personally delivering the ^J-^ the same to him, or by leaving the same at the residence house belonging to any preferment holden by him, or if there be no such house, then at his usual or last known place of residence (h) ; 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." Sect. 9. " It shall be lawful for the said last-mentioned bishop, Bishop may by writing under his hand, to require the party to appear, either require the in person or by his agent duly appointed, as to the said party appear before may seem fit, before him at any place within the diocese, and at 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 bishop shall seem reasonable ; and if the party shall appear, and and may pro- by his answer admit the truth of the articles, the bishop, or his nounce judg- commissary specially appointed for that purpose, shall forthwith ^^There proceed to pronounce sentence thereupon according to the admitted, ecclesiastical law." This the bishop may do, though he is, by his secretary, the real promoter of the suit (*') . Sect. 10. "Every notice and requisition to be given or made How notice in pursuance of this act, shall be served on the party to whom ^q^sl" the same respectively relate in the same manner as is hereby served, directed with respect to the service of a copy of the articles on the party accused." Sect. 11. "If the party accused shall refuse or neglect to Proceedings appear and make answer to the said articles, or shall appear and £gforeet^ng make any answer to the said articles other than an unqualified bishop, admission of the truth thereof, the bishop shall proceed to hear the cause, with the assistance of three assessors (k) to be nomi- nated by the bishop, one of whom shall be an advocate who shall have practised not less than five years in the court of the archbishop of the province, or a sergeant 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." Sect. 12. "All sentences which shall be pronounced by any Sentence of bishop to be (g) Farnall v. Craig, 5 N. C. (*) Beg. v. Bp. of St. Albans, 9 Q. p. 116. B. D. p. 454. (h) As to what may be deemed ' the place of residence " of a clerk (k) These assessors have very executing a deed of relinquishment to the so-called assessors under the of his clerical profession, see 33 & 34 Clergy Discipline Act, 1892. Yide Vict. c. 91, s. 6; supra, p. 910. infra, Chap. X. 3x2 1022 DISCIPLINE OF THE CHURCH. effectual in law. Bishop may send the cause to the court of appeal of the province. Judge of the court may make orders for expediting such suits. No appeal from inter- locutory decree. No form of letters of request authorized. Archbishop may send letters of request to his own court. Court must receive them. bishop or his commissary in pursuance of this act shall be good arid effectual in law, and such sentences may be enforced by the like means as a sentence pronounced by an Ecclesiastical Court of competent jurisdiction." Therefore, disobedience to the sentence incurs the penalties of contumacy and of contempt of court (7). As to Letters of Bequest — Sect. 13. " Provided always that it shall be lawful for the bishop of any diocese within which any such clerk shall hold any preferment, or if he hold no preferment, then for the bishop of the diocese within which the offence is alleged to have been committed, in any case, if he shall think fit, either in the first instance or after the commissioners shall have reported that there is sufficient prima facie ground for instituting proceedings, and before the filing of the articles, but not afterwards, to send the case by letters of request to the court of appeal of the pro- vince, to be there heard and determined according to the law and practice of such court: Provided always, that the judge of the said court may, and he is hereby authorized and empowered from time to time to make any order or orders 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 (m) : Provided also, that there shall be no appeal from any interlocutory decree or order not having the force or effect of a definitive sentence, and thereby ending the suit in the court of appeal of the province, save by the permis- sion of the judge of such court" (»). It is to be observed that no particular form of letters of request is authorized by the statute (o) ; and the tendency of the later judgments, especially of the Privy Council, has been to render it unnecessary to state the offence so fully as was formerly required (j;). This act has effected a separation between the archbishop or bishop and his court, and it seems that under the provisions of it the archbishop may send letters of request to his own court (q) . It has been ruled by the Privy Council that the court of appeal of the province must accept letters of request sent to ifc under this section (r), the practical effect of which is to convert the court of appeal into a court of first instance. The J udicial Committee itself will not accept letters of request, and very rarely (I) Bp. of Lincoln v. Bay, 1 Eoberts. p. 724 ; 7 N. C. p. 1. (m) The rules of the Arches Court here referred to are printed in 36 L. J., Eccl. p. 1. Vide supra, p. 998. (n) It will be seen by sect. 24, that where the bishop is patron of the preferment of the accused party, the archbishop of the province may do all acts that the bishop might otherwise do : see note to sect. 24 : and see sect. 15, for the power of the aggrieved party to appeal. ( o) Sanders v. Head, 4 Moo. P. C. C. p. 186. (p) Martin v. Machonochie, L. E., 2 P. C. p. 365 ; Shcppard v. Bennett, 39 L. J., Eccl. p. 59. (q) Noble v. Voysey, L. E., 3 P. C. p. 357. (r) Sheppard v. PhiJlimore and Bennett, L. E., 2 Adm. & Eccl. p. 335 ; 2 P. C. p. 450. PROCEDURE UNDER 3 & 4 VICT. C. 86. 1023 retains a case appealed to it upon a matter preliminary to the sentence (s). Under this section the Rules of the Arches Court made in 1867 and certain recent rules of the Chancery Court of York have been made (t). As to Appeals — Sect, 15. " It shall be lawful for any party who shall think What appeals himself aggrieved by the judgment pronounced in the first ^a^e made instance by the bishop, or in the court of appeal of the province, a^orieved to appeal from such judgment ; and such appeal shall be to the party, 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 with in the said court of appeal in the same manner and subject only to the 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 " (it). Security for costs may be ordered on an appeal under this section (a?) . Where the archbishop has been substituted for the bishop Appeal from under sect. 24, an appeal lies from his decision to the court of l^n^or appeal of the province (y). _ > SahSjL °r Sect. 16, providing that "the archbishops and bishops who are members of the Privy Council should be members of the Judicial Committee on all appeals under this act," has been as already stated repealed (u). Mode of Procedure. Sect, 17. "It shall be lawful in any such inquiry for any Attendance of three or more of the commissioners, or in any such proceeding "^^^ion of for the bishop, or for any assessor of the bishop, or for the judge papers, &c.° of the court of appeal of the province, to require the attendance may be com- of such witnesses, and the production of such deeds, evidences or PeUed- writings, as may be necessary; and such 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 respectively." Sect. 18. " Every witness who shall be examined in pursuance Witnesses to of this act shall give his or her evidence upon oath, or upon be examined - ■ -r- on oath, and solemn affirmation in cases where an affirmation is allowed by to be liable law instead of an oath, wrhich oath or affirmation respectively punishment shall be administered by the judge of the court or his surrogate, for PerJ,ury» (s) Noble v. Voysey, L. R., 3 P. (u) Yide supra, Chap. IV. sect. 5, C. at p. 365. p. 975. {t) Vide supra, p. 998, and the (x) 0' Medley v. Bp. of Norwich, case of Noble v. Aliier, 11 P. D. (1892) P. D. p. 175. y. 1 59, in which the validity of the (y) Bey. v.Dodson, 7E. &B.p. 315, latter rules was under discussion. to 1024 DISCIPLINE OF THE CHURCH. or by the assessor of the bishop, or by a commissioner ; and every such witness who shall wilfully swear or affirm falsely shall be deemed guilty of perjury." Accused It was ruled by Sir Eobert Phillimore when judge of the admitted Court of Arches that the accused party is admissible to give as witness. . , /N , , ., -li • j • i evidence (z) ; and such, evidence nas been received m several cases which have been subsequently appealed. The Privy Council seems to have acquiesced in this ruling, though it has given no positive judgment upon this point (a). As to the inhibition of the accused clerk pendente lite — Bishop em- Sect. 14. "In every case in which, from the nature of the FnMbit^rt 0:^ence charged, ifc shall appear to any bishop within whose accusedPfrom diocese the party accused may hold any preferment, that great performing scandal is likely to arise from the party accused continuing to church* &cthe Per^orm the servi°es of the church while such charge is under ' ' investigation, or that his ministration will be useless 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 ser- vice 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 perform- ance of such services he shall grant his licence to him or them accordingly, 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 seques- tration of the living : Provided also, that it shall be lawful for the said bishop at any time to revoke such inhibition and licence respectively." If a bishop is As to the substitution of the archbishop for the bishop when patron of the patron — held™11* Section 24. " When any act, save sending a case by letters (z) Bp. of Norwich v. Pcarsc, L. R., 2 Adm. & Eccl. p. 281, over- ruling Burder v. O'Neill, 9 Jur., N. 8. p. 1109. (a) In the case of Martin v. Mac- Jconochie, the accused clerk was ex- amined before the Privy Council, L. R., 3 P. C. p. 52. PROCEDURE UNDER 3 & 4 VICT. C. 86. 1025 of request to the court of appeal of the province, is to be done accused party, or any authority is to he exercised by a bishop under this act, acU^H^ t0 such act shall be done or authority exercised by the archbishop 8tead. of the province in all cases where the bishop who would other- wise do the act or exercise the authority is the patron of any preferment held by the party accused." This was done in the case of Ditcher v. Dcnison, before referred to (b) . As to incumbents who have resigned upon pensions — It is enacted as follows, by 34 & 35 Yict. c. 44, The Incum- 34 & 35 Vict, bents' Eesignation Act, 1871 (c) :— c- 44- Section 13. " Every pensioned clerk shall remain amenable Pensioned to ecclesiastical discipline, and be liable to suspension from or ^iQ^aen" forfeiture of pension for offences which would have involved ecclesiastical suspension from or forfeiture of the benefice had he remained in- discipline, cumbent thereof, and proceedings under 3 & 4 Vict. c. 86, 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 in any proceedings which may be insti- tuted against him for any such offence by him committed or alleged to have been committed, 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." (&) Deane & Swabey, p. 334 ; 11 p. 1014. Moo. P. C. C. p. 324 ; vide supra, (c) Vide supra, p. 389. DISCIPLINE OF THE CHURCH. CHAPTER IX. PROCEDURE UNDER THE PUBLIC WORSHIP REGULATION ACT, 1874 (a). Observations as to the variety of forms of statutory procedure against criminous clerks will "be found at the beginning of the last chapter. This act has, as its preamble recites, for object " further regulations" "for the administration of the laws relating to the performance of divine service." It will be best to take its material sections in order. Sect. 6 defines several terms, the material ones of which are as follows : " The term * burial ground ' means any churchyard, cemetery or burial ground, or the part of any cemetery or burial 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 licence 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 relates, 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 4 parish ' means any parish, ecclesiastical district, chapelry, or place, over which any incumbent has the exclusive cure of souls " (b) : " The term ' parishioner ' means a male person of full age who before making any representation under this act has trans- (u) 37 & 38 Vict. c. 85. (b) There are many places over which the incumbent has not ex- clusive cure of souls, — where, for instance, baptisms, marriages and burials are solemnized by the in- cumbent of the mother church. These would seem not to be "pa- rishes" within this definition. THE PUBLIC WORSHIP REGULATION ACT, 1874. 1027 mitted to the bishop under his hand the declaration contained in Schedule (A) (e) 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 or burial ground is situate, or for the use of which the burial ground is legally provided, to which the repre- sentation relates." Sect. 7. " The Archbishop of Canterbury and the Archbishop Appointment of York may, but subject to the approval of her Majesty to be of jud£e- signified under her sign manual, appoint from time to time a barrister-at-law who has been in actual practice 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 courts of Canterbury and York, hereinafter called the judge (d). " 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 prin- Judge to cipal of the Arches Court of Canterbury, the judge shall become Decome 011 ex officio such official principal, and all proceedings thereafter official prin- taken before the judge in relation to matters arising within the cipal of province of Canterbury shall be deemed to be taken in the f^^^^ Arches Court of Canterbury (e) ; and whensoever a vacancy shall cery Uonrt, 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 proceedings 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 triis act shall be Judge to be a member of (c) "I do solemnly declare that I am a member of the Church, of England as by law established. ' ' Witness my hand this day {d) The Right Hon. James Plai- sted Baron Penzance was appointed the first judge under this act, and still continues judge. By 38 & 39 Vict. c. 76, s. 5, a sum of 1,112/. 18s. Id. in the hands of Queen Anne's Bounty may be ap- propriated for the payment of the judge and his clerk. (e) Under the provisions of 38 & 39 Vict, c. 77, s. 8, the late Sir Robert Joseph Phillimore resigned the offices of official principal of the Arches Court and Master of the Faculties. (/) By sect. 6 of 38 & 39 Vict, c. 76, the Worshipful Granville Harcourt Vernon was enabled to resign the office of official principal or auditor of the Chancery Court of York, without resigning his other offices ; which he accordingly did. 1028 DISCIPLINE OF THE CHURCH. Church of England. Judge now holden to have all powers of provincial courts. Representa- tion by arch- deacon, church- warden, parishioners, or inhabitants of diocese of certain illegal acts. 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 j udge shall cease to be a member of the church, his office shall thereupon be vacant. " This section shall come into operation immediately after the passing of this act." The effect of this section has been holden to be to give to " the judge " under this act all the position and powers (so far as temporal law can give them) of the former officials principal of the Arches Court and Chancery Court. Proceedings, therefore, though taken under this act, are to be deemed to be taken in the appropriate ancient ecclesiastical court ; and orders made in such proceedings can be enforced as other ecclesiastical orders are by significant and imprisonment or enrolment and sequestration (g) . This was finally decided by the House of Lords (h) . Sect. 8. "If the archdeacon of the archdeaconry, or a church- warden of the parish (i)9 or any three parishioners of the parish (k), within which archdeaconry or parish any church or burial ground is situate, or for the use of any part of which any burial ground is legally provided, or in case of cathedral or collegiate churches, any three inhabitants of the diocese, being male persons of full age, who have signed and transmitted to the bishop under their hands the declaration contained in Schedule (A.) under this act, and who have, and for one year next before taking any pro- ceeding under this act have had, their usual place of abode in the diocese within which the cathedral or collegiate church is situate, 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 (g) Vide infra, Chap. XII. sect. 8. (h) Green v. Lord Penzance, 6 App, Ca. p. 657. The Queen's Bench Division and the Court of Appeal had previously given the same opinion: Dale's CasefUJnraghtf$ Case, 6 Q. B. D. p. 376. (i) If the complainant ceases to be a churchwarden during the suit, he does not thereby lose his posi- tion for the purposes of this Act : Perkins v. Enraght, 7 P. D. p. 31 ; aff. on app. nom. Harris v. Perkins, ibid. p. 161. (k) See the definition of 1 ' parish " in sect. 6, supra, p. 1026. They must be parishioners at the time of the complaint : Hudson v. Tooth, 2 P. D. p. 125. (I) This clause seems to follow the distinction drawn between ' ' or- naments " (ornamenta) and decora- tions: vide supra, pp. 721, 731. But while decorations and orna- ments of the minister (sub-sect. 2), if illegal, come within the purview of this act, ornaments of the church apparently only do so when the complaint is that they were put up without lawful authority, i. e. with- out a faculty : vide infra, Part VI. Chap. II. sect. 6. THE PUBLIC WORSHIP REGULATION ACT, 1874. 1029 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 performance, 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, — 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.) (m), 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 representation : 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 " (n). Sect. 9. " Unless the bishop shall be of opinion, after considering Proceedings the whole circumstances of the case, that proceedings should not on representa- be taken on the representation (o) (in which case he shall state tlon* 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 (p) after receiving the representation transmit a copy thereof to the person complained of, and shall require such person, and also the person making the representation, 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 Hearing directions of the bishop without appeal, the bishop shall forth- £ef°^ ^Jop with proceed to hear the matter of the representation in such y conben * manner as he shall think fit, and shall pronounce such judgment (m) ' 'To the Rt. Rev. Father in God, A. by Divine Permission Lord Bishop of B., I (We), C. D. Arch- deacon of the Archdeaconry of [or a churchwarden or three parishioners of the parish of E.], in your Lordship's diocese, do hereby represent that [the jjerson or persons complained o/] has [or have] [state the matter to be represented, if more than one, then under separate heads]. "Dated this day of ,18 . "Signed C. D." (n) This proviso does not ap- parently extend to ornaments or furniture. (o) The authorities on this will be mentioned at the end of the section. (jo) See Howard v. Bodington, 2 P. D. p. 203. 1030 DISCIPLINE OF THE CHURCH. Special case for opinion of judge. In absence of consent transmission of repre- sentation to archbishop. Requisition to and hearing by judge. Procedure on hearing. 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 repre- sentation to the bishop, join in stating any questions arising in such proceedings 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 trans- mitted 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 will- ingness to submit to the directions of the bishop, the bishop shall forthwith transmit the representation in the mode pre- scribed 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 representation at any place within the diocese or province, or in London or Westminster (q). " 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 matter of the said representation. The judge before proceeding to give such notice shall require from the person making the representation such security for costs as the judge may think proper, such security to be given in the manner pre- scribed by the rules and orders (r). " The person complained of shall within twenty-one days after such notice transmit to the judge, and to the person making the representation, 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 viva voce, in open court, and upon oath ; and the judge shall have the powers of a court of record (s), and may (7) If the requisition omit to name the province as a possible area in which the case may be heard, a hearing outside the diocese and not in the City of London, or the City of Westminster, is coram non judice, and any attempt to enforce a decision so arrived at will be prohibited : Serjeant v. Dale, 2 Q. B. D. p. 558 ; Hudson v. Tooth, 3 Q. B. D. p. 46. But if the hear- ing be within the limits named, as, for instance, at Westminster, any subsequent application to enforce the decision may be made and heard, and decided upon at the same place: Re Green, 7 Q. B. D. p. 273 ; affirmed on appeal, Green v. Lord Penzance, 6 App. Ca. p. 657. (r) That is, by deposit of a sum of money, or by bond with two sureties for a like sum, to the amount which the provincial regis- trar may think proper. In the first case under the act [Clifton v. Rids* dale) this was fixed at 300/. (s) These are powers not enjoyed by the ecclesiastical courts. THE PUBLIC WORSHIP REGULATION ACT, 1874. 1031 require and enforce the attendance of witnesses, and the pro- duction of evidences, 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 transferred 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, 1852-1804 (7). " The judge shall pronounce judgment on the matter of the Judgment, representation, 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 Monition order as to costs as the judgment shall require. and costs- " Upon every judgment of the judge, or monition issued in Appeal, accordance therewith, an appeal shall lie, in the form prescribed by rules and orders to her Majesty in council (u). " The judge may, on application in any case, suspend the Stay of pro- execution of such monition pending an appeal, if he shall think cee(hngs flf " / vA pending nL V*7' t ( _ appeal. It will be convenient at the end of this section (sect. 9) to refer Discretion of to the discretion given to the bishop by its first words. These bishop as to words became a matter of contention in the case of the reredos £ 11 ^J*}* or in St. Paul's Cathedral, the complainants applying to the High proceedings. Court of Justice for a mandamus to compel the Bishop of London to transmit the representation to the archbishop in order to its being heard by the judge, they alleging that the bishop's " reason for his opinion " against further proceedings was, as he stated it in the required writing, no reason and only showed that he had not considered " the whole circumstances of the case " and nothing but these circumstances. This contention found favour with the court of first instance ; but was overruled by the Court of Appeal and finally by the House of Lords (y). The discretion of the bishop under 3 & 4 Yict. c. 8(3 to stay proceedings under that act has been already noticed (s) . (t) 15 & 16 Vict. c. 70 ; 17 & 18 Yict. c. 125. But a shorthand writer may, in an undefended case, be sworn and take down the evi- dence: Hudson v. Tooth, 2 P. D. p. 125. {u) Vide supra, p. 975. (x) In appeals from the ecclesi- astical courts, as already stated supra, pp. 977 — 979, the law was that an appeal simply did not suspend the decree of the court below, but an inhibition might always be applied for by the ap- pellant, by which the court of appeal inhibited the court appealed from, from doing any thing to the prejudice of the appeal. This in- hibition used to be issued as a matter of course on an appeal from the Arches or Chancery Courts to the Privy Council. But it was holden by the Privy Council in Ridsduh v. Clifton, 1 P. D. p. 383, that in cases under this act the in- hibition was a matter of discretion, and was only to be issued under the order of the appellate court. (y) Reg. v. Bp. of London, 23 Q. B. D. p. 414; 24 Q. B. D. p. 213; (1891) 1 A. C. p. 666. (z) Vide supra, p. 1018. 1032 DISCIPLINE OF THE CHURCH. Registrar of the diocese to perform duties under the act. Parties may- appear in person or by counsel, &c. No fresh evi- dence ad- mitted on appeal, except by leave of appellate court. Inhibition of incumbent. Sect. 10. " The registrar of the diocese, or his deputy duly- appointed, shall perform such duties in relation to this act and shall receive such fees as may be prescribed by the rules and orders." Sect. 11. " In any proceedings under this act either party may appear either by himself in person or by counsel, or by any proctor or any attorney or solicitor" (a). Sect. 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 of the shorthand writer's notes, as the case may be, shall be transmitted in the manner prescribed by rules and orders, and no fresh evidence shall be admitted upon appeal except by the permission of the tribunal hearing the appeal." Sect. 13. " Obedience by an incumbent to a monition or order of the bishop or judge, as the case may be, shall be enforced, if necessary, in the manner prescribed by rules and 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 (b), 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 prescribed 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 deter- mination 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 relaxation of an inhibition, any benefice or other ecclesiastical preferment 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 ecclesiastical 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 con- tained in " 1 & 2 Vict. c. 106, s. 58 (c), " 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 other (a) Vide supra, p. 940. v. Tooth, 2 P. D. p. 45. (b) This was first done in Hudson (c) Vide supra, p. 1008. THE PUBLIC WORSHIP REGULATION ACT, 1874. 1033 ecclesiastical preferment the incumbent by whom the same was avoided under this act. " The bishop may, during such inhibition, unless he is satisfied Provision for that due provision is otherwise made for the spiritual charge of ^ar^durino- the parish, make due provision for the service of the church inhibition, 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." The statute makes no provision for enforcing obedience to an How inhibition. It was, however, rather assumed than decided in jJ^^JJ*0 Hudson v. Tooth [d] that the inhibition might be treated as an may be ordinary ecclesiastical decree or order, obedience to which might enforced, be enforced by significavit and imprisonment ; and that this assumption was right was finally decided by the House of Lords in Green v. Lord Penzance (e). A monition may order discontinuance of matters charged, Howmoni- and " all practices, acts, matters, and things of the same or a ^Mbition like nature." An inhibition reciting such a monition and maybe disobedience in several specified matters mentioned in the moni- construed, tion and in some other matters not mentioned, was holden on prohibition good, because the judge would have jurisdiction (subject to appeal) to determine whether these matters were of like nature, and must be taken to have done so : and also because, omitting these disputed matters, there was enough disobedience to justify an inhibition for the full period (/). Sect. 14. " It shall not be necessary to obtain a faculty from Faculty not the ordinary in order lawfully to obey any monition issued neces.sary in under this act, and if the judge shall direct in any monition °er am cases> that a faculty shall be applied for, such fees only shall be paid for such faculty as may be directed by the rules and orders (g) ; provided that nothing in this act contained shall be construed to limit or control the discretion vested by law in the ordinary as (d) 2 P. D. p. 45. (e) 6 App. Ca. p. 657. See also Dale's Case, Enraghfs Case, 6 Q. B. D. p. 376 ; et vide supra, p. 1028. (/) Enraght v. Lord Penzance, 7 App. Ca. p. 240. (g) It is not easy to understand what is meant by this part of the section. Possibly it was intended to provide for orders made by the judge under this act when he is not also judge of the Arches or Chancery Court. The provision for applying for faculties under the direction of the judge may be in- tended for cases where a decoration has been set up without lawful au- thority (sect. 8 (1)), but is never- theless such an one as the court might approve, and as to which a faculty to confirm might issue : vide supra, p. 1029, and infra, Part VI. Chap. II. sect. 6. 1034 DISCIPLINE OF THE CHURCH. Service of notices. Substitute for bishop when patron or in case of illness. Provisions relating" to cathedral or collegiate church. 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 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 at the time of the passing of this act." Sect. 15. " All notices and other documents directed to be given to any person under this act shall be given in the manner prescribed by rules and orders." Sect. 16. "If any bishop shall be patron of the benefice or of any ecclesiastical preferment held by the incumbent respecting 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, the archbishop of the province shall act in the place of such bishop in all matters thereafter arising in relation to such representation (7) ; and if any archbishop shall be patron of the benefice or of any ecclesiastical preferment held by the incumbent respecting 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 (k)." Sect. 17. " The duties appointed under this act to be performed by the bishop of the diocese shall in the case of a cathedral or collegiate church be performed by the visitor thereof. " If any complaint shall be made concerning the fabric, orna- ments, 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 rendered 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 (m) the directions contained in such (7i) In Serjeant v. Dale, 2 Q. B. D. p. 558, the bishop had only an alternate right of presentation ; bnt he was ruled to be patron for this purpose. (?) A somewhat analogous clause is to be found in 3 & 4 Yict. c. 86 ; vide supra, p. 1024. (k) The last part of this section has no precedent in the act 3 & 4 Vict. c. 86. (I) There is sometimes a doubt whether a church is or is not a collegiate church. This provision would seem to make it clear that only such churches as not being cathedrals have deans and chapters are collegiate churches within this act. "Westminster and "Windsor are the two principal if not the only collegiate churches under this act, and of them the crown is visitor. The operation of this section in their cases, first enabling the crown as visitor to send the complaint to the judge and then giving an appeal from the judge to the crown in council, seems not to have been considered. (m) There is no provision here how or through whom the judge is to carry his monition into effect. THE PUBLIC WORSHIP REGULATION ACT, 1874. 1035 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 ob- servance 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 in holy orders alleged to have offended in the matter complained of ; and the visitor or the judge, as the case may be, in the event of obedience not being rendered to a monition, shall have the same power as to inhibition, and the preferment held in such cathedral 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 sub- sequent 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 con- cerning an incumbent to whom a monition has been issued, and concerning any benefice or other ecclesiastical preferment held by such incumbent " (»). Sect. 18. " When a sentence has been pronounced by consent, Limitation of or any suit or proceeding has been commenced against any proceedings incumbent under the act of the third and fourth year of the j^j^j^ . reign of her Majesty, chapter eighty- six, he shall not 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." Sect. 19. " Her Majesty may by order in council, at any time Rules for either before or after the commencement of this act, by and with settling pro- the advice of the Lord High Chancellor, the Lord Chief Justice ffs^Xr of England, the judge to be appointed under this act, and the this act. 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 proceedings 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 (o) . (n) Tide sect. 13 of tlie act, supra, p. 1032. (o) These rules were first made by Order in Council of June 28, 18To. The second and existing rules were made by Order in Council P. VOL. II. of Feb. 22, 1879, and will be found in the Law Reports, 4 P. D. p. 250. Their validity was affirmed in Dales Case, Enraghfs Case, 6 Q. B. D. p. 376. 3 Y 1036 DISCIPLINE OF THE CHURCH. Procedure under act per mitted not- withstanding 3 & 4 Vict, c. 86, s. 23. Saving. How far above act made use of. All rules and orders made in pursuance of this section sliall 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 praying that any such rules may be annulled, her Majesty may thereupon 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." Sect. 4 of the act provides (an unnecessary provision) that proceedings taken under it shall not fall under 3 & 4 Vict. c. 86, s. 23, prohibiting all proceedings against clerks except in con- formity with its provisions (p). Sect. 5 saves " any jurisdiction which may now be in force for the due administration of ecclesiastical law." Nine cases (including double proceedings against the late Mr. Dale and the Dean and Chapter of St. Paul's) have been mentioned above as brought under this act. Of these three did not come to a hearing. It is believed that a few more than these nine so mentioned reached the stage of a " representation ; " but were then stopped by the bishop. This is, as far as known, the sum total of the use, in twenty years, to which the act has been put. (p) Vide supra, p. 1013. ( 1037 ) CHAPTER X. THE CLERGY DISCIPLINE ACT, 1892 (a). Observations have been made in an earlier chapter on the variety of the present statutory modes of procedure against the clergy (b) . This act divides into two parts : the first applies to beneficed clergymen who have been convicted in the temporal courts of certain offences, and makes them, by reason of such conviction, liable to deprivation. The second part provides a new procedure for " Offences against Morality committed by clergymen." As to the first part the act provides as follows : — Sect. 1.— " (1.) If either— " (a) a clergyman is convicted of treason or felony, or is con- On conviction victed on indictment of a misdemeanour, and on any f^J^f J™an such conviction is sentenced to imprisonment with hard f eiony, or ' labour or any great er punishment, or grave misde - " (b) an order under the acts relating to bastardy is made meanour, or -i ° J for certain on a clergyman, or ^ _ other offences, " (c) a clergyman is found in a divorce or matrimonial cause ordinary to to have committed adultery, or declare " (d) an order for judicial separation is made against a clergy- convicted man in a divorce or matrimonial cause, or clerk void. "(e) 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 becomes 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 in- capable, save as in this act mentioned, of holding preferment. " (2.) Provided that if when so convicted he receives a free Ee-institution pardon from the Crown his incapacity shall cease, and if he of clerk if receives the pardon before the institution of another clergyman crown and^ to such preferment the bishop shall, within twenty-one days benefice not after receiving notice in writing of such pardon, again institute filled, 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 Duty of archbishop in (a) 55 & 56 Vict. c. 32. (?>) Vide supra, p. 1013. 3 y2 1038 DISCIPLINE OF THE CHURCH. default of bishop. Effect of section. On conviction of clergyman in temporal courts of ecclesiastical offence, or complaint against clergyman for immorality. Prosecution iu consistory court. Power of bishop where charge vague, &c. Security for costs. Trial of questions of fact by judge and assessors. Retrial in certain cases. Questions of law and costs. bishop is not done within the said twenty-one days it shall be ' done by or nnder the authority of the archbishop of the province." The provisions in s. 2 of 33 & 34 Yict. c. 23 (b), which make any office or benefice held by any one convicted of felony ipso facto void, appear to be both expanded and modified quoad beneficed clerks by this section. The second part of the act contains all the sections except the first. It runs as follows : — Sect. 2. "If a clergyman either is convicted by a temporal court of having committed an act constituting an ecclesiastical offence, and the foregoing section does not apply to him, or is alleged to have been guilty of any immoral act, immoral conduct, or im- moral 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 pre- ferment, 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 prosecuted 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 prosecu- tion (c) : " (b) The prosecutor may at any stage of the proceedings be ordered to give security for costs, unless the offence alleged in the prosecution is one of which the clergy- man has been convicted by a temporal court : " (c) If any question of fact (other than the fact of the con- viction 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 decid- ing a question of fact, be members of the court ; and the decision of such question must either be the unani- mous 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 : " (e) 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 (b) Vide infra, p. 1083. possessed under the act 3 & 4 Vict. (c) This provision very materially c. 86. Vide supra, p. 1018. limits the bishop's veto, which he THE CLERGY DISCIPLINE ACT, 1892. 1039 law or of fact shall be deemed to be a question of law"(«0- Sect. 3. — " (1.) The assessors shall be chosen in the prescribed Election of manner from the list of assessors who shall be elected as soon ^oosm? °f as possible after the commencement of this act, and every assessors, three years afterwards, as follows (that is to 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 representatives. " (4.) The assessors chosen shall be bound to attend when required, and if anyone fails so to attend without a reasonable excuse satisfactory 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 for reasons approved by the chancellor, he shall be discharged from serving. " (6.) If by reason of any objection or of non-attendance or otherwise 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 assessors by another ballot, but, if there is not time, shall (d) This section gives very large of law. Then technical or scientific power to the chancellor, and very experts came to be given to judges little to the assessors (so called). as assessors. But the province of The choice of this last word is of the judge was still to decide upon the oddest. An assessor originally the facts. The assessors under this was a legal adviser to a judge, who act have to deal with the facts only, being judge by virtue of his office, and are in fact jurymen with re- ecclesiastical or civil, might possess stricted powers. The assessors common sense and honesty, but had under 3 & 4 Vict. c. 86 are very not sufficient technical knowledge different. Vide supra, p. 1021, 1040 DISCIPLINE OF THE CHURCH. Appeals on question of law or fact. Limitation of prosecutions and conclu- siveness of conviction, &c. Provisions as to certificates of conviction by temporal court. 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." Sect. 4. — " (1.) Either party to a case may appeal against any judgment of a consistory court under this act in respect of any matter of law. " (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 & prima 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 provincial court the decision of that court shall be final. " (5.) If there is an appeal, the sentence shall be susjDended until the appeal is determined or abandoned, and for the purpose of any inhibition be deemed not to have been given " (•). Upon which Dr. Gibson observes that by the ancient canon Origin of law, visitations were to be once a year; but it is to be noted, present that those canons were intended of parochial visitations, or a Practlce- personal repairing to every church; as appears not only from the assignment of procurations (originally in provisions and afterwards in money) for the reception of the bishop ; but also by the indulgence which the law grants in special cases, where every church cannot be conveniently repaired to, of calling together the clergy and laity from several parts unto one con- venient place that the visitation of them may not be postponed. From this indulgence, and the great extent of the dioceses, grew the custom of citing clergy and people to attend visitations at particular places ; the times of which visitations, as they are now usually fixed about Easter and Michaelmas, have evidently sprung from the two yearly synods of the clergy, which the canons of the church required to be holden by every bishop about those two seasons, to consider of the state of the church and religion within the respective dioceses : an end that is also answered by the presentments that are there made concerning the manners of the people; as they used to be made to the bishop at his visitation of every particular church. But as to parochial visitation, or the inspection into the fabrics, mansions, utensils and ornaments of the church, that care has been long devolved upon the archdeacons ; who at their first institution in the ancient church were only to attend the bishops at their (0) L. E. 4 Adm. & Eccl. p. 297. (?) Vide supra, p. 908. (p) L. R. 6 P. C. p. 435. (r) Vide supra, p. 516. DISCIPLINE OF THE CHURCH. ordinations, and other public services in the cathedral ; but being afterwards occasionally employed by them in the exercise of jurisdiction, not only the work of parochial visitation, but also the holding of general synods or visitations when the bishop did not visit, came by degrees to be known and established branches of the archidiaconal office as such ; which by this means attained to the dignity of ordinary, instead of delegated, jurisdiction. And by these degrees came on the present law and practice of triennial visitations by bishops ; so as the bishop is not only not obliged by law to visit annually, but (what is more) is restrained from it (s) . The Reformatio Legum Ecclesiasticarum contains the following provision on this subject : " Episcopus .... dicecesim totam . . . . tertio quoque anno visitet, et consuetas procurationes accipiat : ut vero aliis temporibus quoties visum f uerit, visitet propter novos casus qui incidere possint, ei liberum esto modo suis impensis id facia t, et nova onera stipendiorum aut procura- tionum ab ecclesiis non exigat"(f). In the bishop's triennial, as also in regal and metropolitical, visitations, all inferior jurisdictions respectively are inhibited from exercising jurisdiction, during such visitation. And we find, in the time of Archbishop Winchelsey, a bishop prosecuted for exercising jurisdiction before the relaxation of the inhibition ; and in Archbishop Tillotson's time, a bishop suspended, for acting after the inhibition. And even matters begun in the court of the inferior ordinary (whether contentious or voluntary) before the visitation of the superior, are to be carried on by the authority of such superior (u). However, it has not been unusual, especially in metropolitical visitations, to indulge the bishops and inferior courts, in whole or in part, in the exercise of jurisdiction, pending the visitation. Thus, we find relaxations granted, pending the visitation, by Archbishop Abbot ; and by others, an unlimited leave or com- mission, to exercise jurisdiction, or proceed in cases, notwith- standing the visitation ; and elsewhere, a leave to confer orders, confirm, grant fiats for institution, institute, or correct, whilst the inhibition continued in other respects (x) . After the relaxation of the inhibition, and especially in metro- political visitations, we find not only reservations of power to rectify and punish the eomperta et detecta, but also special com- missions issued for that end (y). The bishop at his triennial visitation, or whenever according to custom it is holden, and the archdeacon at his annual visita- tion, preside over a lawful court; and those subject to its juris- diction, and refusing to appear, are liable to ecclesiastical punish- (s) Gibs. p. 958. The details of («) Gibs. p. 958; Beg. v. Thoro- visitations, whether episcopal or good, 12 A. & E. at p. 187 ; vide archidiaconal, will be found in the supra, pp. 169, 977. next section. \x\ Gibs. p. 958. (t) De Ecclcsise et ministris ejus, [y) Ibid. Ch. 12, p. 105. VISITATION* 1051 ment for their contumacy. Probably in the present state of the law the offender must be articled against under 3 & 4 Yict. c. 86 ; but he is certainly liable to punishment and to the costs incurred by his contumacy (s). Bishops on their visitations used to be entitled to receive Episcopal procurations (a). It seems, however, that where the estates of Procurations. bishops have vested in the ecclesiastical commissioners under 23 & 24 Yict. c. 124 (b), these procurations have become payable to the commissioners, who have, however, abandoned their collection (c). — ♦ — Sect. 3. — Archidiaconal Visitation. Lindwood says, the archdeacon, although there be not a cause, How often to may visit once a year : but if there be cause, he may visit take Place- oftener. Nor does it hinder, where it is said in the canon law, that he ought to visit from three years to three years : for this is to be understood so that he shall visit from three years to three years of necessity, but he may visit every year if he will (d). Langton. " The archdeacons in their visitation shall see that General the offices of the church be duly administered ; and shall take an P?^"1 account in writing of all the ornaments and utensils of the c' churches, and also of the vestments and books ; which they shall cause to be presented before them every year for their inspection, that they may see what have been added, or what have been lost" (e). Account in Writing.'] — And it would be well to have the same Early ccnsti- indented : one part to remain with the archdeacon, and the tutions. other with the parishioners. Utensils.'] — That is, which are fit or necessary for use : and by these are understood all the vessels of the church of every kind. Every Year.] — That is, every year in which they shall visit. That they may see.] — Therefore the archdeacon ought to go to the place in person to visit, and not to send any other ; which if he do, he shall not have the procurations (due upon the account of visiting) in money : but otherwise, he whom he shall send shall receive procurations for himself and his attendants in victuals (/). Otho. " Concerning archdeacons we do ordain, that they visit the churches profitably and faithfully ; by inquiring of the sacred vessels, and vestments, and how the service is performed, (2) Tide supra, p. 1049. See (a) Tide infra, pp. 1059— 1061. Claytonx. Abp. of Dublin, Bothery's (b) Vide infra, Part V. Chap VI. Return, No. 116; S. C, Catalogue sect. 4; Part IX. Chap. III. of Processes in the Delegates, Xo. (c) The case of Synodals is similar. 680, a.d. 1703— Office of the judge Tide supra, p. 134. promoted against a clerk for not (d) Lind. p. 49 ; vide supra, appearing at a visitation, vide p. 199. supra, p. 201, and case of Wollaston (<°) Lind. p. 50. v. Clarke, there referred to. (/) Ibid. r. vol. 11. 3 z 1052 DISCIPLINE OF THE CHURCH. and generally of temporals and spirituals ; and what they shall find to want correction, that they correct diligently. And when they visit, correct or punish crimes, they shall not presume to take anything of any one (save only moderate procurations), nor to give sentence against any persons unjustly, whereby to extort money from them. For whereas these and such like things do savour of simony, we decree, that they who do such things shall be compelled by the bishop to lay out twice as much for pious uses ; saving nevertheless other canonical punishment against them. And they shall endeavour frequently to be present at the chapters in every deanry, and therein instruct the clergy (amongst other things) to live well, and to have a sound knowledge and understanding in performing the divine offices "(ff). Chapters.'] — That is, rural chapters (h). Reynolds. " We enjoin the archdeacons and their officials, that in the visitation of churches they have a diligent regard to the fabric of the church, and especially of the chancel, to see if they want repair : and if they find any defects of that kind, they shall limit a certain time under a penalty within which they shall be repaired. Also, they shall inquire by themselves or their officials, in the parishes where they visit, if there be ought in things or persons which wanteth to be corrected : and if they shall find any such, they shall correct the same either then or in the next chapter (i). And their Officials.'] — Here it seems to be intimated, that the archdeacon's official may visit ; which yet is not true, at least in his own right ; yet he may do this in the right of the arch- deacon, when the archdeacon himself is hindered (k). Stratford. " Forasmuch as archdeacons and other ordinaries in their visitations finding defects as well in the churches as in the ornaments thereof and the fences of the churchyard and in the houses of the incumbents, do command them to be repaired under pecuniary penalties, and from those that obey not do extort the said penalties by censures, wherewith the said defects ought to be repaired, and thereby enrich their own purses to the damage of the poor people : therefore that there may be no occasion of complaint against the archdeacons and other ordinaries and their ministers by reason of such penal exactions, and that it becometh not ecclesiastical persons to gape after or enrich themselves with dishonest and penal acquisitions, we do ordain, that such penalties, so often as they shall be exacted, shall be converted to the use of such repairs, under pain of suspension ab officio which they shall ipso facto incur until they shall effectually assign what was so received to the reparation of the said defects (/). Canon 86. By Can. 8G of 1603, " Every dean, dean and chapter, arch- deacon, and others which have authority to hold ecclesiastical {(j) Athon, p. 52. (h) Ibid. p. 54. (?) Lind. p. 53. (k) Ibid. (0 Ibid. pp. 224, 225. VISITATION. 1053 visitations by composition, law, or prescription, shall survey the churches of his or their jurisdiction 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 com- missioners for causes ecclesiastical (m), 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 the said high com- missioners will ex officio mero send for such parties and compel them to obey the just and lawful decrees of such ecclesiastical ordinaries making such certificate." The original parochial libraries, which come under the opera- Parochial tion of the statute of Anne, 7 Anne, c. 14, are by sect. 3 of that llbranes- statute to be inquired after by the ordinary at his visitation. The visitation articles in use in the diocese of Lincoln contain an article directed to this end. In the year 1626, Mr. Huntley, rector of Stourmouth, Visitation was required by Dr. Kingsley, archdeacon of Canterbury, to sermon- preach a visitation sermon, which he refused : and being cited before the high commissioners, it was urged that he was bound to the performance of that office in pursuance of the arch- deacon's mandate, by virtue of his oath of canonical obedience. He answered that he was not a licensed preacher according to the Canons of 1603, and especially that he was not bound thereunto by his said oath, which implied only an obedience according to the canon law, as it is in force in this realm ; and that there is no canon, foreign or domestic, which required him to do this ; but on the contrary, that the ancient canon law in joined the visitor himself to preach at his own visitation. But the court admonished him to comply ; and on his refusal, fined him 500/., and imprisoned him till he should pay the same, and also make submission ; and afterwards degraded and deprived him. But this is one instance, amongst others, in which that court whilst it subsisted carried matters with a pretty high hand (n). By Can. 137, " Forasmuch as a chief and principal cause Canon 137. and use of visitation is, that the bishop, archdeacon, or other Inspection of assigned to visit, may get some knowledge of the state, suffi- *eJ^ of ciency and ability of the clergy, and other persons whom they licences, &c, are to visit ; we think it convenient that every parson, vicar, a* visitations, curate, schoolmaster, or other person licensed whosoever, do at the bishop's first visitation, or at the next visitation after his admission, show and exhibit unto him his letters of orders, in- stitution, and induction, and all other his dispensations, licences, or faculties whatsoever, to be by the said bishop either allowed, (m) The High. Commission Court Dei quoerat de vita et conversations has since been abolished. ministrorum," is the precept of the (n) Huntley's case, Johns. See canon law as to episcopal visitation. Gibs. p. 970. "Sane hnjusmodi YI. iii. 20, c. 1, § 4. impensurus officium proposito verbo 3z2 1054 DISCIPLINE OF THE CHURCH. or (if there be just cause) disallowed and rejected : and being by him approved, to be (as the custom is) signed by the register : 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 con- tinuance." To be by the said Bishop allowed."] — None but the bishop, or other person exercising ecclesiastical authority by commission from him, has right de jure communi to require these exhibits of the clergy ; nor does the enacting part of this canon convey the right to any other; and therefore if any archdeacons are entitled to require exhibits in their visitations, it must be upon the foot of custom, the beginning whereof has probably been an encroachment ; since it is not likely that any bishop should give to the archdeacon and his official a power of allowing or dis- allowing such instruments as have been granted by himself or his predecessors (o) . Whole Fees.'] — In the registry of Archbishop Islip, there is a sequestration of the benefices of divers clergymen refusing to make due exhibits in a visitation (p). And afterwards but Half of the said accustomed Fees.] — Lind- wood, speaking of the letters of orders to be exhibited by stipendiary curates going from one diocese to another, says, that after the archdeacon or his official or other ordinary has satisfied himself of their orders and of their life and conversa- tion, they may be admitted to officiate, and their names ought to be entered in the register of such ordinary ; whereupon in other visitations or inquiries, their letters of orders ought not to be reinspected, nor their names to be entered again, seeing they are sufficiently known already : and so they do ill (he says) who in every of their visitations take something for the inspection and approbation of the said letters of orders, seeing such entry ought not to be made but once, namely, at the first admission (q). Presentments, Edmund. " There shall be in every deanry two or three men, be made1 10 navmg Gr°d before their eyes, who shall, at the command of the archbishop or his official, present unto them the public excesses of prelates and other clerks " (r). In every Deanery.] — That is, in every rural deanery (s). Public excesses.] — That is, notorious, whereof there is great and public infamy ; and this, although the same be not upon oath ; but if such excesses shall not be notorious, then the same shall not be presented, unless there be proof upon oath (t). Origin of As to the church wardens' duty in this particular, although they have for many hundred years been a body corporate to church wardens' pre .scutments. (o) Gibs. p. 959. (r) Lind. p. 277. This is probably ' p) Gibs. p. 1545. only a diocesan constitution, r< //) Lind. p. 225 ; Gibs. p. 959. lating to the diocese of Canterbury. Vide supra, p. 111. (s) Ibid. t) Ibid. VISITATION. 1055 take care of the goods, repairs and ornaments of the church, as appears by the ancient register of writs ; yet this work of pre- senting has been devolved on them and their assistants by canons and constitutions of a more modern date. Anciently the way was to select a certain number, at the discretion of the ordinary, to give information upon oath ; which number the rule of the canon law upon this head evidently supposes to have been selected while the synod was sitting, and the people as well as clergy in attendance there. But in process of time this method was changed, and it was directed in the citation that four, six or eight, according to the proportion of the district, should appear (together with the clergy) to represent the people, and to be the testes synodales (it). But all this while we find nothing of churchwardens present- ing, but the style of the books is, " The parishioners say," " The laymen say," and the like, until a little before the Reformation, when the churchwardens began to present, either by themselves, or else with two or three more parishioners of credit joined with them. And this last (by the way) is evidently the origin of that office which our canons do call the office of sidesmen or assistants (%) . In the beginning of the reign of King J ames the First, a Only church- commissary had cited many persons of several parishes to appear ward ens and before him at his visitation ; and because they appeared not, citedmei1 10 * they were excommunicated. But a prohibition was granted, because the ordinary has not power to cite any into that court, except the churchwardens and siclemen {y). Can. 113 providing that the parson, vicar, or curate may Canons 113, join in every presentment with the churchwardens and sidemen 114, at the times of visitation, " if they the said churchwardens and the rest will present such enormities as are apparent in the parish," or if they will not, then may by themselves present, has been already given at length (z) . Can. 114 as to presenting Popish recusants is obsolete. By Can. 116, " No church-wardens, quest-men, or side-men of Canon 116. any parish, shall be enforced to exhibit their presentments to any having ecclesiastical jurisdiction, above once in every year, where it hath been no oftener used, nor above twice in every diocese whatsoever, except it be at the bishop's visitation ; for the which presentments of every parish church or chapel, the register 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 quoties, Provided always that, as good occasion shall require, it shall be lawful for every minister, church-wardens and side-men to present offenders as often as they shall think (u) Gibs. p. 960. (y) Anon., Noy, p. 123. (x) Ibid. ; Gibson on Visitations, (z) Vide supra, p. 542 ; et vide pp. 59—61. Grove y. Elliott, 2 Vent. p. 42. 1056 DISCIPLINE OF THE CHURCH. Canon 119. Articles of inquiry. Canon 115. Presentments on common fame, 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, church-wardens or side-men, 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 he in due time punished and reformed. Provided, That for these voluntary presentments there he no fee required or taken of them under the pain aforesaid." By Can. 119, "For the avoiding of such inconveniences as heretofore have happened hy the hasty making of hills of pre- sentments upon the days of visitation and synods, it is ordered, That always hereafter, every chancellor, archdeacon, commissary and official, and every other person having ecclesiastical juris- diction, 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- wardens, quest-men and side-men 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, quest-men and side-men 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 whereupon they are to ground their presentments, they may frame them at home both advisedly and truly, to the discharge of their own con- sciences after they are sworn as becometh honest and godly men." Frame them at Home.~] — By an entry in one of our records about 200 years ago, says Bishop Gibson, the ancient way of making presentments seems to have been the ordinary's exami- nation of the synodal witnesses, and the taking their directions and presentments by word of mouth, and then immediately entering them in the acts of the visitation. And although presentments are now required to be framed at home, there is no doubt but every visitor has the same right of personal exami- nation that ancient visitors had, as often as he shall find occasion (a). By reason of several disputes which have been made con- cerning the articles of inquiry, the convocation has sometimes attempted to frame one general body of articles for visitations, but the same as yet has not been brought to effect (b). By Can. 115, " Whereas for the reformation of criminous persons and disorders in every parish, the church- wardens, quest- men, side-men, and such other church officers are sworn, and the minister charged to present as well the crimes and disorders (a) Gibs. p. 963. (b) Gibs. p. 962. VISITATION. 1057 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 eccle- siastical 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 church-wardens, quest-men, side-men or other church officers, for making any such presentments, nor against any minister for any presentments that he shall make ; all the said presentments tending to the restraint of shameless impiety, and considering that the rules both of charity and government do presume, that they did nothing therein of malice, but for the discharge of their consciences." The person accused in those days was required to answer upon not now oath to the charge laid against him, and to bring his com- kwfnl. purgators ; but the oath ex officio being now abolished (c) , it is wrong and unlawful to present any person upon common fame only without proof. It is not enough to present that such a one has committed Presentments fornication, or the like, but the person ought to be named with jjJJJ^ to be whom he committed the offence, and that there is a public fame made, thereof ; otherwise upon such a general and uncertain present- ment, the person accused cannot know how to make his defence, and there may be cause of appeal (d). By Can. 117, "No church- wardens, quest-men or side-men Canon 117. shall be called or cited, but only at the said time or times before limited, to appear before any ecclesiastical judge whosoever, 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 f urther 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 provided." By Can. 118, " The office of all church-wardens and side-men Canon 118. shall be reputed ever hereafter to continue until the new church- wardens 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 church-wardens and side-men of every parish shall exhibit to their several ordinaries the presentments of such enormities as (c) By 13 Car. 2, st. 1, c. 12. (d) 1 Ought, p. 229. 1058 DISCIPLINE OF THE CHURCH. Canon 26. Penalty for not pre- senting. Selbtfs case. Canon 121. None to be presented twice for the same offence. have happened in their parishes since their last presentments. And this duty they shall perform "before the newly chosen church-wardens and side-men 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 re- formation of such dalliers and dispensers with their own con- sciences and oaths." It is enjoined by Can. 26, that no minister shall admit to the holy communion any churchwardens or sides-men who wittingly and willingly, desperately and irreligiously, incur the horrible crime of perjury in neglecting or refusing to present such enormities and public offences as they know themselves to be committed in their said parishes, or are notoriously offensive to the congregation, although they be urged by some of their neighbours, or by their minister, or by the ordinary himself, to discharge their consciences by presenting them (d). In Selbi/s case (e), in 1680, a prohibition was prayed to the archdeacon of Exeter, because he proceeded to excommunicate the plaintiff, for that he, being churchwarden, refused to pre- sent a notorious delinquent, being admonished. And a prohibi- tion was granted : for they are not to direct the churchwarden to present at their pleasure ; but if one churchwarden refuses to present, he may be presented by his successor. By Can. 121 of 1603, "In places where the bishop and arch- deacon do by prescription or composition visit at several times in one and the same year (/), lest for one and the self-same 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 presentments 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 pre- sented in each other's visitation ; then every of them so offend- ing shall be suspended from all exercise of his jurisdiction, by the bishop of the diocese, until he shall repay the costs and (d) Vide supra, p. 522. It has (e) Freem. p. 298. been observed that no presentments (/) Vide supra, p. 198. are now made upon oath. VISITATION. 1059 expenses which the parties grieved have been at by that vexa- tion " (g). The Common Pleas, in 1862, and the Exchequer Chamber, in Fees payable 1864, decided that the registrar of an archdeaconry court could ^visitations, recover his fees for attendance at the archdeacon's visitation against the churchwardens of the parishes visited (h) . The Queen's Bench, however, in 1870, held that the liability When not of the churchwardens to pay the registrar was not personal, and recoverable. that if they had no funds in their hands for the repairs of the church or any other expenses of their office, and were without the means of obtaining funds except by voluntary subscriptions, they were not liable to pay the fees (i). By the table of fees, fixed according to 30 & 31 Vict. c. 1 35 (/>•), Table of fees and published in the London Gazette of March 19, 1869, the ^^j?1*" fees on visitations are fixed as follows : — 30 & 31 Vict. c. 135. Vicar-general, Chancellor, Archdeacon or Official. Registrar or other Officer by usage perform- ing the Dut3*. Apparitor. Episcopal or Archidiaconal Visitation . . £ s. a. 0 2 0 £ s. d. 0 12 6 £ s. d. 0 3 6 " The chancellor's fee includes the attendance of the chancellor or his surrogate, the examination of the presentments of the out- going churchwardens and the admission of the new churchwardens 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 of the presentment papers ; the attendance at the visitation and attesting the presentments and declarations of the church- wardens ; the registering the papers exhibited by the clergy ; the tabulating in the registry the copies of the register books of baptisms 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." In all visitations of parochial churches made by bishops and Procurations, archdeacons, the law provided that the charge thereof shall be answered by the procurations (/) then due and payable by the (g) See Gibs. p. 966 ; vide supra, p. 199 ; Cosin, Ecclesise Anglicanoe Politia, Tab. 7 A. (1634). {h) Shephard v. Payne, 12 C. B., N. S. p. 414 ; 16 ib. p. 132 ; nom. Shepherd v. Payne, 31 L. J., C. P. p. 297; 33 ib. p. 158; vide supra, p. 944. (?) Veley v. Pertwee, L. E., 5 Q. B. p. 573. (A-) Vide supra, p. 107. (/) VI. iii. 20, c. 1, s. 5, " Pro- curationes autem recipiat," &c, but to be taken in food, not money. 1060 DISCIPLINE OF THE CHURCH. Anciently by provisions in kind. Procurations now converted into money. Whether due when no visitation is made. inferior clergy ; wherein custom, as to the quantum, shall prevail (m). These procurations were anciently made by procuring victuals and other provisions in specie ; concerning which constitutions have been ordained in England in accordance with the general canon law (n) . But by a constitution of Stratford, " No procuration shall be due without actually visiting; and if any shall visit more churches than one in one day, he shall have but one procuration, to be proportioned amongst the said churches. And because sometimes the retinue of a visitor exceedeth the number of men and horses appointed by the canons, so that they who pay their procurations in victuals are excessively burdened beyond the rate which is usually paid in money, it shall be in the choice of the visited to pay the same in money or in provisions (0). And this last constitution, by putting it in the choice of the incumbent, whether he would entertain the visitor in provisions or compound for it by a certain sum of money, was the cause of the custom generally prevailing afterwards, and which now universally obtains, of a fixed payment in money, instead of a procuration in meat, drink, provender, and other accom- modation (/)). Procuration is due to the person visiting, of common right ; and although originally due by reason of visitation only, yet the same may be due without actual visitation. The foregoing constitutions limit the payment, whether in provisions or money, to actual visitation, and warrant the denial of them when no visitation is holden. Upon which a doubt has been raised, whether those archdeacons who are not permitted to visit, but are inhibited from doing it in the bishop's triennial visitation, have a right to require procurations for that year. They who have maintained the negative, build their opinion upon the express letter both of the ancient canon law, and of our own provincial constitutions. But others, who undertake to defend the rights of the archdeacons, allege that, though it might be reasonable that they lose their procurations, in case they neglect their office of visiting (which, by the way, was all that the ancient constitutions meant), yet that reason does not hold when they are restrained and inhibited from it ; and that procurations are rated in the valuation of King Henry VIII. as part of the revenues of every archdeacon, who therefore paid a certain annual tenth for them ; and the law could never intend the payment of the tenth part every year, if there had been any year in which he was not to receive the nine parts. Which two arguments (Dr. Gibson says) are so strong in favour of the (m) God. Introd. p. 19. (0) Lind. p. 223. \n) See Lind. pp. 219—221 ; (p) Gibson, Tracts, p. 13. As to Athon, pp. 53, 114. episcopal procurations, vide supra, p. 1051. VISITATION. 1061 archidiaconal rights, the first in reason, and the second in law as well as reason, that no more need to be said upon that head (q). Procurations are suable only in the spiritual court, and are To "be sued merely an ecclesiastical duty (r). And may be levied by seques- g0^?,^6 tration or other ecclesiastical process (s). court!18" In Saunderson v. Chi get (J), in 7 Greo. 1, Dr. Claget, Arch- To be paid deacon of Sudbury, commenced a suit in the Consistory Court by rectories of Norwich, against Saunderson, as proprietor or curate of the jj^^flj^ impropriate rectory of Aspal in Suffolk, for the annual sum js n0 vjcar of 6s. 8c?. as a procuration or proxy due to the archdeacon for endowed, visitations. Saunderson moved the Court of King's Bench for a prohibition, and suggested that this was a rectory impropriate, without any vicar endowed ; that all the tithes and profits belonged to the proprietor, who at his own expense used to pro- vide a curate to celebrate divine service at the parish church. But the court held : 1, That this was an ecclesiastical duty, and therefore properly suable for in the spiritual court : 2, That it was claimed both by and from an ecclesiastical person, which made it the stronger : 3, That though there was an impropria- tion in the case, still there must be a curate to take care of the souls of the parishioners, and that curates as well as other persons must stand in need of bishops' or archdeacons' instruc- tions and visitation : consequently, 4, That the ordinary or archdeacon ought to be allowed for his procuration what had been usually paid for it, which here appeared to be 6s. 8d. : 5, That where a thing is claimed by custom in the spiritual court, it must be intended according to their construction of a custom ; and by their law, forty years make a custom or pre- scription. If there be a parsonage and a vicarage endowed, only one is Impropriate to pay procurations ; but which of them must pay is to be jJereZ ^^craer directed by custom, or the endowment, if extant (u). endowed™ Stratford. A chapel of ease shall be included in the procura- chapel of tion of the mother church (x) . ease under Churches newly erected shall be rated to procurations, accord- ^1]u^,^1cllial ing to the portion paid by the neighbouring churches (y). \ Donatives and free chapels used to pay no procurations to newly erected, any ecclesiastical ordinary, because they were not visitable by piaces any (z). But the holders of donatives have now become exempted, visitable (a). (q) Gibs. p. 975. (?•) Bp. of St. David's v. Lucy, Ld. Kayni. p. 450. (s) Gibs. p. 1546. (t) 1 P. Wms. p. 656; nom. Sanderson v. Clagget, 1 Stra. p. 421. (u) Degge, pt. 2, c. 15. (x) Lind. p. 223; Degge, pt. 2, c. 15. (y) Gibs. p. 976. z) Degge, pt. 2, c. 15, p. 283. a) Vide supra, p. 259. 1062 DISCIPLINE OF THE CHURCH. 25 Hen. 8, c. 21. The king by commission may visit col- leges, hos- pitals and places exempt, and not the Archbishop of Canterbury. 1 Eliz. c. 1. Ecclesiastical j urisdiction by way of visitation an- nexed to the crown. The Court of High Com- mission. Sect. 4. — Royal Visitation (b). 25 Hen. 8, c. 21, taking the power of dispensations from the pope, and vesting them in the Archbishop of Canterbury, in- tituled " An Act for the exoneration from exactions paid to the see of Rome," provided by section 14 that neither the Arch- bishop of Canterbury, nor any other person, should have " power or authority by reason of that act, to visit or vex any monasteries, abbeys, priories, colleges, hospitals, houses or other places religious, which be or were exempt before the making of this act ; any thing in this act to the contrary thereof notwith- standing ; but that redress, visitation and confirmation shall be had by the king's highness, his heirs and successors, by com- mission under the great seal, to be directed to such persons as shall be appointed requisite for the same, in such monasteries, colleges, hospitals, priories, houses and places religious exempt : so that no visitation nor confirmation shall from thenceforth be had or made, in or at any such monasteries, colleges, hospitals, priories, houses and places religious exempt by the said Bishop of Borne, nor by any of his authority, nor by any out of the king's dominions ; nor that any person, religious or other, resiant in any the king's dominions, shall from henceforth depart out of the king's dominions to or for any visitation, congregation or assembly for religion, but that all such visitations, congregations and assemblies shall be within the king's dominions" (c). And 1 Eliz. c. 1, " An Act to restore to the crown the ancient Jurisdiction over the Estate Ecclesiastical and Spiritual, and abolishing all Foreign Powers repugnant to the same," enacts as follows : — Sect. 8. " That such jurisdictions, privileges, superiorities and pre-eminences spiritual and ecclesiastical, as by any spiritual or ecclesiastical power or authority hath heretofore been or may lawfully be exercised or used for the visitation of the ecclesias- tical state and persons, and for reformation order and correction of the same, and of all manner of errors heresies schisms abuses offences contempts and enormities shall for ever by authority of this present parliament be united and annexed to the imperial crown of this realm." [" And (//) that your highness, your heirs and successors, kings or queens of this realm, shall have full power and autho- rity by virtue of this act, by letters patents under the great seal of England, to assign, name and authorize, when and as often as your highness, your heirs or successors, shall think meet and convenient, and for such and so long time as shall please your highness, your heirs or successors, such person or (6) The King's Visitatorial Power (c) See also 37 Hen. 8, c. 17, s. 3, Asserted, by Nathaniel Johnston, now repealed. London, 1048 ; Cosin, Ecclesif© (d) The part in brackets is now Anglicanoe Politia, Tab. 1 A (1G34). repealed. VISITATION. 1063 persons being natural-born subjects to jour highness, your heirs or successors, as your majesty, your heirs or successors, shall think meet, to exercise, use, occupy and execute under your highness, your heirs and successors, all manner of jurisdictions, privileges and pre-eminences, in anywise touching or concern- ing any spiritual or ecclesiastical jurisdiction, within these your realms of England and Ireland, or any other your highness' dominions and countries : and to visit, reform, redress, order, correct and amend all such errors, heresies, schisms, abuses, offences, contempts and enormities whatsoever, which by any manner of spiritual or ecclesiastical power, authority or jurisdic- tion can or may lawfully be reformed, ordered, redressed, corrected, restrained or amended, to the pleasure of Almighty Grod, the increase of virtue, and the conservation of the peace and unity of this realm ; and that such person or persons so to be named, assigned, authorized and appointed by your highness, your heirs or successors, after the said letters patents to him or them made and delivered, as is aforesaid, shall have full power and authority by virtue of this act, and of the said letters patents under your highness, your heirs and successors, to exercise, use and execute all the premises, according to the tenor and effect of the said letters patents ; any matter or cause to the contrary in anywise notwithstanding."] To assign, name, and authorize^ — Lord Coke said, it was resolved by all the judges, that if this act had never been made, the king or queen of England for the time being might have made such an ecclesiastical commission by the ancient prerogative and law of England (e) ; but Bishop Stillingfleet (/) denies that " our ancient law doth give the king a power, by virtue of his ecclesiastical jurisdiction, to appoint commissioners, by an extraordinary way of jurisdiction, to proceed in prima instant id against parsons by ecclesiastical censures;" and Bishop Gibson agrees with this learned prelate. To visit.'] — " This branch was enacted out of necessity, for that the bishops and most of the clergy being then popish, it was necessary to raise a commission to deprive them who would not deprive themselves, and to have a more summary proceeding than by the ordinary and prolix course of law is required." To this effect my Lord Coke. But Bishop Stillingfleet believes that they were deprived by a particular commission for that purpose ; which the queen might grant in virtue of this act by the same reason that she issued particular commissions into every county to execute the powers contained and specified in the said act. (e) Cav.drey's case, 5 Co. p. 1, at (/) Stillingfleet' sEccl. Cas. part 2, p. TO. ch. 2, p. 85; ibid. ch. 1, p. 75. 1064 DISCIPLINE OF THE CHURCH. CHAPTER XII. ECCLESIASTICAL CENSURES. Sect. 1. — Censurce sive Coercitiones Ecclesiastics. 2. — Admonition. 3. — Penance. 4. — Suspension. 5. — Sequestration. 6. — Deprivation. 7. — Degradation. 8. — Excommunication and Process for Contempt. 9. — Release and Pardon. — ♦ — Sect. 1. — Censurce sive Coercitiones Ecclesiasticce. Spiritual punishments (a) consist in withdrawing from the baptized person a certain privilege, or certain privileges, which the church has given him, or in wholly expelling him from the Christian communion. A simple ecclesiastical censure is the gentlest, — excommunication is the severest form of punishment. All classes of spiritual punishments known to this country, how- ever, may be ranged under the general head or category of censures — censurce (b). There are some censures applicable to the whole church, clergy and laity ; others applicable only to one of these classes. The censures to which both clergy and laity are subject may, for the purposes of this work, be considered as follows : — 1. Admonition, or monition. 2. Penance. 3. Suspension ab ingressu ecclesice. 4. Excommunication, with the spiritual and temporal conse- quences incident to it. (a) X. v. 37, 39; VI. v. 9, 10, 3, 439 ; Ayl. Par. p. 155 ; Zouch, 11 ; Clem. v. 8, 9, 10 ; Lincl. Descriptio Juris et Judicii Eccles- pp. 312, 314 ; Walter, Lehrbuck, iastici, pars 3, s. viii. s. 191, &c. ; Miiller, Lexicon des (&) " Coercitio Ecclesiastica est Kirckenreckts, Kircken-Strafen, B. censura sive poena," Zouck, ib. What spiritual punishments As to clergy and laity. Classes of censures. ECCLESIASTICAL CENSURES. 1065 Those to which the clergy alone are subject may be con- sidered as — 1. Suspension. 2. Sequestration. 3. Deprivation. 4. Degradation. Sect. 2. — Admonition. Admonition, or monition, is the first and lightest form of Disobedience ecclesiastical censure, whether to clergymen or laymen. It is to *°, a con- be observed, that when an admonition has been duly served, emp ' after a trial, upon the admonished person, disobedience to it entails the penalties incident to a contempt of the order of a lawful court (c) . In the ordination services the clerk solemnly binds himself to Difference reverently obey " his ordinary, and to follow with a glad mind ^^0eT^i10eIfal and will their godly admonitions," — an obligation binding, no and those hi doubt, inforo conscientice, but distinct from the legal admonition ordination to be enforced inforo externo. service. ♦ Sect. 3. — Penance. Penance (d) is said to be an ecclesiastical punishment, used in Of penance the discipline of the church, which affects the body of the peni- in general- tent ; by which he is obliged to give a public satisfaction to the church for the scandal he has given by his evil example. So in the primitive times, they were to give testimonies of their reformation, before they were re-admitted to partake of the mysteries of the church. In the case of incest, or incontinency, the sinner was till lately usually enjoined to do a public penance in the cathedral or parish church, or public market, barelegged and bareheaded, in a white sheet, and to make an open confession of his crime in a prescribed form of words ; which was augmented or moderated according to the quality of the fault, and the dis- cretion of the judge. So in smaller faults and scandals, a public satisfaction or penance, as the judge shall decree, is to be made before the minister, churchwardens, or some of the parishioners, respect being had to the quality of the offence, and circum- stances of the fact ; as was instanced in the case of defamation, (c) Yide infra, sect. 8. (rf) Lind. p. 326; Zouch, De- Bcriptio Juris et Judicii Eccle- siastici, pars. 3, s. ix. ; " Poenitentia est, cum quis crimen confiteri, et lugere public e compellitur." See the whole section. 1066 DISCIPLINE OF THE CHURCH. or laying violent hands on a minister, or the like ( ii> ill tions required an account oi tne money received tor commutations, and to snow in 1735. cause why an inhibition should not go against him, that for the future he should not presume to dispose of any sum or sums received on that account without the consent of the bishop. In obedience to this, an account was exhibited without oath ; and that being objected to, a fuller was exhibited upon oath. And upon the hearing several of the sums in the last account were objected to as not allowable, and an inhibition prayed to the effect above. But the archbishop's chancellor refused to grant such inhibition, and was of opinion that the bishop could only oblige an account : and so dismissed the chancellor without costs. It is expedient to make a special reference to some modern decisions on this subject. Where a party has been convicted of incest, penance has been Penance may remitted where it was shown that the health of the party ordered be remitted- to perform it would have been endangered thereby, and where the promoter expressed his concurrence with the prayer for such remission (//). In another case Lord Stowell said, " In the older canons, which perhaps can hardly be said as carrying with them all their first authority, a solcnnis penitentia is enjoined before the bishop of the diocese. This, however, as I have just remarked, is now softened down. Attending then to what I think is the most material point, the removing of such a scandal, and looking to the age and infirmity of the party, and what might be the consequence of such a punishment, the court will (u) Gibs. p. 1046. (y) Chick v. Mmsdale, 1 Curt, (as) 1 Ought, p. 213. p. 34. 4 a2 1070 DISCIPLINE OF THE CHURCH. Enforced in cas?s of defamation. Schedule of penance must be given to the party. Randall v. Voicles. Penance in circumstances not enjoined. not think it necessary to inflict the public penance ; but condemn him in the full costs of this prosecution, accompanying this with the injunction that the same intercourse must not continue, but must be bond fide and substantially removed" (z). The case last-mentioned was a prosecution for incest. But where the penance enjoined for defamation has been to acknow- ledge the defamation and ask for the forgiveness of the party defamed in the vestry-room before the clergyman and church- wardens, the exact form of retractation of the defamatory words enjoined by the court has been compelled by the court (a). Where a writ de conturnace capiendo expressed " that the de- fendant had been pronounced guilty of contumacy and contempt of the law and jurisdiction ecclesiastical in not having obeyed a decree made upon him to perform the usual penance in the parish church of St. M. N. in a certain cause of defamation," and it appeared that at the time the sentence was pronounced a schedule of penance was made out, which, by the practice of the Ecclesiastical Court, could not be delivered to the defendant until he paid the costs of the suit : it was holden, that he ought to have had the decree exhibited to him in its more perfect form before he could be considered as being in contempt, especially as the costs were not mentioned in the significant, and that he was consequently entitled to be discharged (b). But where an appli- cation was made to set aside a writ de conturnace capiendo on the ground that the defendant had not been admonished to take out a schedule of penance, and that he was sentenced to perform penance in the minister's house, which he had no right to enter — it appearing, nevertheless, that there was an order for the party to pay costs, for the not doing which he was in contempt, and for which in fact the significavit had issued — the application was rejected, for the sentence awarded payment of a precise sum, 25/. costs ; and if the proceedings of the court had been, as was suggested, defective, the costs would not be thereby decreased (c). In Randall v. Voicles, a case in the consistorial court of Chichester, on the 17th of June, 1856, Sir Robert Phillimore, then chancellor of the diocese, gave the following judgment, in which the question of penance is referred to (d) : "This is a proceeding of great importance, both as regards the individuals who are the subject of it, and the interests of the civil and religous community of which they are members. It is (z) Burgess v. Burgess, 1 Consist, p. 393. (a) Courtail v. Homfray, 2 Hagg. Eccl. p. 1 ; Blackrnore v. Brider, 2 Phillim. p. 359 ; Cleaver v. Wood- ridge, 2 Phillim. p. 362, note. (b) Bex v. Maby, 3 D. & E. p. 570. (c) Kington v. Hack, 7 A. & E. p. 708 ; 3 Nev. & P. p. 3. (d) This judgment was delivered before the act was passed which establishes the present court for divorce and matrimonial causes (20 & 21 Vict. c. 85, supra, p. 642); but that act, though it took away the power of the ecclesiastical court to pronounce the nullity of the marriage, left untouched the juris- diction to censure the incestuous cohabitation. Yide supra, pp. 577, 578. ECCLESIASTICAL CENSURES. 1071 a criminal suit brought against two persons, by name Joseph and Elizabeth Yowles, who are alleged to have de facto inter- married with each other, and to be cohabiting together ; their relation to each other rendering such marriage null and void, and such cohabitation incestuous and wicked. " The object of the suit is twofold ; to obtain a declaratory- sentence of the nullity of the de facto marriage had between the parties ; and a decree against them to abstain from incestuous cohabitation for the future. " The promoter of the suit is the incumbent of the parish in which these persons were, at the time of the institution of the suit, resident. The incumbent and the churchwardens are the lawful guardians of the moral purity of the parishioners. I do not know that a more proper promoter of the office of the judge, in a suit of this grave and highly penal character, could have been found. " The articles have been very carefully drawn, and are signed by an experienced and eminent advocate practising in Doctors' Commons. Every link in the chain of evidence taken upon these articles is, I lament to say, scrupulously and fully established by the testimony of witnesses, and, in addition to this proof, in itself ample and sufficient, I find the confession of the guilty parties. It is proved that Elizabeth Tonsett married John Yowles, and had by him a child, now living ; that her husband is dead ; and that she is now cohabiting in incestuous intercourse with her late husband's father, Joseph Yowles, both the guilty parties having contrived to obtain, by a fraudulent suppression of their mutual relationship, the performance of the marriage service in a parish in London, where they were not known, over this unhallowed and revolting union. It is painful to add that the consequences of their sin have travelled beyond themselves. It appears that of this unnatural as well as un- christian cohabitation, a child has been the fruit. " Erom some portions of the evidence I had hoped that the remorse and contrition from which sooner or later they cannot escape, had already overtaken these unhappy persons, and that they had determined to abstain from future intercourse with each other. I learn, however, that such is not the case ; and it only remains for me to give sentence according to the law upon the facts which are proved before me. " I pronounce the marriage which has been de facto solemnized between these parties null and void. I follow the example of my Lord Stowell in the case of Burgess v. Burgess (e), in not enjoining public penance to be performed by them ; but, remem- bering that the effect of such a prosecution as this ought to be remedial as well as penal, I admonish the parties to abstain from further incestuous intercourse, and to live separate and apart in different habitations. It is my duty to warn them that if (e) 1 Consist, p. 384 ; vide supra, pp. 833, 1069. 1072 DISCIPLINE OF THE CHURCH. this admonition of the court be disobeyed, the ordinary, upon due application being made to him, will be compelled to pro- nounce a sentence of excommunication against them. I am, moreover, bound to condemn them in the costs of this suit." Two kinds. Relating to the clergy. By whom this suspension may be pro- nounced. Relating to the laity. Ab ingressu "When such suspension is to be inflicted. Sect. 4. — Suspension. In the laws of the church, we read of two sorts of suspension ; one relating solely to the clergy, the other extending also to the laity (/). That which relates solely to the clergy, is suspension from office and benefice jointly, or from office or benefice singly ; and may be called a temporary degradation, or deprivation of both. So we find it described by John of Athon : a person deposed, is he who is deprived of his office and benefice, although not solemnly; a person degraded, is he who is deprived of both solemnly, the ensigns of his order being taken from him ; a person suspended, is he who is deprived of them both for a time, but not for ever (g). And the penalty upon a clergyman officiating after suspension, if he shall persist therein after a reproof from the bishop, is (by the ancient canon law) that he shall be excommunicated all manner of ways, and every person who communicates with him shall be excommunicated also (/*). Suspension may be pronounced by the chancellor of the diocese ; deprivation by the bishop alone (/). The other sort of suspension, which extends also to the laity, is suspension ab ingressu ecclesice, or from the hearing of divine service, and receiving the holy sacrament, which may therefore be called a temporary excommunication (k). Instances are furnished by the reports of the Ecclesiastical Courts of parishioners suspended ab ingressu ecclesue, for brawl- ing in a church, or in the vestry, before the passing of 23 & 24 Yict. c. 32 (7) ; this sentence being attended by condemnation in costs of a sum nomine expensarum. It was a common form of punishment for contumacy in not appearing to a citation : in the language of 23 Hen. VIII. c. 9, " or at the least suspended from all divine services" (m). Which two sorts of suspension, the one relating to the clergy alone, and the other to the laity also, do herein agree, that both are inflicted for crimes of an inferior nature, such as in the first case deserve not deprivation, and such as in the second case (/) Gibs. p. 1047; et vide infra, sect. 6. (g) Gibs. p. 1047. (h) Ibid. See Bp. of Lincoln v. Day, 1 Roberts, p. 724. (?') Watson v. Thorp, 1 Phillim. p. 269. But see now 55 & 56 Vict, c. 32, supra, p. 1041. (k) Gibs. p. 1047. (/) Vide supra, p. 741. (m) Vide supra, p. 988. ECCLESIASTICAL CENSURES. 1073 deserve not excommunication ; that both, in practice at least, are temporary ; both also terminated, either at a certain time when inflicted for such time, or upon satisfaction given to the judge when inflicted until something be performed which he has enjoined : and, lastly, both (if unduly performed) are at- tended with further penalties ; that of the clergy, with irregu- larity, if they act in the meantime ; and that of the laity (as it seems) with excommunication, if they either presume to join in communion during their suspension, or do not in due time per- form those things which the suspension was intended to enforce the performance of («). By the ancient canon law, sentence of suspension ought not Previous to be given without a previous admonition ; unless where the adm0mtl0Ii offence is such, as in its own nature requires an immediate sus- necessary' pension : and if sentence of suspension, in ordinary cases, be given without such previous admonition, there may be cause of appeal (o). The following is extracted from the case of Johnstone v. Intermediate Sutton (p), and there said to be taken from a manuscript book profits be- in the handwriting of Sir E. Simpson, formerly king's advocate anTa^quitSl and judge of the admiralty. u Offence — Undoubted rule m go to person admiralty and ecclesiastical courts, that persons suspended for acquitted, an offence supposed, of which he is afterwards acquitted in proper court, is entitled to all the intermediate profits. Thus, in case of capture of prize at sea, the officer in arrest being actually on board, and afterwards duly acquitted, or restored to his station, shall share the prize-money. So in civil causes in admiralty : if a master turns his mate without just cause before the mast, and he sue for wages as mate for the whole time, he may recover, though he did not do the duty. So if a clergy- man be suspended ab officio ct benefleio, and upon an appeal declared innocent, he will recover the profits of the living. Profits — Persons suspended from an office, entitled to inter- mediate profits, if innocent." The Judicial Committee of the Privy Council have on two Suspension occasions, in the cases of Martin v. Jlackonochic (q) and Hebbert for contempt, v. Purchas (r), thought themselves warranted by the law in inflicting the punishment of suspension for disobedience to their orders. But for these decisions it would have seemed that these contempts of court would be punished, as contempts of all courts are, by committing, or, in the case of ecclesiastical courts, signifying, the offender. The sentence of suspension is generally followed by a decree Suspension of sequestration, which provides for the performance of the accompanied duties of the benefice, &c, during the period of suspension. traMon**" Where the benefice is already under sequestration, as, for priority of instance, under a writ of sequestrari facias, the sequestration such seques- tration. (>0 Gibs. p. 1047. (?) L. E., 3 P. C. p. 409; 7 Moo. (o) Ibid. p. 1046. P. 0. C. N. S. p. 239. Vide infra, (p) 1 T. E. at p. 526. sect. 8. (r) L. E., 4 P. C. p. 301. 1074 DISCIPLINE OF THE CHURCH. Suspended clerk cannot maintain action for profits. issuing upon the suspension takes precedence, and the previous sequestration is suspended as long as the sentence of suspension lasts (s). As to the condition of an incumbent who has been suspended from his benefice, it has been decided that when a clergyman has been suspended ab officio ct a beneficio, he is not entitled to any of the profits of the benefice, and cannot recover them by action during the continuance of the suspension, although no sequestration may have issued (t). And where, under a suspension, a sequestration was issued, it was holden by Vice- Chancellor Bacon, that the fruits of the benefice sequestered belonged to the bishop as chief pastor of the church, subject to the duty of providing for the services (u). Suspension is expressly mentioned as a suitable ecclesiastical 55 & 56 Vict, punishment in the Clergy Discipline Act, 1892 (v). c. 32. When the writ of se- questration issues. Sect. 5. — Sequestration (a?). The Commissioners for inquiring into the Practice and Juris- diction of the Ecclesiastical Courts say in their Eeport (y) : " Sequestrations issue under the following circumstances : 1st, In obedience to writs from the courts of common law, whereby the bishop is directed to levy certain sums in pur- suance of the statutes regulating Queen Anne's Bounty ; 2ndly, Under the various provisions contained in the sta- tute 57 Greo. 3, c. 99 (s), and in cases of outlawry ; 3rdly, In pursuance of decrees or orders emanating from the ecclesi- astical courts, in cases where clergymen are proceeded against before those jurisdictions ; and, lastly, during vacancies. "In all these cases, we apprehend the law clearly to be, that before any proportion of the profits of the benefice can be (s) Bunter v. Cressivell, 14 Jur. p. 692 ; vide infra, p. 1077. (t) Morris v. Ogden, L. E., 4 C. P. p. 687. (u) Be Thakeham Sequestration Moneys, L. E., 12 Eq. p. 494; 19 W. E. p. 1001. It can, however, hardly be thought that the bishop is entitled to put this money in his pocket ; he is morally, at any rate, if not legally, bound to apply the money to some other ecclesiastical or charitable purpose. (v) Vide supra, Chap. X. (as) The ecclesiastical sequestra- tion must not be confounded with the sequestration for contempt issued out of the High Court of Justice under 2 & 3 W. 4, c. 93. Vide infra, §. 8 The origin of the term seques- tration is derived from the Eoman law: "Sequester dicitur, apud quern plures eandem rem de qua contro- versia est ; deposuerunt, dictus ab eo quod occurrenti aut quasi sequenti eos qui contendunt, committitur." (Dig.lib.xLcap.110.) It was much disputed by the earlier canonists whether the sequestrator had not a right to present to the benefice ; but the negative is now universally adopted. See for a clear exposition of the canon law on this subject the titles " Usufruit," "Posses- sion," "Sequestre," in Durand de Maillane, Diet, de Droit Canonique. (y) Page 52. (z) 1 & 2 Vict. c. 106, has now superseded and repealed 57 Geo. 3, c. 99. ECCLESIASTICAL CENSURES. 1075 applied in payment of debts, or for any other purpose, the service of the church must first be provided for, out of those profits ; and when this has been done, the buildings and fences in the glebe, and the chancel also when the incumbent repairs, ought to be sustained and kept in proper order. The right of nominating the sequestrator lies with the bishop ; but when the sequestration issues on account of debts, it may often happen that the sequestration is committed to the creditor, or his nominee ; in all other cases, the bishop exercises his right of nomination by selecting according to his own judgment." Sequestration, as a punishment, is inflicted under the powers Sequestration of 1 & 2 Yict, c. 106, s. 54, for non-residence (a). It is in- as a punish- flicted, partly as a punishment, and partly as a means of obtain- men ' ing a debt, under the powers of 1 & 2 Yict. c. 106, s. 67, and 34 & 35 Yict. c. 43, for dilapidations, &c. (b). It is the means by which a non-resident incumbent may be compelled to pay the salary of his curate (c) ; and it is generally a part or conse- quence of the punishment of suspension, though apparently not always necessary for that end (cl). When a living becomes void by the death of an incumbent, During the or otherwise, the ordinary is to send out his sequestration, to ^e^e of a have the cure supplied, and to preserve the profits (after the ene ce" expenses deducted) for the use of the successor (e). Sometimes a benefice is kept under sequestration for many Where none years together, or wholly; namely, when it is of so small value, ^e£C°eept tll€ that no clergyman fit to serve the cure will be at the charge of taking it by institution. In which case, the sequestration is committed sometimes to the curate only, sometimes to the curate and churchwardens jointly (/). Sometimes the fruits and profits of a living which is in con- During suit, troversy, either by the consent of parties, or the judge's autho- rity, are sequestered and placed for safety, in a third hand. And thus where two different titles are set on foot, the rights are carefully preserved, and given to him for whom the cause is adjudged (g). And the judge is also wont to appoint some minister to serve the cure, for the time that the controversy shall depend ; and to command those to whom the sequestration is committed, to allow such salary as he shall assign out of the profits of the church to the parson that he orders to attend the cure (//). Sequestrations used to issue in cases of outlawry (?) : — Outlawry. Sometimes a sequestration issues upon the Queen's writ to the Debt, bishop to satisfy the debts of the incumbent (j ). And this is, where a judgment has been obtained against a (a) Vide supra, pp. 887, 1005. (6) Vide infra, Part V. Ch. Y. (c) Vide supra, p. 432. . (d) Vide supra, p. 1074 ; Morris v. Ogden, L. E., 4 C. P. p. 687. (e) Vide supra, p. 375. (/) Johns, p. 131. {q) God. App. p. 14. (h) Watson, c. 30, p. 308. (i) Be Hind, 1 Tyrw. p. 347; Bex v. Hind, 1 C. & j. p. 389 ; Bex v. Powell, 1 M. & W. p. 321 ; Bex V. Armstrong, 3 0., M. & R. p. 205. {j) See Wats. c. 30, p. 308. 1076 DISCIPLINE OF THE CHURCH. Appeal against sentence of seques- tration. Nature of writ. Arbuchle v. Cow tan. Sequestration of ecclesias- tical benefice, under present bankruptcy- act. 46 & 47 Vict, c. 52. clergyman, and upon a fieri facias, directed to the sheriff to levy the debt and damages, he returns that the defendant is a clerk beneficed having no lay fee. Whereupon a fieri facias de bonis ccclesiasticis (k) is directed to the bishop to levy the same of his ecclesiastical goods, and by virtue thereof the profits of the benefice should be sequestered. And in this case the bishop may name the sequestrators him- self, or may grant the sequestration to such persons as shall be named by the party who obtained the writ. If the sequestration be laid and executed before the day of the return of the writ, the mesne profits may be taken by virtue of the sequestration, after the writ is made returnable, otherwise not (/). Stratford. "If an appeal be made against a sentence of sequestration, and lawfully prosecuted, the party sequestered shall enjoy the profits pending the appeal" (m). While the boundaries of dioceses were being re-arranged, cases arose as to sequestration in transferred portions of a diocese. It is probably now not necessary to do more than give the references to these cases (n) . The sequestration is a continuing execution, and the seques- trator must continue in possession until the debt is levied, and the bishop must return not the writ but the amount levied from time to time (o) . The history and nature of the writ are very clearly stated in Arbuchle v. Cowtan (p) — a decision on the Insolvency Act then in force. Since this decision, which established that the assignees of an insolvent incumbent were not ipso facto entitled to the revenues of the benefice, a series of acts has enabled the assignee or trustee in insolvency or bankruptcy to obtain sequestration of the benefice. The act now in force is " The Bankruptcy Act, 1883," 46 & 47 Yict. c. 52, s. 52 (1). " (1.) Where a bankrupt is a beneficed clergyman, the trustee may apply for a sequestration of the profits of the benefice, and the certificate of the appointment of the trustee shall be sufficient authority for the granting of sequestration without any writ or other proceeding, and the same shall accordingly be issued as on a writ of levari facias founded on a judgment against the bank- rupt, and shall have priority over any other sequestration issued after the commencement of the bankruptcy in respect of a debt provable under the bankruptcy, except a sequestration issued before the date of the receiving order by or on behalf of a person who at the time of the issue thereof had not notice of an act of (7c) This writ is similar to the (n) Phelps v. St. John, 3 C. L. R. older writ of levari facias de bonis p. 478 ; Powell v. Hibbert, 15 Q. B. ecclesiasticis. See Rules of the p. 129. Supreme Court, Order XLIIL, (o) Marsh v. Fawcett, 2 Black, rules 3 and 4. H. p. 582. (I) 3 Black. Com. bk. 3, p. 418. (p) 3 B. & P. p. 322. (m) Lind. p. 106. ECCLESIASTICAL CENSURES. 1077 bankruptcy committed by the bankrupt, and available for grouudiug a receiving order against him (q). " (2.) The bishop of the diocese in which the benefice is situate may, if he thinks fit, appoint to the bankrupt such or the like stipend as he might by law have appointed to a curate duly licensed to serve the benefice in case the bankrupt had been non-resident, and the sequestrator shall pay the sum so appointed out of the profits of the benefice to the bankrupt, by quarterly instalments, while he performs the duties of the benefice. " (3.) The sequestrator shall also pay out of the profits of the benefice the salary payable to any duly licensed curate of the church of the benefice in respect of duties performed by him as such during four months before the date of the receiving order not exceeding fifty pounds. " (4.) Nothing in this section shall prejudice the operation of the Ecclesiastical Dilapidations Act, 1871, or the Sequestration Act, 1871, or any mortgage or charge duly created under any Act of Parliament before the commencement of the bankruptcy on the profits of the benefice." A sequestration also issues in obedience to the Queen's writ "Writ of of sequestra ri facias do bonis ecclesiasticis (r). sequestrari The following decisions relate to the right of priority in cases ^uliastich8 where several sequestrations have been issued : — Sequestration when part of an ecclesiastical punishment takes Case in which precedence, though later in date, of a sequestration issued at the a lateF take3 instance of a creditor. Thus where upon a writ of sequestrari Jf ^ e^rlfer facias de bonis ecclesiasticis, issued from the Court of Queen's sequestration. Bench at the suit of a creditor, a sequestration was duly issued and published by the bishop, under which the sequestrator appointed by him entered into the rectory, and received the profits of it ; and where, afterwards, and before the creditor's claim was satisfied, or the sequestration was amoved, the bishop, in pursuance of a sentence of suspension for eighteen months, duly adjudged in the Ecclesiastical Court, under the Church Discipline Act, 1840, against the same rector, issued and pub- lished another sequestration appointing another sequestrator, — It was holden, that the effect of the first sequestration was suspended during the continuance of the second, so that, during that time, the creditor could not call upon the bishop to account for any of the profits of the living (s) . As a general rule, the law requires that when several writs of Sequestra - fieri or levari facias are delivered to the bishop's officer, he should tions issue:i issue the sequestrations thereon in the order of time in which S which^he the writs were delivered to him to be executed, and not accord- writs are ing to the date of their teste. delivered. (q) See Ex parte Ch icle, Be Mere- dith, 11 Ch. D. p. 731, a decision on the previous Bankruptcy Act. (r) This writ is in the nature of a levari facias; the writ. of fieri facias de bonis ecclesiasticis being in the nature of a fieri facias. Arch- bold's Common Law Practice, 13th edition, p. 1064. (s) Banter v. CressweU, 14 Jur. p. 692. 1078 DISCIPLINE OF THE CHURCH. Sequestration of judgment creditors entitled to priority over sequestration by assignee of bankrupt incumbent. Bond of sequestrator. His duties. Can maintain an action. Where, therefore, writs of levari facias issued against W. were delivered to the deputy registrar of the bishop in 1847, with directions to suspend the execution of them until further instruc- tions, and with a request that notice should be given of any subsequent writ being lodged and sequestration applied for ; and on the 30th March, Ls53, W. having become insolvent, the petition of the provisional assignee was lodged with the deputy registrar to be executed, and with directions that sequestration thereon should be immediately issued, and notice thereof having been given by the deputy registrar, directions were given on the 31st March to issue sequestration upon the writs of levari facias, — It was holden, that the petition of the provisional assignee was entitled to priority over the writs of levari facias (s). It was holden by the Exchequer Chamber, affirming the judgment of the Queen's Bench, that if a judgment creditor of a beneficed clergyman issue a sequestration, and, the clergyman becoming bankrupt, his assignee under the bankruptcy issue a second sequestration, the former sequestration will remain valid and have priority, even though it were not published till after the filing of the petition in bankruptcy (t). It is usual for the ecclesiastical judge to take bond of the sequestrators, well and truly to gather and receive the tithes, fruits, and other profits ; and to render a just account (a). And those to whom the sequestration is committed, used to cause the same to be published in the church, in the time of divine service (x). Now, since 7 Will. 4 & 1 Vict. c. 45, such publication is made by fixing the instrument on the church door(y). It was decided not to be necessary that a sequestration should be published before the return day of the levari facias on which it was founded, or that a copy should be fixed to the church door where that was not the usual mode of publication in the diocese of the sequestered benefice (z). A sequestrator is not entitled to charge the benefice, if the incumbent forbids it, with the expense of audit dinners to the tithepayers ; but the expense will be allowed, if it has been usual, and the incumbent did not forbid it. The bishop is not bound to appoint as sequestrator the person who will act on the cheapest terms (a). Power is now given to the sequestrator to maintain an action in his own name, and levy a distress, or take any other proceed- ings which the incumbent might take (b). (s) Stvrgis v. Bp. of London, 3 Jui\ N. S. p. 864. (t) Hopkins v. Clarke, 33 L. J., Q. 13. pp. 93, 334. See remarks of Lord Stowell in Campbell v. White- head, cited in Hubbard v. Beckford, 1 Consist, p. 307. (u) Wats. c. 30, p. 308. (xj Ibid. (y) Yide supra, pp. 792, 793. (z) Bennett v. Apperley, 6 B. & C. p. 630; 9 D. & E. p. 673. As to the effect of such writs in binding property, see Giles v. Grover, 1 CI. & Fin. at pp. 74 — 177 ; Lucas v. Nockells, 10 Ling, at p. 182. (a) Zanders v. Ptnlease, 1 L. T. p. 54. {b) By 12 & 13 Yict. c. 67, vide supra, p. 370. ECCLESIASTICAL CENSURES. 1079 After the sequestrators have performed the duty required, the Application sequestration is to be taken off, and application of the profits to of Profits- be made according to the directions of the ordinary. And he shall allow to them a reasonable sura out of the profits, according to the trouble they shall have had in gathering the tithes. And he is also to allow for the supply of the cure, what shall be con- venient, relation being had to the charge and to the profits, and likewise for the maintenance of the incumbent and of his family (in case where there is an incumbent), if he has not otherwise sufficient to maintain them. The sequestrator is entitled to all the future profits, but not To what a to the amount of the sequestrated living (c) ; and so it has been JJ^SSEl" holden, that a rector whose glebe was sequestered was entitled to a verdict in ejectment upon a demise laid before the seques- tration took effect, but he could not have an " habere facias pos- sessionem ," because he was no longer entitled to possession (d). In Be Parker's Charity (e)t where a testator in 1763 gave a legacy in trust for the vicar of X. for the time being, he annually preaching a sermon on a particular day, to be paid in augmentation of the vicarage ; it was holden that the gift was an augmentation of the vicarage and not a mere legacy to the then vicar, and that it passed to the sequestrator. If the sequestrators refuse to deliver up their charge, they Amenable to shall be compelled thereunto by the ecclesiastical iuclge : and if ^esiastual they shall, being called thereunto, delay to give an account, it is c usual for the judge to deliver unto the party grieved the bond given, with a warrant of attorney to sue for the penalty thereof to his own use at the common law (/). Therefore, if the incumbent is not satisfied with what the sequestrators have done in the execution of their charge, his proper remedy is by application to the spiritual judge ; and if he shall think himself aggrieved by the determination of such judge, he may appeal to a superior jurisdiction. Sometimes a bill in equity has been brought, which yet, as As to suits it seems, ought not to be brought against the sequestrators J^*™?^ solely, for that they are only bailiffs or receivers, and have no ' °' interest. As in Jones v. Barrett, in 1724 (#), on a bill by the vicar of West Dean, in the county of Sussex, against the defen- dant, who was sequestrator, for an account of the profits received during the vacation, it was objected for the defendant, that the bishop ought to have been made a party, since the sequestrator is accountable to him for what he receives, and the court seemed to think the bishop should have been a party ; but by consent, the cause was referred to the bishop of the diocese. (c) Waite v. Bishop, 1 C. M. & E. 6 B. & C. p. 630. p. 507 ; Bex v. Armstrong, 2 C. M. fe) 32 Bear. p. 654. & E. p. 205. (/) Wats. c. 30, p. 308. (d) Doe d. Morgan v. BJucl\ 3 \g) Bunb. p. 192. Campb. p. 447 ; Ben nett v. Apperleij, 1080 DISCIPLINE OF THE CHURCH. As to applica- tion to tem- poral court. Dilapida- tions. As to resi- duary profits Vicar seques- tered and licensed as curate dis- qualified to act as magistrate. General posi- tion of sequestered clerk. In Williams v. Ivimey (//), the court held that no bill would lie against a sequestrator appointed under a judgment, the remedy being by motion in the action. Besides his remedy in the Ecclesiastical Court, a clerk whose benefice is under sequestration for debt has a right to come to the court, from which the writ of levari facias issued, from time to time, to see that the sequestration is being properly executed ; but, if he delays for several years after the sequestration has been satisfied, he cannot require an inquiry to be then made (/). The law as to dilapidations on a benefice under sequestration is now fixed by 34 & 35 Yict. c. 43 (/»•). Where there is a sequestration issuing on a suspension for an ecclesiastical offence, it is said that the bishop is entitled to take the profits of the sequestered benefice, subject to due provision for performance of the duties thereof (I). The power and character of the sequestrator, and the legal status of the incumbent whose living is sequestered, underwent much discussion in the Court of Queen's Bench in 1839. The bishop had issued a sequestration of the vicarage and at the same time licensed the vicar as stipendiary curate, assigning to him the vicarage-house and grounds as a residence, directing the sequestrator to pay him 120/. a year. The question was, whether the vicar had then such a possession of his ecclesiastical benefice as qualified him to act as a magistrate under 18 Greo. 2, c. 20, which requires a freehold estate of the clear yearly value of 100/. It was holden that he was not qualified (m). In the course of the judgment the following passage, which is of general importance, occurs : — " The difficulty in the case arises from his continuing to reside and occupy the house and grounds, which are found to be above the yearly value of 100/. If he be in the occupation of them by right as vicar, notwith- standing the sequestration, and could not be put out from them or compelled to pay any rent for them by any proceeding what- ever, it is impossible to say that he has not an estate for life in them, or say that they are affected by the sequestration ; and if not, the value is sufficient. Now, with respect to the house, it seems clear that the defendant is in the occupation as vicar, and that the assignment of it to him as a residence by the bishop is merely void, inasmuch as the incumbent is bound to reside not- withstanding any sequestration, and the bishop could not turn him out, nor change his character from that of vicar to that of stipendiary curate. But it is not found by the case that the house alone is of the yearly value of 100/. ; and as the onus lies on the defendant, we cannot presume it to be so. The {h) L. E., Weekly Notes (1870), p. 182 ; 23 L. T. p. 100. (i) Billing v. St. Aubyn, 7 Jur., N. S. p. 775. (Jc) Yide infra, Part V. Chap. V. sec. 2. (I) Be ThaJceham Sequestration Moneys, L. E., 12 Eq. p. 494; 19 W. E. p. 1001 ; vide supra, p. 1074. (m) Bach v. Tarpley, 9 A. & E, p. 468. ECCLESIASTICAL CENSURES, 10SI grounds and stipend must therefore be taken into consideration, and with respect to them the case is very different. The seques- trator might undoubtedly let the grounds as well as any other part of the glebe, and raise a profit towards the purposes of the writ ; and though they are not so let, but assigned to the defendant by the bishop, they, as well as the stipend of 120/. also assigned him by the bishop, are by no means enjoyed by him simply as vicar in his own right." It has been said that, under 1 & 2 Yict. c. 106, the bishop is Sequestra- empowered to sequester the profits of an ecclesiastical benefice in f^1y^c several cases, by way of punishment. Sequestrations under this c.\o6. statute are to have priority over all others ; and the provisions of this act are engrafted on the more recent act which follows. By 34 & 35 Yict. c. 45, the Sequestration Act, 1871 : — Sects. 1, 2, 3, 4. " On sequestration the bishop is to appoint a 34 & 35 Vict, curate and assign a stipend ; and the amount of the stipend and c- 45- its payment is provided for" («). Sect. 5. "In case any such sequestration remains in force for Power for more than six months, the bishop, if it appears to him that Jjgggtj scandal or inconvenience is likely to arise from the incumbent certain cases, continuing to perform the services of the church while the sequestration remains in force, may, from and after the expira- tion of such period, inhibit the incumbent from performing any services of the church within the diocese as long as the seques- tration shall remain in force, and the bishop may at any time withdraw such inhibition." Sect. 6. " During such time as any sequestration remains in Presentation force, the incumbent shall be absolutely disabled from presenting gUSbeene^s or nominating to any benefice then vacant, of which he may be during se- patron in right of the benefice under sequestration, and the right questration. of presentation or nomination to such vacant benefice shall be exercised by the bishop of the diocese in which such vacant benefice is locally situate." Sect. 7. " During the continuance of any sequestration it shall Incumbent of not be lawful for the incumbent of the benefice under seques- benefice ifot to tration to accept or be instituted or licensed to any other benefice accept other or preferment, the acceptance of or institution or licensing to ^,en,ce but which would avoid or vacate the benefice so under sequestration, unless with the consent in writing of the bishop of the diocese and the sequestrator." with leave. (w) Yide supra, pp. 439, 440, where these sections are set out. 1082 DISCIPLINE OF THE CHURCH. Sect. 6. — Deprivation. Definition. Deprivation (0) or deposition (p) is an ecclesiastical censure, whereby a clergyman is deposed of his parsonage, vicarage, or other spiritual promotion or dignity (q). Causes of The causes of deprivation may be classed under two heads : deprivation. j< as haYe "been allowed by the common law, or created by statute ; II. Such as depend upon the canon law only. I. Causes of Deprivation allowed by the Common Law, or created by Statute. At common 1, Want of Orders. — Before 14 Car. 2, c. 4, s. 10, if a layman statutedby was Presented, instituted, and inducted, he was parson de facto, and acts done by him while parson (r), such as marriages, leases, &c, were valid ; but he might be deprived (s). Now the above- mentioned statute enacts, that no one shall be capable to be admitted to any benefice who is not ordained priest. 2. Illiteracy, — Which, Lord Hobart says, subjects a person to deprivation, being malum in se (t). 3. Want of Age. — Now regulated by 13 Eliz. c. 12, which declares admissions, institutions, and inductions, contrary to the act, void (u). 4. Simony — Was a crime at the common law (x), and is now regulated by 3L Eliz. c. 6, which declares the presentation, institution, and induction so obtained, utterly void (y). 5. Plurality. — "Formerly by 21 Hen. 8, c. 13, and now by 1 & 2 Yict. c. 106, s. 11 (s) ; but before either statute the first benefice was void by cession, if the parson took a second without dispensation (a). Yet, though the patron might present thereto if he would, he was not compellable to take notice till depriva- (o) Depositus dicitur, qui privatus est beneficio et officio, licet non solenniter. Degradatus dicitur, qui utroque est privatus, solenniter in- signiis sibi ablatis . . . Suspensus autem dicitur qui est privatus utro- que ad tenipus, non in perpetuum. . . . Secundum quosdeni differentia est inter depositioneni et suspen- sionem, sicut inter deportationem, qute est perpetua, et relegationem, quae est temporalis : Otho. Athon, p. 45. See the learned note of Dr. Robertson to Clarke v. 1 Eoberts. p. 380. O) See 55 & 56 Vict. c. 32, s. 8 ; supra, Chap. X. (q) Degge, pt. 1, c. 9. See Martin v. Mackonochie, 6 P. D. p. 87 ; 8 P. D. p. 191 ; Combe v. De La Bere, 6 P. D. p. 157; 22 Ch. D. p. 316. (r) Costard v. Winder, Cro. Eliz. p. 775. (s) Colt v. Bp. of Coventry, Hob. p. 148 ; Sutton s Case, Cro. Car. p. 65; Bedingfield v. Abp. of Canter- bury, Dyer, p. 292 ; Blount's Case, ib. p. 353. (t) Colt v. Bp. of Coventry, Hob. p. 149. (u) Bp. of Hereford v. Okeley, March, p. 119; Gibs. p. 1068. (a?) Anon., Cro. Eliz. p. 686 ; Baker v. Rogers, Ibid. p. 789 ; MackaUer v. Todderick, Cro. Car. p. 361. (?/) Vide supra, p. 860. (2) Vide supra, p. 905. {a) P. N. 13. p. 34 L. ECCLESIASTICAL CENSURES. 1083 tion (b). Plurality was forbidden by the ancient canon law (c), and by the Constitutions of Othobon and Archbishop Peccham (d). 6. Conviction of Treason, Murder] or Felony, by the Temporal Courts. — On which the ecclesiastical courts used to build a sentence of deprivation (e) ; and which now by statute imposes on the bishop the duty of declaring the living vacant (/). Unless, indeed, the living has already become vacant by virtue of the following provision in 33 & 34 Yict. c. 23, s. 2, which is as follows : ..." if any person hereafter convicted of treason or felony, for which he shall be sentenced to death or penal servitude, or any term of imprisonment with hard labour or exceeding twelve months, shall at the time of such conviction hold . . . any ecclesiastical benefice . . . such . . . benefice . . . shall forthwith become vacant . . . unless such person shall receive a free pardon from her Majesty within two months after such conviction. . . ." 7. Incumbent refusing to use the Book of Common Prayer, or Speaking or Preaching anything in Derogation thereof, or using any other Pile or Ceremony, being thereof twice convicted, — shall be deprived (g) . 8. Incumbent not publicly reading the Thirty-nine Articles of Peligion in the Church of his Benefice, with Declaration of Assent, if wilfully offending, — shall absolutely forfeit his benefice (h). 9. Incumbent advisedly maintaining or affirming any Doctrine contrary to the Thirty-nine Articles, and when con rented before the Bishop or Commissioners, persisting therein, and being thereof lawfully convicted, — is cause for the ordinary to deprive by sentence (t) . 10. Infidelity and Miscreancy. — Under which heads may be contained atheism, blasphemy, heresy, schism, and the like, which the laws of the church have always punished with deprivation (k) . The j urisdiction of the Ecclesiastical Court, in these cases, is reserved by 29 Car. 2, c. 9, which takes away the writ de heretico comburendo. 11. Incontinence (I). 12. Drunkenness (m). (b) Rex v. Abp. of Canterbury, Cro. Car. p. 357. (c) VI. i. 6, 15 ; X. iii. 4, 3. (d) Othobon, Athon, p. 126; Lind. p. 136; Gibs. pp. 903, 905, 913. ( contempt As to the first, excommunication is an ecclesiastical censure, Spiritual whereby the person against whom it is pronounced is, for the excomnmni- time, cast out of the communion of the church (n). cation. And it is of two kinds, the lesser and the greater : The lesser Lesser, excommunication is, the depriving the offender of the use of the sacraments and divine worship ; and this sentence was passed by judges ecclesiastical, on such persons as wrere guilty of obsti- nacy or disobedience, in not appearing upon a citation, or not submitting to penance, or other injunctions of the court (o). The greater excommunication is that whereby men are de- Greater, prived, not only of the sacraments, and the benefit of divine offices, but of the society and conversation of the faithful ( p) . If a person be excommunicated generally, as if the judge say : I excommunicate such a person — this shall be understood of the greater excommunication (q). The law in many cases inflicted the censure of excommuni- ipso facto. cation ipso facto upon offenders ; which nevertheless was not intended so as to condemn any person without a lawful trial for his offence : but he must first be found guilty in the proper court, and then the law gave that judgment. Thus by 5 & 6 Edw. 6, c. 4, s. 2, every person who shall smite or lay violent hands upon another in any church or churchyard, was to be deemed ipso facto excommunicate ; yet a defendant could not while that statute was in force plead excommunication in a plaintiff without showing either a sentence of excommunication by the ordinary, or a conviction at law (r) ; and where the Declaratory canonists sjoeak of an excommunication ipso facto, they are sentfnce re- unanimous that a declaratory sentence is necessary (s). qui&ite. There are divers provincial constitutions, by which it is pro- vided, that this censure shall not be pronounced (in ordinary cases) without previous monition or notice to the parties, which also is agreeable to the ancient canon law (t). And the Court of Arches has decided, that in every case an excommunication ipso facto requires a sen tentia electa ratoria (u). (»i) Lind. p. 345, gloss on Ex- (n) God. p. 624. communicamus. "Similem modurn, (o) Johns, p. 181. &c, ubi patet quod pro futuris (p) Ibid, culpis sententia excommunicationis \a) Lind. p. 78. ferri non debet, nec pro praesenti- (r) Bihon v. Chapman, Cases bus, nec pro prceteritis, nisi moni- tempore Hardwicke, p. 190 ; Wilson tione canonica pra?missa. Solutio v. Greaves, 1 Burr. p. 244. — illud locum habet in sententia (s) Gibs. p. 1049. excommunicationis quae fertur ab (t) Gibs. pp. 1046, 1048 ; Lind. homine. Istud loquitur in sententia p. 348. excommunicationis lata a statuto («) Vide Mastin v. Escott, 2 Curt, perpetuo. In quo casu potest ferri p. 692 ; Escott v. Mastin, 4 Moo. sententia excommunicationis etiam P. C. C. p. 104; 'J'itchmarshv. Chap- pro futuris culpis."— See Walter man, 3 N. C. p. 387 ; supra, p. 957. Lehrbuch, s. 191 a. 1088 DISCIPLINE OF THE CHURCH. excommuni cated Excommuni- cate person deprived of Christian communion. Article 33. Body corpo- A body corporate, or whole society together, cannot be excom- e^comnnmi-130 municated, for this might involve the innocent with the guilty ; but such persons only of the society as are guilty of the crime are to be excommunicated severally (%). By a constitution of Archbishop Stratford : " Excommunicate persons shall be inhibited to the commerce and communion of the faithful; and they who communicate with them shall be punished by ecclesiastical censure" (?/). Commerce."] — That is, buying or selling, or other interchange of wares or merchandize (s). By Ecclesiastical Censare.~\ — That is, by the lesser excommuni- cation, if they have not been admonished to desist ; and by the greater excommunication, if they have been admonished, and have not desisted (a) . And by Art. 33 of the Thirty-nine Articles of Eeligion, " That person which by open denunciation of the church is rightly cut off from the unity of the church, and excommuni- cated, ought to be taken, of the whole multitude of the faithful, as an heathen and publican ; until he be openly reconciled by penance, and received into the church by a judge that hath authority thereunto." And this is according to the ancient rule of the church. And it was further ordained by many other ancient constitutions of the church, that if a person excommunicated in one city or diocese went to another, whoever received him to communion, should be also excommunicate : for which reason no strangers were to be received to communion, till they showed their letters of recommendation. This rule was incorporated into our law by the Council of London, in the year 1126, that no person shall presume to receive to communion any stranger excommunicate ; and if any shall knowingly do so, he himself shall be deprived of Christian communion (b). By Can. 85 of 1603, the churchwardens or questmen especially shall see " that all persons excommunicated, and so denounced, be kept out of the church " (c). And if a clergyman presume to officiate, after he is excommu- nicated, the canon law orders him to be deprived (d). In the ancient church, the sentence of the greater excommu- nication was solemnly promulged four times in the year ; with candles lighted, bells tolling, the cross and other solemnities (e). By Can. 65 (/), "All ordinaries shall, in their several juris- dictions, carefully see and give order, that .... who for notorious contumacy or other notable crimes stand lawfully excommunicate (unless within three months immediately after Ancient con stitutions. Canon 85. Excommu- nicates to be kept out of the church. To be publicly- denounced every six months. Canon 65. (x) Gibs. p. 1048; 6°., 5, 11, 5. (y) Lind. p. 266. (z) Ibid. (a) Ibid. lb) Gibs. p. 1049. (c) Yide supra, p. 722. (d) Gibs. p. 1049 ; X. v. 27, 3 and 6 ; vide supra, p. 1085. (e) " Candelis accensis et pulsatis campanis, cum cruce et aliis solen- nitatibus, prout clecet." — Lind. p. 355. (/) Vide supra, p. 831 for this canon in full. ECCLESIASTICAL CENSURES. 1089 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 dioceses 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 de excommunicato capiendo, thereby to bring and reduce them into due order and obedience . . . ." (g). Lord Coke says, none can certify excommunication but only who may the bishop, unless the bishop be beyond sea or in parts remote ; certify excom or one that has ordinary jurisdiction, and is immediate officer to municatl0n- the king's courts ; as the archdeacon of Richmond, or the dean and chapter in time of vacation. But in ancient time, every official or commissary might testify excommunication to the king's court ; and for the mischief that ensued thereupon it was ordained by parliament, that none should testify excommunica- tion but the bishop only (h) . Of this power, as restrained to the bishop, Lindwood writes thus : At the request of inferior prelates, the king used not to write for the taking of excommunicates. Wherefore, if any be excommunicated by a person inferior to the bishop, as by the dean, or archdeacon, the invocation of the king's majesty ought to be made by the bishop ; for they who are inferior to bishops cannot call in the secular arm, but the bishops shall execute their sentences ; and if the bishops will not do this, they may be com- pelled thereunto by the archbishop (/). Whatever may have been the civil disqualifications incident to As to civil excommunication, they are now removed by 53 Geo. 3, c. 127. ^0s^allfica" The rule of the canon law is, that an excommunicate person An excommu- shall not be presented to a benefice ; and he who knowingly shall nicate may present an excommunicate person, shall be suspended from pre- not be pre- senting to any benefice, until he shall have obtained absolution (k). ^nefice0 * By Can. 68, if the minister refuse to bury any corpse, " except May not have the party deceased were denounced excommunicated majori ex- burial office. wmmunicatione, for some grievous and notorious crime, and no Canon 68. man able to testify of his repentance"; he shall be suspended from his ministry for the space of three months (/). And by the rubric in the Book of Common Prayer, the burial office shall not be used for any that die excommunicate. As to the imprisonment of excommunicate persons, the old Practice as to law and custom of this realm was as follows : — The person who writ de ex\ -1,1 , p commumcato remained iorty days under the sentence of excommunication capiendo. should, at the request of his proper diocesan, be arrested and imprisoned by a writ of de excommunicato capiendo directed to the sheriff ; but first there ought to be a certificate from such diocesan (flf) See Pytt v. Fendall, 1 Lee, (i) Lind. p. 350. P. 381. h) Gibs. p. 1050. {h) 1 Inst. p. 134. (I) Yide supra, pp. 487, 669. 1090 DISCIPLINE OF THE CHURCH. under his episcopal seal, signifying to the Court of Chancery the contempt of the party to holy church (m) . Which forty days were to be accounted after the minister had published the excommunication in the church ; which was done by virtue of an instrument he had for that purpose, under the seal of the ecclesiastical court : and then if the person excommu- nicated did not submit within forty days after the said publica- tion, he might (after such certificate so made as aforesaid) be arrested upon the writ of excommunicato capiendo (n). But though the bishop might certify not only an excommuni- cation made by himself, but also an excommunication made by his commissary or official who did it in his right, and by his archdeacon, whose jurisdiction is derived from him (in which case the rule in the register is, that when the bishop signifies any one to be excommunicate by authority of the archdeacon or official, it ought always to be said in the writ to be by the autho- rity of that bishop or him who so certifies) ; yet he might not certify that which has been done in another court : and there- fore a certificate that another bishop has certified him, or that he had seen a sentence of excommunication made by another bishop, was of no force (o). And if the bishop made a wrong certificate, he was liable to be made a party and to pay costs (p). The certificate of the bishop ought to express the cause, and the suit against him, specially in the certificate ; to the end the temporal judges might see whether the spiritual court had cog- nizance of the original cause, and whether the excommunication be according to law ; that if it were otherwise, they might write to them to absolve the party (g) . For since it affected the liberty of a man's person, therefore it concerned a temporal interest (r). And the bishop having certified the excommunication under seal, albeit he died, yet the certificate shall serve (s). Issues ex de- Lord Coke says, the writ of excommunicato capiendo proceeds bitojmtoi*. only ex gmM regis ^ < ^ On the contrary, Lindwood says, this writ is grantable of right, ex debito (it). And by a Constitution of Archbishop Boniface, delivered in the wonted strain of that archbishop's constitutions, If the king deny the accustomed writ de excommunicato capiendo, his cities, castles, towns, and villages within that diocese, shall by the bishop be put under an interdict until the same shall be granted (x) . Dr. Cosin (with more moderation) says concerning this writ, that " it is a liberty peculiar to the Church of England, above all the realms in Christendom " that he has read of, that although m) Lind. p. 350 ; Swin. p. 109. mon Law, p. 409. n) Swin. p. 109. (s) 1 Inst. p. 134. o) Gibs. p. 1050 ; 1 Inst. p. 134. It) 2 Inst. p. 631. p) Bex v. Eyre, 2 Stra. p. 1190. \u) Lind. p. 351. q) 2 Inst. p. 623. \x) Ibid. r) 1 Hale's History of the Com- ECCLESIASTICAL CENSURES. 1091 the assistance of the secular arm has ever been afforded to the church in most other Christian countries, as well as this, yet in no instance is it perhaps so surely and so effectually reached out, as in the execution of this writ, which is debitum justitice, and not made to depend upon the pleasure of the prince (//). And this seems to be agreeable to the tenor of the chapter now repealed in the statute of Articuli c/eri, 9 Edw. 2, st. 1, c. 12, where to the complaint of the clergy in this respect, the king makes answer, " That the said writ was never yet denied, nor shall be hereafter." The statute regulating this writ is 5 Eliz. c. 23. This statute 5 Eliz. c. 23. recites that " divers persons offending in many great crimes and offences, appertaining merely to the jurisdiction and determina- tion of the ecclesiastical courts and judges of this realm, are many times unpunished for want of due execution of the writ dc excommunicato capiendo ; .... the great abuse whereof , as it should seem, hath grown, for that the said writ is not returnable into any court that might have the judgment of the well execut- ing and serving the said writ, but hitherto hath been left only to the discretion of the sheriffs and their deputies, by whose negligences and defaults for the most part the said writ is not executed upon the offenders as it ought to be ; by reason whereof, such offenders be greatly encouraged to continue their sinful and criminous life, much to the displeasure of Almighty Grod, and to the great contempt of the ecclesiastical laws of this realm." It enacts as follows: sect. 1, " Every writ of excommunicato All such writs capiendo that shall be granted . . . . (s) out of the High Court shall be made of Chancery .... shall be made in the time of the term (a), ^turTablT' and returnable .... in the King's Bench in the term next into the after the teste of the same writ ; and the same writ shall be ^^ seEg^cl1' made to contain at the least twenty days between the teste and ^d ^eik-ered the return thereof : and after the same writ shall be so made of record to and sealed, then the said writ shall be forthwith brought into the sherlff- the Court of King's Bench, and there in the presence of the justices shall be opened and delivered of record to the sheriff or other officer to whom the serving and execution thereof shall appertain, or to his or their deputy or deputies. ..." Sect. 2. " The sheriff or other officer to whom such writ of Sheriff not excommunicato capiendo, or other process by virtue of this Act compellable to shall be directed, shall not in anywise be compelled to bring the brmg m body; body of such person .... as shall be named in the said writ or process, into the said Court of the King's Bench at the day of the return thereof ; but shall only return the same writ and process thither, with declaration briefly how and in what manner he hath served and executed the same (y) Cosin, Apology, p. 8. hence the omissions in the text. (z) The verbiage of this Act, its (a) It is no longer necessary that duplicate verbs, and the use of the writ should issue in term time : singular and plural, "person or Dates Case, Enragkt'a Case, 6 Q. B. persons," &c, make it very tedious, D. p. 376. 1092 DISCIPLINE OF THE CHURCH. if he return non est in- ventus, capias to issue, with proclamation to surrender under forfei- ture ; and on default, for- feiture to be estreated and fresh capias, ■with further forfeiture to be awarded, and so on. Party surren- dering- to be kept in custody. Process ag-ainst offen- ders in Wales, Counties Palatine, and Cinque Ports. " And if the said sheriff or other officer shall return that the party .... cannot be found within his bailwick, then the said justices of the King's Bench .... shall award one writ of capias against the said person .... named in the said writ of excommunicato capiendo ; returnable in the same court in the term time .... two months at the least next after the teste thereof ; with a proclamation to be contained within the said writ of capias, that the sheriff or other officer .... in the full county court, or else at the general assizes or at quarter sessions .... shall make open proclamation ten days at the least before the return, that the party .... named in the said writ shall, within six days next after such proclamation, yield his ... . body .... to the gaol and prison of the said sheriff or other such officer, there to remain as a prisoner, according to the tenor and effect of the first writ of excommunicato capiendo, upon pain of forfeiture of 10/. And thereupon, after such proclamation had, and the said six days past and expired, then the said sheriff or other officer .... shall make return of the same writ of capias into the said Court of the King's Bench, of all that he hath done in the execution thereof, and whether the party named in the said writ have yielded his body to prison or not. " And if upon the return of the said sheriff it shall appear that the party or parties named in the same writ of capias .... have not yielded their bodies to the gaol and prison of the said sheriff or other officer, according to the effect of the same procla- mation, then every such person that shall so make default shall for every such default forfeit to the Queen's Highness 10/." The section goes on to provide for the issue of one other writ of capias against the said person that so shall be returned to have made default, with such like proclamation as was contained in the first capias, and a pain of 20/. to be mentioned in the said second writ and proclamation. The same procedure is to be fol- lowed. The second writ may be followed by a third with like pain, and so on infinitely. Sect. 3. "When any person .... shall yield his . . . .body .... to the hands of the sheriff or other officer, upon any of the said writs of capias,''1 he " shall remain in the prison and custody of the said sheriff or other officer, without bail .... in such like manner .... as he should .... have done if he .... had been apprehended .... upon the said writ of ex- communicato capiendo" (b). Sect. 6. " Provided always, that in Wales, the counties pala- tine of Lancaster, Chester, Durham and Ely, and in the cinque ports, being jurisdictions and places exempt, where the Queen's Majesty's writ doth not run, and process of capias from thence not returnable into the . . . King's Bench ; after any signifi- cavit being of record in the said Court of Chancery, the tenor of (b) Sect. 4 is repealed. For sect. 5, vide infra, p. 1096. ECCLESIASTICAL CENSURES. 1093 such significavit by mittimus shall be sent to such of the head officers of the said country of Wales, counties palatine, and places exempt, within whose offices, charge or jurisdiction the offenders shall be resiant ; that is to say, to the chancellor or chamberlain for the said county palatine of Lancaster and Chester, and for the cinque ports to the lord warden of the same, and for Wales and Ely, and the county palatine of Durham, to the chief justice or justices there : and thereupon every of the said justices and officers to whom such tenor of significavit with mittimus shall, be directed and delivered, shall .... have power .... to make like process to the inferior officers to whom the execution of process there doth appertain, returnable before the justices there, at their next sessions or courts, two months at the least after the teste of every such process : so always, as in every degree they shall proceed in their sessions and courts against the offenders, as the justices of the said Court of King's Bench are limited by the tenor of this Act in term times to do and execute " (c). Sect. 7. " Provided also .... that any person at the time Proviso for of any process of capias (afore-mentioned) awarded, being in ^it^femes" prison, or out of this realm in the parts beyond the sea, or within C0Vert and age, or of non-sane memory, or woman covert, shall not incur other disabled any of the pains or forfeitures afore-mentioned, wmich shall grow Persons- by any return or default happening, during such time of non- age, imprisonment, being beyond sea, or non-sane memory ; and .... the party grieved may plead every such cause or matter in bar of and upon the distress or other process that shall be made for levying of any of the said pains or forfeitures. " And if the offender against whom any such writ of ex- Addition to commuiiicato capiendo shall be awarded, shall not in the same ^™ed°* writ .... have a sufficient and lawful addition . . . . or if in CaUgeeorf'of the significavit it be not contained, that the excommunication fence to be" doth proceed upon some cause or contempt of some original specified in matter of heresy, or refusing to have his ... . child baptized, Sl9nifcant' or to receive the holy communion as it commonly is now used to be received in the Church of England, or to come to divine service now commonly used in the said Church of England, or error in matters of religion or doctrine now received and allowed in the said Church of England, incontinency, usury, simony, perjury in the ecclesiastical court, or idolatry : that then all and every pains and forfeitures limited against such persons excom- municate by this statute, by reason of such writ of excommunicato capiendo wranting sufficient addition, or of such significavit want- ing all the causes afore-mentioned, shall be utterly void in law ; and by way of plea, to be allowed to the party grieved." The rest of the section provides that if the addition (that is, the description of the person by his calling and residence) be (c) See Abbott's Forms, 1849, Green v. Lord Penzance, 6 App. Ca. p. 70; Be Green, 7 Q. B. D. p. 273; p. 657. 1094 DISCIPLINE OF THE CHURCH. nuper of the place, the first proclamation shall be without penalty or forfeiture. Procedure Sect. 1. It shall be forthwith brought into the Court of King's under Act. Bench.']— It has been often adjudged that this form of taking out the writ, and the several steps therein (as contained in this clause of the Act), ought to be precisely pursued ; and for default thereof many persons have been discharged (d). Sect. 3. Capias.] — The penalties of this Act being inflicted upon none but those who are excommunicated for some of the causes specified in sect. 7, the capias accordingly must not be with penalty in any other case : or if it issue so by mistake, the court will grant a supersedeas upon motion : and, if the party be taken, will upon pleading (after the habeas corpus is granted and returned and so the matter is judicially before them) discharge him from the penalties, though not from the imprisonment. In consideration of which pleading, and the trouble and charge that attends it, it is said that he may have an attachment against the plaintiff (e). He shall remain in the Custody of the said Sheriff.] — In Slipper v. Mason, in 1 Anne, the plaintiff obtained sentence against the defendant for 210/. for non-payment of tithes and costs. The defendant for non-payment was excommunicated, and arrested upon an excommunicato capiendo, and the sheriff let him escape. The plaintiff brought a special action against the sheriff, and had a verdict against him for the 210/. It was moved in arrest of judgment, that the action would not lie. But by the court it was adjudged that the action well lay (/). Without Bail.] — By 3 Edw. 1, c. 15, now repealed, persons excommunicate, taken at the request of the bishop, shall be in nowise replevisable by the common writ, nor without writ. But if the party offered sufficient caution de parendo mandatis ecclesue in forma juris, then should the party have the king's writ to the bishop to accept his caution, and to cause him to be delivered. And if the bishop will not send to the sheriff to deliver him, then shall he have a writ out of the chancery to the sheriff for his delivery ; or if he be excommunicated for a tem- poral cause, or for a matter whereof the ecclesiastical court has no cognizance, he shall be delivered by the king's writ without any satisfaction (g). Sect. 7. Shall not in the same Writ have a sufficient and lawful Addition.] — In Reg. v. Sanguay, in 1 Anne, the defendant was excommunicated for a certain cause of jactitation of marriage, and taken upon a capias and brought up by habeas corpus ; and exception was taken to the writ that therein no addition was given to the defendant ; but the court held, that for any of the (ri) Gibs. p. 1056; Anon., Cro. Jac. p. 566 ; John Parker's Case, Cro. Car. p. 582; Btx v. Colgate, Sid. p. 165; Bex v. Thewne, ib. p. 285. (e) Gibs. p. 1056; 1 Salk. p. 294. /) 2 Ld. Eaym. p. 788. g) 2 Inst. p. 188. ECCLESIASTICAL CENSURES. 1095 causes mentioned in the statute, the defendant's addition ought to be in the writ, but that mother cases no addition is necessary (//). If in the significavit it be not contained.^ — In Rex v. Fowler, As to showing Holt, Chief Justice, said that at the common law the cause had cause of .ex" no need to be shown in the writ of excommunicato capiendo ; but tionin writ, it was sufficient to say that the party was excommunicate for Sex v. Fowler. manifest contumacy ; but in the bishop's certificate it ought to be shown. And now, since 5 Eliz. c. 23, the cause ought to be shown in the writ (i). In the same case, on a habeas corpus the return was, that Fowler was taken and in custody by a writ of excommunicato capiendo, and the excommunication was in the writ recited to be for certain causes of subtraction of tithes or other ecclesiastical rights ; and because this return was uncertain, the court was moved that he might be discharged ; and the question was, whether this return was uncertain, and whether that uncertainty would vitiate the writ : and the court resolved, 1 , that the return was uncertain, for that the other rights might be such matters as were out of their jurisdiction, and they ought to show the matter was within their jurisdiction, for of that the king's courts are to be judges, and not they themselves : 2, the cause of excommuni- cation must be set forth in the writ. Accordingly the writ was quashed, and this special entry made on the habeas corpus, that the party was discharged because the writ de excommunicato capiendo was quashed (j). In Reg. v. The Bishop of St. Davids, already cited (h), the Reg. v. The defendant having been arrested upon an excommunicato capiendo, B}shoP °f was brought into court by habeas corpus. And upon the return J)avids' it appeared that he was excommunicated for non-payment of costs, in which he was condemned by commissioners delegate in a certain cause of office or correction, at the promotion of Lucy. And this by the court was holden to be ill, because it did not appear that these costs were adjudged in a cause of ecclesiastical cognizance ; and it is plain, since 5 Eliz. c. 23, that the cause ought to appear in the writ ; for otherwise how can this court make judgment of the several causes specified in that statute, in order to award several processes with penalties ? And the court discharged the defendant (/). So in the Court of Chancery, in 10 Greo. 2, in Rex v. Eyre, Rex y. Eyre. two significarits were quashed, being only said to be in a cause which came by appeal concerning a matter merely spiritual. For by Lord Talbot : We are not to lend our assistance but where it appears clearly they have jurisdiction, and are not to trust them to determine what is a matter merely spiritual (m) . (h) 1 Salk. p. 294. (m) 2 Stra. p. 1067. This case is ft) 1 Ld. Eaym. p. 619. more fully reported, nom. Atwood (j) 1 Salk. p. 293. v. Eyre, in 1 Collectanea Juridica, (k) See supra, pp. 67 — 71, and p. 468. On this point, see also Bex infra, p. 1098. v. Gapp, cited in Bex v. Theed, infra, (?) 2 Ld. Eaym. p. 817; vide p. 1098; Bex v. Munnery, infra, supra, pp. 67—71. p. 1098; Rex v. Bugger, 5 B. & A. 1096 DISCIPLINE OF THE CHURCH. Rex v. Payton. In Rex v. Pat/ton, in 37 Greo. 3, it was holden that a writ de excommunicato capiendo, which stated that the defendant was excommunicated in a cause of defamation and slander merely spiritual, was good. If the sentence of the greater, instead of the lesser, excommunication he pronounced, it is only a ground of appeal, and the Court of King's Bench will not quash a writ de excommunicato capiendo for that objection. It is not necessary that the defendant should be resident in the diocese at the time of the excommunication : it is sufficient if he were there at the time of the citation (»). 5 Eliz. c. 23, Sect. 5 of 5 Eliz. c. 23, saves and reserves " to all archbishops s- 3* , and bishops and all others having authority to certify any person ^add^charo-e excommunicated, like authority to accept and receive the sub- mission and satisfaction of the said person so excommunicated, in manner and form heretofore used ; and him to absolve and release, and the same to signify, as heretofore it hath been accustomed," to the Queen in Chancery ; " and thereupon to have such writs for the deliverance of the said person so ab- solved and released from the sheriff's custody or prison, as here- tofore they or any of them had, or of right ought or might have had." In which case, if due caution be offered by the party excom- municated, and admitted by the bishop, then the bishop may command the sheriff to deliver him out of prison (o). What is due The language of the writs, when they speak of absolving and delivering an excommunicate, is facta satisfactionc, aut prcestita cautione, prout moris est, de parendo mandatis ccclesice, that is, either making present satisfaction at or upon his absolution, or putting in caution that he will hereafter perform that which the bishop shall reasonably and according to law enjoin him. Which caution, in the civil law, is of three sorts : 1, fide jussoria, as where a man binds himself with sureties to perform somewhat ; 2, pignoratitia or realis cautio, as when a man engages goods, or mortgages lands, for the performance ; 3, juratoria, when the party which is to perform anything, takes a corporal oath to do it (p). caution. p. 791. As to the Chancery pro- cedure, see Ex parte Little, 3 Atk. p. 479. (n) 7 T. E. p. 153. As to pro- cedure for obtaining the discharge of a party, see Hex v. Blake, 2 B. & Ad. p. 139; Ex parte Jenkins, 1 B. & C. p. 655 ; Rex v. Hewitt, 6 A. & E. p. 547 ; 1 Nev. & P. p. 689. (o) Gibs. p. 1063. _ ( p) For the doctrine of the civil law on the subject of putting in cautions, see Inst. lib. 4, tit. 11, with the Commentaries of Vinnius and Huber, Prcelectiones. Of these cautions Bishop Gibson observes, that "the last of them, viz. an oath de parendo juri et stando man- datis ecclesice in forma juris, is that which is often accepted by ordi- naries ; and as to the second, it is expressly mentioned in the ancient Eegister (fo. 66a, 67), and has always been acknowledged in the temporal courts to be good in law. But as to the first, under which is comprehended the taking of a bond for performance, it was declared, 9 Jac. 1 (1 Bulst. p. 122), to be against law ; but as that was a judgment given by the way only, so when the same matter came ECCLESIASTICAL CENSURES. 1097 If good and sufficient caution is offered and not admitted, Writ of then a writ to the bishop is provided in the register, to command ?f^[^ce him (after having taken sufficient caution), to order the person cases< to be delivered (q). And if the bishop did not deliver him upon the said writ, then the party might have another writ to the sheriff, to com- mand him to apply personally to the bishop, and admonish him to deliver the party after having taken sufficient caution ; and if the bishop would not do the same in presence of the sheriff, then the sheriff to deliver him (r). And the reason thereof was, for that by the excommunication the party was disabled to sue any action, or to have any remedy for any wrong done unto him so long as he shall remain excom- municate. And also the party grieved might have his action upon his case against the bishop ; in like manner as he might when the bishop excommunicated him for a matter which belonged not to ecclesiastical cognizance. Also the bishop in those cases might be indicted at the suit of the king (s). In like manner, if one appeared in the spiritual court, and Order to was excommunicated for refusing to answer, where he was not ™ bound by the law to answer (as, for instance, when he could not obtain a copy of the libel), prohibition was granted, with a clause to absolve and deliver the party (t). But although, in case the party excommunicated rests in the Appeal, sentence given against him, there is no legal means for his deliverance, but submission and caution as is aforesaid ; yet if he appeal from such sentence to a superior ecclesiastical judge, this puts the party in the same state that he was in before the sentence given ; which the law orders, by reason of the present doubtfulness whether it was valid or invalid. Add to this, that by appeal the judge a quo ceases to be his judge in that cause ; and if the party was imprisoned, and were to continue so, he would thereby be hindered from the effectual prosecution of his appeal, which may happen to prove just. Wherefore, upon allegation in behalf of the party against whom the writ is gone under consideration again, 25 Car. 2, The Bp. of Exon v. Star, T. Kaym. p. 226; 2 Lev. p. 36, it was urged that by the tenor of the writ the choice of the caution is left to the discretion of the ordinary, and that caution by obligation is as much a caution as either of the other two, and more for the ease of the party than a pledge, and the constant use and practice of the ecclesiastical courts ; upon this Hale doubted whether it was good or not ; but Wild held it was good, saying that such bonds had been frequent, and that they had been allowed in the Court of Common Pleas. But the cause being moved again, the court would not proceed in it, because the excommunication and offence were taken off by the king's general pardon." Gibs. p. 1063. (q) Ibid. (r) Ibid. See these writs in Begistrum Brevium, fo. 66 et seq. Also F. X. B. 63. (s) 2 Inst. p. 623. {t) Gibs. p. 1063 ; Scurr v. Bar- rel! y Sid. p. 232 ; 12 Co. p. 76; 10 Yin. Abr. p. 527 (G.). 1098 DISCIPLINE OF THE CHURCH. As to quash- ing the writ de excommuni- cato capiendo. Several excommuni- cations. out, that he has appealed, and upon proof made thereof by an authentic instrument, a writ of supersedeas (without any appear- ance of a scire facias preceding) is provided for him in the register (u). But the usual way (especially in cases where it is doubtful whether objections may not lie against his being delivered) was the issuing a scire facias, to warn the bishop and the party prosecuting to show cause why the sheriff should not surcease from attaching the excommunicate, or why he should not deliver him, if he be in prison. And if the bishop in cases of office, and the prosecutor in cases of instance, did not appear in Chancery, the party was delivered; but if tbey appeared, and not the party, then a re-attachment went forth to imprison him (x) . In Reg. v. The Bishop of St. Davids, the defendant was taken upon a writ of excommunicato capiendo, and being in custody in Newgate, prayed a habeas corpus, and was brought into court thereupon ; and it appeared by the return that the writ of excommunicato capiendo was not yet returnable. And the court held that one taken on a writ of excommunicato capiendo cannot come into this court but by habeas corpus ; and if he be brought in before the writ is returnable, he shall not be allowed to plead or move to quash the writ (y). But in Rex v. Thecd, in 3 Greo. 1, after the writ had been opened and entered of record, it was delivered out in order to take up the defendant ; and before the return, the defendant moved and had it superseded ; for the court said they could judge of it by the entry ; and since it appeared that the defen- dant could not be legally detained upon it if he was taken, it was proper to supersede it, to prevent the man's being restrained of his liberty contrary to law ; that the intent of the statute, which directs the writ to be delivered in open court, was to apprise the court of the nature of the cause ; that this was now to be considered as a writ that improvide emanarit ; and they were not to wait till the return, till all the inconveniences which they should have prevented by not issuing the writ had happened (z). And in Rex v. Munnery (a) a writ de excommunicato capiendo was quashed, being only for not appearing to answer certis articulis animce suae salutem mor unique correctionem concementibus. If a person be excommunicated by divers excommunications, for divers offences, and produces letters of absolution from one sentence, he shall not be discharged until he be absolved from them all (b). [u) Gibs. p. 1063; Powell v. Ear- man, Mo. p. 849; Ought, tit. 303, p. 439. (x) Gibs. p. 1064; Eegistrum Brevium, fo. 68, 69. (y) 1 Salk. p. 294. Vide supra, pp. 67—71, 1095. (z) 1 Stra. p. 43 ; 10 Mod. p. 350. (a) 1 Stra. p. 76. (b) 1 Inst. p. 134. ECCLESIASTICAL CENSURES. 1099 The two acts immediately following have wrought a great Modem change in the law of excommunication : — statutes. The first, 53 Geo. 3, c. 127, substitutes a decree pronouncing 53 Geo. 3, the contumacious person in contempt, and signifying his con- °' 127' tempt in the same way as excommunication used to be signified, all other proceedings being the same. After reciting that, " it is expedient that excommunication, together with all proceedings following thereupon, should, saving in certain cases, be discontinued, and that other proceedings should be substituted in lieu thereof ; and that certain other regulations should be made in the proceedings of the ecclesiasti- cal courts;" .... it enacts as follows :— Sect. 1. " Exoom- Excommtmi- munication, together with all proceedings following thereupon, tfnue^exce "t shall in all cases, save those hereafter to be specified, be dis- in certain continued throughout that part of the United Kingdom of cases. Great Britain and Ireland called England; and in all causes which according to the laws of this realm are cognizable in the ecclesiastical courts, when any person or persons having been duly cited to appear in any ecclesiastical court, or required to comply with the lawful orders or decrees, as well final as inter- locutory, of any such court, shall neglect or refuse to appear, or neglect or refuse to pay obedience to such lawful orders or decrees, or when any person or persons shall commit a contempt in the face of such court, no sentence of excommunication shall be given or pronounced, saving in the particular cases hereafter to be specified, but instead thereof, it shall be lawful for the judges or judge who issued out the citation, or whose lawful orders or decrees have not been obeyed, or before whom such contempt in the face of the court shall have been committed, to pronounce such person or persons contumacious and in contempt, and within ten days to signify the same, in the form to this act annexed, to his Majesty in chancery, as hath heretofore been done in signifying excommunications (c) ; and thereupon a Writ de writ de contumace capiendo, in the form to this act annexed, shall issue from the Court of Chancery, directed to the same persons to whom the writs de excommunicato capiendo have here- tofore been directed ; and the same shall be returnable in like manner as the writ de excommunicato capiendo hath been by law returnable heretofore, and shall have the same force and effect as the said writ ; and all rules and regulations not hereby altered, now by law applying to the said writ and the proceedings follow- ing thereupon, and particularly the several provisions contained in 5 Eliz. c. 23, shall extend and be applied to the said writ de contumace capiendo and the proceedings following thereupon, as if the same were herein particularly repeated and enacted (d) ; and contumace capiendo to issue. _ (c) The court refused, on discre- tionary grounds, to signify where the contempt was after a long lapse of time: Hakes v. Cox, (1892) P. P. VOL. II. p. 110. (d) This makes the cases upon the old act still valuable. 4c 1100 DISCIPLINE OF THE CHURCH. Upon obe- dience or submission, person to be absolved and discharged. In what cases excommuni- cation shall continue. Proceedings in case of excommuni- cation. the proper officers of the said Court of Chancery are hereby authorized and required to issue such writ de contumacc capiendo accordingly ; and all sheriffs, gaolers and other officers are hereby authorized and required to execute the same, by taking and detaining the body of the person against whom the said writ shall be directed to be executed ; and upon the due appearance of the party so cited and not having appeared as aforesaid, or the obedience of the party so cited and not having obeyed as aforesaid, or the due submission of the party so having com- mitted a contempt in the face of the court, the judges or judge of such ecclesiastical court shall pronounce such party absolved from the contumacy and contempt aforesaid, and shall forthwith make an order upon the sheriff, gaoler or other officer in whose custody he shall be, in the form to this act annexed, for dis- charging such party out of custody, and such sheriff, gaoler or other officer shall, on the said order being shown to him, so soon as such party shall have discharged the costs lawfully incurred by reason of such custody and contempt, forthwith discharge him (c). Then follows an important section. Sect. 2. " Provided always . . . that nothing in this act con- tained shall prevent any ecclesiastical court from pronouncing or declaring persons to be excommunicated in definitive sentences, or in interlocutory decrees having the force and effect of definitive sentences, such sentences or decrees being pronounced as spiritual censures for offences of ecclesiastical cognizance, in the same manner as such court might lawfully have pronounced or declared the same, had this act not been passed" (/). Sect. 3. " And ... no person who shall be so pronounced or declared excommunicate, shall incur any civil penalty or incapa- city whatever, in consequence of such excommunication, save such imprisonment, not exceeding six months, as the court pro- nouncing or declaring such person excommunicate shall direct, and in such case the said excommunication, and the term of such imprisonment, shall be signified or certified to his Majesty in chancery, in the same manner as excommunications have been heretofore signified, and thereupon the writ de excommunicato capi- (e) See on the construction of this section, Be Baines, Or. & Ph. p. 31 ; Req. v. Thorogood, 12 A. & E. p. 183; Beg. v. Baines, ib. p. 210; Beg. v. Jones, 10 A. & E. p. 576. The later cases on this act are Hudson v. Tooth, 2 P. D. p. 125 ; Dale's Case, Enraghfs Case, 6 Q. B. D. p. 376; Be Green, 7 Q. B. D. p. 273; Green v. Lord Penzance, 0 App. Ca. p. 657; Ex parte Bell Cox, 19 Q. B. J), p. 307 ; 20 Q. B. D. p. 1 ; Cox v. I/ales, 15 App. Ca. p. 506. (/) It seems to be competent to the court to pass this sentence without signifying, as in the case of the prosecutor not asking for a significavit ; in which case, if the excommunicated person remained in that state till his death, accord- ing to the rubric preceding the burial service, that service would not be used on his behalf ; nor, of course, would he be entitled, while living, to receive the holy com- munion. This was done in Hoile v. Scales, 2 Hagg. Eccl. p. 597. ECCLESIASTICAL CENSURES. 1101 enclo shall issue, and the usual proceedings shall he had, and the party heing taken into custody shall remain therein for the term so directed, or until he shall he absolved by such ecclesiastical court." The schedules to this act are as follows : — Schedule (A.) " To his most excellent Majesty and our Sovereign Lord George the Significavit Third, by the Graee of God of the United Kingdom of Great Britain of party being and Ireland King, Defender of the Faith, ■ by Divine Providence, ^^^a Sfc. . Health in Him by whom kings and princes rale and tempt. govern : We herein/ notify and signify unto //our Majesty, that one of in the count;/ of hath been duly pronounced guilt y of manifest contumacy and contempt of the law and jurisdiction eccle- siastical, in not [as the case may be] appearing before [here set out the style of the ecclesiastical judge, or his representative], or in not obeying the lawful commands [here set out the com- mands] of [such judge or representative] or in having committed a contempt in the face of the court of such judge or representative law- fully authorized by [here set out the nature and manner of such contempt], on a day and hour now long past, in a certain cause of [here set out the nature of the cause, and the names of the parties to the same]. We therefore humbly implore and entreat your said most excellent Majesty would vouchsafe to command the body of the said to be taken and imprisoned for such contu- macy and contempt. Given under the seal of our Court, the day of . "A. B., Registrar [or, ' Deputy Registrar] as the case may be]." Schedule (B.) " George, fyc. To the sheriff' of greeting : The hath X\rv\tde con- signified to as, that of in your county of is mani- tumace festly contumacious, and contemns the jurisdiction and authority of ap%en °' [here fully state the non-appearance, disobedience, together with the commands disobeyed, or the contempt in the face of the court, as the case may be], nor will he submit to the ecclesiastical jurisdiction ; but forasmuch as the royal power ought not to be wanting to enforce such jurisdiction, we command you that you attach the said by his body, until he shall have made satisfac- tion for the said contempt; and how you shall execute this our precept notify unto and in nowise omit this, and have you there this icrit. Witness ourself at Westminster, the day of in the year of our reign." Schedule (C.) " Whereas of in your county of whom lately, at Writ of de- the denouncing of for contumacy, and by writ issued thereupon, liverance. 4c2 1102 DISCIPLINE OF THE CHURCH. you attached by his bod// until he should have made satisfaction for the contempt : Now he having submitted himself, and satisfied the said contempt, ice hereby empower and command you, that without delay you cause the said to be delivered out of the prison in which he is so detained, if upon that occasion and no other he shall be detained therein. Given under the seal of our of . <; A. B., Registrar [or, 'Deputy Registrar' as the case may be]. " Extracted by E. F. Proctor" (g). 2 & 3 Will. 4, c.93. Practical use of. Where per- sons residing beyond the jurisdiction of any ecclesi- astical courts are cited to appear, &c, and refuse obedience, the judge thereof may pro- nounce them contumacious, and certify the same to the Lord Chancellor, &c, within ten days, and The second act, 2 & 3 Will. 4, c. 93, was intended only for certain exceptional cases where contumacious persons were in Ireland or were privileged from arrest ; but since the abolition of imprisonment for debt has become the only means of enforc- ing the payment of costs when decreed by an ecclesiastical court. It recites that " great inconvenience has been found to arise by reason of the process of the several ecclesiastical courts in England being inoperative and unavailable out of the limits of the respective jurisdictions of such courts, and against persons having privilege of peerage, lords of parliament, and members of the house of commons ; and in many instances a failure of justice hath thereby ensued." And that it is expedient, " that the process of the said several courts, and the means of enforcing obedience to the same, should be of equal force and have the like operation, as well in that part of the united kingdom of Great Britain and Ireland called England as in that part of the same united kingdom called Ireland, and as well against persons having privilege of peerage, lords of parliament, and members of the house of commons, as against all other his majesty's subjects," and enacts as follows : Sect. 1. "In all causes which according to the laws of this realm are or may be cognizable in any of the several ecclesi- astical courts in that part of the united kingdom of Great Britain and Ireland called England .... when any person or persons, as well those which have or hereafter shall have privilege of peerage, or are or hereafter may be peers of parliament or members of the house of commons, as all others who shall happen to be domiciled or residing either in England or in Ireland, and beyond the limits of the jurisdiction of the court in which such causes have been or shall have been respec- tively instituted or commenced, or shall be depending, having been duly cited to appear in any such ecclesiastical court, .... or required to comply with any lawful order or decree, as well final as interlocutory, which hath been or shall have been made by any such court respectively, shall neglect or refuse to pay ( s' 6L the office of the registrar," down to "jurisdiction therein," are inserted the words " in the office of the bishop of the diocese," there being a provision in this latter act that no peculiars shall be exempt from its operation. Sect. 4 of 17 Greo. 3, c. 53. " And . . . the money so to be bor- 17 Geo. 3, rowed shall be paid into the hands of such person or persons as c> 53 • shall be nominated and appointed to receive and apply the same ^^7to°be for the purposes aforesaid, by the ordinary, patron, and incum- paid to such persons as the ordinary, Sec. (/) Boyd v. Barker, 5 Jur., N. S. (/*) Greenlaw v. King, 3 Beav. shall appoint • p. 234 ; 4 Drewiy, p. 582. p. 49. {g) Ibid. 1123 PKOPERTY OF THE CHURCH. bent, by writing under their respective hands, in the form for that purpose contained in the said schedule, after such nominee (i) shall have given a bond to the ordinary, with sufficient surety, in double the sum so to be borrowed or raised, with condition of his duly applying and accounting for the same according to the directions of this act ; and the receipt of the person or persons so to be nominated shall be a sufficient discharge to the person who shall or persons who shall advance and pay the money : And the the buSdfno-s Person or Persons> s0 to be nominated, shall enter into contracts &c. and see ' w^h proper persons for such buildings or repairs as shall be the same exe- approved by the ordinary, patron, and incumbent, and shall be for themd&ca7 sPe°ifie(l ^n an instrument written upon parchment, and signed by them, in the form for that purpose contained in the said schedule ; and shall inspect and have the care of the execution of such contracts, and shall pay the money for such buildings and repairs, according to the terms of such agreements, and shall take proper receipts and vouchers for the same ; and as soon as such buildings or repairs shall be completed, and the money paid, shall make out an account of his receipts and payments, together with the vouchers for the same, and enter them in a book, fairly written, which shall be signed by him, and laid before the ordinary, patron, and incumbent, and examined by them ; and when allowed, by writing under their respective hands, in the form for that purpose contained in the How the bal- said schedule, such allowance shall be a full discharge to the f^shaU^e" Person so nominated, in respect to the said accounts ; and if any disposed of? balance shall remain in the hands of such nominee or nominees, the same shall be laid out in some further lasting improvements in building upon such glebe, or shall be paid and applied in dis- charge of so much of the said principal debt as such balance will extend to pay, at the discretion of the said ordinary, patron, and incumbent, or two of them, of which the said ordinary to be one, by order signed by them, in the form for that purpose contained in the said schedule ; and an account shall also be kept, made out, and allowed, of such further disbursements, in manner afore- said : all which accounts, when made out, completed, and allowed, shall be deposited, with the vouchers, in the hands of the said registrar, and kept by him for the use and benefit of the incum- bents of such living for the time being, who shall have a right to inspect the same whenever occasion shall require, paying to such registrar, or deputy registrar, the sum of one shilling for every such inspection, l & 2 Vict. Sect. 66 of 1 & 2 Yict. c. 106, contains an exact transcript of c. 106, s. 66. this provision, except, as has been already remarked, with regard to sect. 64 of the same act, that " bishop " in the latter act stands throughout in the place of " ordinary, patron, and (*') By sect. 19, the patron, or- dinary and incumbent may agree, in writing, to allow tho nominee a sum not exceeding five per cent, on the moneys laid out and expended. KESIDENCE HOUSES. 1129 incumbent,' ' in the former act ; and that after the words " terms of such agreement," it inserts " and also the expenses of pre- paring the mortgage deed, and incident thereto, and making such certificate, plan, estimate, and copies thereof as aforesaid." Sects. 5 and 8 of 17 Geo. 3, c. 53, provide — Sect. 5, " Every such ordinary, before he or they shall signify 17 Geo. 3, his or their consent, in manner aforesaid, shall cause an inquiry c- 53> s- 5- to be made, and certified to him or them by the archdeacon, chan- Ordinary to cellor of the diocese, or other proper persons living in or near the to^e madeof parish where such buildings are proposed to be made or repaired, the condition in the forms for that purpose specified in the said schedule, of the of the build- state and condition of such buildings at the time the incumbent infumbentthe entered upon such living or benefice, how long such incumbent had entered on the enjoyed such living or benefice, what money he had received, or living> &c- may be entitled to receive, for dilapidations, and how and in what manner he had laid out what he had so received ; and if it shall appear to them that such incumbent had, by wilful negligence, suffered such buildings to go out of repair, then to certify the same to the said ordinary, and also the amount of the damage which such buildings had sustained by the wilful neglect of such incumbent ; and such incumbent, if the ordinary require it, shall pay the same into the hands of the nominee or nominees to be appointed under the authority of this act, towards defraying the expenses of buildings or repairs, before the ordinary shall give his consent as aforesaid." Sect. 8. " Where there shall be no house of habitation upon The ordinary any ecclesiastical living or benefice, so described as aforesaid, loof8" exceeding in clear yearly value one hundred pounds per annum, per annum', or being one, the same shall be so mean, or in such a state of which has no decay as aforesaid, and the incumbent shall not reside in the pf°Pe*\k°use .Si 1 i • p oi habitation, parish twenty weeks within any year, computing the same irom may (if the the first day of January, it shall be lawful for the ordinary of incumbent such living or benefice, with the consent of the patron (in case jj^g0* toli the incumbent shall not think fit to lay out one year's income, tion, &c.) where the same may be sufficient, to put the house and buildings procure an in proper and sufficient repair, or to make such application as estimate> &c: p • j a , 1 . .' i -it 1 and proceed m aloresaid, ior building, repairing, or rebuilding sucn parsonage the execution house), to procure such plan, estimate and certificate, as herein of the act, in directed, and at any time within the course of the succeeding as the^arson year to proceed in the execution of the several purposes of this is directed5 to act, in such manner as the parson, vicar, or incumbent, is hereby proceed, authorized and directed to proceed, and to make and execute such mortgage as aforesaid ; which shall be binding upon the incumbent and his successors, and he and they shall be and are hereby made liable to the payment of the interest, principal, and costs ; and every such incumbent, and his representatives, shall be and are hereby also made respectively liable to the pro- portion of the payments for the year which shall be growing at time of the death of such incumbent, or avoidance of such living, according to the directions aforesaid ; which said interest, 1130 PROPERTY OF THE CHURCH. principal, and costs, and proportion of payments growing at the time of the death of such incumbent or avoidance, shall and may be recovered against such incumbent, his successors or represen- tatives, respectively, by action of debt, in any court of record." l & 2 Vict. As to raising money for building by mortgage under 1 & 2 Onavoidance Yict C' 106_ ofbeneficTnot ^ec^ ^ °^ ^na^ ac^ enac*s as follows i "Upon or at any time after having fit the avoidance of any benefice it shall be lawful for the bishop, and dence ^sho1" ^e *S nereky required, to issue a commission to four beneficed to raise money clergymen of his diocese, or if the benefice be within his peculiar to build one jurisdiction, but locally situate in another diocese, then to four o7 Teb^&c6 beneficed clergymen of such last-mentioned diocese, one of whom for^hirty-five shall be the rural clean (if any) of the rural deanery or district, years. wherein such benefice shall be situate, directing them to inquire whether there is a fit house of residence within such benefice, and what are the annual profits of such benefice, and if the clear annual profits of such benefice exceed one hundred pounds, whether a fit house of residence can be conveniently provided on the glebe of such benefice, or otherwise ; and if the said com- missioners, or any three of them, shall report in writing under their hands to the said bishop that there is no fit house of residence within such benefice, and that the clear annual profits of such benefice exceed one hundred pounds, and that a fit house of residence can be conveniently provided on the glebe of such benefice, or on any land which can be conveniently procured for the site of such house of residence, it shall be lawful for the said bishop, and he is hereby required, to procure from some skilful or experienced workman or surveyor a certificate containing a statement of the condition of the buildings (if any), and of the value of the timber and other materials (if any) thereupon fit to be employed in building or repairing or to be sold, and also a plan or estimate of the work fit and proper to be done for building or repairing such house of residence, with all necessary and convenient offices, and thereupon, by mortgage of the glebe, tithes, rents, rent-charges, and other profits and emoluments, arising or to arise from such benefice, to levy and raise such sum or sums as the said estimate shall amount to, after deduct- ing the value of any timber or other materials which may be thought proper to be sold, not exceeding four years' net income and produce of such benefice, after deducting all outgoings (except only the salary of the assistant curate where such a curate is necessary), which mortgage shall be made to the person or persons who shall advance the money so to be levied and raised for the term of thirty-five years, or until the money so to be raised, with interest for the same, and such costs and charges as may attend the recovery thereof, shall be fully paid and satisfied according to the provisions of this act ; and the same mortgage shall be made by one or more deed or deeds in the form or to the effect for that purpose contained in the second schedule to this act, and shall bind the incumbent of such RESIDENCE HOUSES. 1131 benefice for the time being, and his successors, until the prin- cipal and interest, costs and charges, shall be fully paid off and satisfied ; and every incumbent for the time being is hereby made liable to the payment of so much of the principal, interest and costs as under the directions hereinafter contained shall become payable during the time he shall be such incumbent, and every such incumbent and his representatives shall be and are hereby also made respectively liable to the proportion of the payments for the year which shall be growing at the time of the death of such incumbent or avoidance of such benefice according to the directions hereinafter contained, which said principal, interest and costs, and the proportion of payment growing at the time of the death of such incumbent or of such avoidance, shall and may be recovered by action of debt in any court of record." The second schedule is as follows : — Form of the Mortgage. " This indenture, made the day of m the pear of our Form of Lord , between the right reverend father in God, , lord mort£age- bishop of , of the one part, and of the other part : Whereas the said bishop, pursuant to the directions of an act passed in the second year of the reign of her Majesty Queen Victoria, intituled 'An Act to abridge the holding of Benefices in Plurality, and to make better Provision for the Residence of the Clergy,' hath determined to levy and t'aise the sum of pounds, to be laid out and expended in building, rebuilding or repairing [as the case shall be] the parsonage house and other necessary offices upon the glebe belonging to the rectory, vicarage, &c. of [describing it], [or, in purchasing a house and land for the residence and occupation of the incumbent of the rectory, &c] : And whereas the said hath agreed to lend and advance the sum of pounds, upon a mort- gage of the glebe, tithes, rent-charges, rents, and other profits and emoluments of the said benefice, pursuant to the directions and the true intent and meaning of the said act. Now this indenture wit- nesseth, That the said bishop, in consideration of the sum of pounds, paid at or before the sealing and delivery hereof into the hands of (a person or persons [as the case shall be] nominated by the said bishop to receive the same, pursuant to the directions of the said act {which nomination is hereunto annexed), and which receipt of the said sum of pounds the said have or hath acknowledged by an indorsement on this deed), hath granted, bargained, sold, and demised, and by these presents doth grant, bargain, sell, and demise, unto the said his executors, adminis- trators, and assigns, all the glebe lands, tithes, rent-charges, rents, moduses, compositions for tithes, salaries, stipends, fees, gratuities, and other profits and emoluments whatsoever, arising , coming , growing, renewing, or payable to the incumbent of the said benefice in respect thereof, with all and every the rights, members, and appurtenances thereunto belonging, To have, hold, receive, take and enjoy the said P. VOL. II. 4 e 1132 PROPERTY OF THE CHURCH. premises and their appurtenances unto the said , his executors, administrators, and assigns, from henceforth for the term of thii ty- five years, fully to be complete and ended : Provided always, that if the incumbent for the time being of the said benefice and his successors shall, from and after the expiration of the first year of the said term, yearly and every year (such year to be computed from the date hereof), pay to the said , his executors, administrators, and assigns, one-thirtieth part of the stun of pounds, until the ivhole thereof shall be repaid, and at the end of the first and each succeeding year pay interest at the rate of per cent, per annum on the said sum of pounds, or so much thereof as shall from time to time remain unpaid, according to the true intent and meaning of the said act and of these presents, and also all costs and charges ichich shall be occasioned by the nonpayment thereof, these presents and everything herein contained shall be void : Pro- tided also, that it shall be lawful for the incumbent for the time being of the said benefice, and his successors, peaceably and quietly to hold and enjoy the said glebe lands, tithes, rent-charges, rents, moduses, compositions for tithes, stipends, fees, gratuities, and other emoluments and profits whatsoever, arising or to arise from or in respect of the said benefice, until default shall be made by him or them respectively in the payment of the interest and principal, or some part thereof, at the times and in the manner aforesaid. In witness, &c. "Form of the Appointment of the Nominee (k) (to be written on Parchment). Form of ap- " Jy the right reverend father in God, , lord bishop of , nominee11* ^° ^ereoV nominate and appoint of to receive the money authorized to be raised by an act passed in the second year of the reign of her Majesty Queen Victoria, intituled i An Act to abridge the holding of Benefices in Plurality, and to make better Provision for the Residence of the Clergy ,9 for the purpose of building, rebuilding, repairing, or purchasing the parsonage-house, &e. [as the case may be], to the rectory, vicarage, &c. of belonging, and to pay and apply the same, and to enter into contracts with proper persons for such buildings or repairs, and to inspeet and to take care of the execution of such contracts, and to take such receipts and vouchers, keep such accounts, and do and perform all such other matters and things which nominees are authorized and required to do and perform in and by the said act, the said having given security for the due application thereof, according to the directions of the said act. Given under my hand this day of . (k) By sect. 74, the bishop may, exceeding 5 per cent, on the moneys by writing under his hand, make laid out and expended, an allowance to the nominee not RESIDENCE HOUSES. 1133 "Form of the Deed of Purchase of Buildings or Lands to be annexed to the Benefice. "This indenture, made the day of , in the year of our Form of pur- Lord , between A. B., of , of the one part, the right chase deed. reverend father in God , lord bishop of , and E. F., of , patron of the rectory, &c., of , of the other part : Whereas there is no fit parsonage-house belonging to the said rectory, &c, and whereas a contract hath been made, by the direction of the said bishop, with the said A. B. for the absolute purchase of the house, buildings, and lands hereinafter described, for the price or sum of pounds, pursuant to the directions of an act passed in the second year of the reign of her Majesty Queen Victoria, intituled 'An Act to abridge the holding of Benefices in Plurality, and to make better Provision for the Residence of the Clergy.' Now this indenture witnesseth, That the said A. B., in consideration of the sum of pounds to him in hand paid for the purchase aforesaid, the receipt of which sum the said A. B. hath admitted by an endorsement on the back of this deed, hath granted, bargained and sold, and by these presents doth grant, bargain, and sell, unto the said E. F. and his heirs, all, &c. [here insert a full description of the buildings or lands so intended to be conveyed, with their and every of their rights, privileges, and appurtenances], to hold unto the said E. F. and his heirs or successors [as the case may be] in trust for the sole use and benefit of the incumbent of the said benefice and his successors, rectors, vicars, &c. [as the case may be], of the said benefice for the time being, for ever. [Usual covenants for title to be added.] In toitness, &c." Sect. 63. " Provided always that the said bishop shall cause to Bishop to be transmitted to the patron and the incumbent (if any) of such j£a j^jj benefice, copies of the report so to be made by such commissioners, report,°&c. to and of the plan, estimate, and certificate so to be made by such patron and workman, or surveyor, two calendar months at the least before ^q^^' making any such mortgage as aforesaid ; and that in case the objectwlthin patron and the incumbent, or either of them, shall object to the two months; proposed site for a residence, or to the proposed plan for erecting f*?^ lf so' or repairing such residence, or to the amount proposed to be raised, 0rderPplanto and shall deliver such objections in writing to the said bishop he modified or before the expiration of such period of two calendar months, the abandoned- said bishop shall have full power to direct that the plan proposed to be carried into effect shall be altered or modified in such manner as he may think fit : provided also, that if the bishop shall, after receiving the report to be made by such commis- sioners, be of opinion that it is not expedient, under the special circumstances of any such benefice, to levy and raise any sum or sums of money by mortgage as hereinbefore required, or other- wise to take measures for providing a fit house of residence for such benefice, he shall state in detail such special circumstances and the grounds of his opinion in the next annual return to be 4e2 U34 PROPERTY OF THE CHURCH. 28 & 29 Vict, c. 69. Extension of provisions of earlier acts. Building by- mortgage. 17 Geo. 3, c. 53. On failure of payment of principal and interest for forty days after due, mortgagee may distrain. made by him to her Majesty in council, according to the direc- tions hereinbefore contained" (/). Section 64 contains a provision as to the counterpart of the mortgage similar, as has been said, to that of 17 Geo. 3, c. 53, s. 2. Section 66 contains provisions, as to the nominees of the bishop for securing the borrowed money, similar, as has been said, to those contained in 17 Geo. 3, c. 53, s. 4. As to mortgages under 28 & 29 Yict. c. 69 : — Section 1 of this act, which is of a generally amending and extending character, enacts as follows : — " The incumbent of any benefice may, according to the provisions of and with the consents required by the said acts, and by any act or acts amending or referring to the same, borrow and take up at inte- rest on mortgage as provided by the same acts (m), or any of them, for the purposes of the same acts or any of them, or for the purposes of the act [55 Geo. 3, c. 147], or for the purpose of purchasing any lands or hereditaments not exceeding twelve acres, contiguous to or desirable to be used or occupied with the parsonage-house or glebe belonging to such benefice, or for the purpose of building any offices, stables, or outbuildings, or fences necessary for the occupation or protection of such parsonage, or for the purpose of restoring, rebuilding, or repairing the fabric of the chancel of the church of such benefice (in any case where such incumbent is or shall be liable to repair or sustain the fabric of such chancel), or for the purpose of building, improving, en- larging, or purchasing any farm-house or farm buildings, or labourers' dwelling-houses, with the appurtenances belonging to or desirable to be acquired for any farm or lands pertaining to such benefice, any sum or sums of money not being less than 100/., and not exceeding three years' net income of such benefice ; and out of the sum to be borrowed it shall be lawful to pay the charges and expenses of the architect or surveyor who shall be employed in or about any of the purposes aforesaid, and also the costs and expenses of and incidental to the preparation of the mortgage deed or deeds, and of and incidental to any purchase by the said acts or this act authorized to be made." As to repayment of principal and interest, 17 Geo. 3, c. 53, provides as follows : — Sect. 3. " Whenever the principal and interest, directed to be paid to the mortgagee under the several provisions of this act, shall be in arrear and unpaid, for the space of forty days after the same shall become due, it shall and may be lawful for such mortgagee, his executors, administrators, or assigns, to recover the same, and the costs and charges attending the recovery thereof, by distress and sale in such manner as rents may be (I) By sect. 53, vide supra, (m) 17 Geo. 3, c. 53 ; 21 Geo. 3, p. 896. c. 66; 7 Geo. 4, c. 66; 1 & 2 Vict. c. 23. Vide supra, p. 421. RESIDENCE HOUSES. 1185 recovered by landlords or lessors from their tenants by the laws in being." This section is transcribed almost verbatim into sect. 65 of Correspond- 1 & 2 Yict. c. 106. ingi felvlt By sect. 6 of 17 Geo. 3, c. 53, so far as unrepealed, the c 106 incumbent of every such living or benefice, in cases where [17 Geo. 3, such mortgage or mortgages shall be made as aforesaid, and o. 53.] his successors for the time being, shall, and he and they is Directions for and are hereby required to pay the interest arising upon the ^Hncipal every such mortgage, yearly, as the same shall become due, and interest of or within one month after, and also five pounds per centum the m01*t- per annum, of the principal remaining due, by yearly pay- ga8"es' ments .... such payments to be respectively made at the same time such interest shall be paid, until the whole prin- cipal money and interest shall be fully paid and discharged .... and every such incumbent shall, annually, at his own expense, from the time such buildings, authorized to be made by this act, shall be completed, insure, at one of the public offices established in London or Westminster for insurance of houses and buildings, the house and other buildings upon such glebe, against accidents by fire, at such sum of money as shall be agreed upon by the ordinary, patron, and incumbent ; and in default of the payment of either the principal or interest, in manner aforesaid, or neglect of the incumbent to make such insurance, the ordinary shall have power to sequester the profits of the living till such payment or insurance shall be made (n). By 17 Greo. 3, c. 53, s. 7, " And in order that the payment of Provision such year may be -justly and equitably ascertained and adjusted, l?v ProPor- , J ., J J J i,i • • i j honing" the between the successor, and the parson, vicar, or incumbent, annual pay- avoiding such living or benefice by death or otherwise, or his ment in case representatives, in case of death or other avoidance, in such ^^^okl proportions as the profits of such living shall have been received ance- by them respectively, for the year in which such death or avoid- ance shall happen : .... in case any difference shall arise in adjusting or settling the proportions aforesaid, the same shall be determined by two indifferent persons, the one to be named by the said successor, and the other by the person making such avoidance, or his representatives, in case of his death ; and in case such nominees shall not be appointed within the space of two calendar months next after such death or avoidance, or if they cannot agree in adjusting such proportions within the space of one calendar month after they shall have been appointed, the same shall be determined by some neighbouring clergyman, to be nominated by the ordinary, whose determination shall be final and conclusive between the parties ; which nominations (n) 1 & 2 Yict. c. 106, s. 67, con- Ecclesiastical Dilapidations Act, tains a similar provision as to insur- 1871, 34 & 35 Yict. c. 43, ss. 54— ance. See now the general rules 57; infra, Part Y., Chap. Y, as to insurance contained in the 1136 PROPERTY OF THE CHURCH. and determinations shall be made according to the forms for that purpose contained in the said schedule, as near as conveniently may be." A similar provision is contained in 1 & 2 Yict. c. 106, s. 68. By 1 & 2 Vict. c. 23, s. 1, " It shall be lawful for the incum- bent of any benefice to borrow and take up at interest for the purposes of the said acts, and also for the purpose of buying or procuring, if necessary, a proper site for a house and other relating to the necessarv buildings, or for the purposes of the said acts (n) only, repairing and building of houses of residence. 1 & 2 Vict. c. 106. 1 & 2 Vict. c. 23. Extended provisions any sum or sums of money not exceeding three years' net income of such benefice, and to take all such proceedings as are required in and by the said acts (so far as the same are applicable for that purpose), and, as a security for the money so to be borrowed, to mortgage the glebe, tithe, rent-charges, rents and other profits and emoluments belonging to such benefice, to such person or persons, corporation or corporations aggregate or sole, as shall lend the same money, by one or more deed or deeds, for the term of thirty-five years, or until the money so to be borrowed, with interest for the same, and such costs and charges as may attend the recovery thereof, shall be fully paid and satisfied, according to the terms and conditions of the said acts (so far as the same are applicable, and not hereby repealed or altered) ; Repayment, and from and after the expiration of the first year of the said term (in which year no part of the principal sum borrowed shall be repayable) the incumbent shall yearly and every year (such year to be computed from the day of the date of the mortgage) pay to the mortgagee one thirtieth part of the said principal sum, until the whole thereof shall be repaid, and shall at the end of the first and each succeeding year pay the yearly interest on the said principal sum, or on so much thereof as shall from time to time remain unpaid, in each case according to the terms and conditions of the said acts, except so far as the same are hereby repealed or altered ; and such mortgage deed or deeds shall be made as nearly as may be in the form or to the effect of the form contained in the schedule to the said acts or one of them, and shall bind every succeeding incumbent of such benefice until the principal and interest, costs and charges, shall be paid off and discharged, as fully and effectually as if such successor had made and executed the same." 1 & 2 Vict. c. 106, enacts as follows : — Sect. 65 contains provisions as to distress upon non-payment almost identical, as has been said, with those in 17 Greo. 3, c. 53, s. 3. Sect. 67. " The incumbent of every such benefice, in cases interest of the where such mortgage or mortgages shall be made as aforesaid, mortgages. an(j ^ successors for the time being, shall, from and after the expiration of the first year of the said term (in which year no part of the principal sum borrowed shall be repayable) yearly and every year (such year to be computed from the date of such mortgage) pay to the mortgagee one- thirtieth part of the princi- (n) The acts referred to, supra, p. 1134, note (m). 1 & 2 Vict, c. 106. .Directions for payment of principal and RESIDENCE HOUSES. 1137 pal sum until the whole thereof shall be repaid, and shall at the end of the first and each succeeding year pay the yearly interest on the principal sum, or so much thereof as shall from time to As soon as the time remain unpaid ; and every such incumbent shall annually, buildings are at his own expense, from the time such buildings authorized lambent to to be made by this act shall be completed, insure, at one of insure them the public offices established in London or Westminster for against fire, insurance of houses and buildings, the house and other build- ings upon such glebe against accidents by fire, at such sum of money as shall be determined upon by the bishop ; and in default of the payment of either the principal or interest in manner aforesaid, or neglect of the incumbent to make such insurance, the bishop shall have power to sequester the profits of the benefice till such payment or insurance shall be made " (6). Section 68 contains provisions for the apportionment of the Apportion- annual payment in cases of death, or other avoidance, similar ™^s°f pay* to those mentioned above of 17 Greo. 3, c. 53, s. 7. As to the powers of the governors of Queen Anne's Bounty, Loans by and of corporate bodies, to lend money on mortgage, there are A^fa on the statute book the following provisions : — corporations. By 17 Greo. 3, c. 53, s. 12, " And it shall and may be lawful 17 g.eo> 3 for the governors authorized or appointed to regulate and super- 0. 53. intend the bounty given by her late majesty Queen Anne for the Governors of augmentation of the maintenance of the poor clergy, to advance ^o^ty^ern-6 8 and lend any sum or sums of money, not exceeding the sum of powered to one hundred pounds, in respect of each living or benefice, out of lend certain the money which has arisen, or shall from time to time arise, tte from that bounty, for promoting and assisting the several execution of purposes of this act, with respect to any such livings or benefices that act- as shall not exceed the clear annual improved value of fifty pounds ; and such mortgage and security shall be made for the repayment of the principal sums so to be advanced, as are herein- before mentioned, but no interest shall be paid for the same ; and in cases where the annual value of such living or benefice shall exceed the sum of fifty pounds, it shall and may be lawful for the said governors to advance and lend, for the purposes of this act, any sum not exceeding two years' income of such living or benefice upon such mortgage and security as aforesaid, and subject to the several regulations of this act, and to receive interest for the same, not exceeding four pounds for one hundred pounds by the year." By 1 & 2 Yict. c. 23, s. 4, " It shall be lawful for the said 1 & 2 Vict, governors to advance and lend any sum or sums of money not c' 23, exceeding the sum of one hundred pounds in respect of each Quee^Anne's benefice, out of the money which has arisen or shall from time Bounty may to time arise from the said bounty, for promoting and assisting lend moneys the several purposes of the said acts and of this act, with respect execution^f to any such benefices as shall not exceed the clear annual that act. improved value of fifty pounds, and such mortgage and security (0) See Bluck v. Hodgson, 5 N. of C. p. 167 ; 11 Jur. p. 191, infra. 1138 PROPEKTY OF THE CHURCH. 1 & 2 Vict, c. 106. Governors of Queen Anne'; Bounty em- powered to lend certain sums to pro- mote the execution of that act. 17 Geo. 3, c. 53. Colleges in Oxford and Cambridge and other cor- porate bodies, patrons of livings, may lend any sums, without interest, to aid the execution of that act. 1 & 2 Vict, c. 23. Colleges, &c. may advance money, interest free, to benefices in their patron- age for houses. 1 & 2 Vict, c. 106. Colleges in Oxford, &c. shall be made for the repayment of the principal sums so to be advanced as are hereinbefore mentioned, but no interest shall be paid for the same ; and in cases where the annual value of such benefice shall exceed the sum of fifty pounds, it shall and may be lawful for the said governors to advance and lend for the same purposes any sum or sums of money to the extent authorized by this act to be borrowed, upon such mortgage and security as aforesaid, and subject to the several regulations of this act, and to receive interest for the same not exceeding four pounds for one hundred pounds by the year." And by 1 & 2 Yict. c. 106, s. 72, " It shall be lawful for the governors authorized or appointed to regulate and superintend the bounty given by her late majesty Queen Anne, for the augmentation of the maintenance of the poor clergy, to advance and lend out of the money which has arisen or shall from time to time arise from that bounty, for promoting and assisting the purposes of this act, any sum not exceeding the amount hereby authorized to be raised upon such mortgage and security as aforesaid, and subject to the several regulations of this act, and to receive interest for the same not exceeding four pounds for one hundred pounds by the year" (p). By 17 Geo. 3, c. 53, s. 13, "It shall and may be lawful for any college or hall, within the universities of Oxford and Cam- bridge, or for any other corporate bodies possessed of the patronage of ecclesiastical livings or benefices, to advance and lend any sum or sums of money of which they have the power of disposing, in order to aid and assist the several purposes of this act, for the building, rebuilding, repairing, or purchasing of any houses or buildings for the habitation and convenience of the clergy upon livings or benefices under the patronage of such college or hall, upon the mortgage and security directed by this act for the repayment of the principal, without taking any interest for the same." By 1 & 2 Yict. c. 23, s. 5, " And it shall be lawful for any col- lege or hall within the universities of Oxford or Cambridge, or for any other corporate bodies possessed of the patronage of eccle- siastical benefices, to advance and lend any sum or sums of money of which they have the power of disposing in order to aid and assist the several purposes of this act, for the building, rebuilding, repairing, or purchasing of any houses or buildings for the habitation or convenience of the clergy, or sites for such houses and buildings, upon benefices in the patronage of such colleges or halls respectively, upon the mortgage and security directed by this act for the repayment of the principal, without taking any interest for the same." And by 1 & 2 Yict. c. 106, s. 73, " It shall be lawful for any college or hall within the universities of Oxford and Cambridge, (p) But they must sue out a se- questration for the instalments in their corporate name, and not in the name of their treasurer : see Bluck v. Hodgson, 5 N. of C, p. 167; 11 Jur. p. 191 (1847). RESIDENCE HOUSES. 1139 or for any other corporate bodies possessed of the patronage of may lend any ecclesiastical benefices, to advance and lend any sum or sums of i^resTto^ald money of which they have the power of disposing in order to the execution aid and assist the several purposes of this act for the building, of that act. rebuilding, repairing, or purchasing of any houses or buildings for the habitation and convenience of the clergy upon benefices under the patronage of such college or hall, upon the mortgage and security directed by this act for the repayment of the prin- cipal, without taking any interest for the same." By 35 & 36 Yict. c. 96, s. 1, " As to loans made under the provi- 35 & 36 Vict, sions of the acts," 17 Geo. 3, c. 53, 21 Geo. 3, c. 66, 7 Geo. 4, c. 66, c- 96. 1 & 2 Yict. c. 23, 28 & 29 Yict. c. 69, " it shall be lawful for Powers of the governors " [of Queen Anne's Bounty]], " with the stipulated ien^th°of consent of the bishop and patron, if they think fit, to vary the mortgage length of the mortgage term for all new mortgages by making terms- the term for the payment of the loan shorter than is directed by the said acts ; and the governors, with the stipulated consent of Loans by the bishop and patron, are also authorized, if they think fit, to of Vq™^ lend any sum that may be required for the purposes of, and they Anne's may also from time to time vary the form of the deed of security bounty, prescribed by " the acts aforesaid. " Provided always, that it shall not be lawful for the governors to allow a benefice to be mortgaged to them for any or all of the purposes of any of these acts, to an amount exceeding in the whole three years' net income of such benefice " (q). By 44 & 45 Yict. c. 25, s. 1, " The governors .... may, u & 45 Vict, by resolution passed by them at a board meeting, from time to c- 25- time extend for a period not exceeding three years the term ^°ve™°eSd fixed for the repayment of any money lent by them to or for ™mg forer^_ the incumbent of any benefice under the powers of one or more payment, of the acts enumerated in the schedule hereto, such extension of term to be accompanied, at the discretion of the governors, by the suspension for one, two, or three years of the payment of the annual instalment of principal due or to become due from the incumbent ; such suspended annual instalments to be sub- sequently payable by the incumbent for the time being in respect of the year or years which by the aforesaid extension shall have been added to the term created by the mortgage affected thereby, and begin to accrue due as soon as the residue of the principal money shall have become repayable." Sect. 2. " The discretionary powers given by this act shall not be exercisable beyond three years from the passing hereof. ..." By 49 & 50 Yict. c. 34, s. 1, as amended by 50 & 51 Yict. 49 & 50 Vict, c. 8, s. 2, " The governors .... when the income of a benefice °- y-'t50 & has been materially diminished by the reduction in letting value p^erin^ §' of any glebe land, may, by resolution passed by them at a board tain cases to meeting before the 31st day of December, 1887, at their dis- reduce annual cretion, with the previous consent of the patron, extend the b^ex^ndino- (?) Vide infra, Chap. V., Sect. 2. mortgage term. 1140 PROPERTY OF THE CHURCH. 50 & 51 Vict, c. 8. Other pro- visions as to extension of terms. 44 & 45 Vict, c. 25. Schedule of acts affected, 49 & 50 Vict, c. 34. 49 & 50 Vict, c. 54. Power to modify mort- gages. Consent of patrons under above three acts. term fixed for the repayment of any money lent by them to of for the incumbent of any such benefice before the 1st January, 1881, under the powers of one or more of the acts enumerated in the schedule hereto, such extended time to be added to the term created by the mortgage affected thereby, that is to say, [by extending such term for any period not exceeding twenty years, so that by such extension the amount of the annual instalments payable in respect of the loan shall be reduced as from the day of the annual payment due next before the date of the resolution to be passed in respect of such bene- fice (r).] The date of any such resolution, the term of extension, and the altered rate of payment or of instalments, shall be endorsed on the respective mortgage deeds free of charge to the incumbent." By 50 & 51 Yict. c. 8, s. 2, " . . . . Such extension may be granted, notwithstanding the original term may have been before extended. Provided that the whole term of the two extensions shall not exceed in any case twenty years. And in the case of any extension of the time for the payment of instal- ments, the term of years for which the possessions of the benefice are mortgaged shall be enlarged to the like extent." The schedule to 44 & 45 Yict. c. 25 enumerates 17 Geo. 3, c. 53, 21 Geo. 3, c. 66, 7 Geo. 4, c. 66, 1 & 2 Yict. c. 23, 1 & 2 Yict. c. 106, 28 & 29 Yict. c. 69, 34 & 35 Yict. c. 43, 35 & 36 Yict. c. 96. The schedule to 49 & 50 Yict. c. 34 has the same acts, with 44 & 45 Yict. c. 25 added. By 49 & 50 Yict. c. 54 (The Extraordinary Tithe Eedemp- tion Act, 1886), s. 12, " When it shall appear to the governors .... that the income of any benefice on which a mortgage to the said governors exists has been diminished by the opera- tion of the act, it shall be lawful for the said governors, by re- solution of their board on the application of the incumbent, with the consent of the patron, to make such modification in the conditions of such mortgage, or the term fixed for the repayment of the principal secured thereby, as may seem to them just and reasonable. The date of any such resolution, the term of extension, and the altered rate of payments or of instal- ments, shall be endorsed on the respective mortgage deeds free of charge to the incumbent. ..." As to the consent of patrons to the execution of the provisions of the above statutes, Sects. 14, 20 of 17 Geo. 3, c. 53 ; sects. 10, 12 of 1 & 2 Yict. c. 23 ; and sects. 125 to 128 of 1 & 2 Yict. c. 106, contain provi- sions for determining who is the patron for the purposes of those acts, and how the consent of such patron, being the crown, a minor, idiot, lunatic or feme covert, shall be given and testified. (r) The words in brackets come from 50 & 51 Vict. c. 8. RESIDENCE HOUSES. 1141 By 17 Greo. 3, c. 53, s. 17, " Where the incumbent of any 17 Geo. 3, chapelry or perpetual cure shall be nominated by the rector or c- 53- vicar of the parish wherein the same is situated, in every such J^g1^11 case the consent of such rector or vicar, together with the con- genTof the°n" sent of the patron of such rectory, shall be necessary in all such patron of the matters wherein the consent of the patron is required by the rectory j. .. » ,i . , „ L 1 ^ necessary. former provisions ot this act. J The sections in 1 & 2 Yict. c. 106, referred to above as to l & 2 Vict, patrons and consents, are as follows : — c* 106, Sect. 125. "In every case in which the consent of, or the exe- Who to be cution of any deed or deeds, instrument or instruments by the consldered patron of any cathedral preferment or of any benefice, sinecure pa ron* rectory, or vicarage, or the owner or impropriator of any lands, tithes, tenements, or hereditaments, is required for carrying into effect any of the purposes of this Act, and also in every case in which it may be necessary to give any notice to any such patron for any of the said purposes, the consent or execution by or notice to the patron or person entitled to make donation or present or nominate to such cathedral preferment, benefice, sine- cure rectory, or vicarage, in case the same were then vacant, or the person or persons who shall be in the actual possession, receipt, or perception of the rents, proceeds, or profits of such lands, tithes, tenements, or hereditaments, for any estate or interest not less than an estate for life, shall respectively be sufficient." Sect. 126. " In any case in which the consent of the patron How consent of any benefice shall be required to the exercise of any power £fs^J^n to be given by this act, or in which any notice shall be required by where p'atron- this act to be given to the patron of any benefice, and the age in the patronage of such benefice shall be in the crown, the consent of Crown- the crown to the exercise of such power shall be testified, and such notice shall be given respectively in the manner hereinafter mentioned ; (that is to say,) if such benefice shall be above the yearly value of twenty pounds in the queen's books, the instru- ment by which the power shall be exercised shall be executed 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 chan- cellor, 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." Sect. 127. " In any case in which the consent of the patron How, where person is an 1142 PKOPERTY OF THE CHURCH. incapacitated person. How, where patronage is attached to the duchy of Cornwall. 19 & 20 Vict, c. 50. As to the con- sent of parish- ioners who are patrons. 17 Geo. 3, c. 53. Dilapidation moneys. 1 & 2 Vict, c. 106. 34 & 35 Vict, c. 43. Conversion of useless resi- dence-houses. Grant of sites. of any benefice shall be required to the exercise of any power given' by this act, and the patron of such benefice shall be a minor, idiot, lunatic, or feme covert, it shall be lawful for the guardian 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." Sect. 128. " 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 any notice shall be required by this act to be given to the patron of any benefice, and the advowson and right of patronage of such benefice shall be part of the possessions of the duchy of Cornwall, the consent of the patron of such benefice to the exercise of such power shall be testified and such notice sball be given respectively in the manner hereinafter mentioned; (that is to say), the instrument by which the power shall be exercised shall be executed by and any notice shall be given to the Duke of Cornwall for the time being, if of full age, but if such benefice shall be within the patronage of the crown in right of the duchy of Cornwall, such instrument shall be executed by and any such notice shall be given to the same person or persons who is or are by this act authorized to testify the consent of the crown to the exercise of any power given by this act in respect of any benefice in the patronage of the crown ; 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." By 19 & 20 Yict. c. 50, s. 15, parishioners and others forming a numerous class, who are patrons of a living, may give their consent at a meeting called under the provisions of that act, as patrons for the purposes of those acts (s) . As to money recovered for dilapidations. By 17 Geo. 3, c. 53, s. 9, all money received for dilapidations was to be applied in part of the payments under the estimate for rebuilding made in pursuance of that act, or in making additional buildings and improvements. An almost identical provision is contained in 1 & 2 Yict. c. 106, s. 69. These provisions have been, however, practically superseded by the enactments in The Ecclesiastical Dilapidations Act, 1871, 34 & 35 Yict. c. 43 (t). The power of converting useless residence-houses into farm buildings, etc., given by 1 & 2 Yict. c. 23, s. 6, will be noticed hereafter (u) . As to grants of land or money for residence-houses. (s) Vide supra, pp. 282—285. (m) Vide infra, Part V„ Chap. VI., (t) Vide infra, Part V., Chap. V, Sect, 2, RESIDENCE HOUSES. 1143 17 Geo. 3, c. 53, enacts by sect. 21, as follows : — " And it shall 17 Geo. 3 53. and may be lawful for any archbishop or bishop of any diocese, and also for any ecclesiastical corporation sole or aggregate, being ^fors which lord or lords of any manor within which there shall be any waste or contain any common lands, parcel of the demesnes of such manor, lying con- waste lands venient for the house and buildings, and other the purposes of the^urposes^ this act, to grant a part or parts of such waste or common lands Gf that act, in perpetuity for the several purposes of this act, leaving suffi- may grant a cient common for the several persons having right of common perpe^uiy3,!^ upon such wastes or commons, and obtaining the consent of the lessee of such lands, if the same shall be in lease." The provisions in 43 Geo. 3, c. 108, and 51 Geo. 3, c. 115, Powers under enabling persons, by deed inrolled or by will, to give lands other statutes, not exceeding five acres, or chattels not exceeding in value 500/., for the purpose, inter alia, of supplying mansion houses with glebes for the residence of ministers officiating in churches and chapels, and further enabling any lord of the manor to grant land not more than five acres of the waste of the manor for the same purposes, will be noticed more particularly here- after^). Reference should also be made to the provisions of 28 & 29 Vict. c. 69, noticed in a later chapter (y), enabling persons under disability to sell or give lands to the governors of Queen Anne's Bounty for residence-houses, gardens, &c. Sect. 3. — Of Bishops, Deans and Canons. The 18th section of 4 & 5 Yict. c. 39, which repeals a former 4 & 5 Vict, provision of sect. 58 of 3 & 4 Yict. c. 113, on the same subject, c- 39- and also a clause of 2 & 3 Will. 4, ch. x., relating to the annexa- Disposal of tion of a house of residence to the archdeaconry of Durham, housed of enacts that, "... the dean and chapter of any cathedral or col- bishops, legiate church, with the consent of their visitor, may from time deans, canons, to time sanction and confirm the exchange of houses of residence, c* or of houses attached to any dignities, offices, or prebends in the precincts of such church, among the canons of such church, or may make any such arrangement to take effect at any future time, or may assign any one of such houses being vacant to any canon willing to accept the same in lieu of the house theretofore occupied by him, and thereupon any house no longer required by any canon may by the said dean and chapter be disposed of, in such way as they shall deem fit, with the consent of their visitor, and of the ecclesiastical commissioners for England, signified under their common seal." By 5 & 6 Yict. c. 26, s. 7, the provisions as to disposal may 5 & q yict. be applied where there has been no exchange. c. 26. x) Vide infra, Part IX., Chap. (*/) Vide infra, Part V., Cliap. VI., Sect. 2. 1144 PROPERTY OF THE CHURCH. 3 & 4 Vict, c. 113. Application of 1 & 2 Vict, c. 23, to resi- dence-houses of deans and canons. 6 & 7 Will. c.77. Bishop's houses. Mortgages under 2 & 3 Vict. c. 18. 5 & 6 Vict, c. 26. Episcopal house may in certain cases be taken down and sold, or may be rebuilt or altered. 3 & 4 Yict. c. 113, s. 59, enacts that, " It shall be lawful for the ecclesiastical commissioners to authorize any dean or canon of any cathedral church to raise monies on his deanery or canonry, for the purpose of building, enlarging, or otherwise improving the residence-house thereof, on such terms and conditions as the said commissioners, with the concurrence of the bishop and the chapter, shall approve ; and all the provisions of " [1 & 2 Yict. c. 23] " shall be applied, mutatis mutandis, to all such cases in which any dean or canon shall be authorized as aforesaid to raise monies on his deanery or canonry for the purpose afore- said." 6 & 7 Will. 4, c. 77, recites that the commissioners under that act recommended that " fit residences be provided for the Bishops of Lincoln, Llandaff, Kochester, Manchester, and Bipon ; " and that, " for the purpose of providing the bishop of any diocese with a more suitable and convenient residence than that which now belongs to his see, sanction be given for purchases or exchanges of houses or lands, or for the sale of lands belonging to the respective sees, and also, where it may be necessary, for the borrowing by any bishop of a sum not exceeding two years' income of his see, upon such terms as shall appear to be fit and proper ; " and that " the governors of the bounty of Queen Anne be empowered to lend money upon mort- gage to such bishops," and enables schemes to that effect to be made. 2 & 3 Yict. c. 18, the next act passed on this subject, was repealed by 5 & 6 Yict. c. 26 ; but all mortgages made under it are not affected by the repeal. By 5 & 6 Yict. c. 26, the existing statute, it is provided as follows : — Sect. 1. " Whenever it shall appear to be expedient to relieve any bishop having more episcopal houses of residence than one from any of such houses, or to provide any bishop with a more convenient house of residence or to add to, alter, improve, or take down and rebuild any episcopal house of residence, or to improve the demesnes thereof, it shall be lawful, by the autho- rity provided in" [6 & 7 Will. 4, c. 77] (a), "with the consent, under the hand and episcopal seal of the bishop, to make such arrangements as may by such authority be deemed most expe- dient, for selling and conveying to such person or body corporate, and for such consideration as may be approved by the like authority, any episcopal house of residence then belonging to the see of such bishop, or for taking down the same or any part thereof, and selling the site or the materials thereof (as the cir- cumstances may render expedient) ; or for adding to, altering, improving, or taking down and rebuilding any episcopal house of (z) That is, the ecclesiastical com- in council thereon. Vide supra, missioners, submitting a scheme to p. 27. the Queen in council, and the order RESIDENCE HOUSES. 1145 residence ; or for improving the demesnes adjoining to any such house by the purchase of any land, tenement or hereditament in the immediate neighbourhood or within the view thereof ; or for building a new episcopal house of residence for any see on any site to be approved by the like authority ; and for applying the proceeds of any such sale as aforesaid, or any part thereof, to any of such purposes, or to any such other purposes, and in such manner as shall appear to be most conducive to the permanent benefit of the see ; and so much of the said act as relates to the Provisions of providing of any bishop with a more suitable and convenient * ^j1- 4> residence, shall be extended so as to include and apply to any of maae' appiic- the purposes of this act." able thereto. Sect. 2. " In any scheme which shall be laid before her Commis- maiesty in council by the Ecclesiastical Commissioners for si°ners to England under this act, recommending any arrangement for reasons for the taking down or selling any episcopal residence, or changing the alteration, site thereof, the said commissioners shall set forth particularly the grounds and reasons upon which they deem it expedient to offer such recommendation." Sect. 5. "It shall be lawful for the dean and chapter, or for Chapters, the dean, or for any canon of any cathedral church, under the deans and authority aforesaid, to purchase any episcopal house of residence purchase and sold under the provisions of this act, or the site of any such alter, take house, or any other house or site, being contiguous or near to ^buttd* such cathedral church, or any part of such house or site, and to add to, alter or improve any such house or to take down the same, and to build another house or more houses than one upon the site thereof, or to apply the site of any such house, or any part thereof, by and with the authority aforesaid, to the im- provement of the cathedral, or the precincts thereof ; and so Provisions of much of " [3 & 4 Vict. c. 113] " as relates to the raising of monies 3 & 4 Vic*- by any dean or canon for the purpose of building, enlarging made applfc- or otherwise improving the residence-house of his deanery or able thereto, canonry, shall be extended so as to make lawful the raising of monies, in the manner and with the authority therein provided, by any dean and chapter, dean or canon, for any purpose of this act." Sect. 6. " Any house so purchased by the dean and chapter, Episcopal dean or canon, of any cathedral church, or any house erected house may bo upon any site so purchased, may, by the authority aforesaid, deate^yor a and with the consent of the dean and chapter, be made the canonical deanery, or the house of residence for any canon of such church ; nouse- and the house theretofore occupied as the deanery, or any house no longer required as the house of residence of any canon, may be so applied or disposed of, as may by the same authority and with the like consent be determined on." By sect. 8, the purposes of this act are to be within the pro- visions of 3 & 4 Yict. c. 113, s. 68 (a). (a) Yide supra, p. 185. 1146 PROPERTY OF THE CHURCH. Fixtures. Insurance. Purchase from persons under disability. 38 & 39 Vict, c. 34. Sale of Winchester House. By sects. 9, 10, pictures, books, or other goods and chattels in any house sold or taken down may be sold, or removed to the new house, and provision is made for certain fixtures, fittings, and other articles being catalogued and made part of the free- hold and irremoveable. By sect. 11, provision may be made directing that any resi- dence-houses bought, built or improved under the act shall be insured against fire (/;). By sect. 12, corporations and persons having a limited interest or under disability may sell lands for the purposes of that act, the amount to be paid into the bank of England in the name and with the privity of the accountant-general of the Court of Chancery (c), if over 200/., with other provisions similar to those contained in the Lands Clauses Consolidation Act, 1845 (8 & 9 Yict. c. 18). By the Bishopric of St. Albans Act, 1879 (38 & 39 Yict. c. 34) , reciting that for the reasons therein mentioned the Bishop of Winchester had assented to the sale of the episcopal residence in London attached to the bishopric of Winchester, the Eccle- siastical Commissioners were directed to sell " the episcopal resi- dence attached to the bishopric of Winchester, and situate in the liberties of Westminster, and carry over the proceeds, after deducting the expenses thereof, to the St. Albans Bishopric Endowment Fund" (d). (b) Vide infra, Part V., Chap. V. (d) 38 & 39 Vict. c. 34, s. 2. (c) Now the Paymaster-General. Vide supra, p. 28. ( H47 ) CHAPTEE III. TITHES AND RENT-CHARGE. Sect. J. — Introductory. 2. — Of what tilings Tithes were paid. 3. — Recovery of Tithes before Commutation. 4. — The Tithe Commutation Acts. 5. — Rent-charge substituted for Tithe. 6. — Lammas Lands, Commons in Gross, Gated or Stinted Pastures. 7. — Fruit and Hop Plantations. 8. — Exemption of small Gardens and Tenements. 9. — Personal, House, and Mineral Tithes. 10. — Incidents to Tithe and Pent-charge. 11. — Tithe and Pent-charge exchanged for Land. 12. — Redemption of Rent-charge. 13. — Merger of Rent-charge. 14. — Former Mode of recovering Rent-charge. 15. — Recover)/ under the Tithe Act, 1891. 16. — Tithes in City of London. 17. — Corn Rents under Local Acts. 18. — Tithe Commission and Board of Agriculture. — ♦ — Sect. 1. — Introductory. It is not proposed to discuss the origin of the tithes in England. Summary of A very full treatment is given to the subject by Lord Selborne (a) . h-lstorJ- It is enough to say that the payment of tithes was compelled by ecclesiastical censures, enforced by the writ de excommunicato capiendo; that, at least from a.d. 1200, statutory authority for their payment was given first by 27 Hen. 8, c. 20, and 32 Hen. 8, c. 7 ; then by 2 & 3 Edw. 6, c. 13 ; that they were for the most part converted into rent- charges upon the land recoverable from the occupier by 6 & 7 Will. 4, c. 71, and several acts amending and extending that Act ; and that finally the rent- charge has been put directly upon the owner of the land by 54 & 55 Yict. c. 8. These acts will be more fully dealt with in this chapter. («) Ancient Facts and Fictions Tithes in England by GL Edwardes concerning Churches and Tithes. Jones. See also History of the Law of P. VOL. II. 4 F 1148 PROPERTY OF THE CHURCH. Division of tithes into prsedial, mixt and personal : Prsedial. Mixt. Personal. Division of tithes into great and small tithes. Tithes re- strained to the proper parish. Portion of tithes within another parish. Tithes, with regard to the several kinds or natures, were divided into prsedial, mixt and personal. Prsedial tithes were such as arise merely and immediately from the ground ; as grain of all sorts, hay, wood, fruits, herbs (b) . Mixt tithes were those which arise not immediately from the ground, but from things immediately nourished by the ground, as by means of goods depastured thereupon, or otherwise nourished with the fruits thereof; as colts, calves, lambs, chickens, milk, cheese, eggs (c). Personal tithes were such profits as do arise by the honest labour and industry of man, employing himself in some per- sonal work, artifice, or negociation ; being the tenth part of the clear gain, after charges deducted (d). Tithes, with regard to value, were divided into great and small. Great tithes ; as corn, hay and wood (e) . Small tithes ; as the prsedial tithes of other kinds, together with those which are called mixt, and personal (/) . But it is said, that this division might be altered by custom, which will make wood a small tithe. It is not, however, altered by quantity, i.e., a small tithe is not turned into great, if the parish is generally sown with it ; nor by change of place, the same things, as hops, being in gardens small tithes, and in fields the same (g). It is said by Lord Coke and many others, Dr. Prideaux taking a contrary view (h) , that before the Council of Lateran in the year 1180, a man might have given his tithes to what church or monastery he pleased. Be that as it will, it is certain that now tithes of common right do belong to that church, within the precincts of whose parish they arise. This regulation corresponding with the ancient law of the land, was thought by Lord Coke to be enjoined by a decretal epistle of Innocent III. to the Archbishop of Canterbury in the year 1200 (i). Yet notwithstanding, one person may prescribe to have tithes within the parish of another, and this is what is called a portion of tithes (k). One reason of which might be, the lord of a manor's having his estate extending into what is now apportioned into distinct parishes ; for there were tithes before the present distribution of parishes took place. 'b) Wats. c. 49, p. 548. • Ibid. (d) Ibid. (e) Legge, pt. 2, c. 1. (/) Gibs. p. 663. (g) Gibs. p. 663; Wats. c. 39, p. 402 ; Wharton v. Lisle, 4 Mod. p. 184 ; Smith v. Wyat, 2 Atk. 364, a case as to potatoes. (h) Prideaux on Tithes, p. 302, edit. 2, pp. 198—201. (i) 2 Inst. p. 641 ; see 2 Black. Com. p. 27 ; Lord Selborne, An- cient Facts and Fictions concerning Churches and Tithes, p. 142 ; His- tory of the Law of Tithes in England, by G. Edwardes Jones, p. 60. (k) Gibs. p. 663. TITHES AND RENT-CHARGE. 1149 But whatever origin these portions might have, they were in law so distinct from the rectory, that if one who had them pur- chased the rectory, the portion was not extinct, but remained grantable ; but as to the cognizance thereof, the case being be- tween parson and parson, and concerning a spiritual matter, that belonged, like the cognizance of other tithes, to the ecclesiastical court (/). If a portion of tithes were possessed for 150 years, or such a length of time as to make the right doubtful, a court of equity would not assist the plaintiff, who as rector, claimed tithe on lands occupied by the defendants, by directing an issue, but he must have established his right at law (m) . Where a portion of tithes had been possessed for 250 years by the owners of the lands, the court presumed a grant of them before 13 Eliz. c. 10, though tithes were not specifically mentioned in the title deed, under which the lands were claimed (n). Tithes extra-parochial (o) , or within the compass of no certain Tithes in parish, belong to the crown. By the canon law, they were to ^a^aces be disposed of at the discretion of the bishop ; but, by the law of c a p aces* England, all extra-parochial tithes, as in several forests, do belong to the king, and may be granted to whom he will ; and, accordingly, they have been actually adjudged to him, not only by several resolutions of law, but also in parliament, in the case of the prior and bishop of Carlisle, in the 18 Edw. 1, concerning tithes in Inglewood Forest, that the king in his forest aforesaid may build towns, assart lands (or make them fit for tillage), and confer those churches, with the tithes thereof, at his pleasure, upon whomsoever he pleases ; because that the same forest is not within the limits of any parish Q?). By custom, however, a parson or vicar might be entitled to the tithes of extra-parochial lands (q). By 2 & 3 Edw. 6, c. 13, s. 3, every person having any cattle 2 & 3 Edw. 6, tithable depasturing on any waste or common ground whereof c* 13- the parish is not certainly known, was to pay their tithes for the increase of such cattle to the parson, vicar, &c, of the parish (?) Ibid. 2 E. & Y. p. 494; Bp. of Carlisle {m) Scott v. Airey, 1779, cited in v. Blain, 1 Y. & J. p. 123 ; Pritchett 1 Anst. p. 311. y. Honeyhoarne, 1 Y. & J. p. 135; (») Oxenden v. Skinner, 4 Gwill. Wyld v. Ward, 3 Y. & J. p. 192 ; p. 1513; see further on this sub- Lewis v. Bridgman, 2 CI. & Fin. ject, Dean and Chapter of Bristol's p. 738 ; Lewis v. Young, 3 E. & Y. Case, 1 E. & Y. p. 51; Sir E. p. 1135. Coke's Case, nomine Sir Edward (o) By common law even extra- Cooke's Case, 2 Roll. p. 161 ; 1 E. parochial places were not exempt & Y. p. 314 ; Fatter v. Borome, 1 E. from tithes : Page v. Wilson, 2 J. & & Y. p. 86 ; Downes v. Moorernan, W. pp. 513, 528. 1 E. & Y. p. 803 ; Hungerford v. (p) 1 Roll. Abr. p. 657 ; 2 Inst. Eowland, 1 E. & Y. p. 108: WoUey p. 647. See Parry v. Ilervey, 4 v. Piatt, M'Cl. p. 468; 3 E. & Y. Gwill. p. 1490. p. 1167 ; Boulton v. Richards, 9 (q) Com. Dig. Dismes (C. 3) ; T. Price, p. 671 ; 3 E. & Y. p. 1068 ; 11 Hen. 4 ; 1 E. & Y. p. 29. Pellatt v. Ferrars, 2 B. & P. p. 542 ; 4 f 2 1150 PROPERTY OF THE CHURCH. where the owner of the cattle dwells (r). Tithes of agistment for. cattle fed upon the common were not within this statute (s) . Sect. 2. — Of what things Tithes were paid. Things that Of common right, tithes were to be paid for such things only renew yearly. ag do yieU ft yearlj increase by tte act 0f Qod Yet this rule admitted of some exceptions : as, for instance, tithe was due of saffron, though gathered but once in three years ; and concerning sylva ccedua, there is an entry in the register, that consultations shall be granted thereof, notwith- standing that it is not renewed every year(w). But "great wood of the age of twenty years or of greater age " was not tithable (x). Generally, of things increasing yearly, tithes were to be paid only once in the year (y). Of common right, no tithes were to be made of quarries of stone or slate, for that they are parcel of the freehold, and the parson had tithe of the grass or corn which grew upon the surface of the land in which the quarry is ; so, also, not for coal, turf, flags, tin, lead, brick, tile, earthen pots, lime, marie, chalk, and such like, because they are not the increase, but of Once in the year. Things of the substance of the earth. (r) 2 Inst. p. 650. (s) Ellis v. Saal, 1 Anst. p. 332 ; 2 E. & Y. p. 360; and generally, on the subject of extra-parochial places, see Page v. Wilson, 2 J. & W. pp. 513—528 ; Att.-Gen. v. Lord Fardley, 3 E. & Y. p. 986 ; Banister v. Wright, Sty. p. 137 ; 1 E. & Y. p. 404 ; Williams v. Pecke, 3 E. & Y. p. 1237 ; Att.-Gen. v. Oldys, 1 E. & Y. p. 564 ; Compost v. , 1 E. & Y. p. 437 ; Morant v. dim- ming, Cro. Car. p. 94 ; 1 E. & Y. p. 359. (t) Wats. c. 46, p. 495; 1 RoU. Abr. p. 641. Dr. Burn's work con- tained the following catalogue of the several particulars tithable : — 1, Corn and other grain, as beans, peas, tares, vetches ; 2, Hay and other like herbs and seeds, as clover, rape, wood, broom, heath, furze; 3, Agistment or pasturage ; 4, Wood ; 5, Flax and hemp ; 6, Madder ; 7, Hops ; 8, Roots and garden herbs and seeds, as turnips, parsley, cab- bage, saffron, and such like ; 9, Fruits of trees, as applies, pjears, acorns ; 10, Calves, colts, kids, pigs ; 11, Wool and lambs ; 12, Milk and cheese ; 13, Deer and conies; 14, Foivl ; 15, Bees; 16, Mills, fishings, and other personal tithes. It will be seen below that fishing and other per- sonal tithes are not necessarily in- cluded under the operation of the Tithe Commutation Acts, 6 & 7 Will. 4, c. 71, s. 90, and 2 & 3 Yict. c. 62, s. 9. (u) Gibs. p. 669. (x) 45 Edw. 3, c. 3. There is a various reading of forty for twenty years. (y) Gibs. p. 669, thinks this rule not universally true, and quotes from the canon law a decree of Clement III. to be found in X. iii. 30, 21. But the complaint there made is for sowing different seeds in the same ground, and paying- tithes of the produce of one only, and not for refusing to pay diffe- rent tithes of the produce of the same seed; so that the authority does not support the position. Tithes of clover, however, seem to have been paid more than once a year. TITHES AND RENT-CHARGE. 1151 the substance of the earth. And the like has been resolved of houses (considered separately from the soil), as having no annual increase. But, by particular custom, tithes of any of these might be payable (s). By the common law of England, there was no tithe due for Things fera things that are ferce naturae, and therefore it has been resolved, natur(B- that no tithe shall be paid for fish taken out of the sea, or out of a river, unless by custom, as in Wales, Ireland, Yarmouth, and other places ; neither, for the same reason, w'as any tithe due of deer, conies, or the like. But if the tithe thereof were due by custom, it must be paid (a) . No tithe was due for fowls or eggs of fowls in a decoy (6), or Things tame, for hounds, or for animals kept for pleasure or curiosity. By 2 & 3 Edw. 6. c. 13, s. 5 (c), "All such barren heath or 2 & 3 Edw. 6, waste ground, other than such as be discharged from the pay- c- 13, ment of tithes by act of parliament, which before this time have Barren land- lain barren, and paid no tithes by reason of the same barrenness, and now be or hereafter shall be improved and converted into arable ground or meadow, shall, from henceforth, after the end and term of seven years next after such improvement fully ended and determined, pay tithe for the corn and hay growing upon the same." Sect. 6. ''Provided always .... That if any such barren, waste or heath ground hath before this time been charged with the pay- ment of any tithes, and that the same be hereafter improved or converted into arable ground or meadow, that then the owner or owners thereof shall, during seven years next after the said improvement, pay such kind of tithe as was paid for the same before the said improvement" (d). As lands which were in no parish paid tithes to the king, so Forest land, lands lying within the precincts of a forest (though also in a parish), if they were in the hands of the king, paid no tithes. And this privilege extended to the king's lessee, but not to his feoffee. But if the forest were disafforested, and within any parish, then they had to pay tithes in the hands of the king's lessee (e). It has been questioned, where a park has paid a modus, and Park, is disparked, whether the modus shall continue or be discharged, and tithes paid in kind ; and all the books are clear, that if the modus was a certain consideration in money for all the tithes of such a park, such modus shall hold, notwithstanding it be dis- (z) Tide infra, sect. 9. (a) Degge, pt. 2, c. 8 ; 2 Inst, pp. 651, 664. {b) CameU v. Ward, 1 E. & Y. p. 530 ; 1 Eagle on Tithes, p. 427. (c) See now 50 & 51 Yict. c. 59. (d) These provisions of this act are commented on in 2 Inst. pp. 655, 656; Degge, pt. 2, c. 19; and in the cases of Beardmore v. Gilbert, Bunb. p. 159 ; StockweU v. Terry, 1 Yes. p. 115; Anon., 1 Keb. p. 253. (e) Bohun, Law of Tithes, pp. 163, 177 ; Gibs. p. 680. 1152 PROPERTY OF THE CHURCH. parked ; but if the modus was for the deer and herbage of such a park, the modus is gone upon disparking (/). In like manner, if the modus has been to pay a buck and a doe for all the tithes of such a park, and the park is disparked, the modus shall continue, and the owner may give a buck and a doe out of another park ; but if it was to pay the shoulder of every deer, or expressly a buck and a doe out of the same park, the modus is gone (g) . But where the modus was part in money and part in venison out of the park (namely, two shillings and the shoulder of every deer) , the court was divided ; two being of opinion that the two shillings continued, and that the spiritual court should assign an equitable recompence for the shoulders, according to the number that had been usually paid ; and the other two, that the money and venison making one entire modus, the one being gone, the whole was dissolved (h). Glebe land. Glebe lands in the hands of the parson did not pay tithe to the vicar, though endowed generally of the tithes of all lands within the parish ; nor, being in the hands of the vicar, did they pay tithe to the parson; and this is according to the known maxim of the canon law, that the church shall not pay tithes to the church (?'). Non enim Levitce a Levitts decimas aecepisse leguntur (j). But this exemption did not extend to the lessee or feoffee of the vicar (k) . But if the vicar were specially endowed of the small tithes of the glebe lands of the parsonage, then he had them, though they were in the hands of the appro- priator (/). If a parson leased his glebe lands, and did not also grant the tithes thereof, the tenant had to pay the tithes thereof to the parson (m) . And if a parson let his rectory, reserving the glebe lands, he had to pay the tithes thereof to his lessee (n) . Sect. 43 of 6 & 7 "Will. 4, c. 71, provides the mode of fixing a contingent rent- charge on glebe not in the hands of the owner. Sect. 6 of 2 & 3 Yict. c. 62, provides for the merger of such contingent rent-charge in land. Abbey land. All abbots and priors and other chief monks originally paid tithes as well as other men, until Pope Paschal II. exempted generally all the religious from paying tithes of lands in their (/) Gibs. p. 684; Wats. c. 47, p. 523; Bedingfield v. Feake, Mo. p. 909; Mascall v. Price, 1 Roll, p. 176. (q) Gibs. p. 684; Wats. c. 47, p. 523. (A) Gibs. p. 684; Wats. c. 47, p. 523 ; Cowper v. Andrews, Hob. p. 39 ; Mo. p. 863 ; nomine Hooper v. Andrewes, 1 Roll. p. 120; Vicar of Sturton v. Greelley, Savile, p. 3. (i) Blencoe's Case, Mo. p. 910; Harris v. Cotton, Brownl. p. 69; Blinco v. Marston, Mo. p. 457 ; Cro. Eliz. p. 479 ; Blinco v. Barksdale, ib. p. 578. U) X. iii. 30, 2. (k) Harris v. Cotton, Brownl. p. 69 ; 17 Yin. Abr. p. 297. (/) Gibs. p. 661; Degge, pt. 2, c. 2. (m) Degge, pt. 2, c. 2; 1 Roll. Abr. p. 655. (n) Gibs. p. 661. TITHES AND RENT-CHARGE. 1153 own hands. And this continued as a general discharge till the time of King Henry II., when Pope Hadrian IV. restrained this exemption to the three religions orders only of Cistercians, Templars, and Hospitalers; unto which Pope Innocent III. added a fourth, to wit, the Prsemonstratenses. And this made up the four orders which are commonly called the privileged orders ; for that they claimed a privilege to he discharged of tithes by the pope's establishment. Then came the general Council of Lateran in the year 1215, and further restrained the said exemption from tithes of lands in their own occupation to those lands which they were in possession of before that council. But the Cistercians, as it appears, in process of time procured bulls to exempt also their lands which were let to farm ; for the restraining of which practice the statute of 2 Hen. 4, c. 4 (o), 2 Hen. 4, was made ; by which it was enacted, that as well they of the c- 4- said order as all other religious and seculars which should put the said bulls in execution, or from thenceforth should purchase other such bulls, or by colour thereof should take advantage in any manner, should incur a praemunire. So that this statute restrained them from purchasing any such exemptions for the future ; and as to the rest, left their privileges as they were before the said statute ; that is to say, under a limitation to such lands only as they had before the Lateran Council aforesaid ; and it is certain they obtained many lands after that council, which, therefore, were in no wise exempted. And also the said statute left them as it found them, subject to the payment of divers compositions for tithes of their demesne lands made with particular rectors, who con- testing their privileges even under that head, brought them to compound. Which two restraints were also followed by a third at the time of the dissolution ; when as many of them as did not fall under the statute 31 Hen. 8, c. 13, lost their exemptions, 31 Hen. 8, there being no saving clause in the acts of their dissolution or c- 13- surrender to preserve or to revive them. But as to those which were dissolved by 31 Hen. 8, c. 13, it was enacted as follows by sect. 21 of that act ; viz. " Where divers and sundry abbots, priors, and other ecclesiastical governors and governesses of the said late monasteries, abbathies, priories, nunneries, colleges, hospitals, houses of friars, and other religious and ecclesiastical houses and places, have had .... divers and sundry parsonages appropriated, tithes, pensions, and portions, and also were acquitted and discharged of and for the payment and payments of tithes to be paid out or for their said monas- teries, abbathies, priories, nunneries, colleges, hospitals, houses of friars and other religious and ecclesiastical houses and places, manors, messuages, lands, tenements, and hereditaments ;" it is enacted, that " as well the King our sovereign lord, his heirs and (o) Now rep. by 50 & 51 Vict. c. 59. 1154 PROPERTY OF THE CHURCH. successors, as all and every such person and persons, their heirs and assigns," which have or hereafter shall have any of the said monasteries, abbathies, priories, nunneries, colleges, hospitals, houses of friars, or other ecclesiastical houses or places, sites, circuits, precincts, of the same or of any of them, or any manors, messuages, parsonages appropriate, tithes, pensions, portions, or other hereditaments, whatsoever they be, which belonged or appertained or now belong " to any such religious house, shall hold and enjoy as well the said parsonages appropriate, tithes, pensions, and portions of the said monasteries, abbathies, priories, nunneries, colleges, hospitals, houses of friars, and other religious and ecclesiastical houses and places, sites, circuits, precincts, manors, meases, lands, tenements, and other heredita- ments, whatever they be and every of them, according to their estates and titles, discharged and acquitted of payment of tithes, as freely and in as large and ample manner as the said late abbots, priors, abbesses, prioresses, and other ecclesiastical gover- nors and governesses or any of them, had held, occupied, possessed, used, retained, or enjoyed the same or any parcel thereof." By reason of which discharge from tithes of lands which were given to the king by this act, and which were discharged in the hands of the religious, it has been more strictly inquired what were the houses dissolved by this act, than by any other of the acts of dissolution ; which will best appear by the following catalogue. Alien priories. The possession of alien priories was given to the crown by a statute of 2 Hen. 5, in which there were no words to restrain their privileges (p). Catalogue of Monasteries of the yearly value of 2001. or upwards, dissolved by the statute of 31 Hen. 8, c. 13, and by that means capable of being discharged of tithes; in which are the following abbreviations : — Ab. Abbey ; Pr. Priory ; C. Aust. Canons of St. Austin ; Bl. M. Black Monks; Wh. C. White Canons; BeD. Benedictines; G-ilb. G-ilbertines ; Praem. Prseinonstratenses ; Carth. Carthusians ; Mon. Monks ; Clun. Cluniacks ; Cist. Cistertians ; T. in the time of ; Ab. about the year. Monasteries. Order. Founded. Value. Berkshire. £ s. d. Reading Ben T. Hen. 1 1938 14 3 BuslehamAb C. Aust 13 Edw. 3 285 0 0 AbingtonAb Ben 720 1876 10 9 (p) Tenfold v. Groome, 2 J. & W. p. 534 ; 2 E. & Y. p. 536 ; Page v. Wilson, 2 J. & W. p. 513. The number of alien priories is said to have been 146. See An Account of Alien Priories, by J. Nicholls, London, 1797. It was provided by 5 Hen. 4, c. 11, that the farmers, and all manner of occupiers of the manors, lands, tenements, and other possessions of aliens, shall pay their tithes, notwithstanding that the said manors, lands, tenements, and pos- sessions be seised into the king's hands. TITHES AND RENT-CHARGE. 1155 Monasteries. Order. Founded. Value. Bedfordshire. Newnham Pr C. Aust T. Hen. 1 Elmeston Ab Ben T. W. Conq. ... Chicksand Pr { "" j T. W. I Dunstable Ab C. Aust T. Hen. Buckinghamshire Ashrugr Coll C. Aust Cambridgeshire. ThorneyAb Ben 972 Barnewell Pr C. Aust 1092 Cheshire. St. Werburge Ab Ben 1095 Combermeer Ab Cist 1134 Cornwall. Bodmin Pr C. Aust 936 , Launceston Ab C. Aust T. W. Conq. St. Germans Ab C. Aust T. Etbelstan Cumberland. Carlisle Pr C. Aust T. W. Rufus Holme Coltrom Ab Cist 1135 £ *. d. 293 15 11 284 12 11 389 16 6 212 3 5 344 13 3 391 18 2 416 16 4 437 6 8 261 14 6 411 1 1 1 1 256 11 10 LVUO & u 1 1 1 1 225 9 7 270 o 1 1 354 0 11 243 8 0 418 3 4 427 19 3 238 14 5 Derbyshire. DarleyAb C. Aust T. Hen. 2 238 14 Devonshire. FordAb Cist.... 1133 374 10 6 Newnham Ab Cist Ab. 1246 227 7 8 DinkeswelAb Cist 1201 294 18 6 HertlandAb C. Aust T. Hen. 2 306 3 2 Torre Ab Prasm T. Ric. 1 396 0 11 BuckfastAb Cist T. Hen. 2 460 11 2 Plimpton Ab Cist T. Edw. 1 241 17 9 TavestockAb Ben 961 902 5 7 ExonPr Clun T. Hen. 1 502 12 9 Dorsetshire. Abbotsbury Ben Ab. 1016 390 19 2 MiddletonAb Ben T. Ethelstan 538 13 11 TarrentAb Cist By Hen. 3 214 7 9 ShaftonAb Ben 941 1166 8 9 CerneAb Ben T.Edgar 515 17 10 SherburnAb Ben Ab. 370 682 14 7 Durham. St. Cuthbert Ab Ben Ab. 842 1366 10 9 TinmouthPr Ben 397 11 5 Essex. BerkingAb Ben 680 862 12 5 Stratford Langthorne Ab Cist 1135 511 16 3 WalthamAb C. Aust Ab. 1060 900 4 3 WaldenAb Ben 1136 372 18 1 St. OswithAb C. Aust 1120 677 1 2 Colchester Ab C. Aust T. Hen. 1 523 17 0 1156 PROPERTY OF THE CHURCH. Monasteries. Order. Founded. Value. Gloucestershire. £, s. d. Bristol Ab C. Aust T. Hen. 1 670 13 11 HaylesAb Cist 1246 357 7 8 Win ch comb Ab Ben 787 759 11 9 Tewkesbury Ab Ben 715 1598 1 5 Cirencester Ab C. Aust T. Hen. 1 1051 7 1 KingswoodAb Cist 1139 244 11 2 Gloucester Ab Ben 680 1946 5 9 LanthonyPr C. Aust 1136 641 19 11 Hampshire. St. Swithin's Winton Ab Ben 634 1507 17 2 HydeAb Ben By Alfred 865 18 0 WherwellAb Ben By Edgar 339 8 7 Romsey Mon Ben. , 907 393 10 10 TwinhamPr C. Aust Before 1042 312 7 0 BellolocoAb Cist 1024 326 13 2 SouthwickPr C. Aust T. Hen. 1 257 4 4 TichfieldAb Pram T. Hen. 3 249 16 1 Hertfordshire . St. Alban'sAb Ben 755 2102 7 1 Hun tingdonshire. St. Neot's Ab Ben Ab. t. Hen. 1 .... 24111 4 Ramsey Ab Ben 969 1716 12 4 Kent. St. Austin's Cant Ben. 605 1413 4 11 LedisPr C. Aust 1119 362 7 7 FevershamAb Clun 1147 286 12 6 BoxleyAb Cist 1144 204 4 11 RoffenAb Ben 600 486 11 5 Mailing Ab Ben By Edmund 218 4 2 Dertford Ab C. Aust 1372 380 0 0 Lancashire. WhalleyAb Cist 1172 321 9 1 Leicestershire. Leicester Ab C. Aust 1143 951 14 5 CroxdenAb Pram Ab. R. 1 385 0 10 LaundayAb C. Aust T. W. Rufus 399 3 3 Lincolnshire. Lincoln St. Cath. Pr Gilb T. Hen. 2 202 5 0 KirksteedAb Cist 1129 286 2 7 RevesleyAb Cist 1142 217 2 4 Thornton Ab C. Aust 1139 594 17 10 Barney Ab Ben 712 366 6 1 CroylandAb Ben 716 1803 15 10 Spalding Ab Ben 1052 761 8 11 Sempringham Ab Gilb 1148 317 4 1 EpworthMon Cartb 1386 237 15 2 London and Middlesex. St. John Jerusalem Pr 1100 2385 12 8 St. Barth. Smithfield C. Aust 1102 653 15 0 St. Mary Bishopsgate Pr 1187 478 6 6 Clerkenwell Pr Ben T. Stephen 262 19 0 London Minors Ben T. Edw. 1 318 8 5 Westminster Ab Ben T.Edgar 3471 0 2 SionAb C. Aust By Hen. 5 1731 8 4 London, a house of Carth T. Edw. 3 642 0 4 St. Clare witht. Aldg. Mon 1292 418 8 5 St. Mary charter house Carth 1379 736 2 7 St. John Holiwell Bl. M 1318 347 1 3 St. Mary East Smithf. Ab Cist 1360 602 11 10 TITHES AND RENT-CHARGE. 1157 Monasteries. Order. Founded. Value. Norfolk. £ s. d. ThetfordAb Clun 1103 312 14 4 WymundhamAb Ben 1139 211 16 6 HulmoAb Ben By Canute 583 17 0 WesterhamAb Prcem T. Hen. 2 228 0 0 Walsingham Ab C. Aust Ab. t. Stephen 39111 6 Castle-acre Ab Clun 1090 306 11 4 West-acre Ab Clun T. W. Rufus 260 13 7 Northamptonshire. Burg. St. Peter M, Ben j1^^) »" " ° PipewellAb Cist 1143 286 11 8 St. Andrews Pr Clun 1067 263 7 1 SulbyAb Prcem T. Stephen 258 8 5 Northumberland. Tinmouth, a cell to St. Albans, a nunnery 511 4 1 Nottinghamshire. LentonPr Clun T. Hen. 1 329 5 10 ThurgartonPr C. Aust T. Hen. 1 259 9 4 WelbeckAb C. Aust T.Stephen 249 6 3 WarsopPr C. Aust 239 10 5 Bella Valla Pr Carth Ab. 16 Edw. 3 . . . . 227 8 0 NewsteedPr. C. Aust T. Edw. 3 219 18 8 The two last are under value in Dugdale, but thus by Speed. Oxfordshire. Godstow Ab Ben T. Stephen ErneshamAb Ben By Ethelred 441 12 Osney Ab C. Aust T: Hen. 1 Thame Ab Cist T. Hen. 1 256 13 11 Oxford Pr Bef. Conq Dorchester Ab C. Aust 635 Shropshire. Has-hmond Ab C. Aust 1100 LmeshuUAb C.Aust { ^™eda, kg. J Wig-more Ab C. Aust 1172 , Wenlock Pr Clun 1181, or before Salop Ab C. Aust 1081 Hales Owen Ab Prrem T. John Somersetshire. Glassenbury Ab Ben About 300 . . . Brewton Ab C. Aust Ab. t. Conq. . Henton Pr Carth T. Hen. 3 . . . Witharn Pr Carth Br Hen. 2 . . . Taunton Pr C. Aust T' Hen. 1 ... Bath Ab Ben T. Hen. 3 ... Kevnsham Ab C. Aust T. Hen. 1 ... Michelney Ab Ben 740 Buckland Pr Cist T. Edw. 1 . . . 274 5 10 441 12 2 654 10 2 256 13 11 224 4 8 219 12 0 259 13 7 229 3 1 207 2 10 401 0 7 615 4 3 337 15 6 , 3311 7 4 , 439 6 8 248 19 2 . 205 15 0 . 286 8 10 . 617 2 3 . 419 14 3 . 447 4 11 . 223 7 4 Staffordshire. DelaCresAb Cist 1153 227 5 0 Burton-upon-Trent Ben T. Eadred 267 14 3 Croxden Ab Cist — — Suffolk. St. Edmundsbury Ab Ben 1020 1659 13 11 ButleyAb C.Aust 1171 31S 17 2 Sibeton Ab Cist 1150 250 15 7 IxworthPr C.Aust T. W. Conq 2S0 9 5 1158 PROPERTY OF THE CHURCH. Monasteries. Order. Founded. Value. Surrey. £ s. d. MertonPr C. Aust 1414 957 19 5 Shene Pr Carth 1414 777 12 0 ChertseyAb Ben 666 659 15 8 Newark Pr , — — .... 258 11 11 St. Mary Overs Ab C. Aust 1106 625 6 6 BermundseyAb C. Aust 1106 474 14 4 Sussex. Lewes Ab Clun T. W. Ruf 920 4 6 Robert's Bridge Ab Cist. T. Hen. 2 ....... . 248 10 6 BattaileAb Bl. M 1066 987 0 11 Warwickshire. Combe Ab Cist T. Stepb 31115 1 Kenelwortb Ab C. Aust T. Hen. 1 538 19 0 MeryvalAb Cist 1148 254 1 8 Nuneaton Mon Ben T. Hen. 2 253 14 5 Wiltshire. MalmsburyAb Ben Ab. 670 803 17 7 Bradenstock Pr C. Aust T. W. Conq 212 19 3 EdingtonPr C. Aust 1352 442 19 7 Ambresbury Ab Ben 1177 494 15 2 Wilton Ab Ben T. Etbelwolf 601 1 1 Fairley, a cell to Lewes Clun 1125 217 0 4 LaycockAb C. Aust 1232 203 12 3 Worcestershire. MalverneAb Ben 1083 308 1 3 Evesham Ab Ben T. Offa 1783 12 9 PershoreAb Cist — .... 643 4 5 Hales Owen Ab Prsem T. John 282 13 4 BordeslyAb Cist 1138 388 1 1 Yorkshire. St. Mary's York Ab Ben 1088 1550 7 0 Selby Ab Ben T. W. Conq 720 12 10 KiikstalAb Cist 1147 329 2 11 DeRupeAb Cist 1147 224 2 5 Monks Burton Ab Clun Ab. 1186 239 3 6 NostelAb C. Aust T. Hen. 1 492 18 2 PomfraitAb Clun T. W. Conq 237 14 8 GisbournAb C. Aust T. Steph 628 3 4 Whitby Ab Ben T. W. Conq 437 2 9 Montegratias Ab Carth Ab. 1396 323 2 10 NewburgePr C. Aust 1145 367 8 3 BellandAb Cist 1134 238 9 4 KirkhamAb C. Aust T. Hen. 1 269 5 9 MelsaAb Cist 1136 299 6 4 Brilington C. Aust T. Hen. 1 547 6 11 Walton Ab Oilb T. Steph 360 16 10 Bolton in Craven Pr C. Aust T. Hen. 1 212 3 4 RavalAb Cist 1132 278 10 2 JervalAb Cist T. Steph 234 18 5 Fumes Ab Cist 1127 805 16 5 DeFontibus Cist 1132 998 6 8 WarterPr C. Aust T. Hen. 1 221 3 10 Richal — — 351 14 6 Old Maulton Ab — T. Steph 257 7 0 St. Michael near Hull Carth 1377 231 17 3 In Wales. Valle de Sancta Cruce in Den- ) ^ T Edw< j 2H 3 5 bighshire J Strata Florida in Cardiganshire. .Cist, or Clun.. T. W. Conq 1226 6 0 TITHES AND KENT- CHARGE. 1159 At the time of the dissolution, the religious were discharged How the from payment of tithes three several ways ; either by the pope's ^c^^e^ere bulls, or by their order as aforesaid, or by composition : which from prJ^ment discharges would have vanished and expired with the spiritual of tithes, bodies whereunto they were annexed, if they had not been con- tinued by the special clause above mentioned (as it happened to those which were dissolved by the other statutes of dissolution, for want of such clause) . And by the said clause also is created a new discharge, which was not before at the common law, that is, unity of the possession of the parsonage and land tithable in the same hand : for if the monastery at the time of the dis- solution was seised of the lands and rectory, and had paid no tithes within the memory of man for the lands, those lands shall now be exempted from payment of tithe, by a supposed per- petual unity of possession ; because the same persons that had the lands, having also the parsonage, they could not pay tithes to themselves (q). But though by such union the persons so possessed were dis- charged from the payment of tithes, yet the lands were not absolutely discharged of the tithes : for upon any disunion that might happen, the payment of tithes again revived : so that the union only suspended the payment, but was no abso- lute discharge of the tithes themselves. And therefore such union was not to be pleaded as a discharge from tithes, but only as a discharge from the payment of tithes (r) . Sect. 3. — Recovery of Tithes before Commutation. It is not necessary to do more than very slightly mention the old law as to the recovery of tithes. By a constitution of Archbishop "Winchelsea an incumbent Incumbent was compelled to demand his tithes, that they might not be lost bound to to his successors (s). demand- The ordinary course was to bring a suit against the owner Who to be of the property to be tithed ; but this rule had some exceptions sued- in the case of agistment, and where crops were sold on the ground before they were fully got in (t). An executor might be sued for tithes due from his testator (u) . {q) God. p. 383 ; Bohun, Law of Tithes, pp. 241, 248. (r) Bohun, Law of Tithes, pp. 248—250, 282, 283. See further on this subject Fox v. Bardwell, 2 Com. p. 498 ; E., 8 Geo. 2 ; Wood, b. 2, c. 2 ; Gibs. p. 673 ; Wilson v. Red- man, Hard. p. 174 ; Branches Case, Mo. pp. 219, 528, 534; Hettv. Meede, 4 Gwill. p. 1515 ; Anon., Mo. p. 915; Compost v. , Hard. p. 315. (s) Lind. p. 191. (t) Vin. Abr. Dismes, L. a ; God. pp:412, 413. See 5 & 6 Will. 4, c. 75, as to the tithe of turnips. (u) Bohun, Law of Tithes, p. 159. 1160 PROPERTY OF THE CHURCH. Recoverable in the Eccle- siastical Courts. 2 & 3 Edw. 6, c. 13. Small tithes and tithes owed by- Quakers. Suits in equity. Modus decimandi. London and local tithes. Shortening of time for claim of modus. 2 & 3 Will. 4, c. 100. Tithes were generally to be recovered in the Ecclesiastical Courts ; and the jurisdiction of those courts for that purpose is specially confirmed by the statute of Circumspecte agatis, 13 Edw. 1, the statute of Articuli Cleri, 9 Edw. 2, st. 1, c. 1, 27 Hen. 8, c. 20, and 32 Hen. 8, c. 7. By 2 & 3 Edw. 6, c. 13, these statutes were confirmed ; and it was further provided that, in the event of the refusal of any person to set out his tithes, double the value might be recovered from him by suit in the Ecclesiastical Court. By the same statute a penalty of treble the value of the tithes was also im- posed upon the person so offending ; this however was recover- able only in the courts of common law. Provisions for the recovery of tithes and offerings of a small amount, and of tithes owed by Quakers, by summary proceed- ings before two justices of the peace, were made by 7 & 8 Will. 3, c. 6 ; 7 & 8 Will. 3, c. 34 ; 1 Geo. 1, st. 2, c. 6, s. 2 ; 53 Geo. 3, c. 127 ; 7 Geo. 4, c. 15 ; 5 & 6 Will. 4, c. 74 ; and 4 & 5 Vict. c. 36. These statutes, which still have their force with respect to offerings, will be treated of in a later chapter (iv) . Tithes were also sued for in the courts of equity, the equity side of the Court of Exchequer being the favourite court for that purpose. Under the old system of tithe-taking it was not uncommon for a custom to be established whereby some fixed sum of money or quantity of corn or other titheable goods was taken by the tithe- owner instead of the literal tithe of the various titheable objects. This fixed sum or quantity was called a modus. There might be a modus for a whole parish or for some par- ticular lands in it only. Moduses might be sued for in the Ecclesiastical Courts (x) . Bills also might be filed by the tithe- payers in the courts of equity to establish a modus as against the tithe-owner (//). Provisions for dealing with moduses were made by the various Tithe Commutation Acts (z) . In the nature of moduses were the customary tithes paid in the city of London, and the various compositions made by many towns and places and confirmed by local acts (a). The act 2 & 3 Will. 4, c. 100, provided for the shortening of the period, during which exemption from payment of tithes or a modus or composition for tithes must be proved to have existed, to thirty years, unless there was counter evidence, and in any case to 60 years, or the tenure of office by two successors in a corporation sole, and three years after the entry into office by a third (sect. 1). The act was not to extend to cases where the tithes had been demised, or where there had been a composition (w) Vide infra, PartV. Chap. IV. Sect. 2. (x) 2 Inst. p. 400. (y) Story on Equity Jurispru- dence, s. 520. (z) See 6 & 7 Will. 4, c. 71, ss. 44, 49 (now repealed, except as to tithes not commuted); 5 & 6 "Vict. c. 54, s. 7. (a) Vide infra, sects. 16 and 17. TITHES AND RENT-CHARGE. 1161 for a term between the tithe-owner and tithe-payer, if a suit was begun within three years after the expiration of such demise or composition (sect. 4) ; and the time during which the tithes and lands were in the same hands, or during which the tithe- owner was under disability, was not to be reckoned in the 30 or 60 years (sects. 5 and 6). This act was not to extend to any suits then existing or which should be brought within one year (sect. 3) . In consequence of this provision a great number of suits were immediately in- stituted by tithe-owners, temporary provision for which had to be made by 4 & 5 Will. 4, c. 83.^ Several cases have been decided upon the construction of the Cases on the clauses of 2 & 3 Will. 4, c. 100. These however are not of much act- present importance (/;) . The act, said Lord Macnaghten, in Payne v. Esdaile, " in certain cases permits a defendant to rely on lapse of time, but only in answer to a demand for tithes in kind "(c). — ♦ — Sect. 4. — The Tithe Commutation Acts. The principal Tithe Commutation Acts are as follows: — Tithe (1.) 6 & 7 Will. 4, c. 71, The Tithe Act, 1836. (2.) 7 Will. 4 Commutation & 1 Yict. c. 69. (3.) 1 & 2 Vict, c. 64. (4.) 2 & 3 Vict. c. 62. Acts; (5.) 3 & 4 Yict. c. 15. (6.) 5 & 6 Yict. c. 54. (7.) 9 & 10 Yict. c. 73. (8.) 23 & 24 Yict. c. 93, The Tithe Act, 1860. 49 & 50 Yict. c. 54, The Extraordinary Tithe Eedemption Act, 1836 (d) ; 54 & 55 Yict. c. 8, The Tithe Act, 1891, make a new departure as to the recovery, and indirectly as to the incidence, of tithe. These statutes must be considered as constituting one enact- principle of. ment, their principle being to substitute a corn-rent, payable in money and permanent in quantity, though fluctuating in value, for all tithes, whether payable under a modus, or composition or not, which may have heretofore belonged either to ecclesiastical or lay persons. Such rent-charge is to be met by two half- yearly payments, namely, on the 1st of July and the 1st of January in every year. Certain commissioners and assistant commissioners were appointed to execute the provisions of this act (e) . Two modes were allowed of ascertaining the gross (b) The principal seem to be : Salkeld v. Johnson, 1 Hare, pp. 190, 204 ; 1 Mac, & G. p. 242 ; 2 C. B. p. 749; 2 Ex. p. 256; Fellowesv.Claij, 4 Q. B. p. 313; 3 G. & D. p. 443; Knight v. Marquis of Waterford, 15 M. & W. p. 419; Toymbee v. Brown, 3 Ex. p. 117, and Young v. Master of Clare Hall, 17 Q. B. p. 529 ; 21 L. J. Q. B. p. 12. See also Payne v. Esdaile, 13 App. Ca. p. 613. (c) 13 App. Ca. p. 613. (d) The following acts also bear on this subject: 10 & 11 Yict. c. 104; 14 & 15 Yict. c. 53 ; 31 & 32 Yict. c. 89. (e) Yide infra, sect. 18. 1162 PROPERTY OF THE CHURCH. Boundaries might be settled. Principal features of the Tithe Commutation Acts. amount of the rent- charge, payable in respect of the tithes (/) of the whole parish. 1, a voluntary agreement, or after a specified period had elapsed without any such arrangement being adopted, 2, a compulsory award. These acts were not to affect tithes due before the commutation (g) , and made provision for payments due for the period intervening between the end of former com- positions and the commutation (h) . False evidence given before the commissioners under 6 & 7 Will. 4, c. 71 , was to be esteemed as perjury, and withholding evidence a misdemeanor (i). These provisions in the first acts have been supplemented and in some few respects modified by the later acts. They are all however now rather matters whose importance has passed, as the commutation of the tithes has been some time completed. The following are the several sections bearing upon the proce- dure to a commutation : 6 & 7 Will. 4, c. 71, ss. 10 — 28, 32, 35, 39, 44—54, 59—61, 65, 73—76 ; 7 Will. 4 & 1 Yict. c. 69, ss. 1, 4—6, 9, 11 ; 2 & 3 Yict. c. 62, ss. 8, 10, 22—25 ; 3 & 4 Yict. c. 15, ss. 1—12 (temporary), 13, 15, 16, 20—24 ; 5 & 6 Yict. c. 54, ss. 1—4, 9—11. It should perhaps also be noticed that, questions having often arisen during the process of commutation as to the boundaries of parishes, the commissioners were empowered to decide on such boundaries in many cases (k). It may be well in this place to observe some of the principal features of the Tithe Commutation Acts. 1. Under these acts, except the two last, the mode of recovering the rent-charge in arrear was by distraining for it in the same manner as a landlord recovers his rent. When the rent-charge was twenty-one days in arrear its owner might distrain, but not for more than two years' rent- charge ; and if the rent- charge had been forty days in arrear, possession of the land might be given to the owner of the rent-charge, until the arrears and costs were satisfied (/). 2. If the interest of the owner of the rent- charge ceases before the 1st of January or 1st of July (the appointed times of payment), such owner or his representative is entitled to a proportional part of the rent-charge for the time which may have elapsed from the last day of payment to the time of his interest determining (m) . 3. If the lands be uncultivated they are nevertheless liable to the rent-charge, but not if they have been wasted away by the sea or otherwise destroyed by any natural casualty (n) . (/) Certain exceptions are men- tioned below. (q) 6 & 7 Will. 4, c. 71, s. 89. (70 7 Will. 4 & 1 Yict. c. 69, s. 10. (0 6&7Will. 4, c. 71, ss. 10,93. See 3 & 4 Yict. c. 15, s. 24. (k) 7 Will. 4 & 1 Yict. c. 69, ss. 2, 3 ; 2 & 3 Yict. c. 62, ss. 34, 35, 36 ; 3 & 4 Yict. c. 15, s. 28. (/) 6 & 7 Will. 4, c. 71, ss. 81, 82. But the land could not be sold, Bailey v. Badham, 30 Ch. D. p. 84. m) 6 & 7 Will. 4, c. 71, s. 86. n) 6 & 7 Will. 4, c. 71, s. 85. TITHES AND RENT-CHARGE. 1163 4. Where a rent-charge is payable to a spiritual incumbent, a portion of land not exceeding twenty acres may be given in lieu of all or part of the rent- charge (o) . 5. The rent-charge may at the request of the land-owner (certain forms being observed) be confined to a part of the land, on the whole of which it may have been apportioned ; the value of such land being treble the value of the apportioned rent-charge (p). 6. Tithes, or rent- charge in lieu thereof, may in certain instances be merged in land(^). Tithes formerly could not have been so merged. 7. In all leases and agreements made subsequently to the commutation of tithes into rent- charge, the landlord was made liable to the payment of the rent-charge instead of the occupy- ing tenant (r). 8. Small rent-charges might be redeemed by payment of a sum of money not less than twenty-four times the amount of the rent-charge at the time (s) . 9. Barren or waste land in a parish where the tithes have been commuted did not, on being brought into cultivation, pay tithes under 2 & 3 Edw. 6, c. 13, s. 5 (/), except the extra- ordinary hop or fruit tithe (u). ♦ Sect. 5. — Rent-charge substituted for Tithe. 6 & 7 Will. 4, c. 71, after providing that the landowners shall 6 & 7 WilL 4> appoint the valuers of the tithes to be commuted, contains pro- c' visions in sections 32 to 55 (which are repealed except as to tithes not commuted) . Of these sections, sect. 32 is as follows : " The valuer or valuers so chosen shall apportion the total Valuers to sum agreed to be paid by way of rent-charge instead of tithes, ^t°^°^ ^e and the expenses of the apportionment, amongst the several lands in the said parish, according to such principles of appor- tionment as shall be agreed upon at the meeting at which the valuer or valuers shall be chosen, or if no principles shall be then agreed upon for the guidance of the valuer or valuers, then having regard to the average titheable produce and productive quality of the lands, according to his or their discretion and (p) 6 & 7 Will. 4, c. 71, ss. 29, 62. pealed, except as to tithes not com- ip) 6 & 7 Will. 4, c. 71, ss. 58, 72. muted. (q) 6 & 7 Will. 4, c. 71, s. 71, and (t) Vide supra, p. 1151. subsequent acts. (u) 6 & 7 Will. 4, c. 71, s. 67; (r) 6 & 7 Will. 4, c. 71, ss. 70, Walsh v. Trimmer, L. R. 2 H. L. 79, 80. 208, and see now 49 & 50 Vict. (s) 9 & 10 Vict. c. 73, ss. 3—12. ss. 1—13. Sects. 1 and 2 of this act are re- P. VOL. II. 4 G 1164 PROPERTY OF THE CHURCH. After 1st October, 1838, the commis- sioners may- ascertain total value of tithes in any parish in which no previous agreement has been made. Value of tithes to be calculated upon an average of seven years. judgment, but subject in each case to the provisions hereinafter contained, and so that in each case the several lands shall have the full benefit of every modus and composition real, prescrip- tive, and customary payment, and of every exemption from, or non-liability to, tithes relating to the said lands respectively, and having regard to the several tithes to which the said lands are severally liable." And by sects. 36 and 37 : " After the first day of October, 1838, the commissioners shall proceed in manner hereinafter mentioned, at such time and in such order as to them shall seem fit, either by themselves or by some assistant commissioner, to ascertain and award the total sum to be paid by way of rent-charge instead of the tithes of every parish in England and Wales, in which no such agreement binding upon the whole parish as aforesaid shall have been made and confirmed as aforesaid : Provided, nevertheless, that if any proceeding shall be had towards making and executing any such agreement after the commissioners shall have given or caused to be given notice of their intention to act as aforesaid in such parish, the commissioners may refrain from acting upon such notice, if they shall think fit, until the result of such proceeding shall appear." Sect. 37. " In every case in which the commissioners shall intend making such award, notice thereof shall be given in such manner as to them shall seem fit ; and after the expiration of twenty-one days after such notice shall have been given, the commissioners or some assistant commissioner shall, except in the cases for which provision is hereinafter made, proceed to ascer- tain the clear average value (after making all just deductions on account of the expenses of collecting, preparing for sale and marketing, where such tithes have been taken in kind,) of the tithes of the said parish, according to the average of seven years preceding Christmas in the year 1835 : Provided, that if during the said period of seven years, or any part thereof, the said tithes or any part thereof shall have been compounded for or demised to the owner or occupier of any of the said lands in consideration of any rent or payment instead of tithes, the amount of such composition, or rent or sum agreed to be paid instead of tithes, shall be taken as the clear value of the tithes included in such composition, demise or agreement, during the time for which the same shall have been made ; and the com- missioners or assistant commissioners shall award the average annual value of the said seven years so ascertained as the sum to be taken for calculating the rent-charge to be paid as a perma- nent commutation of the said tithes : Provided also, that when- ever it shall appear to the commissioners that the party entitled to any such rent or composition shall in any one or more of the said seven years have allowed and made any abatement from the amount of such rent or composition on the ground of the same having in any such year or year3 been higher than the sum TITHES AND RENT-CHARGE. 1165 fairly payable by way of composition for the titlie, but not other- wise, then and in every such case such diminished amount, after making such abatements as aforesaid, shall be deemed and taken to have been the sum agreed to be paid for any such year or years : Provided also, that in estimating the value of the said ™ie^ to.b^ tithes, the commissioners or assistant commissioner shall estimate 0U£ deduction the same without making any deduction therefrom on account of on account of any parliamentary, parochial, county, and other rates, charges, parochial and and assessments, to which the said tithes are liable ; and when- &°cunty rates' ever the said tithes shall have been demised or compounded for on the principle of the rent or composition being paid free from all such rates, charges, and assessments, or any part thereof, the said commissioners or assistant commissioner shall have regard to that circumstance, and shall make such an addition on account thereof as shall be an equivalent " (x). The same rule with respect to rates is directed to be pursued in sections 40, 41, 43. Sect. 55. " A draft of every apportionment shall be made, and Form of ap- shall set forth the agreement or award, as the case may be, upon Portlonment. which such apportionment is founded, and every schedule there- unto annexed, and the said draft or some schedule thereunto annexed, whether made by or under the direction of the valuers or commissioners or assistant commissioners, shall state the name or description and the true or estimated quantity in statute measure of the several lands to be comprised in the apportion- ment, and shall set forth the names and description of the several proprietors and occupiers thereof, and whether the said several lands are then cultivated as arable, meadow, or pasture land, or as wood land, common land, or howsoever otherwise, and shall refer, by a number set against the description of such lands, to a map or plan to be drawn on paper or parchment, and the same number shall be marked on the representation of such lands in the said map or plan ; and the draft of the appor- tionment shall also state the amount charged upon the said several lands, and to whom and in what right the same shall be respectively payable" (t/). In the case of Re Appledore Tithe Commutation (s), there were BeAppiedore in the parish ancient pasture lands, arable lands, and wood TUheGom* lands ; and a modus of Is. an acre was payable to the vicar for mu tum' all tithes except those of corn, the wood land being exempt by custom. An award was made and confirmed. In apportioning the award the valuer imposed upon the pasture land a small charge above the Is. an acre on the ground of the possibility of its being converted into tillage. The commissioners confirmed this apportionment. i (x) By sect. 38, a power was ment on the mode of exercising this given to the commissioners to in- power, which was accordingly done, crease or diminish the sum to be (>/) See 3 & 4 Vict. c. Id, s. 21. paid for commutation, and a report (z) 8 Q. B. p. 139. was ordered to bo laid before parlia- 4 g 2 1166 PROPERTY OF THE CHURCH. Specific ap- portionment of rent- charge. Rent- charge rated as tithes. Alteration of apportion- ment. Apportion- ment may be altered by commissioners of land tax if desired. Mode of effecting this. Expenses of, how borne. 5 & 6 Vict, c. 54. Power to alter On motion for a prohibition the Court of Queen's Bench held that a prohibition would not lie to the commissioners in the circumstances ; but that if it did, the commissioners were right. By sect. 58, the landowner may have the rent-charge spe- cifically apportioned upon particular lands under certain con- ditions. Sect. 69 of the 6 & 7 Will. 4, c. 71, provides that the rent- charge is to be liable to the same rates to which the tithes commuted would have been liable (a). The original apportionment may be altered, when it becomes convenient. The following sections of this Act and the subse- quent acts give the machinery. Sect. 72. "If at any time subsequent to the confirmation of any such instrument of apportionment the owner of any lands charged with any such rent-charge shall be desirous that the apportionment thereof shall be altered, it shall be lawful for the commissioners of land tax for the county or place where the said lands are situate, or any three of them, to alter the apportion- ment in such manner and in such pnyportion and to the exclu- sion of such of the lands as the landowner with the consent of two justices of the peace acting for the county, riding, division or other jurisdiction in which the lands are situated, may direct; and such altered apportionment shall be made by an instrument in writing under the hands and seals of the said commissioners of land tax and of the said landowner and justices of the like form and tenor as to the said lands as the original apportion- ment, and bearing date the day of its execution by the said com- missioners of land tax, subject to the provision hereinbefore con- tained with respect to the value of lands on which any rent- charge may be charged on account of the tithes of any other lands ; and every such altered apportionment shall be as valid as if made and confirmed by the tithe commissioners as afore- said, and shall be taken to be an amendment of the original apportionment ; and in every such case two counterparts of the instrument of altered apportionment under the hands and seals of the said commissioners of land tax and justices and land- owner, shall be sent, one to the registrar of the diocese, and one to the incumbent and church or chapel- wardens, or other person having the custody of the other copy of the original instrument of apportionment : and one counterpart shall be annexed to the copy of the instrument of apportionment in the custody of the registrar and such other person respectively, and taken to be an amendment thereof ; and thenceforward such lands shall be charged only according to such altered apportionment ; and all expenses of such alteration shall be borne by the landowner desiring the same." By 5 & 6 Vict. c. 54, s. 14, " If at any time after the con- firmation of any instrument of apportionment it shall appear (a) See now 54 & 55 Vict. c. 8, s. G Sect. 3. et vide infra, Part V. Chap. VIII. TITHES AND RENT-CHARGE. 1167 that the lands charged with one entire rent-charge belong to or apportion- havc become vested in several owners, and that any of the {^^eeifdif- owners of such lands shall be desirous that the apportionment ferent owners, thereof should be altered, it shall be lawful for the commis- sioners of land tax for the county or place where the said lands are situated, or any three of them, to appoint, by notice under their hands, a time and place for hearing the parties to such application, and all other parties interested therein ; and upon satisfactory proof of such notice having been served on all parties interested full twenty-one days before the day of hearing, to proceed to alter the apportionment in such manner and in such proportion amongst the said lands as to them shall seem just, subject nevertheless to the consent of two justices of the peace, as in the said first-recited act provided ; and further, that upon such application being made to the said tithe commissioners, they shall have the same power of making such alteration as by the said first-recited act and by this act is vested in the commissioners of land tax, and that without any such consent of two justices of the peace ; provided that no alteration of any apportionment shall be made under the first-recited act or this act whereby any rent-charge shall be subdivided, so that any subdivision thereof shall be less than five shillings " (b). Sect. 15. " Three counterparts shall be made of every instru- Copy of ment of altered apportionment at the expense of the landowner ^ered^a^or desiring the alteration ; and two of the said counterparts shall tionmentPk)°r~ be sent as provided by the first-recited act, and the third shall be sent to be sent to or deposited in the office of the tithe commissioners, Tltlie Office. . . . and shall be annexed to the instrument of apportionment in the custody of the said commissioners, or the person having the custody of their records and papers." By 23 & 24 Yict. c. 93, s. 11, with the consent of the owner 23 & 24 Vict, or owners of any lands charged with rent-charge under any c- 93 ■ instrument of apportionment, whether payable to one or more ^^bJref6- owners of rent- charge, and without regard to the mode in which p^rtioneTand the same rent-charge is apportioned by the said instrument, the redistributed commissioners may by an altered apportionment re-apportion onotheHandsr and redistribute the same rent-charge over and amongst the said lands or any part thereof, and to the exclusion of any such lands, but no rent-charge shall be charged upon any land to the ex- clusion of other land of the same owner, unless the land so charged with rent-charge is held for an estate in fee simple or fee tail in possession, or unless the same and the land so excluded are settled to the same uses. Sect. 12. " Where, through the removal or alteration of fences Where fences between land charged with rent-charge under any instrument of cnTr°^emaeUbe apportionment and land upon which no rent-charge is now apportioned charged, or which is tithe-free, it becomes impossible or difficult on land tithe- to distinguish the limits of the land so charged with rent-charge ^ftV land. {b) See also 3 & 4 Vict. c. 15, ss. 26, 27 ; and 9 & 10 Vict. c. 73, ss. 13, 14, infra. 1168 PROPERTY OF THE CHURCH. Land not to be charged to a different owner than before with- out consent. Consent of landowner not required where his lands are not charged. Power to commissioners to alter ap- portionment where suc- cessive altera- tions have made collec- tion incon- venient or difficult, but not to alter amount. Power to commissioners to alter ap- portionment where boun- daries of parishes have been altered. the commissioners may, with the consent of the owner of the said lands, include the whole of such lands in any instrument of altered apportionment to be made by the said commissioners, and may apportion the rent-charge as well on the said land not heretofore charged as on the said land heretofore liable to the payment thereof, or on any part thereof, provided that the whole of the lands on which such rent-charge is apportioned are held for an estate in fee simple or fee tail in possession, or are settled to the same uses." Sect. 13. " No land shall be charged with rent-charge payable to a different owner than the rent- charge previously charged thereon was payable to, without the consent in writing of the owner of the rent- charge so proposed to be charged, except in cases of altered apportionment after inclosure." Sect. 14. "It shall not be necessary to obtain the consent of any landowner to an altered apportionment whose lands are not charged with rent-charge by such altered apportionment." Sect. 15. " Whenever it shall appear to the commissioners that any instrument of apportionment shall have been altered by successive instruments of altered apportionment, so as in the judgment of the commissioners to render the collection of the rent-charge upon the lands included in such apportionment and altered apportionments unreasonably inconvenient or difficult, the commissioners may, upon the application of the person or persons entitled to such rent- charge or any part thereof, and without notice to or the consent of any owner of such lands, make a further instrument of altered apportionment as regards the whole of the said lands, or such portions thereof as to them shall seem fit, but without making any alteration in the amount charged on the lands of any particular owner, and the altered apportionment so made by the commissioners shall be taken to be an amendment of and in substitution for so much of the said original apportionment and altered apportionments as relates to the lands included in the said lastly made altered apportionment." Sect. 16. " Whenever any new boundaries of parishes shall have been or shall be set out upon any inclosure or otherwise, and it shall appear to the commissioners that the apportionment of the rent- charge in such parishes is thereby rendered incon- venient, the commissioners may make and confirm an altered instrument of apportionment adapted to the altered distribution of the lands in such parishes or any of them, and to the new boundaries which shall have been so set out, or otherwise the commissioners may, by an order under their hands and seal, declare the lands which shall be aff ected by such alteration of boundaries, either with or without any other lands comprised in such inclosure, and whether such lands are situate in one or more parishes, to be a separate district for the purposes herein- after mentioned, and may make and confirm an altered instru- ment of apportionment adapted to the altered distribution of such lands, with reference to the owners both of the lands and rent-charge in such district, and the commissioners may TITHES AND KENT-CHARGE. 1169 determine that the amount of rent- charge payable to each of the owners of rent-charge in such district shall be fixed and apportioned upon such particular lands as to them shall seem convenient, so that no lands are charged with more than their due proportion of rent- charge ; and every such determination shall be binding and conclusive, and such altered apportionment, when confirmed, shall be annexed to the original apportionment for that parish from which the greatest amount of rent-charge is payable under the altered apportionment, and counterparts thereof shall be annexed to the original apportionment for each of the other parishes comprised in such district, and copies thereof shall be deposited in respect of each several parish com- prised in the district, in conformity with the provisions of the said recited acts" (bb). Sect. 17. " All the powers given by the said recited acts or Powers for by this act in relation to the alteration of instruments of appor- ^f^^^g tionment shall extend to all altered apportionments and to or awards!1 8 awards of rent-charge in lieu of corn rents, and to awards under local acts by which any rent- charge is awarded in lieu of tithes, glebe or commonable or other rights or easements." The value of the rent-charge is fixed as follows : Value of By the original Act, 6 & 7 Will. 4, c. 71, s. 57, " Every g^^g6' rent-charge charged upon any lands by any such intended ® 71 11 ' 4' apportionment shall be deemed at the time of the confirmation Rent-charges of such apportionment, as hereinafter provided, to be of the *°^^lu<^ value of such number of imperial bushels, and decimal parts thTavera°-e° of an imperial bushel of wheat, barley and oats, as the same price of corn, would have purchased at the prices so ascertained by the advertisement to be published immediately after the passing of this act, in case one-third part of such rent-charge had been invested in the purchase of wheat, one-third part thereof in the purchase of barley, and the remaining third part thereof in the purchase of oats, and the respective quantities of wheat, barley and oats, so ascertained, shall be stated in the draft of every apportionment." By 7 Will. 4 & 1 Yict. c. 69, s. 7, " The prices at which the 7 Will. 4 & conversion from money into corn is to be made, at the time of pVl°* a^ 69' the confirmation of each apportionment, according to the pro- c0n. visions of the said act, are seven shillings and one farthing for a version from bushel of wheat (c) , three shillings and eleven pence halfpenny money ^to for a bushel of barley, and two shillings and nine pence for a made? ° 6 bushel of oats." The manner in which the average price of the bushel of each grain was thereafter to be ascertained, was at first fixed by sect. 56 of 6 & 7 Will. 4, c. 71. But this section is now 45 & 46 Vict, repealed, and in lieu thereof provision is made by the Corn c- 37- Eeturns Act, 1882 (45 & 46 Yict. c. 37) (d). {bb) I.e., The Tithe Acts from G (c) The London Gazette of Dec. 9, & 7 Will. 4, c. 71, to 10 & 11 Yict. 1836, made this 7s. l%d. c. 104, inclusive. (d) Vide infra, p. 1174. 1170 PROPERTY OF THE CHURCH. 6 & 7 Will. 4, c. 71. Confirmation by the com- missioners. Transcripts of the award to be sent to the registrar of the diocese and to the incumbent and church- wardens. Fees for inspections and extracts. Confirmed agreements, awards, &c. not to be questioned. Clarke v. Yonge. Edwards v. Banbury. As to confirmation, by 6 & 7 Will. 4, c. 71, it is enacted : Sect. 63. " After such proceedings as aforesaid shall have been had, and all such objections, if any, shall have been finally disposed of, the commissioners or assistant commissioner shall cause the instrument of apportionment to be ingrossed on parch- ment, and shall annex the map or plan thereunto belonging to the ingrossed instrument of apportionment, and shall sign the instrument of apportionment and the map or plan, and shall send both to the office of the commissioners ; and if the com- missioners shall approve the apportionment, they shall confirm the instrument of apportionment under their hands and seal, and shall add thereunto the date of such confirmation " (e). Sect. 64. " Two copies of every confirmed instrument of apportionment, and of every confirmed agreement for giving land instead of any tithes or rent-charge, shall be made and sealed with the seal of the said commissioners, and one such copy shall be deposited in the registry of the diocese within which the parish is situated, to be there kept among the records of the said registry, and the other copy shall be deposited with the incumbent and church or chapel- wardens of the parish for the time being, or such other fit persons as the commissioners shall approve, to be kept by them and their successors in office with the public books, writings, and papers of the parish ; and all persons interested therein may have access to and be fur- nished with copies of or extracts from any such copy on giving reasonable notice to the person having custody of the same, and on pa}7ment of two shillings and sixpence for such inspection, and after the rate of three pence for every seventy-two words contained in such copy or extract ; and every recital or state- ment in or map or plan annexed to such confirmed apportion- ment or agreement for giving land, or any sealed copy thereof, shall be deemed satisfactory evidence of the matters therein recited or stated, or of the accuracy of such plan." Sect. 66. " No confirmed agreement, award or apportionment shall be impeached after the confirmation thereof by reason of any mistake or informality therein, or in any proceedings relating thereunto" (/). In the case of Clarke v. Yonge (g), it was decided, that though a confirmed award under this section is final as between the tithe-owners and tithe-payers, it does not exclude from further investigation a case between the tithe- owners themselves, in which there was, before the award was made, a just title to a portion of the tithes, which by mistake was not brought forward till after the award was made. Similarly, it was holden in the case of Edwards v. Bunbury (h) , (e) This section is repealed, ex- cept as to tithes not commuted. ( f ) This section was further con- firmed by 10 & 11 Vict. c. 104, s. 2. (r/) 5 Beav. p. 523 (1842). (h) 3 Q. B. p. 885 ; 3 G. & D. p. 229 ; see also Reg. v. Tithe Com- missioners, 15 Q. B. p. 620. TITHES AND RENT-CHARGE. 1171 that a commissioner had no jurisdiction in a contested case to decide who was the person entitled to a particular rent-charge. 13y 9 & 10 Vict. c. 73, sect. 15, "Where by any agreement 9 & 10 Vict, or award made under the provisions of the said acts a rent- 0. 73. charge has been or shall have been agreed or awarded to be paid Supplemental to any person in lieu of any tithes, and after the apportionment menTo^a" of such rent-charge shall have been made and confirmed under rent- charge the provisions of the said acts it shall appear that some tithes *bi?to one*" included in the aggregate tithes in lieu of which such rent- 'owner in16 charge shall have been so agreed or awarded to be paid, or some respect of portion or undivided share of some tithes so included, were or *^to several was at the time of such agreement or award the property of o^vners^rhTld some person other than the person to whom the same rent-charge in separate was so agreed or awarded to be paid, or that the whole of the rionts- tithes included in the aggregate in respect of which such rent- charge was agreed or awarded to be paid were not held by the person to whom such rent-charge was so agreed or awarded to be paid in the same right and for the same estate, or were not subject after the determination of the estate of such person to the same limitations or estates legal and equitable, it shall be lawful for the commissioners in any of the cases aforesaid, in pursuance of or in accordance with the decree or direction of a court of equity of competent jurisdiction, or on the request in writing of the parties who for the time being in case there had been no commutation would have been the owners of all the tithes included in such aggregate, to make or confirm a supple- mental award or apportionment of such rent-charge in such manner that, without altering the aggregate amount of rent- charge to which any owner of land may be subject, separate rent-charges or separate portions of rent-charge may be made payable to the parties wTho would have been owners of the tithes in case they had not been extinguished in lieu of the several tithes or portions of tithe included in such aggregate which would belong to different persons, or be held in different rights, or be subject to different limitations or estates ; and by such supplemental award and apportionment the commissioners, if they shall so think fit, may apportion or award to be paid to one of the respective owners, or to the owner in lieu of one of his respective rights, the whole of any rent- charges payable under the original instrument of apportionment out of specific lands, instead of dividing each rent-charge made payable in lieu of the aggregate of the tithes of each parcel of land between or among the owners of the separate tithes arising out of such parcel ; and such supplemental award and apportionment, when confirmed by the commissioners under their hands and seal, shall take effect from the half-yearly day of payment which shall happen next after the confirmation thereof." By sect. 16 (which, however, is repealed except as to tithes Power to not commuted) , the commissioners are empowered to declare that make * lands as to which before apportionment doubts have arisen, as to districtlfor special lands. 1172 PROPERTY OF THE CHURCH. Place of deposit of copy of con- firmed appor- tionment may- be altered by- quarter sessions. 23 & 24 Vict, c. 93. Justices may order an in- strument of apportion- ment to be restored to proper custody. whether they are or not exempt from tithe, or subject to some modus, or as to the boundaries of the parish in which they lie, shall be a separate district for commutation, so that the awards may be confirmed as to the other lands in the parish. Supple- mental awards may also be made for contingent rent-charges under 2 & 3 Yict. c. 62, s. 11, and 3 & 4 Yict. c. 15, s. 14, for inclosures of lands, and for other purposes. Sect. 17. " Where the place of deposit of the copy of a con- firmed instrument of apportionment, which by 6 & 7 Will. 4, c. 71, is directed to be deposited with the incumbent and church or chapel- wardens for the time being, or such other fit person as the commissioners shall approve, shall be alleged to be incon- venient to the majority of the persons interested therein, or otherwise inconvenient or unsafe, it shall be lawful for any person interested in the lands or rent-charge to which such apportionment shall relate to apply to the court of general quarter sessions of the peace for the county, riding, division or place in which such place of deposit shall be situate for an order for the deposit of such copy in some more convenient or secure custody or place, and fourteen days' notice in writing of every such application shall be given to the persons in whose custody such copy shall at the time of such application be deposited ; and it shall be lawful for the court at the quarter session for which such notice shall be given to hear and determine such application in a summary way, or they may, if they think fit, adjourn it to the following session ; and upon the hearing of such application the court may, if they think fit, order such copy to be removed from the custody of the persons with whom the same shall have been deposited, and to be deposited with such other persons or in such other custody as the court, having reference to the security and due preservation of such copy, and to the convenience of the parties interested therein, may think fit, and may make such order concerning the notice to be given of such removal and deposit, and concerning the costs of such application, or of any opposition thereto, as they may think reasonable." By 23 & 21 Yict. c. 93, sect. 28, " Whenever any person, other than the persons legally entitled to the possession of the same, shall have possession of the sealed copy of any confirmed instrument of apportionment, it shall be lawful for any two justices of the peace for the county or other jurisdiction within which the lands mentioned in the said apportionment are situate, upon the application of any person interested in the lands or rent- charge, and upon fourteen days' notice in writing of such application to the person or persons in whose custody such copy shall be at the time of such application, to hear and determine such application ; and upon hearing such application the said justices may order such copy to be removed from the custody of the person holding the same, and to be deposited in such other custody as the said justices, having reference to the security and due preservation of such copy, and to the convenience of the TITHES AND KENT-CHARGE. 1173 parties interested therein, may think fit, and may impose a fine, not exceeding twenty shillings, for each day that any such copy shall be retained, contrary to the terms of such order, upon the person so retaining it, and may make such further order con- cerning the notice to be given of such removal and deposit, and concerning the costs of such application and the said fine, or of any opposition thereto, as they may think reasonable." A notice under this section must be a notice that an applica- tion has been made, not of an intention to apply (It). By sect. 26 the commissioners may order the map to be Map may be detached in suitable cases from the instrument of apportion- detaclied- ment. By sect. 27, when the original instrument of apportionment Renewal of has been destroyed or defaced, the commissioners may require defaced copy, the copy deposited in the parish or in the diocesan registry to be delivered up to them for a limited time for the purpose of restoring their defaced instrument, or making a new copy, where it has been lost. Such restorations or copies are to have the force of originals. By 10 & 11 Yict. c. 104, s. 4, the commissioners could Corrections, require an erroneous apportionment to be delivered up to them 10 & n Vict, for correction. c> l0i' 6 & 7 Will. 4, c. 71, proceeds to enact as follows : — 6 & 7 Will. 4, Sect. 67. " From the first day of January next following the ^ confirmation of every such apportionment the lands of the said discharged parish shall be absolutely discharged from the payment of all from tithes, tithes . . . and instead thereof there shall be payable thence- and rent- forth to the person in that behalf mentioned in the said appor- iieurfhereof m tionrnent a sum of money equal in value, according to the prices ascertained by the then next preceding advertisement to the quantity of wheat, barley and oats, respectively mentioned therein to be payable instead of the said tithes, in the nature of a rent- charge issuing out of the lands charged therewith ; and such yearly sum shall be payable by two equal half-yearly pay- ments on the first day of July and the first day of January in every year ; the first payment, except in the case of barren re- claimed lands, as hereinafter provided, being on the first day of J uly next after the lands shall have been discharged from tithes as aforesaid ; . . . . and after every first day of January the sum of money thenceforth payable in respect of such rent-charge shall vary so as always to consist of the price of the same number of bushels and decimal parts of a bushel of wheat, barley and oats respectively, according to the prices ascertained by the then next preceding advertisement ; and any person entitled from time to time to any such varied rent-charge shall have the same powers for enforcing payment thereof as are herein contained concerning the original rent- charge : Provided always that nothing herein contained shall be taken to render (h) Reg. v. Buyers, 3 L. T. p. 405. 1174 PROPERTY OF THE CHURCH. Land not to be sold for rent -charge. Payments by tenants. Surrenders by lessees. 4o and 46 Vict. c. 37. Returns from towns of purchases of British corn, and publica- tion of average price. Meaning of British corn. Computation and publica- tion of averages by Board of Trade. any person whomsoever personally liable to the payment of any such rent-charge . . . ." It was attempted under this section to treat the rent-charge hereby imposed as an ordinary rent-charge to all intents and purposes, and to have the land sold in default of other means of satisfying it. But the Court held the contrary (*). By sect. 80, any tenant paying the rent-charge is to be allowed the same in account with his landlord (k). By the repealed sect. 88, lessees of tithes might surrender their leases under certain conditions. If they did not, they continued liable on their covenant to pay the old rent (/). By the Corn Eeturns Act, 1882 (45 & 46 Yict. c. 37), sect. 4, " Weekly returns of the purchases of British corn shall be made, under the direction of the Board of Trade, in manner provided by this act from such towns, not less than one hundred and fifty and not more than two hundred in number, as may be from time to time fixed by Her Majesty in Council, and the average price of British corn shall be from time to time ascertained from those returns, and published by the Board of Trade in manner provided by this act." By sect. 18, "The expression 'British corn' means wheat, barley, and oats, the produce of the United Kingdom, the Channel Islands, or the Isle of Man, and any such wheat, barley, or oats is in this act referred to as a sort of British corn." The act then, after providing for the collection and making of returns by corn inspectors, enacts, by sect. 9, as follows : " The Board of Trade shall cause the average prices of each sort of British corn to be computed from the summaries sent by the inspectors of corn returns in pursuance of this act, as follows : " (1.) In each week the average price during the next preceding week of each sort of British corn for the whole of the towns and for each town from which a summary is obtained, shall be computed, and shall be published in the London Gazette : " (2.) After each of the quarter days, the twenty-fifth day of March, the twenty-fourth day of June, the twenty- ninth day of September, and the twenty-fifth day of December, the average price of each sort of British corn during the quarter ending on that quarter day shall be forthwith computed and published in the London Gazette : " (3.) After the twenty-fifth day of December in every year the average price of each sort of British corn shall be computed for the year, and the seven years ending on that day, and shall be published in the London Gazette in the month of January next following : (?) Bailey v. Badham, 30 Ch. D. p. 84. (k) See on the construction of this section, Dawes v. Thomas, 1892, 1 Q. B. p. 414. (/) Tasker v. Bullman, 3 Ex. p. 351 ; 18 L. J., Ex. p. 153 (1841). TITHES AND RENT-CHARGE. 1175 " (4.) The average price of any sort of British corn for any week shall be ascertained by adding together the total quantities of that sort of British corn appearing from the summaries of the inspectors of corn returns to have been bought during such week, and the total prices for those quantities as appearing from the said summaries, and by dividing the total prices by the total quantities as so ascertained. The quarterly or yearly average prices shall be ascertained by adding together the weekly averages of the weeks included in such quarter or year, and dividing the total by the number of weeks in such quarter or year respectively : " (5.) The septennial average price shall be ascertained by adding together the average annual prices for the seven years, and dividing the total by seven : " (6.) The annual and septennial average shall state the average for the imperial bushel." Sect. 10. "The statement of the septennial average price Application of referring to the imperial bushel published under this act in the septennial London Grazette shall be substituted for the advertisement Tithe?6 10 referred to in " 6 & 7 Will. 4, c. 71, s. 56 (m). Commutation By 2 & 3 Yict. c. 62, s. 11 (now repealed except as to tithe Acts- not commuted), the following power is given to substitute a fixed ~ ^93 ^lct- for a contingent rent-charge in the cases of exempt and crown lands : " Where lands are exempted from the payment of tithes, or of Fixed rent- rent-charge instead of tithes, whilst in the occupation of the charge may be owner of such lands, by reason of having been parcel of the for^^m^ nt possessions of any privileged order, it shall be lawful for the re- rent-charge spective owners of the said lands and tithes or rent-charge, by the 011 ^nds parochial agreement for the rent-charge, or by a supplemental exempt7 agreement in cases where the parochial agreements or any award shall have been confirmed by the said commissioners, to be made in such form as the commissioners shall direct or approve to agree to the payment, or for the commissioners in the case of a compulsory award, with the consent of the respective owners of the said lands and tithes, to award the payment of a fixed and continuing rent-charge, without regard to the change of occupation or manurance of such lands, equivalent in value, according to the judgment of the commissioners, to such con- tingent rent-charge ; and such lands shall, from the date of the confirmation by the commissioners of such parochial agreement or supplemental agreement or award, as the case may be, or from such date as shall be fixed by the parties, with the approval of the said commissioners, in any such agreement or supplemental agreement, be subject to such fixed rent-charge instead of the contingent tithes or rent-charge to which such lands were subject previous to such agreement or supplemental agreement or award (m) Vide supra, p. 1169. 1176 PROPERTY OF THE CHURCH. 3 & 4 Vict, c. 15. Extension of powers to substitute fixed rent- charge instead of contingent rent -charge. 2 & 3 Vict, c. 62. Provisions for substituting fixed rent- charge, extended to crown lands. being made ; and every such fixed rent-charge shall from such period respectively be paid and recoverable by the means pro- vided in the said acts, in like manner as if the same had been the rent-charge originally fixed in any parochial agreement or award in respect of the said tithes." This power is thus extended by 3 & 4 Yict. c 15, s. 14 (also repealed except to the same extent). After reciting the power given by the last act it provides that — " Such power shall extend to all cases where, by reason of lands being partially exempted from the payment of tithes, by custom or otherwise, or by being subject to a shifting or leaping modus, or other cus- tomary payment, or rendered due only on certain contingencies, a contingent rent- charge has been already fixed, or would according to the provisions of the said firstly-recited act be fixed in respect of such lands ; and it shall be lawful for the said commissioners, with such consent of both land- owners and tithe-owners as in the said lastly recited act is required in that respect, at any time before the confirmation of the apportionment of any rent-charge, by any award, or by a supplemental award, where an award or parochial agreement has been made before the passing of this act, or for the land-owners or tithe-owners by a parochial agreement or supplemental agreement where a parochial agreement or award has already been made in respect of such lands, to exercise such powers in such manner and subject to the same conditions as are given by the said lastly recited act in cases of lands formerly part of the possessions of a privileged order : Provided always, and it is hereby declared, that nothing herein contained extends to cases of change of cultivation only, nor to cases of prescription relating to wood- land." By 2 & 3 Yict. c. 62, s. 12 (repealed except as to tithes not commuted), " 'And whereas certain crown lands, by reason of their being of the tenure of ancient demesne or otherwise, are exempted from payment of tithes whilst in the tenure, occupation, or manurance of her Majesty, her tenants, farmers, or lessees, or their under-tenants, as the case may be, but become subject to tithes when aliened or occupied by subjects not being tenants, farmers, or lessees of the crown, and doubts have arisen how far the provisions of the said first-recited act relating to lands here- tofore parcel of the possessions of any privileged order, or in the nature of glebe, or otherwise in like manner privileged and partially exempt, are applicable to such crown lands;' be it declared and enacted, that all and every the said provisions of the said first-recited act do extend to such crown lands, and that the provision lastly in this act contained for substituting a fixed rent-charge instead of a contingent rent-charge on lands partially exempt from tithes shall extend and be applicable to such crown lands as aforesaid : Provided always, that no such fixed rent- charge shall be substituted instead of such contingent rent- charge on such crown lands without the consent of the persons TITHES AND RENT-CHARGE. 1177 or officers who are by the said first-recited act respectively required to be substituted in cases of commutation of tithes where the ownership of lands or tithes is vested in her Majesty " («). By 4 & 5 Yict. c. 39, s. 29, " The ecclesiastical commis- 4 & 5 Vict, sioners for England shall, in respect of all lands, tithes, tene- c- 39; , ments, or other hereditaments, endowments, or emoluments, ^t^S-* already vested or liable to be vested in them by or under the imitation Acts provisions of either of the said acts or of this act, be deemed to extended to be the owners or joint owners thereof respectively, as the case commis-tlCal may be, for all the purposes of ' 6 & 7 Will. 4, c. 71/ and of sioners. the several acts to amend and explain the same/' G k 7 Will. 4, By 6 & 7 Will. 4, c. 71, s. 87, provision is made for the sale c- 71 ■ of buildings and the sites thereof rendered useless or unneces- sary by the commutation of tithes. And 2 & 3 Yict. c. 62, s. 15, extended these provisions to collegiate and corporate bodies. By 6 & 7 Will. 4, c. 71, ss. 77, 78, any owner of a limited Power to estate in lands or any ecclesiastical owner of lands may charge expenses of the expenses of commuting the tithes on those lands upon the commutation, lands themselves for twenty years. By 2 & 3 Yict. c. 62, s. 16, the same power is given to all corporations, cathedral, collegiate, or otherwise; and by sect. 17, colleges or ecclesiastical corpora- tions aggregate may, with the consent of the commissioners, charge these expenses on any other lands belonging to them. Sect. 6. — Lammas Lands, Commons in Gross, Gated or Stinted Pastures. By 2 & 3 Yict. c. 62, s. 13 (repealed except as to tithes not 2 & 3 Vict, commuted), after reciting that "large tracts of land called c' 62; . lammas lands are in the occupation of certain persons during a ^^^n for portion of the year only, and are liable to the tithes of the lammas lands, produce of the said lands increasing and growing thereon during &c- such occupation, and at other portions of the year are in the occupation of other persons, and in their hands liable to different kinds of tithes arising from the agistment, produce, or increase of cattle or stock thereon ; and by reason of such change of occupation such last-mentioned tithes cannot be commuted for a rent-charge issuing out of or fixed upon the said lands," and that the previous acts are thereby rendered inoperative in the several parishes where such lammas lands lie : And that the same acts " are in like manner inoperative in certain cases where a personal right of commonage, or a right of common in gross, is vested in certain persons by reason of inhabitancy or occupa- (») This removes certain doubts created by sects. 43 and 71 of 6 & 7 Will. 4, c. 71. 1178 PROPERTY OF THE CHURCH. tion in the parish whe: e any common may lie, or by custom or vicinage, but without having such right of common so annexed or appurtenant to or arising out or in respect of any lands on which any rent-charge could be fixed instead of the tithes of the cattle or stock, or their produce, increase, or agistment, on such common, annexed to such personal right ; " it is enacted, that " in every case where by reason of the peculiar tenure of such lands, and the change during the year of the occupiers thereof, or of such right of commonage, a rent-charge cannot, in the judgment of the said commissioners, be fixed on the said lands in respect of cattle and stock received and fed thereon, or of the produce and increase of such cattle and stock, at such portion of the year as the said lands are thrown open, or where such right of commonage alone exists, it shall be lawful for the parties in- terested in such lands or commons and the tithes thereof in the case of a parochial agreement, or for the commissioners in the case of a compulsory award, in every such parochial agreement or award respectively, or by any supplemental agreement in the nature of a parochial agreement, or by a supplemental award, as the case may be, where any parochial agreement or award has been already made, to fix a rent-charge instead of the tithes of such lammas land or commons, to be paid during the separate occupation thereof by the separate occupiers, in like manner as other rent- charges are fixed by the said acts or any of them, and to declare in such agreement or award, or supplemental agree- ment or award, as the case may be, such a sum or rate per head to be paid for each head of cattle or stock turned on to such lammas land or commons by the parties entitled to the occupation thereof after the same shall have been so thrown open, or by the parties entitled to such right of commonage as aforesaid ; and every such sum shall be ascertained and fixed upon a calculation of the tithes received in respect of such last- mentioned occupation or right for the period and according to the provisions for fixing rent-charges in the said recited acts, and shall be due and payable by the owner of such cattle or stock on the same being first turned upon such lands or com- mons, and shall be recoverable by the persons entitled thereto by distress and impounding of the cattle or stock in respect of which such sum shall be due, in like manner as cattle are dis- trained and impounded for rent, and be subject to the same provisions as to distress and replevin of the same as are by law provided in cases of distress for rent." But these provisions are not to " extend to lammas lands where no tithes or payments instead of tithes have been taken during the seven years ending at Christmas, 1835, in respect of the cattle or stock received and fed thereon, or of the produce and increase of such cattle or stock at such portion of the year as the said lands are thrown open." Rent-charge By sect. 14. After reciting that in certain cases of commons in respect of thereafter to be inclosed, " allotments may be made in respect of tithes of TITHES AND RENT-CHARGE. 1179 tenements and hereditaments to which a right of going on such common common is appendant or appurtenant, the tithes whereof would to be^Thar e be chargeable on the tenements or hereditaments in respect of 0n the allot- which such allotments may be made, and " that " such tenements merits made in or hereditaments are not of themselves an adequate security for ^dsto whiSi the rent-charge to be fixed in respect of such tithes ; " it is declared right of com- and enacted, that " in every such case the rent-charge to be fixed mon attached, instead of such tithes shall be a charge upon and recoverable out of any allotments to be in future made in respect of such rights, as well as upon such tenements or hereditaments in respect of which such allotments are made, and by the same ways and means as are provided for the recovery of rent-charges by the said acts or any of them, or this act." By 3 & 4 Vict. c. 15, s. 15, the provisions of the last-mentioned 3 & 4 Vict, act " may be carried into effect and such powers exercised at any °; 15- time before the confirmation of the apportionment of any rent- -po^fi^ ° charge, by the land-owners and tithe-owners by a supplemental respect of agreement after an award, or by the commissioners by a supple- lammas and mental award after a parochial agreement." lands1011 By 9 & 10 Vict. c. 73, s. 13, " Where lands now charged or 9 & 10 vict. hereafter to be charged with rent-charges or portions of rent- 0. 73. charges under confirmed instruments of apportionment have Alteration of been or shall be (after the confirmation of such apportionment) menTmay'be inclosed or divided, allotted or exchanged, by agreement or made after award made under the powers of any general or local act of inclosure. inclosure (or otherwise), in such manner that the apportionment shall appear to the commissioners to be inconvenient with reference to the altered distribution of the land among the several owners thereof, it shall be lawful for the commissioners, upon the application of the owners of such lands, or the majority in number and value of such owners, or upon the application of the person or persons entitled to such rent-charges or portions of rent-charges, or any of them, to make or confirm an altered instrument of apportionment adapted to the altered distribution of the lands, in order that the rent- charges or portions of rent- charges originally charged on the several portions of land which shall have been taken or allotted away from the former owners on such inclosure, division, allotment, or exchange, shall be charged on the lands which shall have been allotted or received in the way of substitution or compensation for the lands so taken or allotted away from the former owners thereof, or as near thereto as circumstances will admit ; and Such altera- every such altered apportionment, when confirmed under the |j^^g|nto hands and seal of the commissioners, shall be valid as from the ^e Y&n^ ' date of such confirmation, and shall be taken to be an amend- ment of the original apportionment." By sect. 14, the expenses of such altered apportionment shall Expenses of be borne by the owners of the lands to which it relates, and alteratl0n- shall be recovered in the same manner as expenses chargeable p. vol. 11. 4 H 1180 PROPERTY OF THE CHURCH. 23 & 24 Vict, c. 93. Tithes com- muted for a sum or rate on. such owners for an original apportionment might be re- covered. By 23 & 24 Yict. c. 93, s. 18, "In any case in which tithes have been commuted for a sum or rate per head to be paid for each head of cattle or stock turned on land subject to common rights or held or enjoyed in common, during the whole of the per head may year, the commissioners may, upon the application in writing of w^0QnIfr+ed any person entitled to receive such sum or rate per head, or of into a rent- J r r > charge. any person who may be liable to pay the same or any part thereof, by a supplemental award and apportionment, by way of supplement to the apportionment under which such rate per head shall be now payable, convert the same into a gross rent- charge, to be thereafter payable out of such land." Gross rent- Sect. 19. " Where a gross rent-charge has been made payable charge may be {n respect of the tithes of any gated or stinted pasture, and such apportioned on gated or stinted pastures. Rent-charge on commons may be com- muted for a part of the land, or redeemed. gates or stints are rated to the relief of the poor, the commis- sioners may, by the instrument of apportionment to be made of such rent- charge, or by a supplemental award and apportion- ment, where an apportionment shall have been already made, upon the application in writing of the person entitled to such rent- charge, or of any owner of a gate or stint, apportion such gross rent-charge pro rata upon the gates or stints, and after such apportionment or supplemental award and apportionment the owner of such rent-charge shall have the same powers for the recovery of any arrears thereof, by distress on the goods and chattels of the person rated to the relief of the poor in respect of the gates or stints the rent-charge upon which is in arrear, as are given by the said recited acts (n) for the recovery of rent- charge in arrear, and such powers of distress may be exercised upon the goods and chattels of such person, whether found upon the said pasture or elsewhere." Sect. 20. " In every other case in which a gross rent-charge is charged upon any land subject to common rights, or held or enjoyed in common during the whole of the year, the commis- sioners shall, upon the application in writing of the person entitled to such rent-charge, or of any person liable to pay the same or any part thereof, convene a meeting of the owners of such land and persons liable to pay such rent-charge, of which twenty- one days' notice shall be given in such manner as to the commissioners shall seem fit; and the majority in value of the persons attending such meeting may determine whether such rent- charge shall be commuted for an equivalent part of the land on which it is chargeable, or be redeemed for a sum equal to twenty-five times the amount of such rent-charge, to be paid by a time to be limited by the commissioners, and may further determine, if the rent-charge is to be redeemed, whether the redemption money shall be raised by rate on the persons liable to such rent-charge, or by sale of a portion of such land : (w) Vide supra, p. 1169, for these acts. TITHES AND RENT-CHARGE. 1181 Provided always, that if no determination be come to at such meeting the commissioners may proceed to commute the rent- charge for land as hereinafter provided." Sect. 21. "If the rent-charge is to be commuted for land, the If rent-charge commissioners shall define and set out the land to be so given, Jo1?°™™uted and shall vest the same in the owner of the rent-charge by an commissioners award, to be made by them in like manner as awards of exchange to set out the of glebe for other land are made under the said recited acts, and t^same subject to all the like incidents." in owner. By sects. 22, 23, if the rent-charge is to be redeemed for a Commis- sum to be raised by the sale of a portion of the land liable to sioners to such rent-charge, the commissioners may define and set out the convey land- land to be sold, and are to execute the proper conveyances to the purchaser. Sect. 24. "Wherever a sum or rate per head shall be in Where rate arrear, the arrears shall be recoverable by distress and impound- per hea(J 1S in ing of any cattle, stock, goods, or chattels belonging to the same may "be person in respect of whose cattle or stock such sum or rate per recovered by head is in arrear, wherever the same may be found." distress. Sect. 25. " Where any lands in respect to the cattle or Upon inclo- stock upon which any sum or rate per head shall be payable fure' rate Per shall be inclosed, divided, allotted, or exchanged, under the converted into powers of any general or local act of inclosure or otherwise, the rent-charge, commissioners may, by the altered apportionment which may be made by them, adapted to the altered distribution of the said lands, charge a rent-charge equivalent to the amount of the sum or rate per head which shall have been previously payable, upon the lands which shall have been allotted under the said inclosure in lieu of the rights in respect of which the said sum or rate per head was made payable, which rent-charge shall be thereafter payable out of the same lands, in such manner and proportion as the said altered apportionment shall direct." Bent-charges created under this act are not subject to 54 & 55 Not under Yict. c. 8 (the Tithe Act, 1891) (o). Tithe Act> ♦ Sect. 7. — Fruit and Hop Plantations. By sect. 40 of 6 & 7 Will. 4, c. 71 (/;), the commissioners 6 & 7 Will. 4, were empowered to make a separate valuation of the hop c- 71 • grounds, orchards, or gardens, according to the average rate of ^hiaSon of composition for the tithes of similar lands during seven years hop ground, preceding Christmas, 1835, within a certain district. By sect, orchards, and 42 an ordinary and extraordinary charge for tithes was to be fruit £ardeus- fixed for hop grounds or market gardens. Hop grounds or them. (0) Vide infra, sect. 15. (p) Now repealed, except as to tithes not commuted. 4 h 2 1182 PROPERTY OF THE CHURCH. Walsh v. Trimmer. 2 & 3 Vict, c. 62. Provision for dividing the tithe of fruit plantations in certain cases. Newly -culti- vated fruit plantations to be charged an additional sum. Orchards, &c. displanted to be relieved market gardens going out of cultivation were to be subject to such ordinary charge ; but such as were newly cultivated after the commutation, were to undergo the extraordinary charge. In the case of Walsh v. Trimmer (q), a commutation of tithes took place in a parish where there was land cultivated for hops, and an extraordinary charge was fixed for this culture. At the time of the commutation there was a large piece of waste land which did not pay tithes. Some years afterwards this waste land was inclosed and cultivated for hops. It was holden by the House of Lords, reversing the decision of the Exchequer Chamber, and restoring that of the Queen's Bench, that this land had become liable to the extraordinary charge for hop culture. But no provision was made in these clauses for the contingency of a change of cultivation in orchards and fruit plantations. 2 & 3 Vict. c. 62, supplied this defect, enacting — By sect. 26, that in case any of the lands in a parish shall be orchards or fruit plantations, and notice in writing by the owners whose interest shall not be less than two-thirds of the whole of the orchards and fruit plantations in such parish, shall be given before the draught of such apportionment shall be framed, the tithes, orchards and fruit plantations in such parish shall be distinguished into two parts accordingly, to be called the ordinary charge and the extraordinary fruit charge ; and the extraordinary charge shall be a rate per imperial acre. By sect. 27, all lands in any parish " in which an extra- ordinary fruit charge shall have been distinguished as aforesaid at the time of commutation, and which shall be newly cultivated as orchards or fruit plantations at any time after such commuta- tion, shall be charged with " the extraordinary fruit charge in that parish : " Provided always, that no such additional amount shall be charged in respect of any plantations of apples, pears, plums, cherries, and filberts, or of any one or more of those fruits, during the first five years, and half only of such additional amount during each of the next succeeding five years, of such new cultivation thereof; and that no such additional amount shall be charged in respect of any plantation of gooseberries, currants, and raspberries, or of any one or more of those fruits during the first two years, and half only of such additional amount during each of the next succeeding two years, of such new cultivation thereof ; and that no such additional amount shall be charged in respect of any mixed plantation of apples, pears, plums, cherries, or filberts, and of gooseberries, currants, or raspberries, during the first three years, and half only of such additional amount during each of the next succeeding three years, of such new cultivation thereof." By sect. 28, lands which shall cease to be cultivated as orchards or fruit plantations shall be charged, after the thirty- (q) L. R., 2 H. L. p. 208 ; 36 L. J., Q. B. p. 318 (1867). TITHES AND RENT-CHARGE. 1183 first day of December next following such change of cultivation, from addi- only with the ordinary charge. tional charge. Further supplementary provisions for mixed plantations of Supplemental hops and fruit, for separating rectorial and vicarial tithes are provisions, made by sects. 29—32 of 2 & 3 Yict. c. 62. Sect. 33 of that act, and sect. 18 of 3 & 4 Vict. c. 15, provide, in the case of tithes not commuted, for parochial agreements. It is not thought necessary now, by reason of 49 & 50 Yict. c. 54 (r), to set out these sections in full. The last-mentioned section of 3 & 4 Yict. c. 15 provided that 3 & 4 Vict, "no such extraordinary charge shall be payable in respect of c; 15- any such hop grounds and market gardens during the first year, ?° extr^or- and only half such extraordinary charge during the second year, payable on° in which they shall be newly cultivated as such, whether such hop grounds, new cultivation shall have commenced before or after the making of such parochial agreement or award as aforesaid." their^beLag By 3 & 4 Yict. c. 15, s. 19, " It shall not be necessary to cultivated, distinguish in any apportionment the amount of extraordinary rent-charge to be charged upon the lands of each individual rent_cl^^ry landowner which shall be cultivated as hop grounds, market need not be gardens, orchards, fruit plantations, or mixed plantations of distinguished hops and fruit, provided that the acreable amount of extra- j^al^ap- ordinary charge for all the lands so cultivated respectively in portionment. any district which shall have been assigned, or in any parish wherein any extraordinary rent- charge shall have been declared, previous to the confirmation of the instrument of apportionment, shall be inserted therein." By 23 & 24 Yict. c. 93, s. 42, " Whenever the commissioners 23 & 24 Vict, are requested in the manner provided by the said recited acts (s) c- 93 • to charge an additional rent- charge by way of extraordinary ^™ct withL charge upon any hop grounds or market gardens newly cultivated which extra- as such beyond the limits of any district for which an extra- ordinary ordinary charge for hop grounds or market gardens respectively charg demption first with the payment ot an annual rent- charge equal to lour per charge on centum on such capital value, in lieu of the extraordinary charge land, which shall cease on the half-yearly day of payment thereof which shall immediately precede the date of the said certificate, such rent- charge to be a charge upon the particular farm or parcel of land in respect of which the same has been assessed. (2.) Provided that the Commissioners may from time to time, if they think fit, on application by or on behalf of any person interested in land so charged, by order under their seal exonerate from the charge the whole or any part of that land, and may, if necessary, substitute other land for the land so exonerated, provided that the value of the land charged with the payment of the rent-charge shall be in their opinion equal to at least three times the capital value of the rent-charge and that such land is held under the same title, and subject to the same limitations as the land so exonerated. (3.) The rent- charge shall be payable half-yearly on the days on which the extraordinary charge in the parish has hitherto been payable, and the first payment thereof shall be made on the one of the said two days which shall first occur after the capital value shall have been certified as aforesaid, the first pay- ment to be a full half-yearly payment. The rent-charge shall have priority over all existing and future estates, interests, and incumbrances whatever. (4.) The rent-charge shall be payable to the person who would but for this Act have been for the time being entitled to receive the extraordinary charge, and shall be held on the trusts and subject to the provisions and conditions (if any) applicable to that charge. (5.) If default is made in payment of any instalment of the rent-charge it may be recovered by action in Her Majesty's High Court of Justice, or a county court, or in the same way that rent-charge in lieu of ordinary tithe is recoverable and subject to like conditions, or by entry upon and perception of the rents and profits of the land subject to such rent-charge. The said PROPERTY OF THE CHURCH. rent- charge shall not be subject to any parochial, county, or other rate, charge, or assessment." It is, therefore, not subject to land tax (u). Where a farm, part of which was hop ground, had the extra- ordinary rent-charge assessed upon it under this Act in respect of such hop ground, and was afterwards sold in lots, it was decided that the part only which was cultivated as hop ground at the date of the Act was liable to the extraordinary rent- charge and not the other lots (x). Sect. 5. " (1.) The owner of or any person interested in any land subject either to an extraordinary charge or to a rent- charge substituted therefor under this Act may at any time redeem the charge in manner by this section provided. (2.) Where the person entitled to the charge is the incumbent of a benefice, the owner or any person interested in the land may pay the amount of the capital value of the extraordinary charge to the Governors of Queen Anne's Bounty (the receipt of whose treasurer shall be a sufficient discharge for the same) , to be held or applied for the benefit of the incumbent for the time being, as if the same were money paid in redemption of ordinary rent- charge. (3.) Where the person entitled to the charge is absolutely entitled thereto in fee simple in possession, or is empowered to dispose thereof absolutely, or to give an absolute discharge for the capital value thereof, the owner of or any person interested in the land may, after giving one month's notice to the person entitled to the charge, pay or tender to him the amount of the capital value of the extraordinary charge or any less sum which may be agreed on. (4.) In any other case the owner of or any person interested in the land may pay the amount of the capital value of the extraordinary charge into the Bank of England, to be placed to the account of the Paymaster- Greneral, in the matter of the land- owner and the tithe owner (naming them), and in the matter of this Act; and the money so paid shall be applicable to the like purposes and may be dealt with in like manner as if it were money paid into the bank under the Tithe Commutation Acts. (5.) On proof to the Commissioners that payment or tender has been made as by this section provided in respect of any extraordinary charge or substituted rent-charge, they shall certify that the charge is redeemed, and that certificate shall be final and conclusive, and the land shall be thereby absolutely freed and discharged from the charge from the date of the next half-yearly payment." Sect. 6. " (1.) Money applicable to the purchase of land to be settled to or on any uses or trusts shall be applicable in or (u) Carr v. Fowle, 1893, 1 Q. B. (cc) Simmonds v. Heath, 1894, 1 p. 251. Q. B. p. 29. TITHES AND KENT-CHARGE. 1187 towards the redemption of an extraordinary charge or a rent- charge under this Act on land settled to or on the like uses or trusts. (2.) Where a person is tenant for life of land subject to an extraordinary charge or a rent-charge under this Act he may borrow any money required for redemption thereof, and may charge the inheritance with repayment of the money so borrowed with interest, and the charge so created shall have the like priority as a rent-charge under this Act. (3.) Where a person is tenant for life of land subject to an extraordinary charge or a rent- charge under this Act he may sell the land or any part thereof, or any land settled to or on the like uses or trusts, and apply the proceeds in or towards redemp- tion of the charge. Sect. 7. " (1.) Where a tenant of land subject to an extra- Charge to be ordinary charge has before the passing of this Act contracted to J^^® ^ pay the charge or any part thereof he shall, whilst his tenancy an or subsists, be liable to pay to his landlord the rent-charge sub- stituted for the extraordinary charge ; and any sum which a tenant is so liable to pay may be recovered by the landlord as the tenant's rent is for the time being recoverable. (2.) For the purposes of this section a tenancy from year to year or a tenancy at will shall be deemed to determine at the time when it would by law become determinable if notice or warning to determine the same were given at the date of the passing of this Act. (3.) Subject as aforesaid a rent- charge under this Act shall as between landlord and tenant be payable by the landlord, any agreement to the contrary notwithstanding." Sects. 8, 9 and 10, provide for the proceedings of the Com- Procedure, missioners in carrying out the provisions of this Act. By sect. 11, every certificate made by the Commissioners Filing of under this Act shall be filed in their office : and an office copy certificates of shall be delivered out to any person requiring the same on gSrs!" payment of the proper fee, and shall be sufficient evidence of the certificate. Sect. 12. " When it shall appear to the Grovernors of Queen Power to Anne's Bounty that the income of any benefice on which a Queen Anne's mortgage to the said Governors exists has been diminished by Modify t0 the operation of this Act, it shall be lawful for the said Grovernors, mortgages, by resolution of their board on the application of the incumbent, with the consent of the patron, to make such modification in the conditions of such mortgage or the term fixed for the repay- ment of the principal secured thereby as may seem to them just and reasonable. The date of any such resolution, the term of extension, and the altered rate of payments or of instalments, shall be endorsed on the respective mortgage deeds free of charge to the incumbent. The application of the provisions of this Act shall not in any 1188 PROPERTY OF THE CHURCH. Power to adjust charges on one benefice in favour of another. Not under Tithe Act, 1891. way. invalidate the instruments of security under which loans have been granted by the Governors ; the said provisions shall extend and apply to such instruments as if originally, fully, and expressly inserted therein" (y). Sect. 13. " Whereas under the provisions of Acts of Parlia- ment certain fixed charges have been made on the income of benefices in receipt of extraordinary tithes in favour of other benefices or of district churches or chapelries situated within the limits of parishes of which the incumbents are in receipt of extraordinary tithes : Be it enacted that after the passing of this Act the Ecclesiastical Commissioners may make such alterations in the charges aforesaid, having in view the altered state of things created by this Act, as the said Commissioners may deem most equitable " (s). Bent- charges created under this Act are not subject to 54 & 55 Yict. c. 8 (The Tithe Act, 1891) (a). Sect. 8. — Exemption of small Gardens and Tenements. 3 & 4 Vict. By 3 & 4 Yict. c. 15, sects. 25, 26, and 27, which now apply c- 15- only to the cases in which tithes have not been commuted, it is enacted as follows : — Gardens or Sect. 25. " Whereas in many cases tithe-owners have, during ex7enSt m^he ^e seven years of average prescribed by the said first-recited exempted7 6 a°t " (6 & 7 Will. 4, c. 71), " forborne to take the tithes of lands from rent- used and occupied as gardens, lawns, or the like, or composi- charge. tions in lieu thereof, on account of such lands being of small extent, and the tithes thereof being of inconsiderable value : be it enacted, that where in such cases the tithes of a parish or district have been commuted, whether by a parochial agreement or by a compulsory award, and it shall be shown to the satisfac- tion of the said commissioners that the rent- charge or rent- charges specified in the said agreement or award has or have been based upon the average value of the tithes of the said parish or district during the seven years of average, exclusive of any tithes in respect of such gardens, lawns, or such like small holdings, according to the provisions of the said first-recited act, and that no part of the said rent-charge or rent-charges has been agreed to be given or awarded in respect of the tithes of such gardens, lawns, or other such like small holdings, it shall be lawful for the said commissioners, if they think fit, to order and direct that no part of the said rent- charge or rent-charges shall be apportioned upon such gardens, lawns, or other such like small holdings." (y) Vide supra, Part V. Chap. II. (a) Vide infra, sect. 15. But see sect. 2, infra, Part IX. Chap. II. there sub-section 4 of s. 10 of 54 & (z) Vide infra, Part IX. Chap. IV. 55 Vict. c. 8. TITHES AND RENT-CHARGE. 1189 Sect. 26. " And whereas it hath happened that in cases where, The commis- diiring the seven years of average prescribed by the said first- S10n^ers to recited act, tithes shall not have been demanded of certain apportion- tenements, by reason of their small extent of or the small ment to be amount of such tithes, such tenements have notwithstanding been P^J^^f8 included in the apportionment of the rent-charge for the parish, apportion- whereby the occupiers of such tenements have become liable ment shall to have their goods distrained upon, and the tithe-owner has been J^^ts^ subjected to much increased difficulty and expense in the collec- from which no tion of the rent-charge, contrary to the true intent and meaning tithe has been of the said first-recited act ; and it is therefore expedient, under *™ ° certain restrictions, to give relief in such cases : be it enacted, previous to that in any such case in which the apportionment shall have in- Christmas, eluded any number of small tenements, exceeding in the whole 1S3°' one hundred, from which tenements no tithe or composition for tithe shall have been demanded or taken (notwithstanding their liability thereto) during the period of seven years next preceding Christmas in the year 1835, it shall be lawful for the commis- sioners, and they are hereby authorized, if they shall see fit, upon the application in writing of any ten or more of the owners or occupiers of such small tenements, or of the tithe- owner, and after satisfactory proof shall have been given that no part of the rent-charge has been agreed to be given or awarded in respect of the tithes of such small tenements, to cause a new apportionment to be made of the said rent- charge, and to order and direct that no part thereof shall be ayjportioned upon such small tenements." Provision is made by this and the following section (sect. 27) Expenses of for the making of this new apportionment and the costs n.ew aPPor- thereof:- " And as to any part of such costs as may be borne by the tithe-owner, such tithe-owner, being an ecclesiastical bene- ficed person, may charge or assign the rent-charge as a security for the repayment of such costs in like manner as for the costs of the commutation under the said act " of 6 & 7 Will. 4, c. 71. Sect. 9. — Personal, House, and Mineral Tithes. By 6 & 7 Will. 4, c. 71, s. 90, " Nothing in this act contained, 6 & 7 Will, i, unless by special provision, to be inserted in some parochial c- "L agreement and specially approved by the commissioners, in which f^^^ case the same shall be valid, shall extend to Easter offerings, Easter offer- mortuaries, or surplice fees [b), or to the tithes of fish or fishing, ings, &c. {b) Tide Part Y., Chap. IV., infra. For Mortuaries, vide pp. 6S5— 689, supra. 1190 PROPERTY OF THE CHURCH. 2 & 3 Vict, c. 62. Power after award to make paro- chial agree- ment for tithes of fish and mineral tithes. Fish in ponds. Deer. Rabbits. Oysters. Fish in rivers. Fish in the or to any personal tithes other than the tithes of mills, or any mineral tithes " (c). By 2 & 3 Vict. c. 62, s. 9, however, " It shall be lawful, at any time before the confirmation of any apportionment after a compulsory award in any parish, for the land-owners and tithe- owners, having such interest in the lands and tithes of such parish as is required for the making a parochial agreement, to enter into a parochial agreement for the commutation of Easter offerings, mortuaries, or surplice fees, or of the tithes of fish, or fishing, or mineral tithes ; and all the provisions, conditions, limitations, and powers of the said recited acts or any of them, relating to parochial agreements, so far as the same shall in the judgment of the commissioners be applicable to the subject of the proposed commutation, shall be observed and applied in every such case as if no previous award had been made ; and every such agreement may fix the period at which the rent- charge to be paid under such agreement shall commence, but so nevertheless that the same and the subsequent payments thereof shall be made on some day fixed for the payment of the rent- charge awarded in such parish, and shall be recoverable from time to time by the means provided in the said acts or either of them for the recovery of the rent-charges in the said parish" (d). It does not seem to be agreed, whether or how far fish in ponds or private fisheries are liable to pay tithes ; and therefore the same must be referred to the customs of particular places. But it seems that of these no tithe can be due, where no profit is made thereof, and where they are kept only for pleasure, or to be spent in the house or family ; as fish kept in a pond generally are (e) ; for they are like deer in a park, and rabbits in an inclosed warren, wild in their nature ; and partaking of the realty, go to the heir (/). Oysters, or oyster lays or beds, are not tithable (g). Also fish taken in common rivers are tithable only by custom (h) . And in this case Lindwood says it is only a personal tithe, and shall be paid to that church where he who takes them hears divine service and receives the sacraments (i) . Where fish are taken in the sea, though they are feres natures, and consequently not tithable of common right, yet by the custom of the realm they are tithable as a personal -tithe, that is, (c) As to the recovery of these tithes when" not commuted, vide infra, Part Y. Chap. VI. sect. 2. (d ) This section is only in force with respect to tithes not com- muted. e) Bohun, Law of Tithes, p. 135. /) Nicholas v. Elliott, Bunb. p. 19 ; 1 Eag. & Yo. p. 698 ; Austen v. Nicholas, 2 Brown, P. C. p. 9 ; 1 Wood, Tithe Causes, p. 523 ; Flower v. Vaughan, Hetley, p. 147 ; 1 Eag. & Yo. p. 370. (g) Murray v. Skinner, 1 Wood, p. 541 ; 1 Eag. & Yo. p. 706. (h) God. p. 406; Wood, b. ii. c. 2. (?) Lindw. p. 195. Vide infra, p. 1192 ; 2 & 3 Edw. 6, c. 13, § 11. TITHES AND RENT-CHARGE. 1191 not by the tenth fish, or in kind, but by some small sum of money in consideration of the profits made thereby after costs deducted (k). By the case of Rex v. Carhjon (/), it appears to be the custom in the parish of Paul, in the county of Cornwall, to pay one- tenth of all the fish caught and brought on shore within the parish; and there the court held that the proprietors of this tithe were rateable to the poor in respect of it (m). Upon which foundation, it is said, that if the owners of a ship do lend it to mariners to go to an island for fish, and are in consideration of such loan to have a certain quantity of fish when they come back ; no tithe shall be paid by the mariners for what is given to the owners, because they are only to pay for the clear gain (n). A custom that tithes in kind ought to be paid to the vicar for all sea fish taken or caught with any nets or boats that had been housed or wintered at or in the parish in the interval between the last preceding fishing season and the season during which the fish were caught or taken (whether such nets or boats were the property of parishioners or not) has been established (o). Unless there be a clear custom to the contrary, the tithe of fish taken in the sea appears to be payable to the parson of the parish where the fisherman resides (p). By a constitution of Archbishop Winchelsea, it is ordained, that Personal " personal tithes shall be paid of artificers and merchandizes, tltnes- that is, of the gain of their commerce ; as also of carpenters, smiths, masons, weavers, inn-keepers, and all other workmen and hirelings, that they pay tithes of their wages ; unless such hireling shall give something in certain to the use or for the light of the church, if the rector shall so think proper : " that is to say, they shall pay the tenth part of the profit, deducting first all necessary and reasonable expenses (q) . And by 2 & 3 Edw. 6, c. 13 (r), s. 7, every person exercising 2 & 3 Edw. merchandizes, bargaining and selling, clothing, handicraft or c- 13- other art or faculty by such kind of persons, and in such places as heretofore within these forty years have accustomably used to pay such personal tithes, or of right ought to pay (other than Personal such as be common day labourers), shall yearly at or before the Jo belaid* feast of Easter, pay for his personal tithes the tenth part of his a°i but day labourers. {7c) 1 Roll. Abr. p. 636. See also Holland v. Heale, Noy, p. 108 ; 1 Eag. & Yo. p. 156 ; Stiles Case, 1 Eag. & Yo. p. 361; Thompson v. Field, 1 Eag. & Yo. p. 761 ; Oweavas V. Kelynach, Bunb. pp. 239, 256 ; 2 Eag. & Yo. p. 1 ; Gwill. p. 691 ; Jones v. Cleverden, 2 Wood, Tithe Causes, p. 283 ; Earl of Scarborough Y. Hunter, Bunb. p. 43 ; 1 Eag. & Yo. p. 747. Yo. p. 217 ; 3 Gwill. p. 931. to tithes not commuted, or other- wise still payable : 50 & 51 Vict, c. 59. Bunb. pp. 43, 239, 256. (n) Gibs. p. 679. (o) Borlase v. Batten, 2 Eag. & Yo. p. 300. (m) For more of this custom, see (0 3T.B. p. 385. 1192 PROPERTY OF THE CHURCH. Customary- payments by handicrafts- men con- tinued. Ordinary may cite and examine any person re- fusing to pay. Tithes of fish. London, Canterbury, &c. Restrictions imposed by this act. Cases as to tithes on trade profits. clear gains ; his charges and expenses, according to his estate, condition or degree, to be therein abated, allowed and deducted." Sect. 8. " Provided always that in all such places where handicraftsmen have used to pay their tithes within these forty years, the same custom of payment of tithes to be observed and continue." Sect. 9. "If any person refuse to pay his personal tithes in form aforesaid, then it shall be lawful to the ordinary of the diocese where the party is dwelling, to call the same party before him, and by his discretion to examine him by all lawful and reasonable means, other than by the party's own corporal oath, concerning the true payment of the said personal tithes." Sect. 11. " Provided also that this act or anything therein con- tained shall not extend to any parish which stands upon and towards the sea coasts, the commodities and occupying whereof consisteth chiefly in fishing, and have by reason thereof used to satisfy their tithes by fish ; but that all such parishes shall pay their tithes according to the laudable customs, as they have here- tofore of ancient time within these forty years used and accus- tomed, and shall pay their off erings as is aforesaid." Sect. 12. " Provided also, that this act or anything therein contained shall not extend in any wise to the inhabitants of the cities of London and Canterbury, and the suburbs of the same, nor to any other town or place that hath used to pay their tithes by their houses, otherwise than they ought or should have done before the making of this act . . . ." This act restrains the canon law in three things : First, where the canon law was general, that all persons in all places should pay their personal tithes, the act restrains it to such kind of persons only, as have accustomably used to pay the same within forty years before the making of the act. Secondly, whereas by the ecclesiastical laws they might before this act have examined the party upon his oath concerning his gain, this act restrains that course, so that the party cannot be examined upon oath. Thirdly, by this act the day labourer is freed from the payment of his personal tithes (s). It cannot be intended upon this act, that if such tithes have been sometimes paid within forty years, they are therefore due ; but they must have been accustomably, that is, constantly, paid for forty years next before the act (t) . If it be demanded how such payment must now be proved forty years before the making of the act ; the answer is, as in other like cases, d posteriori ; by what has been done all the time of memory since the act (u) . Sir Simon Degge says, the only case that he could find for above a hundred years before his time, where the tithes of the profits of such trades were sued for by any clergyman, was that (s) Degge, pt. 2, c. 22. (0 Ibid. (w) Ibid. TITHES AND RENT-CHARGE. 1193 of DoUcy v. Davics, in 11 Jac. I., wliich was thus: The parson of a parish in Bristol libelled in the spiritual court against an inn-keeper, to have tithes of the profits of his kitchen, stable, and wine cellar, and did set forth in his libel, that he made great gain in selling of his beer, having bought it for 500/. and sold it for 1,000/., of which gain he ought to have tithe by the common law of the realm. Upon which occasion, the clerk of the papers informed the court, that when one had libelled for tithes of the gain of 10/. for 100/. put out, a prohibition was granted : and the same was also granted in that case (x). And personal tithes are now scarce any where paid in England, Personal unless for mills (y), or fish caught at sea; and then they are tithes now- payable where the party hears divine service, and receives the rare* sacraments (s). Tithes may be payable by custom for houses and other build- Houses, ings, although they are generally exempt (a). In some places, particularly near London, though not within the city, and therefore not within 37 Hen. 8, c. 12, a sum of money is paid for each house in the nature of a modus decimandi. In Pocock v. Tidmarsh it appeared that this pay- ment, which was 12s. per house, was the only provision for the vicar of St. Saviour's, Southwark, and the court decreed its payment (b). In Bcresford v. Newton the Court of Exchequer similarly enforced certain ancient customary payments in respect of certain houses in that part of the parish of St. Andrew's, Holborn, which is not within the City of London (c) . In the argument of that case many similar instances were referred to. Tithes or offerings of this kind have been some- times converted into church rates leviable by statute (d). Tithes are not due of things which are of the substance of the Substance earth (e), as for lead ore in Derbyshire, and tin in Devonshire the earth, or Cornwall (/). A customary payment in lieu of tithe of mines is good (g). A lime-kiln, though not tithable of common right, may be so by custom (h) ; so may white salt (*). x) 2 Bulst. p. 141. y) Which are not excluded from commutation by 6 & 7 Will. 4, c. 71, § 90, vide supra, pp. 1189, 1190. (z) Wood, b. 2, c. 22. (a) 2 Inst. p. 651 ; Kynaston v. Piercy, 2 Eag. & Yo. p. 289. (b) Bunb. p. 102. (c) 1 C. M. & R. p. 901 ; 5 Tyrw. p. 441. (d) Yide infra, Part YI. Chap. II. Sect. 9. (e) Dr. Grunt's Case, 11 Co. p. 15 ; 1 Eag. & Yo. p. 222 ; Whetdker v. Leyfidd, 1 Eag. & Yo. p. 232. Yide supra, p. 1150. (/) Brown v. Vermuden, 1 Eag. & Yo. p. 509 ; Tally v. Kehall, 1 Wood, Tithe Causes, p. 74; Pindur v. Jackson, 1 Eag. & Yo. p. 583. (r/) Burton v. Spencer, 2 Wood, Tithe Causes, p. 336. (A) Thomas v. Perry, 1 Eoll. Abr. p. 642. (?) Burton v. Spencer, 2 Wood, Tithe Causes, p. 336. ! 1194 PROPERTY OF THE CHURCH. Sect. 10. — Incidents to Tithe and Rent-charge. Tithes in lay Tithes which come to the crown by the statutes of dissolution, hands. an(j are now vested in the lay impropriators, are subject to all the laws and incidents of other incorporeal freehold property. 6 & 7 Will. 4, By 6 & 7 Will. 4, c. 71, it is carefully provided that the rent- °- 71. charge shall be subject to the same incumbrances and incidents as tithe had been before. Rent-charge Sect. 71. " Any person having any interest in or claim to to theSsamCt an^ ^ies' or ^° any cnarge or incumbrance upon any tithes, incumbrances before the passing of this act, shall have the same right to claim and incidents upon the rent- charge for which the same shall be commuted as thi^act before ne na(^ ^° or uPon the tithes, and shall be entitled to have the like remedies for recovering the same as if his right or claim to or upon the rent-charge had accrued after the commutation : provided that nothing herein contained shall give validity to any mortgage or other incumbrance which before the passing of this act was invalid or could not be enforced ; and every estate for life, or other greater estate, in any such rent-charge, shall be taken to be an estate of freehold ; and every estate in any such rent-charge shall be subject to the same lia- bilities and incidents as the like estate in the tithes com- muted for such rent-charge ; and where any lands were exempted from tithe whilst in the occupation of the owner thereof by reason of being glebe or of having been heretofore parcel of the possessions of any privileged order, the same lands shall be in like manner exempted from the payment of the rent- charge apportioned on them whilst in the occupation of the owner thereof ; and where by virtue of any act or acts of par- liament heretofore passed any tithes are authorized to be sold, exchanged, appropriated, or applied in anyway, the rent- charges for which such tithes may be commuted under the provisions of this act, or any part thereof, shall or may be saleable or ex- changeable, appropriated and applied, to all intents and pur- poses, in like manner as such tithes, and the same powers of sale, exchange and appropriation shall in all such cases extend to and may be exercised in respect of the said commutation rent-charges ; and the money to arise by the sale of such rent- charges shall or may be invested, appropriated, and applied to the same purposes and in like manner as the money to arise by the sale of any such tithes might have been invested, appropri- ated, and applied under such particular act or acts in case this act had not been passed ; and no such rent-charge shall merge or be extinguished in any estate of which the person for the time being entitled to such rent-charge may be seised or pos- sessed in the lands on which the same shall be charged." Time as bar To the recovery of an estate in tithe by the true owner against to recovery. a wr0Dgfui possessor, lapse of time formerly was no bar. But TITHES AND RENT-CHARGE. 1195 by 3 & 4 Will. 4, c. 27, s. 2 (k), twenty years' adverse possession 3 & 4 Will. 4, gave a good title, and now by 37 & 38 Yict. c. 57, s. 9, twelve ;3g yict years' adverse possession gives a good title. c< 57. It was for a long time thought that these acts operated only Operation of between rival claimants to an estate in existing tithe, and had a.cts between no effect where the question was whether land by long non- J^^tithe^ payment had escaped liability to tithe. payer. In The Bean and Chapter of Ely v. Bliss, first heard before The Bean and Lord Langdale as Master of the Rolls (/), then appealed to the ^p^.er^{iss Lord Chancellor (Lord St. Leonards) and then sent first to the y v* Court of Exchequer (m) and then to the Court of Common Pleas, the ultimate judgment at which the Lord Chancellor arrived, reversing the Master of the Rolls, was that non-payment of tithe for twenty years and upwards did not constitute in the tithe- payer adverse possession against the tithe-owner, and con- sequently was no defence to a suit for tithes (n) . In the words of Lord Selborne in The Irish Band Commission v. Grant (o) , " Lord St. Leonards decided in substance that the word ' land ' as extended in that section to 'tithes' meant the incorporeal hereditament vested in the tithe-owner and not the reddendum to be made by the tithe-payer." In The Irish Band Commission v. Grant, just cited, the right to The Irish tithe rent- charge in Ireland was vested in a spiritual corporation Land Com~ sole until 1871, when it was transferred by statute to a lay cor- ^^nt. V* poration, the predecessors in title of The Land Commission. In 1877 this lay corporation brought an action to recover six years' arrears. For more than twenty years there had been no pay- ment or acknowledgment in writing. It was holden, affirming the decision of the Irish Court of appeal, that tithe rent- charge was, as tithe would have been, "rent" within the meaning of 3 & 4 Will. 4, c. 27, s. 1, and that sect. 2 applied as between the tithe-owner and the person liable to pay tithe rent-charge. This seems to overrule Lord St. Leonards' decision in The Bean and Chapter of Ely v. Bliss (m). In Payne v. Esdaile (p), where a lay impropriator was suing Payne v. for the City payments in lieu of tithe made under 30 Tien. &, E*daile. c. 12 (q), a similar decision was arrived at. These payments were considered as " annuities or periodical sums of money charged upon land " within the same section of the 3 & 4 Will. 4, c. 27 ; and non-payment for upwards of twenty years was con- sidered a good defence. It is to be observed that none of these cases touch that of a Ecclesiastical spiritual corporation sole, such as the incumbent of a benefice. g°[P°ratioij.s In The Bean and Chapter of Ely v. Bliss, the claimant was a cor- withnTacts. (k) Vide supra, pp. 1123, 1124. (n) 2 De G. M. & G. p. 459. (I) 5 Beav. p. 574. (o) 10 App. Ca. p. 14. (7n) Reported as The Dean and (p) 13 App. Ca. p. 613. Chapter of Ely y. Cash, 15 M. & {q) Vide infra, sect. 16. W. p. 617. P. VOL. II. 4 I 1196 PROPERTY OF THE CHURCH. poration aggregate. In Payne v. Esdaile the claimant was a lay impropriator. In The Irish Land Commission v. Grant the original tithe-owner had been a spiritual corporation sole ; but the Irish Court of Appeal and the House of Lords considered that the lay corporation aggregate which had succeeded him could not avail themselves of his peculiar position. Assuming a spiritual corporation sole to come under the real property limita- tion acts at all, it is not a question of the twelve years or twenty years bar ; but of sixty years or three incumbencies under sect. 29 (r). But, inasmuch as tithe is only brought under this act by the definition clause (sect. 1), and that definition clause refers only to " tithes other than tithes belonging to a spiritual or eleemosynary corporation sole," it seems very doubtful whether the statutes of limitation afford any defence to a claim by a spiritual corporation sole. Lord Selborne touches upon this question in The Irish Land Commission v. Grant (s), but leaves it undecided. Sect. 11. — Tithe and Rent-charge exchanged for Land. 6 & 7 Will. 4, c. 71, contains certain provisions for giving land, in lieu of tithes, to ecclesiastical persons, but not to lay impropriators. It should be observed, that this exchange of land for tithes must be the subject of an agreement: it cannot be by an award {t) of the commissioners. Land not Sections 21, 27, and 28 of that act, having specified the nature exceeding 0f par0chial agreements, it is enacted, by sect. 29, that " any such twenty acres u'l t "L J • \ « £J maybe given parochial agreement may be made m manner and torm aforesaid as commuta- for giving to any ecclesiastical owner, in right of any spiritual kon for tithes, benefice or dignity, of any tithes or of any rent- charge for which 6 & 7 Will 4 sucn tithes shall have been commuted, any quantity not exceed- c> 71. ' ing in the whole twenty imperial acres of land by way of com- mutation for the whole or an equivalent part of the great or small tithes of the parish, or in discharge of or exchange for the whole or an equivalent part of any rent-charge agreed to be paid instead of such tithes, but subject in every case to the provisions hereinafter contained ; and every such agreement shall be made in such form and contain such particulars as the commissioners shall in that behalf direct, specifying the land whereof the tithes or rent-charge for which such tithes shall have been commuted shall be the subject of such agreement, and giving full and sufficient descriptions of the quantity, state of culture, and annual value of the land proposed to be given in exchange for such tithes or rent-charge : provided always, that the same consent and confirmation shall be necessary to any such agree- (r) Of 3 & 4 Will. 4, c. 27. Vide (a) 10 App. Ca. at p. 29. supra, p. 1124. (t) See 6 & 7 Will. 4, c. 71, s. 50. TITHES AND RENT-CHARGE. 1197 ment as in the case of an agreement for a rent-charge ; and that in case the said agreement shall not extend to the whole of the tithes of the parish, an agreement or award as hereinafter pro- vided may and shall be made for the payment of a rent-charge in satisfaction of the residue of the said tithes ; and such rent- charge when agreed upon or awarded, or the residue thereof, shall be apportioned in manner hereinafter provided upon all the lands of the parish subject to the payment of tithes, unless other- wise agreed upon by the parties to the said parochial agreement, except the land so given by way of commutation, in like manner as if no agreement for giving land had been made : provided also, that the land so given shall be free from incumbrances, except leases at improved rent, land tax, or other usual out- goings, and shall not be of leasehold tenure, nor of copyhold or cus- tomary tenure, subject to arbitrary fine or the render of heriots.', Sect. 31. "Such agreement for giving land confirmed by the Agreements said commissioners, shall operate as a conveyance of such land f^f™" to the owner of such tithes or rent-charge, and the land so con- operate as veyed shall thereupon vest in and be and be deemed to be holden conveyances, by such person or persons, and upon the like uses and trusts in every respect as the tithes or rent- charge in commutation or exchange for which the same shall have been given shall be vested and holden : and for the purpose of making and complet- ing any such agreement, the provisions of this act respecting persons under legal disability (u) shall apply to every person party to such agreement, or in whom any such land shall be vested, and whose concurrence or consent may be necessary to the perfecting thereof, or of the title to such land, as fully as if the same had been here repeated and re-enacted." Sect. 62. " It shall be lawful for the owner of any lands Owners of chargeable with any such rent-charge to agree, at any time aw^with"^" before the confirmation of any such instrument of apportion- rent-charge ment, with any ecclesiastical person being the owner of the may give tithes thereof in right of any spiritual benefice or dignity, for *heyeofStead giving land instead of the rent-charge charged or about to be charged upon his lands ; and every such agreement shall be made under the hands and seals of the land-owner and tithe- owner, and shall contain all the particulars hereinbefore required to be inserted in a parochial agreement for giving land instead (u) By 6 & 7 Will. 4, c. 71, s. 15, or, in default thereof, such person ' ' Whenever the patron of any as may be nominated for that pur- benefice, or the owner of any lands pose by the commissioners after or tithes to which the provisions of due inquiry shall have been made this act are intended to apply, or by them as to the fitness of such any person interested in any ques- person, and whom they are hereby tion as to any tithes, shall be a empowered to nominate under their minor, idiot, lunatic, feme covert, hands and seal, shall, for the pur- beyond the seas, or under any poses of this act, be substituted in other legal disability, the guardian, the place of such patron, owner, or trustee, committee of the estate, person so interested." husband, or attorney respective^, 4 i 2 1198 PROPERTY OF THE CHURCH. 2 & 3 Vict, c. 62. Extension of provisions for giving land in lieu of tithes. Lands taken by ecclesi- astical tithe- owners instead of tithes to vest absolutely in them. of tithes or rent- charge : provided always, that no such tithe- owner shall be enabled to take or hold more than twenty im- perial acres of land in the whole by virtue of any such agree- ment or agreements made in the same parish ; and the same consent and confirmation relatively to the lands and tithes com- prised in the said agreement shall be necessary to any such agreement as in the case of a parochial agreement for giving land instead of tithes, and all the provisions hereinbefore con- tained concerning a parochial agreement for giving land shall be applicable to every such agreement as hereinbefore last mentioned, so far as concerns the lands and tithes comprised in the said agreement : provided also, that any amendment which shall be made in the draft of apportionment before con- firmation thereof, and subsequent to any such agreement for giving land instead of rent-charge, whereby the charge upon the lands referred to in such agreement shall be altered, shall be taken to annul the execution of such agreement for giving land, and any consent which may have been necessary thereunto." Under these provisions land in lieu of tithes could not be given after the confirmation of the apportionment. 2 & 3 Yict. c. 62, makes the time coextensive with the dura- tion of the commission, enacting as follows : Sect. 19, " So much of the said first-recited act as enables any land-owner, either by parochial agieement or individually, to give land instead of tithes or rent-charge at any time before the confirmation of any instrument of apportionment, shall be and the same is hereby extended, and the powers and provisions for that purpose may be exercised in every such case at any time, as well after as before such confirmation of the apportionment as aforesaid, during the continuance of the commission constituted and with the consent of the commissioners aj)pointed and acting under the said first-recited act." Sect. 20. " In any case where any land shall have been or shall hereafter be taken by any ecclesiastical tithe-owner under any agreement for the commutation of any tithes, or for giving land instead of any rent-charge, under the recited acts, or any of them, or this act, such land shall, upon the confirmation of such agreement, vest absolutely in such tithe-owner and his suc- cessors, free from all claims of any person or body corporate, and without being thereafter subject to any question as to any right, title, or claim thereto, or in any manner affecting the same ; and the commissioners shall cause to be inserted in or endorsed upon every such agreement the amount of the rent-charge in- stead of which such land was given, and the lands upon which the same was chargeable ; and every person who, if this act had not been made, would have been entitled to recover any such land given instead of rent- charge, or any rents or profits issuing out of such land, shall be entitled to recover against the party or parties giving such land instead of tithes or rent- charge, his, her, or their heirs, executors, or administrators, by TITHES AND RENT-CHARGE. 1199 way of damages, in an action on the case, such compensation as he or she may be entitled to for any loss thereby sustained ; and such damages, and all costs and expenses awarded to the plain- tiff in such action, shall forthwith attach upon and be payable out of the lands exonerated by such agreement." Sect. 21. " All agreements and other assurances which shall Corporations, be made for the purpose of effecting the taking of land instead fgQ^gS8'tond of rent-charge under the provisions of the said recited acts, or charitable any of them, or this act, shall be valid and effectual for the uses may purpose of vesting an estate of inheritance as to such lands in convey ianas. such ecclesiastical tithe-owner and his successors, notwithstand- ing the same be made by any corporation sole or aggregate, or any trustees or feoffees for charitable purposes, otherwise re- strained from or incapable of making any such valid conveyance or assurance." By 3 & 4 Vict. c. 15, s. 17, the provisions of this section 3 & 4 Vict, are extended to churchwardens and overseers, and trustees or c- 15> feoffees of parish property or of any property holden on a paro- chial or public trust. , By 5 & 6 Yict. c. 54, s. 6, " Whereas the power of giving 5 & 6 Vict, land instead of tithes has been found beneficial to both tithe- c- 54- owners and land- owners, but such power has been inoperative in "^g^T^ a great degree by reason that the land- owners by giving land giving land instead of virarial tithe cannot free their lands from the liability for tithes, to rectorial tithe, and the converse ; be it enacted, that it shall be lawful for any tithe-owner with the consent of the patron and ordinary in the case of spiritual tithes, to be testified as their consent under the first recited act is testified to anything for which their consent is therein required, and subject in that case to the limitation of quantity of land provided by the first-recited act, and subject to the approval of the tithe commissioners, to agree for the assignment to any other owner of tithes issuing out of the same lands of so much of his tithes arising within the same parish, or of the rent-charge agreed or awarded to be paid instead of such tithes, as shall be an equivalent for the tithes belonging to such other tithe-owner issuing out of the same lands, or for the rent-charge agreed or awarded to be paid instead thereof, for the purpose of enabling any land-owner who shall be desirous of giving land instead of tithes to free his lands, or any part thereof, from both rectorial and vicarial tithes, and from the payment of any rent-charge in respect thereof ; and every such agreement shall be carried into effect by means of an award or supplemental award, to be made by the said commissioners either before or after the confirmation of the apportionment, in like manner as awards or supplemental awards are made by them pursuant to the powers vested in them before the passing of this act." Sect. 7. " Where any agreement shall have been made before Confirmation the passing of the first-recited act for giving land or money, or ^e°^ f^ee" both, instead of tithes or glebe or commonable or other rights or giving land for tithes. 1200 PROPERTY OF THE CHURCH. 41 & 42 Vict, c. 42. Exchange of annual pay- ment for lands or tithe rent-charge. easements, which is not of legal validity, and such lands or money, or both, shall appear to the commissioners to be a fair equivalent for the said tithes or glebe, or rights or easements, they shall be empowered to confirm and render valid such agree- ment ; and in case the same shall not appear to be a fair equiva- lent, the said commissioners shall nevertheless be empowered to confirm such agreement, and also to make an award for such rent-charge, which with the said land or money, or both, will be a fair equivalent for the said tithes or glebe, or rights or ease- ments, and, subject to such confirmation and award, to extinguish the right of the tithe-owners to the perception of the said tithes, or his title to the said glebe rights or easements, or to the receipt of any rent-charge instead thereof, other than the rent-charge awarded over and above the lands or money, or both, so con- firmed to them." By 41 & 42 Yict. c. 42, s. 7, " The provisions of the said acts with reference to the exchange of glebe lands for other lands shall extend to and be deemed to authorise any spiritual person to exchange for lands, or for tithe rent- charge, any annual payment or augmentation belonging to him in right of his benefice and charged upon or payable out of any lands or tithe rent-charge." In what cases. 9 & 10 Vict, c. 73. Power to landlords to redeem a rent-charge not appor- tioned, where the amount does not exceed 151. Sect. 12. — Redemption of Rent-charge. Provisions for the redemption of rent-charges in the following cases — (1) where the whole rent-charge payable in the parish does not exceed 15/. a year ; (2) where a rent-charge is divisible into very small sums ; (3) where it has been erroneously charged on lands not within the parish ; (4) where land is to be taken for churches, chapels, cemeteries, or public buildings — are made by the later Commutation Acts, 9 & 10 Yict. c. 73, 23 & 24 Vict. c. 93, and 41 & 42 Yict. c. 42. (1) By 9 & 10 Yict. c. 73, s. 1, ' ' Where, under any agree- ment or award which has been or hereafter shall be confirmed by the commissioners, the amount of the rent-charge agreed or awarded to be paid instead of the tithes of any parish shall not exceed the sum of fifteen pounds, and shall not have been appor- tioned, or the apportionment of such rent-charge shall not have been confirmed by the commissioners, it shall be lawful for the owners of the land chargeable therewith, or any of them, with the consent of the person or persons for the time being entitled to the receipt thereof, or, in the case of an infant, feme covert, or lunatic, with the consent of the guardian, husband, or com- mittee of the estate of the person so under disability, to redeem such rent-charge on payment, in manner hereinafter men- tioned (within such time as the commissioners shall in each case TITHES AND RENT-CHARGE. 1201 limit in this behalf), of a sum of money not less than twenty- four times the amount of such rent-charge." By 23 & 24 Vict. c. 93, s. 31, the commissioners may order a 23 & 24 Vict, redemption without the consent of the person entitled to the c- 93- receipt of the tithes, for a sum equal to twenty-five times the amount of the rent-charge. By 9 & 10 Yict. c. 73, s. 2, " In every case in which any such 9 & 10 Vict, rent-charge, not exceeding fifteen pounds as aforesaid, has been c- 73- or shall be awarded to be paid, the commissioners shall give ^^(§a^l" notice, in such manner as they shall think fit, of the time within ronsideration which it shall be lawful for the owners of the land charged money, com- therewith, or any of them, to redeem such rent-charge ; and when ^tif^that0 it shall appear to the commissioners that the consideration money ^e parish is for the redemption of such rent-charge as aforesaid shall have discharged of been paid, according to the provisions of this act, within the tlthes- time limited by them in this behalf, or within any enlarged time which the commissioners may by any order under their hands and seal allow for that purpose, no apportionment of the rent-charge shall be made, but the commissioners shall, by a certificate under their hands and seal, certify that such rent- charge has been redeemed, and that the parish is discharged of such rent-charge, and of the tithes in lieu of which such rent- charge was agreed or awarded to be paid, as from such time as the commissioners shall think reasonable and declare, and such parish shall be thenceforth discharged according to the terms of such certificate." (2) By sect. 5, " In every case in which, under any con- Separate rent- firmed instrument of apportionment or any altered apportion- charges, not ment under the powers of the said acts, the whole amount of •^ount'205' the rent-charge or separate portion of rent-charge with which may be re- the lands of any owner shall be charged in respect either of deemed after all tithes or of any kind of tithes payable to separate tithe- ^nj^1031" owners shall be a sum not exceeding twenty shillings, it shall be lawful for such owner at his option, and with the consent of the person or persons for the time being entitled to the receipt thereof, or, in the case of an infant, feme covert, or lunatic, with the consent of the guardian, husband, or committee of the estate of the person so under disability, at any time to redeem such rent-charge or separate portion of rent-charge on payment, according to the provisions of this act, of such a sum of money as shall be not less than twenty-four times the amount of the rent-charge or portion of rent-charge ; and after payment of such consideration money according to the provisions of this act the commissioners shall certify that such rent-charge or portion of rent-charge has been redeemed, and the same, from after the payment of the half-yearly portion of such rent- charge or portion of rent-charge which shall next accrue due subsequently to the time of the payment of such consideration money, shall cease and be extinguished : Provided always, that Ext™jj^" no such redemption as last aforesaid shall extinguish or affect not^o bc^6 affected, 1202 PROPERTY OF THE CHURCH. 23 & 24 Vict, c. 93. Where land divided, com- missioners may order rent- charge to be redeemed after appor- tionment. 41 & 42 Vict, c. 42. Redemption of tithe not exceeding 20s. Redemption of tithe ex- ceeding 20s. Redemption of tithe on divided lands. any extraordinary rent-charge which would become payable in respect of such land upon any change of the cultivation thereof." By 23 & 24 Yict. c. 93, s. 32, " Whenever lands charged with rent-charge under any instrument of apportionment or altered apportionment shall be divided for building or other purposes into numerous plots, and it shall appear to the commissioners that no further apportionment of the said rent- charge can con- veniently be made, the commissioners may, if they shall see fit, upon the application of any one owner of the said lands, and without the consent of any other owner, or of the person for the time being entitled to the receipt of the said rent-charge, and without limitation as to the amount thereof, by an order under their hands and seal direct that such rent-charge shall be redeemed by the payment by the owners of the lands charge- able therewith, within such time as the commissioners shall by such order direct and appoint, of a sum equal to twenty-five times the amount of such rent-charge." By 41 & 42 Yict. c. 42, s. 3, " Whenever land has been charged with any rent-charge not exceeding twenty shillings, the commissioners may, if they see fit, upon the application of the owner of such land or of the person entitled to the rent- charge thereon, by an order under their hands and seal, direct that such rent- charge shall be redeemed by the payment by or on behalf of the owner of the said land charged therewith, within such time as the commissioners by such order shall direct and appoint, of a sum of money equal to twenty-five times the amount of such rent-charge." Sect. 4. " Whenever any land has been charged with a rent- charge exceeding twenty shillings, the commissioners may, if they see fit, upon the joint application of the owner of the land and the person entitled to the rent-charge, order such rent- charge to be redeemed for a sum not being less than twenty-five times the amount thereof, provided that the bishop of the diocese and the patron of the benefice consent to such redemp- tion, whenever the person entitled to the rent-charge is entitled thereto in right of any benefice or cure." Sect. 5. " Whenever lands charged with rent-charge under any instrument of apportionment or altered apportionment shall be divided for building or other purposes into numerous plots, and it shall appear to the commissioners that no further appor- tionment of the said rent-charge can conveniently be made, the commissioners may, if they shall see fit, upon the application of the owner or of the person for the time being entitled to the receipt of the said rent-charge, and without limitation as to the amount thereof, by an order under their hands and seal, direct that such rent-charge shall be redeemed by the payment by the owners of the lands chargeable therewith, within such time as the commissioners shall by such order direct and appoint, of a sum of money not less than twenty-five times the amount of such rent-charge." TITHES AND RENT-CHARGE. 1203 Sect. 6. " All the powers and provisions of the said recited Application acts (u) respecting the redemption of rent-charge and the assess- po^rato^this ment and recovery of redemption money and expenses (except act. as otherwise by this Act is provided) shall be applicable to all redemptions authorised and effected under this act." (3) By 9 & 10 Vict. c. 73, s. 3, " In every case in which, by 9 & 10 Vict, any instrument of apportionment confirmed under the provisions c- 73' S8, 3' 4* of the said acts, any rent-charge or portion of rent-charge has ^Xem^ent- been or shall have been (by reason of error as to boundary or charge erro- otherwise), charged on lands not within the parish in respect of neously ap- the tithes of which the aggregate rent-charge the apportionment ^"dtTnot °n of which shall have been so confirmed was agreed or awarded to chargeable be paid, such rent-charge or portion of rent-charge so charged therewith, on lands not within the parish shall be redeemable on payment by the owners of the lands charged with the residue of such aggregate rent-charge, or any of them, of a sum of money equal to twenty-four times the amount of the rent-charge or portion of rent-charge hereby made redeemable, and it shall be lawful for the commissioners, before they shall proceed to direct a new apportionment, to give notice that the rent-charge or portion of rent-charge so erroneously apportioned on lands not within the parish may be redeemed, under the provisions of this act, within a time in such notice to be limited in this behalf " (x). Sect. 4. " When it shall appear to the commissioners that the After red emp- consideration money for the redemption of the rent- charge or °fh^e portion of rent-charge so charged by such instrument of appor- erroneou>?y tionment on lands not within the parish shall have been paid, apportioned, according to the provisions of this act, within the time which ^g^^0^ n" shall have been limited by the commissioners in this behalf, or remainder to within any enlarged time which the commissioners may by order be valid, under their hands and seal allow for that purpose, and that the arrears thereof (if any) have been paid, the commissioners shall under their hands and seal certify that such rent-charge or portion of rent-charge has been redeemed, and thenceforth, except as respects the lands so erroneously charged, and the rent-charge or portion of rent-charge apportioned thereon, the apportionment and charges made by such instrument of appor- tionment shall be valid and effectual in such and the same manner as if the aggregate rent-charge had originally consisted only of the sum of the portions charged on the lands within the parish, and had been apportioned on such lands and no others, in the portions in the instrument of apportionment expressed." By 23 & 24 Yict. c. 93, s. 33, " Whenever it shall be shown 23 & 24 Vict, to the satisfaction of the commissioners that by reason of error c" 93; , as to boundary or otherwise any rent-charge or portion of rent- ^^where charge shall have been charged by any confirmed instrument of rent-charge apportionment on lands not within the parish in respect of the has been tithes of which the aggregate rent-charge, the apportionment of landf which (u) Practically all the previous Acts, (x) See 10 & 11 Yict. c. 104, ss. 3, 4. 1204 PEOPERTY OF THE CHURCH. m conse- quence of error in "boundary, are not within the parish where aggregate charge is awarded. Provision for charging rent- charge where land made charge- able for more than one parish. 41 & 42 Vict, c. 42. "Where land taken for certain public purposes rent- charge to be redeemed. which shall have "been so confirmed, was agreed or awarded to be paid, the commissioners may, if they shall see fit, npon the application of the owner or owners of the said lands, and with- out the consent of any owner of land in the said parish, or of the person for the time being entitled to the receipt of the said rent-charge, by an order under their hands and seal, direct that such rent-charge or portion of rent-charge so charged on lands not within the parish shall be redeemed by the payment by the owners of lands charged with the residue of the said rent-charge by the said apportionment, or any of them, within such time as the said commissioners shall by such order direct and appoint, of a sum equal to twenty-five times the amount of such rent-charge ; and if there shall be any question touching the situation or boundary of the lands which shall be alleged to have been erro- neously included in the said apportionment, the commissioners shall have the same powers for hearing and determining the same as are given by the said first-recited act for hearing and determining any difference whereby the making of an award of rent-charge in lieu of tithes is hindered." Sect. 34. " Where any land has been made chargeable with rent-charges in lieu of tithes for more than one parish, the com- missioners, on being satisfied thereof, may determine in respect of which parish the rent-charge ought to have been charged, and may, by order, direct such rent-charge to be paid in respect of such parish only." (4) By 41 & 42 Yict. c. 42, s. 1, " In all cases where land charged with rent-charge in lieu of tithes is taken for any of the following purposes, that is to say, the building of any church, chapel, or other place of public worship ; the making of any cemetery or other place of burial ; the erection of any school under the Elementary Education Act ; the erection of any town hall, court of assize, gaol, lunatic asylum, hospital, or any other building used for public purposes, or in the carrying out of any improvements under the Artizans Dwellings Act, ^75 ; the for- mation of any sewage farm under the provisions of the Sanitary Acts, or the construction of any sewers, or sewage works, or any gas or water works ; or the enlarging and improving of the premises or buildings occupied or used for any of the above- mentioned purposes ; — the person or persons proposing to carry out the above-mentioned works, buildings, or improvements shall, as soon as the said person or persons are in possession of the land, and before the land is applied to any of the pur- poses aforesaid, apply to the Tithe Commissioners to order the redemption of the rent-charge for a sum of money equal to twenty-five times the amount thereof ; and the redemption money, with the expenses incident to the redemption, shall be paid to the said commissioners within a time to be fixed by such order, or within any enlarged time the commissioners may appoint, and the commissioners shall apply such redemption money in the manner provided by the said acts." TITHES AND RENT-CHARGE. 1205 Sect. 2. " The application to the said commissioners in Application respect of any such land may be signed by the secretary of ^nre^Q™p" any company which shall have taken the land, or in the case sio-ned. of a corporation, school or other board, by the clerk of the said board or corporation, and in every other case by such person or persons as the commissioners may require." As to all cases, it is provided by the two earlier acts as follows : — 23 & 24 Yict. c. 93, s. 35. " Before the commissioners shall 23 & 24 Vict, order the compulsory redemption of any rent-charge, they shall c- 93- cause notice to be given of their intention in such manner as ^°™™slss~kau to them shall seem fit, and shall by such notice specify the g{ye notice of time (being not less than twenty-one days) within which objec- their inten- tions in writing to such proposed order may be signified to tlon to, order them ; and in case any notice of objections shall be given redemption, within the time limited as aforesaid, the commissioners shall, by themselvess or an assistant commissioner, take such objec- tions into their consideration." Sect. 36. "If the person absolutely entitled to the redemp- If person tion money refuses to receive the same, or if the rent-charge refuse to be subject to incumbrances, and the commissioners shall con- ^em^tLm sider that the incumbrancers should be protected, such redemp- money, to be tion money shall be dealt with as is provided in cases where dealt with as the owner of the rent- charge is only entitled thereto for a limited debility estate." Sect. 37. " Where the money to be paid for the redemption Trustees may of any rent-charge does not exceed two hundred pounds, and be aPPomted the person for the time being entitled to such rent-charge shall gumTnoT be a corporation not authorized to make an absolute sale of such exceeding rent-charge otherwise than under the provisions of the said payable recited acts, the redemption money may be paid into the hands tLns!"P°ia" of trustees to be nominated by the commissioners, by order under their hands and seal, and the money when so paid shall be applied by the trustees, with the consent of the commissioners, to the purposes to which money to be paid for the redemption of any rent-charge into the Bank of England in the name of the accountant-general is by the said recited acts directed to be applied, and upon every vacancy in the office of such trustees some other person shall be appointed by the said commissioners in like manner." By 9 & 10 Yict. c. 73, s. 6, " In every case in which a rent- 9 & 10 Vict, charge is redeemable under the provisions of this act, the com- c- 73- missioners shall, upon the request of the owners of land charge- ^°™™!st"0 able with such rent- charge or any of them, certify under the certify the hands and seal of the commissioners the sum of money in amount of consideration of which such rent-charge may be redeemed (//) ; |^gdeJo*10n and when it shall appear to the commissioners that payment or redemption, tender of such consideration money has been duly made, it shall (»/) See Sect. 12 for form of the certificate. 1206 PROPERTY OF THE CHURCH. Consideration money for re- demption of rent- charges payable to spiritual owners, to be paid to Governors of Queen Anne's Bounty. Power to per- sons entitled for limited interests to charge ex- penses of redemption. 23 & 24 Vict, c. 93. How expenses to be divided. Informal arrangements may be con- firmed. be lawful for the commissioners to certify that such rent-charge has been redeemed under the provisions of this act, and such certificate shall be final and conclusive : Provided that if any consideration money shall be paid for the redemption of a rent- charge to a person not entitled under the provisions of this act to receive the same, the land which was charged with such rent- charge before the redemption thereof shall be charged in equity with the payment of such consideration money to the person rightfully entitled thereto as if the same were purchase-money for such land remaining unpaid ; but the same remedies may be had against the person who shall have wrongfully received such money as purchasers are entitled to by the rules of law and equity." Sections 7, 9, 10 provide for the payment of the consideration money to lay owners of the rent-charge ; as to spiritual owners, it is enacted as follows by sect. 8, " The consideration money for the redemption under this act of any rent-charge agreed or awarded to be paid or payable under any apportionment to any spiritual person in respect of his benefice or cure shall be paid to the ' governors of Queen Anne's Bounty for the augmentation of the maintenance of the poor clergy ; ' and such consideration money shall be applied and disposed of by the said governors as money in their hands appropriated for the augmentation of such benefice or cure should by law and under the rules of the said governors be applied and disposed of." By sect. II, " Every owner of an estate in land less than an immediate estate in fee simple or fee tail, or which may be settled upon any uses or trusts may, with the consent of the commissioners, or in such manner as they shall direct, charge so much of the consideration money and other monies payable in respect of the redemption of a rent-charge, or any part thereof, with interest after the yearly rate of four pounds by the hundred upon the lands of such owner which would have been subject to such rent-charge, or to an apportioned part thereof, but so, nevertheless, that the charge upon such land shall be lessened in every year after the redemption of such rent-charge by one twentieth part at least of the whole origiual charge thereon." By 23 & 24 Vict. c. 93, s. ^9, the expenses of making new awards or apportionments or of collecting redemption money are to be raised by the commissioners from the tithe- owners and land-owners in the same manner as expenses of making original awards under the earlier acts. By sect. 40, " Whenever land or money payments, or both, have been given to the tithe-owners of any parish, and are now holden by them, instead of tithes or glebe or commonable or other rights or easements, and it shall appear that such land or money payments, or both, shall have been so given by virtue of any act of parliament the provisions of which have not been fully carried out, or by virtue of any arrangement which is not of legal validity, the commissioners may, if it shall appear just TITHES AND RENT-CHARGE. 1207 and expedient, having regard to all the circumstances of or inci- dent to the case, by an award confirm the tithe-owner in posses- sion of the said land or money, or both, and may confirm and render valid any such arrangement, and may also award a rent- charge, subject to the provisions of the said recited acts, when and in such cases as to them shall seem fit ; and, subject to such confirmation and award, the commissioners may extinguish the right of the tithe-owners to the perception of the said tithes, or his title to the said glebe rights or easements, or to the receipt of any rent-charge instead thereof, other than the rent-chaige, if any, awarded over and above the lands or money, or both, so confirmed to them." The capitalized extraordinary charge created in lieu of hop Redemption grounds and fruit gardens by 49 & 50 Yict. c. 54, may be re- of extra- deemed under sect. 5 of that act as already stated (s). tithe charge By 48 & 49 Vict. c. 32, corn rents and similar payments may 0f corn be redeemed (a). rents, &c. Sect. 13. — Merger of Rent-charge. The first provision for merger of the rent-charge in the land 6 & 7 Will. 4, is contained in 6 & 7 "Will. 4, c. 71, s. 71, and is as follows : — c> 'L " It shall be lawful for any person seised in possession of an Tenant in fee estate in fee simple or fee tail of any tithes or rent-charge in *a™*^e or fee lieu of tithes, by any deed or declaration under his hand and declarerent- seal, to be made in such form as the said commissioners shall charge approve, and to be confirmed under their seal, to release, assign, mer&ed- or otherwise dispose of the same, so that the same may be abso- lutely merged and extinguished in the freehold and inheritance of the lands on which the same shall have been charged." The charges and incumbrances on tithes (and therefore on rent-charges) being various and many, such as liability to the repairs of the chancel, to stipends of ministers and curates, and fee-farm rents, and sometimes to mortgages, annuities, &o., the commissioners for carrying the tithe commutation acts into execution refused to confirm the merger of tithes so incumbered into land, till the passing of 2 & 3 Yict. c. 62, which removed 2 & 3 Vict, this obstacle by making any legal charge on the tithes the first c- 62, charge on the land in which the tithes are merged, and by giving the same remedies against such lands, or the owners thereof, as existed previously to the merger against the tithes or the owners thereof. Section 1 of the last-mentioned act, after reciting the former statutes, enacts, that " In every case where any On merger tithes or rent-charge shall have been or shall hereafter be released, of ^f*™ assigned, or otherwise conveyed or disposed of under the provi- ^ charges' sions of the said acts, or any of them, or of this act, for merging thereon to be charges on lande. (z) Vide supra, p. 1186. (a) Vide infra, sect. 17. 1208 PROPERTY OF THE CHURCH. Apportion- ment of charges when tithes merged, on lands being of three times the value of the charge. Similar ap- portionment of charges or extinguishing the same, the lands in which such merger or extinguishment shall take effect shall he subject to any charge, incumbrance, or liability which lawfully existed on such tithes or rent-charge previous to such merger to the extent of the value of such tithes or rent-charge ; and any such charge, incumbrance, or liability shall have priority over any charge or incumbrance existing on such lands at the time of such merger taking effect ; and such lands, and the owners thereof for the time being, shall be liable to the same remedies for the recovery of any payment and the performance of any duty in respect of such charge, incumbrance, or liability, or of any penalty or damages for non- payment or non-performance thereof respectively, as the said tithes or rent-charge, or the owner thereof for the time being, were or was liable to previous to such merger." The same act gives also a power (sect. 2) of apportioning the charges on tithes merged, and (sect. 4) of apportioning charges on tithes not merged : Sect. 2. " Every person entitled to exercise the powers for merger of tithes or rent-charge in land under the said acts or any of them, or of this act, may, with the consent of the tithe commissioners for the time being under their hands and seal of office, and of the person to whom the lands in which such merger or extinguishment shall take effect shall belong, either by the deed or other instrument or declaration by which such merger shall be effected, or by any separate deed, instrument, or declaration to be made in such form as the commissioners shall approve, specially apportion the whole or any part of any such charge, incumbrance, or liability affecting the said tithes or rent-charge so merged or extinguished, or proposed to be merged or extinguished in such lands, upon the same or any part thereof, or upon any other lands of such person held under the same title, and for the same estate in the same parish, or upon the several closes or portions of such lands, or according to an acreable rate or rates upon lands of different quality, in such manner and proportion, and to the exclusion of such of them, as the person intending to merge the same, with such consent as aforesaid, may by any such deed, instrument, or declaration direct : Provided always, that no land shall be so exclusively charged unless the value thereof shall in the opinion of the said commissioners be at least three times the value of the amount of the charge, incumbrance, or liability charged or in- tended to be charged thereon, over and above all other charges and incumbrances, if any, affecting the same" (b). Sect. 4. " Where the whole of the great tithes or the whole of the small tithes, or the respective rent-charges in lieu thereof, (b) See 6 & 7 Will. 4, c. 71, s. 58, giving a power to apportion the rent-charge on specific lands at the request of the landowner, provided the lands are at least three times the value of the whole rent- charge put on them: pp. 1106—1109, supra. TITHES AND RENT-CHARGE. 1209 shall be lawfully subject to any such charge, incumbrance, or where tithes liability, and the person entitled to such tithes or rent-charge not mer&ed- respectively shall be desirous of apportioning such charge, in- cumbrance, or liability respectively exclusively upon any part of such tithes or rent-charge, although such person has not the power or does not intend to merge the same under the said acts or this act, such person may, with the like consent of the said commissioners, and in such manner as they shall see fit and pre- scribe, and also with the consent of the bishop of the diocese, specially apportion such charge, incumbrance, or liability re- spectively upon any part or portion of the tithes or rent-charge respectively subject thereto, not being in the opinion of the said commissioners less than three times the value of the said charge, incumbrance, or liability, or of such part thereof as shall be so apportioned thereon, or intended so to be." By sect. 71 of 6 & 7 Will. 4, c. 71, only tenants in fee or in 6 & 7 Will 4, tail were empowered to merge rent-charge ; but this power was c- 71 • extended by 1 & 2 Yict. c. 64, and 2 & 3 Yict. c. 62, to all ^emr^t persons having powers of appointment over the fee simple of charge, tithes or rent-charge, and to cases where tithes (or rent-charge in lieu of tithes), and the lands out of which they are payable, are both settled to the same uses (when anybody in possession of an estate for life in tithes may merge the rent-charge) : and also to the owners of glebes in certain cases specified below. By 1 & 2 Yict. c. 64, s. 1, " It shall be lawful for any person l & 2 Vict, or persons who shall, either alone or together, be seised of or c- 6i- have the power of acquiring or disposing of the fee simple in possession of any tithes or rent-charge in lieu of tithes, by power5of any deed or declaration under his or their hand and seal or appointment hands and seals, to be made in such form as the Tithe Com- over tlth^s missioners for England and Wales shall approve, and to be themT^the confirmed under their seal, to convey, appoint, or otherwise land, dispose of the same, so that the same may be absolutely merged and extinguished in the freehold and inheritance of the lands out of or on which the same shall have been issuing or charged ; and every such deed or declaration as aforesaid shall be valid and effectual for the purpose aforesaid, although the same may not be executed or made in the manner or with the formalities or requisites which if this act had not been passed would have been essential to the validity of any instrument by which such person or persons could have acquired or disposed of the fee simple in possession of such tithes, or rent-charge in lieu of tithes" (c). Sect. 3. " In all cases where tithes, or rent-charge in lieu of Where tithes tithes, and the lands out of which the same are payable, are ^r*^ lands both settled to the same uses, it shall be lawful for any person therewith, are in possession of an estate for life in both such lands and tithes, settled to the Persons having the _ (c) Sect. 2. "No deed or declara- merging of tithes shall be charge- tion authorized by this act for the able with any stamp duty." 1210 PROPERTY OF THE CHURCH. same uses, the tenant for life may cause them to merge in the land. Tithes may- be merged in copyhold lands. 2 & 3 Vict, c. 62. Provision for deducting value of tithes and rent- charge from arbitrary fines in cases of merger in copyholds. Tithe and rent-charge of glebe may be merged. 9 & 10 Vict, c. 73. Tithes or or rent- charge in lieu of tithes, by any deed or declaration under his hand and seal, to be made in such form as the said commis- sioners shall approve, and to be confirmed under their seal, to release, assign, or otherwise dispose of such tithes or rent- charge, so that the same may be absolutely merged and extin- guished in the freehold and inheritance of the lands out of which such tithes shall have been issuing, or on which such rent-charge shall have been charged." Sect. 4. " And whereas doubts have been entertained whether, according to the true construction of the said act, any tithes, or rent-charge in lieu of tithe, can be merged in lands of copyhold tenure, and it is expedient that such doubts should be removed ; be it therefore declared and enacted, that the provisions in the said act and this act contained as to the merger of any tithe, or rent-charge in lieu of tithe, shall be deemed and taken to extend to all lands, being copyhold of inheritance or copyhold for lives, or of any other tenure whatsoever." By 2 & 3 Yict. c. 62, s. 7, k' In every case of merger of tithes or rent-charge issuing out of land of copyhold tenure, and subject to arbitrary fine, it shall be lawful for the said commis- sioners, on the application of the owner of such land, to ascertain, by such ways and means as they shall think fit, the annual value of the tithes or rent-charge so merged or intended to be merged ; and the said commissioners shall in such case cause to be indorsed on the deed, declaration, or other instrument effect- ing such merger, a certificate under their hands and seal, setting forth such annual value so ascertained ; and in every case of future assessment of fine on the lands which before such merger were subject to such tithes or rent-charge, the parties entitled to such fine shall assess the same as if such lands were subject to the tithes or rent-charge of which the annual value shall be so endorsed ; and the production of such deed, declaration, or in- strument of merger, or of a duplicate thereof, with such certificate endorsed, or of an office copy of such deed, declaration, or in- strument and certificate endorsed thereon, shall be sufficient evidence of the annual value of such tithes or rent-charge." This act also allows the tithes and rent- charge of glebe lands to be merged : — Sect. 6. " The provisions of the said acts and this act for merger or extinguishment of tithes or rent-charge instead of tithes in the lands out of which such tithes shall have been issuing, or whereon such rent-charge shall be fixed, do and shall extend to glebe or other land, in all cases where the same and the tithes or rent-charge thereof shall belong to the same person in virtue of his benefice, or of any dignity, office, or appointment held by him." Further provisions on this subject are made by the following sections of 9 & 10 Vict. c. 73 : — Sect. 18. " Where by any agreement or award already made or hereafter to be made a rent-charge shall have been agreed or TITHES AND RENT-CHARGE. 1211 awarded to be paid instead of the tithes of any parish, or instead rent-charge in of any of such tithes, and shall not have been apportioned, it ^ ^g160* shall be lawful for the person who under the provisions of the merged after said recited acts would have been enabled in case such agree- agreement or ment or award had not been made to merge the tithes in lieu of ^Q^'abutor which such rent-charge shall have been agreed or awarded to be tionment>.POr paid, or such of the same tithes as were payable out of part of the said lands, by any deed or declaration, to be made in such form as the commissioners shall approve, and to be confirmed under their hands and seal, to declare that the tithes which he would have been so entitled to merge shall, so far as respects all the lands, or, if he shall think fit, so far as respects only any specified part of the lands out of which the same were payable, and the rent-charge or portion of rent-charge which shall have been awarded or ought to be apportioned in lieu thereof on such lands, or specified parts of such lands, as the case may be, shall be merged, and such merger shall take effect accordingly ; and in case such merger shall extend to all the lands which would have been chargeable with such rent-charge, no apportionment of such rent- charge shall be made under the provisions of the said recited acts ; but in case such merger shall extend to part only of the lands which would have been chargeable with such rent-charge, then such portion of the rent-charge shall be appor- tioned among the other lands which would have been chargeable with such rent-charge as such other lands would have been subject to in case such merger had not taken place ; and the owner of the land to which such merger shall extend shall pay such portion of the expenses of or incident to the apportionment as the commissioners or any assistant commissioner may under the special circumstances order to be paid by such owner, instead of the rateable proportions to which he would have been liable in case the whole of such rent-charge had been apportioned." Sect. 19. " All the powers relating to the merger and extin- Powers re- guishment of any tithes, or rent-charge instead thereof, may be latm& t0^e executed by a person entitled in equity to such tithes or rent- of any tithes charge in all respects and with the same consequence as he could may be have done if he had been legally entitled thereunto ; and every executed by instrument already executed and purporting to be made in pur- entideTin suance of the powers of the said acts or any of them by any equity, person so entitled in equity shall in every respect be as effectual and have the same consequence as if he had been legally entitled to the said tithes or rent- charge at the time of the execution of such instrument, subject nevertheless in every case to any charge, incumbrance, or liability, which lawfully or equitably existed on such tithes or rent- charge to the extent of the value of such tithes or rent-charge ; and any such charge, incumbrance, or liability shall have such priority, and the lands and the owners thereof for the time being shall be liable in the same manner in respect of such rent-charge, incumbrance, or liability, or of any penalty or damages for non-payment or non-performance thereof P. VOL. II. 4 K 1212 PROPERTY OF THE CHURCH. respectively, as by the said act of " 2 & 3 Vict. c. 62 " is provided in the case of such merger or extinguishment as therein men- tioned. . . ." Walker v. In the case of Walker v. Bentley (d), it was holden by the Bentiey. Vice- Chancellor and confirmed by the Lords Justices that under this last section an instrument purporting to merge the tithes executed with the consent of the commissioners is conclusive, though the person executing the instrument had actually no estate in the tithes or rent- charge. 6 & 7 Will. 4, c. 71. When rent- charge in arrear for twenty- one days, after half-yearly days of pay- ment, the per- son entitled thereto may distrain. When rent- charge in arrear for forty days after half- yearly days of payment, and no sufficient distress on the premises, writ to be issued, directing sheriff to summon jury to assess arrears. Sect. 14. — Former Mode of recovering Rent-charge. The powers given for the recovery of the rent-charge by 6 & 7 Will. 4, c. 71, were in force until the Tithe Act, 1891. Under this last Act a new procedure was established, which where it prevails supersedes the old. It seems also to prevail in all cases, except where a rent-charge is claimed under the Tithe Act, 1860, in respect of the tithes on any gated or stinted pasture. The old mode is, however, briefly set out as applying at any rate to this excepted case : 6 & 7 Will. 4, c. 71, s. 81. " In case the said rent-charge shall at any time be in arrear and unpaid for the space of twenty-one days next after any half-yearly day of payment, it shall be lawful for the person entitled to the same, after having given or left ten days' notice in writing at the usual or last known residence of the tenant in possession, to distrain upon the lands liable to the payment thereof, or on any part thereof, for all arrears of the said rent-charge, and to dispose of the distress when taken, and otherwise to act and demean himself in relation thereto, as any landlord may for arrears of rent reserved on a common lease for years ; provided that not more than two years' arrears shall at any time be recoverable by distress." Sect. 82. "In case the said rent-charge shall be in arrear and unpaid for the space of forty days next after any half-yearly day of payment, and there shall be no sufficient distress on the premises liable to the payment thereof, it shall be lawful for any judge of his majesty's courts of record at Westminster, upon affidavit of the facts, to order a writ to be issued, directed to the sheriff of the county in which the lands chargeable with the rent-charge are situated, requiring the said sheriff to summon a jury to assess the arrears of rent-charge remaining unpaid, and to return the inquisition thereupon taken to some one of his majesty's courts of law at Westminster, on a day therein to be named, either in term time or vacation : a copy of which writ, {d) 9 Hare, p. C29. TITHES AND RENT-CHARGE. 1213 and notice of the time and place of executing the same, shall be given to the owner of the land, or left at his last known place of abode, or with his known agent, ten days previous to the execution thereof, and the sheriff is hereby required to execute such writ according to the exigency thereof ; and the costs of such inquisition shall be taxed by the proper officer of the court ; and thereupon the owner of the rent-charge may sue out a writ of habere facias possessionem, directed to the sheriff, commanding him to cause the owner of the rent-charge to have possession of the lands chargeable therewith until the arrears of rent- charge found to be due, and the said costs, and also the costs of such writ and of executing the same, and of cultivating and keeping possession of the lands, shall be fully satisfied : provided always, that not more than two years' arrears over and above the time of such possession shall be at any time recoverable." Under this section crops growing into profit are to be taken Cases on this into consideration in estimating the sufficient distress (e) . The sectlon- judge's order under this section may be obtained ex parte (/). Possession of the land, and recovery of the full two years' arrears, may be obtained, if there is no sufficient distress at the end of the two years, though at the end of the three half-years previous there might have been sufficient distress, if it had been taken, for the arrears then due (g) . It has been holden that the injury sustained by a tithe- No action for owner, in consequence of land being rendered incapable of non^cultiva- producing tithe, is not such a wrongful act in law as will entitle tion. a tithe-owner to maintain an action for damages (h). Sect. 83. " It shall be lawful for the court out of which such 6 & 7 Will. 4, writ shall have issued, or any judge at chambers, to order the °* 71 • owner of the rent-charge who shall be in possession by virtue kowT^be of such writ from time to time to render an account of the rents rendered, and produce of the lands, and of the receipts and payments in respect of the same, and to pay over the surplus (if any) to the person for the time being entitled thereunto, after satisfaction of such arrears of rent-charge and all costs and expenses as aforesaid, and thereupon to order a writ of supersedeas to issue to the said writ of habere facias possessionem, and also by rule or order of such court or judge from time to time to give such summary relief to the parties as to the said court or judge shall seem fit." Sect. 85. " Whenever any rent-charge payable under the Power of provisions of this act shall be in arrear, notwithstanding any ^*restQ^j? apportionment which may have been made of any such rent- tendtoalf" charge, every part of the land situate in the parish in which lands within the parish (e) Ex parte Arnison, L. R., 3 Ex. (g) Be Camberwell Bent-charge, 4 p. 56; 37 L. J., Ex. p. 57. Q. B. p. 151 ; 3 G. & D. p. 365. (/) Be Hammersmith Bent-charge, (h) Bex v. Commissioners of the 4 Ex. p. 87 ; 19 L. J., Ex. p. 66. Nene Outfall, 4 M. & R. p. 646 ; 9 B. & C. p. 875. 4 k 2 1214 PROPERTY OF THE CHURCH. such rent- charge shall so be in arrear, and which shall be occu- lands occupied by undeTthe °r P*ec^ ^7 ^e same Person wn0 shall be the occupier of the same landlord 011 which such rent-charge so in arrear shall have been charged, or holding. No action for rent -charge against landowner or occupier. 5 & 6 Vict, c. 54. Power to owner of rent- charge to let land taken under writ of possession. Remedy for enforcing payment of contribution of rent- charsre. whether such land shall be occupied by the person occupying the same as the owner thereof or as tenant thereof, holding under the same landlord under whom he occupies the land on which such rent- charge so in arrear shall have been charged, shall be liable to be distrained upon or entered upon as afore- said for the purpose of satisfying any arrears of such rent- charge, whether chargeable on the lands on which such distress is taken or such entry made, or upon any other part of the lands so occupied or holden : provided always, that no land shall be liable to be distrained or entered upon for the purpose of satis- fying any such rent- charge charged upon lands which shall have been washed away by the sea, or otherwise destroyed by any natural casualty." No action for the rent-charge lies against the owner or occupier of the lands (/) . The following supplemental provisions are made by 5 & 6 Vict. c. 54 :— Sect. 12. "It shall be lawful for any owner of rent- charge having taken possession of any land for nonpayment of the rent- charge under the provisions of 6 & 7 "Will. 4, c. 71, from time to time during the continuance of such possession to let such land, or any part thereof, for any period not exceeding one year in possession, at such rent as can be reasonably obtained for the same ; and the restitution of such land, on payment or satisfac- tion of the rent- charge, costs, and expenses, shall be subject and without prejudice to any such tenancy." Sect. 16. "In case any land charged with one amount of rent-charge shall belong to two or more land-owners in several portions, and the owner of any such portions, or his tenant, shall have paid the whole of such rent-charge, or any portion thereof greater than shall appear to him to be his just proportion, and contribution thereto shall have been refused or neglected to be made by any other of the said land- owners, or his tenants, after a demand in writing made on them, or either of them, for that purpose, it shall be lawful for any justice of the peace acting for the county or other jurisdiction in which the land is situated, upon the complaint of any such land-owner, or his tenant or agent, to summon the owner so refusing or neglecting to make contribution, or his tenant, to appear before any two or more such justices of the peace, who, upon proof of the demand and of service of the summons, as hereinafter provided, whether or not the party summoned shall appear, shall examine into the merits of the complaint, and determine the just proportion of the rent- charge so paid as aforesaid which ought to be contributed by the land-owner of such other portion of the said land, and by order (i) Griffinhoofe v. Daubuz, 4 E. & B. p. 230 ; 24 L. J., Q. B. p. 20. TITHES AND BENT-CHARGE. 1215 under their hands and seals (/>•) shall direct the payment by him of what shall in their judgment be due and payable in respect of such liability to contribution, with the reasonable costs and charges of such proceedings, to be ascertained by such justices ; and thereupon it shall be lawful for the complainant to take the like proceedings for enforcing payment of the said amount of contribution and costs, and with the like restriction as to the arrears recoverable, as are given to the owner of the rent- charge by the said first-mentioned act or this act for enforcing payment of the rent-charge." Sect. 17. " Service of the said demand in writing, and sum- Service of mons, or of any notice to distrain, or copy of writ to assess the 8ummons> &c arrears of rent-charge, or notice of the execution thereof under the said first-recited act, or the several acts to amend the same, or this act, upon any person occupying or residing on the land chargeable with the rent-charge, or in case no person shall be found thereon, then affixing the same in some conspicuous place on the land, shall be deemed good service of any such summons, notice, writ, or other proceeding." By 23 & 24 Yict. c. 93, s. 30, this notice may be sent by 23 & 24 Vict, registered letter to the office or usual place of abode of the c- 93- person to whom it is addressed. By sect. 29 the tithe-owner who issues a notice may charge and recover as if it were rent- charge two shillings and sixpence for every notice. By 5 & 6 Yict. c. 54, s. 19, any irregularity or unlawful act 5 & 6 Vict, in the course of the distress shall not vitiate proceedings, " but c- 54- the party aggrieved by such unlawful act or irregularity may recover full satisfaction for the special damage." But the plaintiff shall not recover " for any such unlawful act or irre- gularity, if ten days' notice in writing shall not have been given to the defendant by the plaintiff of his intention to bring such action before the commencement thereof, or if tender of suffi- cient amends has been made by the party distraining, or his agent, before such action brought, or if after action brought a sufficient sum of money shall have been paid into court, with costs, by or on behalf of the defendant." A special provision is made for recovering rent-charges from 7 & 8 Vict, railway companies by 7 & 8 Yict. c. 85, s. 22. Their lands, c- 8o* therefore, are, except so far as relates to the assessment and ^oTe^o? recovery of rates, removed from the operation of the Tithe Act, tfthe^rent0 1891 (/), 7 & 8 Yict. c. 85, s. 22 providing as follows : charged on " In all cases in which any such rent-charge, or part of any railwav land- rent-charge, has been or hereafter shall be duly apportioned, under the provisions of the acts for the commutation of tithes in England and Wales, upon lands taken or purchased by any railway company for the purposes of such company, or upon any part of such lands, it shall be lawful for every person entitled (k) See Reg. v. Williams, 21 L. J., {I) 54 & 00 Yict. c. 8, s. 10. Vide M. C. p. 150. infra, p. 1222. 1216 PROPERTY OF THE CHURCH. U & 15 Vict, c. 25. Tenant quit- ting, leaving tithe rent- charge un- paid, landlord may pay- same, and recover from him. to the said rent-charge or parts of such rent-charge, in case the same has been or shall be in arrear and unpaid for the space of twenty- one days next after any half-yearly day fixed for the payment thereof, to distrain for all arrears of the said rent- charge upon the goods, chattels and effects of the said company, whether on land charged therewith, or any other lands, premises or hereditaments of such company, whether situated in the same parish or elsewhere, and to dispose of the distress when taken, and otherwise to demean himself in relation thereto as any landlord may for arrears of rent reserved on a lease for years : provided always, that nothing herein contained shall give or be construed to give a legal right to such rent- charge, when but for this act such rent-charge was not or could not be duly apportioned." And, as to the relations between landlords and tenants, it is provided as follows by 14 & 15 Yict. c. 25, s. 4 : " If any occupying tenant of land shall quit leaving unpaid any tithe rent- charge for or charged upon such land which he was by the terms of his tenancy or holding legally or equitably liable to pay, and the tithe- owner shall give or have given notice of proceeding by distress upon the land for recovery thereof, it shall be lawful for the landlord, or the succeeding tenant or occupier, to pay such tithe rent- charge, and any expenses incident thereto, and to recover the amount or sum of money which he may so pay over against such first-named tenant or occupier, or his legal representatives, in the same manner as if the same were a debt by simple contract due from such first- named tenant or occupier to the landlord or tenant making such payment." Gradual shifting of incidence of tithe and rent -char are. 54 & 55 Vict, c. 8. Sect. 15. — Recovery under the Tithe Act, 1891. Tithe was recoverable from the actual occupier in respect of the fruits of the soil or the increase of his stock, received by him ; and its recovery was enforced by personal suit against him ; and tithe rent-charge under the Commutation Acts was made a charge upon the soil, enforceable in the first place by distress upon the land, or, in the event of failure of distress, by the tithe-owner himself entering into possession of the land. Thus tithe rent- charge was intended to be, in the last resort, a burthen upon the landlord, as in fact it was. In the first instance the tenant would suffer from the proceedings to enforce its recovery ; and by arrangement between the landlord and the tenant an agreement might be and commonly was made that the tenant should pay the tithe to the tithe-owner. No one, however, was personally liable to the tithe-owner ; only the property could be proceeded against. The Tithe Act, 1891 (54 & 55 Yict. c. 8), has made the claim for tithe rent- charge a personal claim against the land-owner ; has put the occupier altogether out of question, and has, at the same time, made execution of the judgment not TITHES AND RENT-CHARGE. 1217 personal, but against the property, and has given the land-owner some relief. The provisions of the Act of 1891 are as follows : — By sect. 9 the word " owner " refers, in the case of lands belonging to the Crown, to the Commissioners of Woods ; in case of lands belonging to the Duchy of Cornwall, to the keeper of records of the Duchy. Otherwise it is to have the same meaning as in the Tithe Act, 1836 (6 & 7 Will. 4, c. 71). ^ Sect. 1. — " (1.) Tithe rent-charge as denned by this act issuing Liability of out of any lands shall be payable by the owner of the lands, £.^e* totPay notwithstanding any contract between him and the occupier of charJo^and such lands, and any contract made between an occupier and modification owner of lands, after the passing of this act, for the payment of ^^^^g the tithe rent-charge by 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 rent-charge, 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 rent-charge 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 rent-charge, and every receipt given for such sum shall state expressly that the sum is paid in respect of that tithe rent- charge : Provided that where the lands, out of which any tithe rent-charge issues, are occupied by several occupiers who have contracted to pay the tithe rent-charge, 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 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 " 81 and 85 of 6 & 7 Will. 4, c. 71, "and the enactments amending those sections, and not otherwise." Sect. 2. " (1.) Where any sum due on account of tithe rent- Recovery of charge issuing out of any lands is in arreai? for not less than ti*ne rent" three months, the person entitled to such sum may, whatever is through the amount, apply to the county court of the district in which county court, 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 rent- charge as denned by this act shall not be recovered in any other manner. " (2.) Where it is shown to the court that the lands are occu- Procedure, pied by the owner thereof, the order shall be executed by the appointment by the court of an officer who, subject to the 1218 PROPERTY OF THE CHURCH. 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 rent- charge for the recovery of arrears of tithe rent-charge, 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 82 of the Tithe Act, 1836 (k). " (3.) In any other case the order shall be executed by the appointment 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 rent- charge to which the order refers under the provisions of section 85 of the Tithe Act, 1836 (/), and where any of such lands are held at one rent to- gether with other lands in another parish, the court shall appor- tion the rent between the said lands and the lands in the other parish in proportion to their rateable value, in which case the payment of such apportioned rent by the occupier to the re- ceiver 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. " (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 recovered 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 rent-charge 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 of this act to pay the tithe rent-charge, and is conse- quently 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 rent-charge, and there- upon, 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 rent-charge, 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.) Kules under this act may regulate the procedure (/,•) Vide supra, p. 1212. (/) Vide supra, p. 1213. TITHES AND RENT-CHARGE. 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 lands 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 (m), 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 (n). " (9.) Nothing in this act shall impose or constitute any personal liability upon any occupier or owner of lands for the payment of 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 (o), have any power to imprison any such occupier or owner by reason only of the non- payment of such tithe rentcharge or other sum, and shall in any other case have no other or greater powers of fine or imprison- ment than are conferred by the County Courts Act, 1888 " (6). Sect. 3. — " (1.) The Lord Chancellor may, after consultation Rules, 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 regu- lated, 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 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 Parlia- ment within the next subsequent forty days on which the said House shall have sat, praying that any such rule may be (m) This schedule is as follows : — Where the sum claimed does not exceed five pounds — For notice of application to the ) n court- - - - . j One shilling. For making the order - - One shilling and sixpence. Where the sum claimed exceeds five pounds — / One shilling for every five pounds For notice of application to the J and fraction above five pounds or court - - - - - j any multiple of five pounds of \ the sum claimed. / One shilling and sixpence for every For making the order - - £ve pou*ds and fra°tio? a?2ve & J 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. (n) 51 & 52 Yict. c. 21. (o) 51 & 52 Vict. c. 43. PROPERTY OF THE CHURCH. annulled, Her Majesty may thereupon, by Order in Council, annul the same ; and the rule so annulled shall thenceforth become void and of no effect, but without prejudice to the validity of any proceedings which may in the meantime have been taken under the same." Sect. 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 : Pro- vided 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 costs, with interest thereon at the rate of four per centum per annum : Provided further, that such occu- pier 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." Sect. 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." Sect. 6 provides for the rating of the owner of the tithe rent-charge and recovery of the rate assessed (m). By sect. 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 from the same to the High Court of Justice " in the same way as he could in any other county court case. Sect. 8 gives relief to the tithe-payer where the tithe rent- (m) Vide infra, Part V. Chap. VIII. Sect. 3 ; as to the old law, see Lamplough v. Norton, 22 Q. B. D. p. 452. TITHES AND KENT-CHARGE. 1221 charge as claimed bears an excessive proportion to the whole annual value of the land, the maximum proportion being fixed at two-thirds. Its provisions are as follows : — " (1.) Where a sum is claimed on account of tithe rent-charge Remission of issuiDg out of any lands, and the county court is satisfied that, if ^ar^when the sum claimed is paid, the total amount paid on account of the exceeding tithe rent-charge for the period of twelve months next preceding two-thirds the day on which the sum claimed became payable, will exceed ™^ yalue two-thirds of the annual value of the lands as ascertained and entered in the assessment for the purpose of Schedule B. to the Income Tax Act, 1853 (n), or as certified as hereinafter 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 rent-charge, the court may remit such amount of any then current rate assessed on the owner of the tithe rent-charge as appears to the court to be proportionate to the amount of the remission of tithe rent-charge. " (2.) "Where the lands out of which any tithe rent-charge 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 rent-charge issues and the other lands, and give notice of the annual value of the lands as determined on such division to the applicant and to the owner of the tithe rent- charge : 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 rent- Appeal in charge shall have the same right of appeal as the owner of lands, sucl1 cases- 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 Ascertain- ascertained and entered in the assessment for the purpose of the ^kn^b™*110 said Schedule B., the general commissioners of income tax for ^TO^e *v the division in which the lands are situate shall, on the applica- tax commis- tion of the owner or occupier of the lands, ascertain the annual sioners. value of the lands for the purpose of the said Schedule B., and inform the applicant of the same. (;?) 16 & 17 Yict. c. 34. 1222 PROPERTY OF THE CHURCH. Certificate of annual value. Remission in certain cases of special charge. Definition clause. Commence- ment and application of act and saving. ".(5.) The commissioners of taxes shall on demand and pay- ment 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 appor- tionment has been made in pursuance of section fifty-eight of the Tithe Act, 1836 (k), 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 propor- tion 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." By sect. 9, " the expression 6 tithe rentcharge ' means tithe rentcharge issuing out of lands and payable in pursuance of the Tithe Acts, and includes any rentcharge into which a corn rent has, either before or after the passing of this act, been con- verted under the Tithe Act, 1860 (/), and which is subject to the like incidents as such tithe rentcharge as aforesaid; but does not include a rentcharge payable under the Extraordinary Tithe Eedemption Act, 1886 (m), 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." Sect. 10. — " (1.) This act shall extend to every sum on account of tithe rentcharge which first becomes payable on or after the half-yearly day of payment of such tithe rentcharge which occurs next after the passing of this act, whether 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 assess- ment and recovery of rates, shall it extend to tithe rentcharge issuing out of the lands of a railway company (o). " (2.) A sum on account of tithe rentcharge shall not be re- coverable under this act unless proceedings for such recovery have been commenced 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 (k) Vide supra, pp. 1163, 1208. supra, Sect, 7. (I) 23 & 24 Yict. c. 93. (n) Vide supra, Sect. 6. (m) 49 & 50 Vict. c. 54; vide (o) Vide supra, p, 1215. TITHES AND RENT-CHARGE. 1223 rentcharge in relation to any other charge or incumbrance upon any lands. " (4.) Any enactment in the Tithe Acts or in the Extra- ordinary Tithe Eedemption Act, 1886 (p), directing any ex- penses, 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 " (q). Sect. 16. — Tithes in City of London. The city of London has been excepted from the several tithe Excepted acts, and always had its own peculiar order for payment of tithes from general and offerings, which has grown up as follows : — statutes. It appeared by the records of the city of London, that Niger, Constitution bishop of London, in the 13 Hen. 3, made a constitution, in ?J.BlsnoP confirmation of an ancient custom formerly used time out of lger' mind, that provision should be made for the ministers of London in this manner, that is to say, that he who paid the rent of 20s. for his house wherein he dwelt, should offer every Sunday, and every Apostle's day whereof the evening was fasted, one half- penny ; and he that paid but 10s. rent yearly, should offer but one farthing ; all which amounted to the proportion of 2s. 6d. in the pound, for there were fifty-two Sundays, and eight Apostles' days the vigils of which were fasted ; and if it chanced that one of the Apostles' days fell upon a Sunday, then there was but one halfpenny or farthing paid. This payment of 2s. 6d. in the pound continuing until in the Constitution 13 Eic. 2, Arundel, Archbishop of Canterbury, made an explana- of Archbishop tion of Niger's constitution, whereby the offerings amounted to Arundel- the sum of 3s. bd. in the pound, and for a time the payment seems to have been most usually made according to this rate, for Lindwood shows, that the citizens of London, by an ancient ordinance observed in the said city, are bound, every Lord's- day, and every principal feast-day either of the Apostles or others whose vigils are fasted, to pay one farthing for every 10s. rent that they paid for their houses wherein they dwelt. However, ten years after an order for the payment of 27 Hen. 8, tithes according to the rate of 2s. 9d. in the pound had been c- 21 • established by the 27 Hen. 8, c. 21 (r), another law and order was made, as follows, by the 37 Hen. 8, c. 12 : " Where 37 Hen. 8, of late time, contention, strife and variance hath risen and c- 12- grown within the city of London and the liberties of the same, between the parsons, vicars, and curates of the said city, (p) Vide supra, Sect. 7. (r) Boehm, Privilegia Londini, (g) See Reg. v. Peterson, 1895, 1 pp. 456—458. Q. B. p. 31. 1224 PROPERTY OF THE CHURCH. and the citizens and inhabitants of the same, for and con- cerning the payment of tithes, oblations, and other duties within the said city and liberties ; for appeasing whereof, a certain order and decree was made thereof, by the most reverend father in Grod Thomas Archbishop of Canterbury, Thomas Audley, Knight, Lord Audley of Walden, and then Lord Chancellor of England, now deceased, and other of the king's most honourable privy council ; and also the king's letters patents and proclama- tion was made thereof, and directed to the said citizens concern- ing the same ; whereupon it was after enacted in the parlia- ment holden at "Westminster by prorogation, the fourth day of February, in the twenty-seventh year of the King's Majesty's most noble reign, that the citizens and inhabitants of the same city should, at Easter then next following, pay unto the curates of the said city and suburbs, all such and like sums of money, for tithes, oblations, and other duties, as the said citizens and inhabitants by the order of the said late lord chancellor, and other the king's most honourable council, and the king's said proclamation, paid or ought to have paid by force and virtue of the said order at Easter, which was in the year . . . . 1535 ; and the same payments so to continue from time to time, until such time as any other order or law should be made, published, ratified, and confirmed by the King's highness and the two and thirty persons by his grace to be named, as well for the full establishment concerning the payment of all tithes, oblations, and other duties of the inhabitants within the said city, suburbs, and liberties of the same, as for the making of other ecclesiastical laws of this realm of England ; and that every person denying to pay as is aforesaid should, by the commandment of the mayor of London for the time being, be committed to prison, there to remain until such time as he should have agreed with the curate for the said tithes, oblations, and other duties as is aforesaid, as in the said act more plainly appeareth ; since which act, divers variances, contentions and strifes are newly arisen, and grown between the said parsons, vicars, and curates, and the said citizens and inhabitants, touching the payment of the tithes, oblations, and other duties, by reason of certain words and terms specified in the said order, which are not so plainly and fully set forth as is thought convenient and meet to be ; for appeasing whereof, as well the said parsons, vicars, and curates, as the said citizens and inhabitants, have compromitted and put themselves to stand to such order and decree touching the premises as shall be made by the said right reverend father in Grod, Thomas, Archbishop of Canterbury " and the several other persons stated in the statute, "for a final end and conclusion to be had and made touching the premises for ever : And to the intent to have a full peace and perfect end between the said parties, their heirs and successors, touching the said tithes, oblations, and other duties for ever, it is enacted .... That such end, order, and direction as shall be made, decreed, and concluded by the fore- named archbishop, lords, and knights, or any six of them, before TITHES AND RENT-CHARGE. 1225 the first day of March next ensuing, of, for and concerning the payment of tithes, oblations, and other duties within the said city and the liberties of the same, and inrolled of record in the King's high court of chancery, shall stand, remain, and be as an act of parliament, and shall bind as well all citizens and inhabitants of the said city and liberties for the time being, as the said parsons, vicars, curates, and their successors for ever, according to the effect, purport, and intent of the said order and decree so to be made and inrolled ; and that every person denying to pay any of his tithes, oblations, or other duties, contrary to the said decree so to be made, shall by the com- mandment of the mayor of London for the time being, and in his default or negligence by the lord chancellor of England for the time being, be committed to prison there to remain till such time as he hath agreed with the curate or curates for his or their said tithes, oblations, and other duties as is aforesaid." Which decree made in pursuance hereof is as follows (s) ; Decree, viz. : — 1. " As touching the payment of tithes in the city of London, and the liberties of the same : It is fully ordered and decreed by the most reverend father in Grod Thomas Archbishop of Canter- bury, primate and metropolitan of England, Thomas Lord Wryothesly, lord chancellor of England, William Lord St. John, president of the King's majesty's council and lord great master of his Highness's household, John Lord Russell, lord privy seal, Edward Earl of Hertford, lord great chamberlain of England, John Yicount Lisle, high admiral of England, Richard Lister, knight, chief justice of England, and Roger Cholmely, knight, chief baron of his grace's exchequer, this present twenty-fourth day of February, "in the year of our Lord 1545," according to the statute in such case lately provided, that the citizens and inhabitants of the said city and liberties thereof for the time being, shall yearly, without fraud or covin, for ever pay their tithes to the parsons, vicars, and curates of the said city, and their successors for the time being, after the rate hereafter following ; that is to wit : Of every 10s. rent by the year of all and every house and houses, shops, ware-houses, cellars, stables, and every of them, within the said city and liberty thereof, 16Jd. ; and of every 20s. rent by the year of all and every such house and houses, shops, ware-houses, cellars, stables, and every of them within the said city and liberty of the same, 2s. 9d. And so above the rent of 20s. by the year, ascending from 10s. to 10s., according to the rate aforesaid. 2. " Item, that where any lease is or shall be made of any dwelling house or houses, shops, ware-houses, cellars, or stables or any of them, by fraud or covin, reserving less rent than hath (s) In Macdougall v. Purrier, 4 they would presume that this Bli. N. S. p. 433 ; 2 Dow. p. 135, decree was enrolled according to the House of Lords held that the act. 1226 PROPERTY OF THE CHURCH. been accustomed or is ; or that any such lease shall be made without any rent reserved upon the same, by reason of any fine or income paid beforehand, or by any other fraud or covin ; that then in every such case, the tenant or farmer, tenants or farmers, shall pay for his or their tithes of the same after the rate afore- said, according to the quality of such rents as the same house or houses," &c. " were last letten for without fraud or covin before the making of such lease." 3. " Item, that every owner or owners, or inheritor or in- heritors of any dwelling-house, or houses, shops, ware-houses, cellars, or stables, inhabiting or occupying the same himself or themselves shall pay after such rate, or tithes as is abovesaid after the quantity of such yearly rent as the same was last letten for, without fraud or covin. 4. " Item, if any person hath taken, or hereafter shall take, any mease or mansion place by lease, and the taker or takers thereof, his or tbeir executors or assigns, doth or shall inhabit in any part thereof, and have or hath within eight years last past before this order, or hereafter shall let out the residue of the same ; that then in such case, the principal farmer or farmers, or first taker or takers thereof, his or their executors or assigns, shall pay his or their tithes after the rate abovesaid, according to his or their quantity therein and that his or their executors, assignee, or assigns shall pay his or their tithes after the rate aforesaid according to the quantity of their rent by year. 5. " And if any person or persons hereafter have taken or shall take divers mansion-houses, shops, ware-houses, cellars or stables in one lease, and letteth or shall let out one or more of the said houses and keepeth or shall keep one or more in his or their own hands, and inhabiteth or inhabit in the same ; that then the said taker or takers, and his or their executors or assigns, shall pay his or their tithes after the rate abovesaid, according to the quantity of the yearly rent of such mansion house or houses retained, in his or their own hands ; and that his assignee or assignees of the residue of the said mansion house or houses, shall pay his or their tithes after the rate abovesaid, according to the quantity of their yearly rents. 6. " Item, if such farmer or farmers, or his or their assigns, of any mansion house or houses, ware-houses, shops, cellars, or stables, hath at any time within eight years last past, or shall hereafter let over all the said mansion house or houses contained in his or their lease, to one or to divers persons ; that then the inhabitants, lessees, or occupiers of them and every of them, shall pay their tithes after the rate of such rents as the inhabitants, lessees, or occupiers, and their assignee or assignees, have been or shall be charged withal, without fraud or covin. 7. " Item, if any dwelling-house within eight years last past was or hereafter shall be converted into a ware-house, store- house, or such like ; or if a ware-house, store-house or such like, within the said eight years was or hereafter shall be converted TITHES AND RENT- CHARGE. 1227 into a dwelling-house, the occupiers thereof shall pay tithes for the same after the rate above declared of mansion house rents. 8. " Item, that where any person shall demise any dye-house or brew-house, with implements convenient and necessary for dyeing or brewing, reserving a rent upon the same, as well in respect of such implements as in respect of such dye-house or brew-house, that then the tenant shall pay his tithes after such rate as is abovesaid, the third penny abated ; and that every principal house or houses, with key or wharf, having any crane or gibet belonging to the same, shall pay after the like rate of their rents as is aforesaid, the third penny abated ; and the other wharfs belonging to houses having no crane or gibet, shall pay for tithes as shall be paid for mansion houses in form aforesaid. 9. " Item, that where any mansion house with a shop, stable, ware-house, wharf with crane, timber-yard, teinter-yard, or garden belonging to the same, or as parcel of the same, is or shall be occupied together, that if the same be hereafter severed or divided, or at any time within eight years last past were severed or divided, that then the farmer or farmers or occupier or occupiers thereof shall pay such tithes as is abovesaid for such shops, stable, ware-houses, wharf with crane, timber- yard, teinter-yard, or garden aforesaid, so severed or divided, after the rate of their several rents thereupon reserved. 10. " Item, that the said citizens and inhabitants shall pay their tithes quarterly, that is to say, at the feast of Easter, the nativity of St. John the Baptist, the feast of St. Michael the archangel, and the nativity of our Lord by even portions. 11. " Item, that every householder paying 10 s. rent or above shall for him or herself be discharged of their four offering days ; but his wife, children, servants, or others of their family, taking the rites of the church at Easter, shall pay 2d. for their four offering days yearly. 12. " Provided always, and it is decreed, That if any house which hath been or hereafter shall be letten for 10s. rent by the year, or more, be or hath been at any time within eight years last past, or hereafter shall be, divided and leased into small parcels or members, yielding less yearly rent than 10s. by the year, that then the owner or owners, if he or they shall dwell in any part of such house, or else the principal lessee or lessees, if the owner or owners do not dwell in some part of the same, shall from henceforth pay for his or their tithes after such rate of rent as the same house was accustomed to be letten for, before such division or dividing into parts or members ; and the under farmer and farmers, anr] lessee and lessees, to be discharged of all tithes for such small parcels, parts or members, rented at less yearly rent than 10s. by the year without fraud or covin, paying 2d. yearly for four offering days. 13. " Provided always, and it is decreed, That for such gardens as appertain not to any mansion house, and which any person or persons holdeth or shall hold in his or their hands for P. VOL. II. 4 L 1228 PROPERTY OF THE CHURCH. pleasure, or to his own use, that the then person so holding the same shall pay no tithes for the same ; but if any person or persons which holdeth or shall hold any such garden, containing half an acre or more, shall make any yearly profit thereof, by way of sale, that then he or they shall pay tithes for the same after such rate of his rent, as is herein first above specified. 14. " Provided also, that if any such gardens now being of the quantity of half an acre, or more, be hereafter by fraud or covin divided into less quantities, then to pay according to the rate abovesaid. 15. " Provided always, that this decree shall not extend to the houses of great men, or noble men, or noble women, kept in their own hands, and not letten for any rent, which in times past have paid no tithes, so long as they shall so continue unletten ; nor to any halls of crafts or companies, so long as they be kept unletten, so that the same halls in times past have not used to pay any tithes. 16. " Provided always, and it is decreed, That this present order and decree shall not in anywise extend to bind or charge any sheds, stables, cellars, timber-yards, nor teinter-yards, which were never parcel of any dwelling-house nor belonging to any dwelling-house, nor have been accustomed to pay any tithes ; but that the said citizens and inhabitants shall thereof be quit of payment of any tithes, as it hath been used and accustomed. 17. " Provided also, and it is decreed, That where less sum than after US Id. in the 10s. rent, or less sum than 2s. 9d. in the 20s. rent, hath been accustomed to be paid for tithes ; that then in such places the said citizens and inhabitants shall pay, but only after such rate as hath been accustomed. 18. " It is also decreed, That if any variance, controversy or strife do or shall hereafter arise in the said city for nonpayment of any tithes ; or if any variance or doubt shall arise upon the true knowledge or division of any rent or tithes within the liber- ties of the said city, or of any extent or assessment thereof, or if any doubt arise upon any other thing contained within this decree ; that then, upon complaint made by the party grieved to the mayor of the city of London for the time being, the said mayor, by the advice of counsel, shall call the said parties before him, and make a final end in the same, with costs to be awarded by the discretion of the said mayor and his assistants according to the intent and purport of this present decree. 19. " And if the mayor shall not make an end thereof within two months after complaint to him made, or if any of the said parties find themselves aggrieved, that then the lord chancellor of England for the time being, upon complaint to him made within three months then next following, shall make an end in the same, with such costs to be awarded as shall be thought con- venient, according to the intent and purport of the said decree. 20. " Provided always, That if any person or persons take any tenement for a less rent than it was accustomed to be letten for, TITHES AND RENT-CHARGE. 1229 by reason of great ruin or decay, burning, or such like occasions or misfortunes, that then such person or persons, his executors or assigns, shall pay tithes only after the rate of the rent reserved in his or their lease, and none otherwise, as long as the same lease shall endure." > Several cases have been decided under this decree : viz., Mead- Cases on house v. Taylor (t), Green v. Piper («), Skidmore and Eire v. Jrf-g^^f00 Bett(x), Bennett v. Trepas(y), Antrobus v. The East India Company (z), Macdougall v. Barrier (a), Vivian v. Cochrane (6), London and Black wall Railway Company v. Letts (c), Bayne v. Esdaile (<7), which are not here given at length, because, by a series of acts, every parish in the city, it is believed, has been since separately provided for in a course of legislation which, though based on 37 Hen. 8, c. 12, has altered several of the features of that act. This legislation began upon the occasion of the fire in London in the year 1666, as to the churches and houses thereby con-" sumed, when 22 & 23 Car. 2, c. 15, enacted as follows: — 22 & 23 Car. 2, " Whereas the tithes in the city of London were levied and paid c- 15- with great inequality, and are, since the late dreadful fire there, ^^ted^after in the rebuilding of the same, by taking away of some houses, the Fire of altering the foundations of many, and the new erecting of London are others, so disordered, that in case they should not for the time annuafsumof to come be reduced to a certainty, many controversies and suits money, of law might thence arise " : it is therefore enacted, " That the annual certain tithes of all and every parish and parishes within the said city and liberties thereof, whose churches have been demolished, or in part consumed by the late fire, and which said parishes, by virtue of an act of this present parliament . . . . (e), remain and continue single, as heretofore they were, or are by the said act annexed or united into one parish respectively, shall be as followeth ; (that is to say), the annual certain tithes, or sum of money in lieu of tithes." Sect. 2 contains a list of the parishes and of the sums set opposite to them. Sect. 3. " Which respective sums of money to be paid in lieu of tithes within the said respective parishes, and assessed as hereinafter is directed, shall continue to be esteemed, deemed and taken to all intents and purposes to be the respective certain annual maintenance (over and above glebes and perquisites, gifts and bequests to the respective parson, vicar and curate of any parish for the time being, or to his or their respective successors, (0 Noy, p. 130. (u) Cro. Eliz. p. 276. x) 2 Inst. p. 66a; Gibs. p. 1223. y) Gilb. R. p. 191 ; 8 Yin. Abr. p. 568 ; Bunb. p. 106 ; 2 Bro. P. C. p. 439. (z) 13 Yes. p. 9. 4 (a) 4 Bli. N. S. p. 433 ; 2 Dow. p. 135. (6) 4 De G. M. & G. p. 818 ; 1 Jur. N. S. p. 809. (c) 3 H. L. p. 470; 15 Jur. p. 295 d) 13 App. Ca. p. 613. e) 22 Car. 2, c. 11. l2 1230 PROPERTY OF THE CHURCH. or to other persons for his or their use) of the said respective parsons, viears and curates, who shall be legally instituted, inducted and admitted into the respective parishes aforesaid." And by sects. 4, 5, 6, 7, for the more equal levying of the same upon the several houses, buildings and other hereditaments within the respective parishes, assessments were ordered to be made before July 24, 1671, "upon all houses, shops, ware- houses and cellars, wharfs, keys, cranes, water-houses (which water-houses shall pay in the respective parishes where they stand and not otherwise), tofts of ground (remaining unbuilt), and all other hereditaments whatsoever (except parsonage or vicarage houses), the whole respective sum by this act appointed, or so much of it as is more than what each impropriator is by this act enjoined to allow." By sect. 8, three transcripts of the assessments were to be made ; one to be deposited amongst the records of the city, another in the registry of the bishop of London, and another in the parish vestry respectively, for a perpetual memorial thereof. By sect. 9, the sums assessed were to be paid to the respective parsons, vicars and curates, at the four most usual feasts, to wit, at the annunciation of the blessed Virgin, the nativity of St. John Baptist, the feast of St. Michael the Archangel, and the nativity of our blessed Saviour, or within fourteen days after each of the feasts aforesaid, by equal payments ; the respective payments thereof to begin and commence only from such time as the incumbent shall begin to officiate or preach as incumbent. By sect 10, impropriators shall pay and allow what bond fide they have used and ought to pay and satisfy to the respective incumbents at any time before the said late fire ; the same to be computed as part of the maintenance of such incumbent. Sect. 11 provides, that if any inhabitants shall refuse or neglect to pay to the incumbent the sum appointed by him to be paid (the same being lawfully demanded upon the premises) ; it shall be lawful for the lord mayor, upon oath to be made before him of such refusal or neglect, to grant out warrants for the officer or person appointed to collect the same, with the assistance of a constable in the day time, to levy the same by distress and sale of the goods of the party so refusing or neglecting ; restoring to the owner the overplus over and above the said arrears and the reasonable charges of making such distress. By sect. 12, if the lord mayor shall refuse or neglect to execute any of the powers to him given by the act, it shall be lawful for the lord chancellor or lord keeper, or two or more of the barons of the exchequer, by warrant under their hands and seals respectively, to do and perform what the said lord mayor might or ought to have done in the premises. Sect. 14. " Provided always that no court or judge ecclesias- tical or temporal, shall hold plea of or for any the sum or sums of money due and owing or to be paid by virtue of this act ; TITHES AND RENT-CHARGE. 1231 other than the persons hereby authorized to have cognizance thereof : nor shall it be lawful to or for any parson, vicar, curate or incumbent, to convent or sue any person assessed as aforesaid and refusing or neglecting to pay the same in any court or courts, or before any judge or judges, other than what are authorized and appointed by this act, for the hearing and determining of the same, in manner aforesaid." Sect. 15. " Provided also, That it shall and may be lawful for the warden and minor canons of St. Paul's Church, London, parson and proprietors of the rectory of St. Gregory (/) afore- said, to receive and enjoy all tithes, oblations and duties arising or growing due within the said parish, in as large and beneficial manner, as formerly they have or lawfully might have done, anything therein to the contrary notwithstanding" (g). The following cases have been decided on this statute : — Ex Cases on this parte Croxall (//), The Warden and Jlinor Canons of St. Paul's v. act- Morris (/). Some of the later Acts of Parliament are — 44 Geo. 3, c. 89, Later local for relief of certain incumbents in the city. 27 & 28 Yict. acts- c. cclxviii., which deals with the parishes of St. Andrew Under- shaft ; St. Katherine Coleman ; St. Olave, Hart Street ; All- hallows, London Wall ; Allhallows Barking ; St. Ethelburga ; St. Alphage, London Wall ; St. Martin Outwich, Threadneedle Street ; St. Peter le Poer, Broad Street ; Allhallows Staining, Mark Lane ; and Christ Church, Newgate Street ; and provides in each case for a fixed tithe for the incumbent to be raised by pound rates, called tithe rates, over the parish. 38 & 39 Vict, c. lxxiv., for the parish of St. Gregory and the minor canons of St. Paul's. The Christ Church, Newgate Street, Tithe Act, 1879 (42 & 43 Yict. c. xciii.). The London City Tithes Act, 1879 (42 & 43 Yict. c. clxxvi.), which applies similar provisions with those enacted by 27 & 28 Yict. c. cclxviii., to all the remaining city parishes, except St. Botolph, Aldgate ; and 44 & 45 Yict. c. cxcvii., which converts the tithe in this last parish into a church rate. It has been decided that this rate is not itself rateable to the poor as tithe would be (k). A later Act as to this parish is 51 & 52 Yict. c. lxix. — ♦ — Sect. 17. — Corn Rents under Local Acts. Besides the customary payments by householders in lieu of Origin of. tithes in the vicinity of the city of London, and in other towns, _ (/) One of the parishes men- tioned in sect. 2 of the act. (a) Tide infra, 38 & 39 Yict. c. lxxiv. (h) Cited 3 Atk. p. 639. (/) 9 Yes. p. 155. (k) Esdaih v. Assessment Com- mittee of The City of London Union, 18 Q. B. D. p. 599 ; 19 Q. B. D. p. 431. 1232 PROPERTY OF THE CHURCH. there have been in many places arrangements made by local acts for paying corn rents in lieu of the ordinary tithes. These corn rents were left untouched by the earlier commuta- tion acts ; but provision for their conversion into rent- charges, similar to the ordinary commutation rent-charges, is made by ?39i24 Vkt' 23 & 24 Yict- e- 93> as follows :— Corn rents Sect. 1. " Where corn rents are payable by virtue of any under local local act of parliament, in commutation of the whole or part of cotS eTd^t ^e ^nes °^ any parisn> an(i sucn corn rents shall be subject to tithe^ent-111 ° variation at certain periods under the provisions of the same act, charge. the commissioners, upon the application in writing of the owners of lands liable to the payment of the major part in value of such corn rents, or of the persons to whom a major part in value of such rents are payable, at any time at which the said corn rents might be subjected to variation under such local act, or at any other time, upon the joint application in writing of the owners of lands liable to the payment of the major part in value of such corn rents, and of the persons to whom a major part in value of such rents are payable, may, by an award under their hands and seal, convert the same into a rent- charge, to be thenceforth and for ever thereafter payable, in like manner and subject to the like incidents as rent-charges awarded under the said recited acts (/) are payable and subject to : provided always, that nothing in this act contained shall be construed to render any such rent-charge liable to parochial or other rates or taxes, from which the corn rents in respect of which such rent-charge shall have been awarded were free and exempt." County or Sect. 2. " Wherever the local act provides that the average towns from prices upon which any corn rents shall be varied shall be taken "Wliosg returns average to be from any county, or from towns from which corn returns are calculated. made, the commissioners shall calculate the rent-charge to be awarded by them in lieu of such corn rents upon the returns for such county or such towns ; and where no corn returns are made from the towns so named, the commissioners shall select two towns in the same or any adjoining county from which there are returns, and give notice thereof in such manner as to them shall seem fit, and shall appoint a time (being not less than twenty-one days from the date of the notice) within which objections to such selection may be signified in writing to the commissioners by any person interested, and if there be any such objections the commissioners shall consider the same, and shall either confirm the selection, or select some other towns, as they may think fit." How average Sect. 3. " The commissioners shall calculate the rent-charge lated calcu" to be awarded in lieu of any such corn rents upon the average prices for the number of years next preceding the date of the application to them, which shall be provided by such local act as the basis of variation, having due regard to the average prices (/) That is, the previous Tithe Commutation Acts. TITHES AND RENT-CHARGE. 1233 upon which such corn rents were ascertained, and such calcula- tion, where practicable, shall be made with reference to the particular grain mentioned in the local act under which such corn rents are payable, or if there shall be no returns of such grain, upon the average prices of wheat, barley, and oats." Sect. 4. " The commissioners shall apportion the rent-charge Commis- to be awarded by them in lieu of corn rents upon and among 810ners.to the lands heretofore subject to such corn rents, either by a reut-charge. general schedule or a schedule in detail of the same lands, to be annexed to and form part of their award, and with or without a map of the same lands or any part thereof, but the commissioners shall not require a map unless the same shall in their opinion be rendered necessary for the identification of any such lands ; and the commissioners shall deposit a draft of such award for inspection in the same manner as by the said recited acts is required in reference to an instrument of apportionment, and shall cause notice of such deposit to be given in such manner as to them shall seem fit, and shall by such notice specify the time (being not less than twenty-one days) within which objections in writing to such proposed award may be signified to the commissioners ; and in case any notice of objection shall be given within the time limited as aforesaid, the commissioners shall appoint a time and place for hearing such objections, and shall by themselves or by an assistant commissioner take such objections into their consideration ; and if there be no notice of objections, or when the said commissioners or assistant commis- sioner shall have heard and determined all such objections, the commissioners shall confirm such award, with or without amend- ments, as they shall see fit, and such award shall thenceforth be binding and conclusive on all persons whomsoever, subject to the provision hereinafter contained, and shall be conclusive evidence on every matter in the said award set forth and contained." Sect. 5. " Any person dissatisfied with the said award, and Power of ap- who shall be desirous of appealing against the same, shall have Pfe^oacourt the same power of appeal as is given by the said first-recited act in the case of a decision given under the forty-fifth section of such act (m), notwithstanding that the yearly payment in dispute shall be less than twenty pounds ; and the court is hereby empowered to amend such award, or to remit the same to the commissioners to be amended by them in such manner as the said court shall direct, and the commissioners shall thereupon amend the same, in conformity to such direction, and the award so amended shall be binding and conclusive on all persons whomsoever." Sect. 6. " The commissioners shall have access to the books of Comptroller of corn returns (m) 6 & 7 Will. 4, c. 71, s. 45. 509; Earl of Stamford and War- The appeal is given by sect. 46. rington v. Dunbar, 14 M. & W. See on the construction of that sec- p. 151. tion, Horafraji x. SctQQpe3 13 Q. V>. 1234 PROPERTY OF THE CHURCH. to furnish the comptroller of corn returns for the time being, and shall be information. furnished by him with such information as they may require for the purposes of any award of rent-charge in lieu of corn rents." Commis- Sect. 7. " In making any such award, and any inquiries inci- haveTame dent thereto, the commissioners shall have the same powers as powers as in to the attendance and examination of witnesses, the production tithe commu- of documents, and all other matters, as are given by the said recited acts (n) in matters relating to the commutation of tithes ; tations. As to es of awards, &c. As to expenses &nd all expenses of or incident to any such award or any part thereof shall be borne and paid by and amongst the owners of lands heretofore liable to such corn rents, and the persons to whom the same were payable respectively, in such proportion and manner as the commissioners shall direct, and be recover- able in like manner as expenses under the said recited acts (n) are recoverable." Copies of gect. 8. " The commissioners shall cause to be made two deposited b&c copies °^ every such award of rent-charge in lieu of corn rents, which copies shall be sealed by them and be deposited in like manner and subject to all the like incidents as provided by the said recited acts in reference to the sealed copies of an instru- ment of apportionment." As to recovery Sect. 9. " The payment of any rent-charge awarded in lieu of charges corn rents which shall be in arrear may be enforced by the same awarded in ways and means as payment of rent- charge in arrear may be lieu of corn enforced under the provisions of the said recited acts, or may be enforced, at the option of the person to whom the same rent- charge is payable, by the same ways and means as are provided by the local act for the recovery of the corn rents in lieu of which such rent-charge shall have been awarded." Where con- Sect. 10. "In any case of altered apportionment in which the given, draft consent of the whole of the landowners interested in such altera- of proposed tion shall not be signified thereto, the commissioners shall, in tira^enttobe ^ °f ^ service of notice required by the said acts, cause a deposited for draft of the proposed altered apportionment to be deposited for inspection. inspection, in the same manner as by the said first-recited act is required in reference to an instrument of apportionment, and shall cause notice to be given of such deposit in such manner as to them shall seem fit, and shall by such notice specify the time (being not less than twenty-one days) within which objections in writing to such proposed altered apportionment may be sig- Tn case of ob- nified to the commissioners ; and in case any notice of objection jection, com- snall be given within the time limited as aforesaid, the commis- missioners to • -P n .' , j -> £ i i • ,. appoint a time sioners snail appoint a time and place tor hearing sucn objection, for hearing and shall, by themselves or by an assistant commissioner, take the same. such, objection into their consideration ; and if there be no notice of objection, or when the said commissioners or assistant com- missioner shall have heard and determined every such objection, (n) The previous Tithe Commutation Acts. TITHES AND RENT-CHARGE. 1235 the commissioners shall confirm such altered apportionment, with or without amendments, as they shall see fit." By 48 & 49 Vict. c. 32 (" The Tithe Eent-charge Eedemp- 48 & 49 Vict, tion Act, 1885"), sect. 2, " The powers and provisions of the c- 32- said recited acts (o) respecting the redemption of rent-charge ^°^e^8 oft (except as otherwise by this act is provided) shall extend and be extended0 to applicable to all corn rents, rent-charges, and money payments, tithe rent- payable out of or charged on any lands by virtue of any act of charges under i- j« i» x'j.-j.i )> local acts, parliament m lieu ot tithes. Sect. 3. " Every application to the commissioners for the Evidence to redemption of any such corn rent, rent-charge, or money pay- accompany ment shall be accompanied with a certified copy or extract from for redemp- the act, and from any award made in pursuance thereof, showing tion. the amount of the corn rent, rent-charge, or money payment proposed to be redeemed, and with such evidence or proof of the payment of such corn rent, rent-charge, or money payment together with such particulars of the land liable thereto as the commissioners shall think fit." « Provided always, that if the said corn rent, rent-charge, or money payment should have been varied by any order of justices at quarter sessions, the consideration money payable for the redemption shall be calculated on such varied amount, and a certified copy of the last of such orders or other satisfactory evidence of the variation shall be furnished to the said commis- sioners, and such certified copies or extracts shall be verified and signed by the person or persons having the custody of the said act, award, or order of justices respectively." Sect. 4. " In lieu of the deposit of copies of the certificate of Deposit of redemption as provided by the said recited acts, copies of every ^^eoi °eT^' certificate of redemption under this act, sealed with the seal of redemption, the said commissioners, shall be deposited with such person or persons as the said commissioners, having regard to the circum- stances of each case, shall determine." The following are some of the more important cases that have Cases on local recently been decided on the construction of the local tithe acts : ?cts esUblish- Newling v. Pearse (p) ; Willoughby v. Wilkmghby (q) ; Be Win- rents?m teringham Tithes (r) ; Reg. v. The Justices of Lindsey \s) ; Bedford v. The Warden Aid Society of Sutton Coldfield (t) ; Vigar v. Dudman, decided by the House of Lords (u). Beg. v. The Justices of Lindsey was, however, dissented from, When appli- and not followed in two unreported cases, as to Little Ponton and cation to vary Long Bennington in Lincolnshire, in the year 1888, in which the ^mada!7 (o) That is, the previous Tithe Commutation Acts ; of the first of which acts, as amended by the others, 48 & 49 Vict. c. 32 is, by sect. 5, to be taken as part. {p) 1 B. & C. p. 437. (q) 4 Q. B. p. 687 ; 7 Jur. p. 798. (r) 9 Jur., N. S. p. 277; nomine Be Wintrigham Tithes, 31 L. J., C. P. p. 274. (s) 13 Q. B. p. 484; 13 Jur. p. 491. (t) 3 C. B., N. S. p. 449. (») L. K.,t>C. P. p. 470; 7 C. P. p. 72; 40 L. J.,C. P. 229; L. R.,6 H. L. p. 212. 1236 PROPERTY OF THE CHURCH. editor was counsel, and in a later case before the Oxfordshire Quarter Sessions, where the editor was present as a magistrate. The point in these cases was one which not infrequently arises in the working of these acts. They all fix a certain money rent, and a value in corn, then provide that if the price of corn rise or fall at the expiry of certain periods, usually twenty-one or fourteen years, application may be made to Quarter Sessions for a variation of the corn rent. In the above cited case of Reg. v. The Justices of Lindsey it was holden that the application must be made as soon as the fourteen or twenty-one years expired, and if not made then must wait for a new period. In the later cases it was holden sufficient that at least fourteen or twenty-one years had expired. ♦ Original appointment. 14 & 15 Vict, c. 53. Amalgama- tion of tithe commission with other commissions. 31 & 32 Vict, c. 89. Fees to be taken for defraying expenses. Liability of commissioner. 45 & 46 Vict, c. 38. Alteration to land commission. Sect. 18. — Tithe Commission and Board of Agriculture. The tithe commission (x) was originally appointed for five years only ; the duration of the commission being afterwards extended from time to time by several acts. By 14 & 15 Yict. c. 53, the tithe commission was amal- gamated with the copyhold commission and the inclosure com- mission, and commissioners were to be appointed under the act for two years : these new commissioners were to be called tithe commissioners, copyhold commissioners, or inclosure commis- sioners, according to the powers by virtue of which they acted and the duties which they undertook, in each case. This commission was continued from time to time. By 31 & 32 Yict. c. 89, provisions are made for defraying the expenses of the commission by means of fees. By sect. 1, security for costs is to be taken before any inquiry is held by an assistant commissioner ; and by sect. U, the com- missioners shall prepare a table of fees, to be approved by the lords of the treasury, in respect of the business transacted under the acts administered by them ; and these fees are to be paid in stamps. The table of fees, and any alterations afterwards made therein, are to be published in the Gazette and laid before parliament. As to the liability of a commissioner to an action at law for acts done by him in discharge of his official duties, the case of Acland v. Bailer (y) should be referred to. By 45 & 46 Vict. c. 38, s. 48, the tithe commissioners became and were to be styled " the land commissioners for England." (x) Vide supra, p. 1161 (y) 1 Ex. p. 83: TITHES AND RENT-CHARGE. 1237 By 52 & 53 Vict. c. 30, s. 1, the Board of Agriculture was 52 & 53 Vict, established. c- 30- By sect. 2 of this act the powers and duties of the land com- Powers trans- missioners for England as to tithe rent-charge under the several * ^ general tithe commutation or redemption acts up to that date, Agriculture which are enumerated in the schedule, as well as under the London City Tithes Act, 1879 (s), and the St. Botolph Aldgate Acts, 1^81 and 1&88 (#), or "under any other act whether general local and personal or private " were transferred to the Board of Agriculture. (z) Vide supra, p. 1231. (a) Vide supra, p. 1231. 1238 PROPERTY OF THE CHURCH. CHAPTER IY. PENSIONS, OFFERINGS, FEES. Sect. 1. — Pensions. 2. — Offerings. 3. — Fees. Subject of Thts chapter deals with several minor sources, from which, as chapter. well as from the more prominent sources of glebes and tithes, the incomes (a) enjoyed by ecclesiastical persons in virtue of their benefices or preferments, arise. Sect. 1. — Pensions. What are pensions. Origin of. Pensions paid by monas- teries. Pensions are certain sums of money paid to clergymen in lieu of tithes ; and some churches have settled on them annuities or pensions payable by other churches. Thus, in the Registrum Honoris de Richmond (b), we find a pension paid out of Coram, or Coverham Abbey, in the county of York (unto which the church of Sedburgh was appropriated), to the prior of Conn v side (unto whose priory the church of Orton was appropriated), for the said church of Sedburgh [Sed- berwe], 20s. These pensions are due by virtue of some decree made by an ecclesiastical judge upon a controversy for tithes, by which the tithes have been decreed to be enjoyed by one, and a pension instead thereof to be paid to another ; or they have arisen by virtue of a deed made by the consent of the parson, patron and ordinary (c). At the dissolution of monasteries there were many pensions issuing out of their lands, and payable to several ecclesiastical persons ; which lands were vested in the crown by the statutes of dissolution; in which statutes there is a saving to such (a) Payments from Queen Anne's (b) Gale, Registrum Honoris de Bounty, and from the Ecclesiastical Richmond, Append, p. 94. Commissioners, are dealt with later, (c) 2 Inst. p. 491. See also F. N. vide infra, Part IX. Chaps. II., III. B. p. 52. PENSIONS, OFFERINGS, FEES. 1239 persons of the right which they had to those pensions : but not- withstanding such general saving, those who had that right were disturbed in the collecting and receiving such pensions ; and therefore by another statute, 34 & 35 Hen. 8, c. 19, it was 34 & 35 Hen. 8, enacted, that pensions, portions, corrodies, indemnities, synodies, c' 19, proxies, and all other profits due out of the lands of religious houses dissolved, shall continue to be paid to ecclesiastical persons by the occupiers of the said lands. And the plaintiff may recover the thing in demand, and the value thereof in damages in the ecclesiastical court, together with costs. And the like he shall recover at the common law when the cause is there determinable (d) . By 2b' Hen. 8, c. 3, s. 18, reciting that, "Forasmuch as 26 Hen. 8, c. 3. every incumbent of the dignities, benefices, and promotions They which spiritual aforementioned shall be charged by this act to the pay- otberTout ment of the tenth part of the value of their dignities, benefices, 0f their spi- and promotions spiritual, without any deduction or allowance of ritual living sush pension or pensions, wherewith some of them have been ^nthpart charged to pay to their predecessors during their lives, or to other thereof, persons to the use of such their predecessors during their lives," it is enacted that " it shall be lawful to every incumbent charged with any such pension payable to any his predecessors, or to any to his use, to receive and keep in his hand the tenth part of every such pension ; and that every such incumbent and his sureties shall from henceforth be acquitted and discharged of the said tenth part of every such pension, by virtue and autho- rity of this present act ; any decree, ordinance or assignment of any ordinary, or any collateral writing or security made for such pension to any spiritual person or persons, or to any to their uses for term of their lives, in anywise notwithstanding ; and that as well every incumbent, as such parsons as stand bound for him for payment of any such pensions, shall plead this act in every of the king's courts, for the clear extinguish- ment and discharge of the tenth part of every such pension." Sect. 19 " No pension shall hereafter be assigned by No pension the ordinary, or by any other manner of agreement, by collateral snail])e re_ • • • • SGrvGcL UT30H surety, or otherwise, upon any resignation of any dignity bene- the resigna- fice or promotion spiritual, above the value of the third part of tion of a the dignity benefice or promotion spiritual resigned : and if any ^^gCt^e pension amounting above the value of the third part of the vaiUe of the dignity benefice or promotion spiritual heretofore resigned, be third part, already limited and made sure to any spiritual person or persons, by decree of the ordinary, or otherwise by any collateral surety, or hereafter shall happen to be assigned and made sure to any parson or parsons spiritual, or to any other to their use, by decree of the ordinary, or by any other collateral surety, upon (d) Provisions for the redemp- solidated Fund are made by 36 & 37 tion of pensions payable to spiritual Vict. c. 57, and 45 & 46 Vict. c. 73, persons and charged on the Con- s. 23. 1240 PROPERTY OF THE CHURCHr 13 Edw. 1, st. 4. A pension may be sued for in ecclesi- astical court. Contrary- opinion of Lord Coke. Jones v. Stone. Gooche v. The Bishop of London. any resignation thereof ; yet nevertheless the incumbent charged with such pension, nor his sureties collateral, shall not be com- pelled to pay any more pension than the value of the third part of his dignity, benefice, or promotion spiritual so resigned shall amount unto ; but shall by authority of this act be clearly acquitted and discharged of so much of the said pension as shall amount above the value of the third part of the dignity or benefice so resigned ; any decree or assignment of the ordinary, or any collateral writings or sureties heretofore made, or here- after to be had or made for the same, to the contrary thereof notwithstanding " (d). By the statute of Circumspecte agatis, 13 Edw. 1, st. 4, " if a prelate of a church, or the patron, demand of a parson a pension due to him, all such demands are to be made in a spiritual court ;" in which case "the spiritual judge shall have power to take knowledge, notwithstanding the king's prohibition.,, In pursuance of which, the general doctrine is, that pensions, as such, are of a spiritual nature, and to be sued for in the spiritual court ; and accordingly, when they have come in ques- tion, prohibitions have been frequently denied or consultations granted, even though they have been claimed upon the foot of prescription (e). Lord Coke, indeed, said, if a pension be claimed by prescrip- tion, there, seeing a writ of annuity lies, and that prescription must be tried by the common law, because common and canon law therein do differ, they cannot sue for such a pension in the ecclesiastical court (/). But this has been denied to be law : and in the case of Jones v. Stone, in 12 Will. 3 (g), Holt, C. J., said he could never get a prohibition to stay a suit in the spiritual court against a parson for a pension by prescription. In the case of Gooche v. The Bishop of London, in 4 Greo. 2 (h), the bishop libelled in the spiritual court, suggesting that Dr. Grooche, as Archdeacon of Essex, is to pay 10/. due to the bishop as a prestation for the exercise of his exterior jurisdiction. The doctor moved for a prohibition, alleging that he had pleaded there was no prescription ; and then that being denied, a pro- hibition ought to go for defect of trial. On the contrary, it was argued for the bishop, that the libel being general it must not be taken that he goes upon a prescription ; but it is to be considered in the same light as the common case of a pension which is suable for in the spiritual court ; and the nature of the demand shows it must have its original from a composition, it being a recompense for the archdeacon's being allowed to ex- (d) But see now 13 Eliz. c. 20. (e) Gibs. p. 706 ; Goodwin v. Bean and Chapter of Wells, Noy, p. 16; Smith v. Wallis, 1 Salk. p. 58 ; Collier's case, Cro. Eliz. p. 675 ; 3 Salk. p. 215. (/) 2 Inst. p. 491. (g) 2 Salk. p. 549. See Johnson v. Rymon, 12 Mod. p. 416; Wats, c. 56, p. 633. (h) 2 Stra. p. 879. PENSIONS, OFFERINGS, FEES. 1241 ercise a jurisdiction which originally did belong to the ordinary. And by the court : " They may certainly entitle themselves ab antiquo without laying a prescription. And as they have only laid it in general, there is no ground for us to interpose, till it appears by the proceedings that a prescriptive right will come in question ; if they join issue on the plea, it will then be proper to apply ; but at present there ought to be no prohibi- tion." In Bailey v. Comes (i), in 1724, a bill was preferred in the Bill for pen- Court of Exchequer for a pension only, payable to the preacher ^EBaSh00^ of Bridgnorth ; and upon hearing of the cause (which was after- wards ended by compromise) it seemed to be admitted that a bill might be brought for a pension only. A bishop may sue for a pension before his chancellor, and an How and archdeacon before his official (k). tSttm™ bT If a suit be brought for a pension or other thing due of a instituted. 6 parsonage, it seems that the occupier (though a tenant) ought to he sued ; and if part of the rectory be in the hand of the owner, and part in the occupation of a tenant, the suit is to be against them both (/). And though there is neither house, nor glebe, nor tithes, nor other profits, but only of Easter offerings, burials, and christen- ings, yet the incumbent is liable to pay the pension (m) . If an incumbent leave arrearages of a pension, the successor shall be answerable, because the church itself is charged, into whatsoever hand it comes (n). In Still and Bunn v. Palfrey (o), where the parishioners had Stilly. the patronage of the parish and were bound to provide and pay ?alfrey- a minister, and it was the custom to agree upon the election of each minister for the payment of a fixed stipend, Sir H. J. Fust appears to have thought that, though no church-rate could be made for this stipend, a suit for the payment of it, in the nature of a suit for a pension or for ecclesiastical dues, might be brought in the Ecclesiastical Court. By 13 Eliz. c. 20, s. 1, the grant of any new pension is made 13 Eliz. c. 20. void (p). Pensions may, however, be granted bishops resigning, Pensions under the Bishops Eesignation Act, 1869 (32 & 33 Vict. c. Ill), ^nnt°£le to deans and canons resigning, under 35 & 36 Vict. c. 8, and Scept upon to incumbents resigning according to the provisions of the statutory Incumbents Resignation Acts (34 & 35 Vict. c. 44, and 50 & 51 resignations. Vict. c. 23) (q). (i) Bunb. p. 183. (k) Wood, b. 2, c. 2 ; Bp. of Lin- coln v. Smith, 1 Vent. p. 3. I) Wats. c. 53, p. 600. m) Dean and Chapter of Norwich V. Collins, Hard. p. 230. (n) Trinity College, Cambridge v. Tunstall, Cro. Eliz. p. 810. (o) 2 Curt. p. 902 (1841). (p) Vide infra, Part V. Chap. VII. (q) Vide supra, pp. 82, 191, 389 —395. 1242 PROPERTY OF THE CHURCH. What offerings are. Oblations according to canon law. How recover- able. Royal offerings. Kinds of offerings. Afortuaries. 2 & 3 Edw. 6, c 13. Offerings at four principal feasts. Sect. 2. — Offerings (r). Offerings, oblations, and obventions, are one and the same thing : though obvention is the largest word. And under these are comprehended, not only those small customary sums com- monly paid by every person when he receives the sacrament of the Lord's Supper at Easter, sometimes called Easter dues, which in many places are by custom twopence from every com- municant, and in London fourpence a house, but also the customary payment for marriages, christenings, churchings and burials (*). The term oblation, in the canon law, means whatever is in any manner offered to the church by the pious aud faithful, whether it be moveable or immoveable property ((). These offerings were given on various occasions, such as at burials and marriages, by penitents, at festivals, or by will. But they were not to be received from persons excommunicated, or who had disinherited their sons, or been guilty of injustice, or had oppressed the poor. Such offerings constituted at first the chief revenues of the church. "When established by custom, they may now be recovered as small tithes before two j ustices of the peace, by 7 & 8 Will. 3, c. 6, and subsequent acts. Offerings were made at the holy altar by the king and queen twelve times in the year on festivals called offering days, and distributed by the dean of the chapel to the poor. James the First commonly offered a piece of gold, having the following motto : " Quid retribuam domino pro omnibus quce tribuit mihi ? Cor contritum et humiliatum non despiciet Deus" The money in lieu of these accustomed offerings is now fixed at fifty guineas a year, and paid by the privy purse annually to the dean or his order ; for the distribution of which offertory money, the dean directs proper lists of poor people to be made out. Offerings, as now known to the law and recoverable by legal process, may be divided into two kinds: (1), mortuaries or offerings at the burial of the dead, and (2), offerings at the four great feasts. The law as to mortuaries has been already mentioned in the chapter on burial (ii). Offerings at the four principal feasts are expressly provided for by the following section of 2 & 3 Edw. 6, c. 13. Sect. 10. Provided always that all and every person and persons which by the laws or customs of this realm ought to make or pay their offering, shall yearly from henceforth well and truly content and pay his or their offering to the parson, vicar, proprietor, or their deputies or farmers of the parish or (r) See Com. Dig. tit. " Prohibi- (t) X. v. 40, 29 ; Spelman, Con- tion," G. 11 ; and Ayl. Par. pp. 392 cilia, vol. 2, p. 393. —395. 00 Vide supra, pp. 685—689. (s) Wats. c. 52, p. 585. PENSIONS, OFFERINGS, FEES. 1243 parishes where it shall fortune or happen him or them to dwell or abide ; and that at such four offering days as at any time heretofore within the space of four years last past hath been used and accustomed for the payment of the same ; and in default thereof, to pay for their said offerings at Easter then next following " (x). The four offering days are Christmas, Easter, Whitsuntide, Four offering and the feast of the dedication of the parish church (y). days- Concerning the offerings at Easter, it is directed by the rubric Easter at the end of the communion office, that " yearly at Easter, offermss- every parishioner shall reckon with the parson, vicar, or curate, Rubnc- or his or their deputy or deputies, and pay to them or him all ecclesiastical duties, accustomably due, then and at that time to be paid." And it has been decreed, that Easter offerings are due of 9f common common right, and not by custom only (z) ; C. B. Gilbert said, n£ht- that offerings were a compensation for personal tithes (a). And in the case of Carthew v. Edwards, it was holden that they were due from the householder for every member of his family of sixteen years of age and upwards (b). Easter offerings are due by the common law at the rate of To wnat twopence per head (e) ; but by custom it may be more. In 1 lC London, it is mentioned in several books of authority, that a groat a house is due [d ) ; but I have not discovered on what this opinion of a groat a house for offerings in London is founded. Hobart refers to " the statute," but does not mention any statute in particular. By 37 Hen. 8, c. 12, s. 12, every 37 Hen. 3, householder in London paying 10s. rent or above, shall be c> 12> discharged of offerings ; but his wife and children, or others, taking the rites of the church, at Easter should pay twopence each for their offerhigs yearly (e). In Reg. v. Hall { f), the terriers of the glebe lands and other Beg. \. Halt. rights belonging to the parish church of Batley, dating from 1727 to 1825, contained the following clause : " Easter offerings. Every communicant, 2d. ; every cow, 2d. ; every plough, 2c/. ; every foal, Is. ; every hive of bees. Id. ; every house, 3J 7 C. B., N. S. p. 838, supra, 1270 PROPERTY OF THE CHURCH. Estates com- mittee to see that property assigned as endowment is kept in proper condition. 29 & 30 Vict, c. 111. Provision as to dilapidations on episcopal estates. Further pro- vision as to dilapidations on episcopal estates. 34 & 35 Vict, c. 43. Inspection of buildings of a shall cause the property assigned as an endowment for any see as aforesaid to he inspected so often as they think fit, and shall cause notice in writing of all dilapidations or want of repair found on such inspection, and of the repairs or works necessary for remedying the same, to he given to the archhishop or hishop of such see, and such archhishop or bishop shall forthwith do or cause to be done, at his or their own expense, or at the expense of his or their lessees or tenants (as the case may require), the repairs or works mentioned in such notice ; and if any difference arise between such archbishop or bishop and the estates com- mittee with regard to the condition of such property, or the repairs or works required by the estates committee, the matter in difference shall be referred to arbitration as hereinafter provided." By 29 & 30 Yict. c. Ill, s. 12, "No archbishop or bishop succeeding to a see shall have any claim against his predecessor therein, or against the representatives of such predecessor in respect of dilapidations on the estate forming the endowment of such see, but all the claims, rights, remedies, and powers of recovery which the archbishop or bishop so succeeding as afore- said would legally have had as against his predecessor or the representatives of such predecessor in respect of dilapidations if this act had not passed shall belong to and be possessed by the said commissioners, and may be enforced and exercised on their behalf by the estates committee, who shall pay due regard to any just and reasonable claims for special consideration which any archbishop or bishop so vacating his see, or his representa- tive, may appear to them to possess, on the ground of the actual state or repair of the buildings on the estate at the time of its transfer to him from the commissioners : Provided always, that this section shall not extend to the case of any dilapidations occurring in or about the house or houses of residence belonging to any see or in or about the appurtenances of any such house or houses." Sect. 13. " The estates committee shall make or cause to be made such inspection of the whole or any part of the property forming the endowment of any see as is contemplated by sect. 9 of 23 & 24 Vict. c. 124, " whenever they may be reasonably required so to do by the archbishop or bishop of such see by writing under his hand, as well as at any other times at which such inspection may appear to them to be necessary or desirable." As to vacant benefices (q) : — By sect. 29 of 34 & 35 Yict. c. 43, " Within three calendar months after the avoidance of any benefice .... unless the late incumbent shall under this act be free from all liability to (q) This does not apply to the vacancy in any of their offices is case of archbishops, bishops, deans not provided for by the act, except or canons ; and it would seem there- in cases falling under sect. 28. fore that the contingency of a WASTE AND DILAPIDATIONS. 1271 dilapidations, the bishop shall direct the surveyor who shall benefice on a inspect the buildings of such benefice, and report to the bishop vacancy- what sum, if any, is required to make good the dilapidations to which the late incumbent or his estate is liable, and the late in- cumbent, 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." It was decided in the case of Gleavcs v. Marriner (r) that the These times surveyor was not bound to report or even to inspect within the are directory- three months mentioned in this section ; and in Caldow v. essential. Pixell(s) that the bishop was not bound to direct him within the three months : that is, it was holden in each case that orders made upon surveyors' reports could be enforced though the reports were thus belated. By sect. 30, the surveyor shall send copies of the report to Report of in - the new incumbent, and the late incumbent, his executors or spection tobe administrators. He shall certify to the bishop how each copy ^ °clJsm.op' Was Sent. bent and late Sect. 31. " The report shall state what works, if any, are, in 10^™1^n^,' the opinion of the surveyor, needed, specifying the same in °entative^e~ detail, and may state any special circumstances, and shall state Contents of what sum, in the opinion of the surveyor, will be required to report, make good the dilapidations." Sect. 32. " The new incumbent and the late incumbent, his Objections to executors or administrators, may state in writing to the bishop tne report, objections to the report on any grounds of fact or law, and in such case the bishop may, if he shall think fit, at the expense of the party objecting, direct a second report to be made by some competent person, or take the opinion of counsel upon any question of law." Sect. 33. " Such objections shall be transmitted to the bishop Time for within one month after the sending of the copy of the report to objecting, the party by whom they are made, but the bishop may receive an objection transmitted at a later period if for any special reason he shall think fit to do so." Sect. 34. " The bishop shall in uncontested cases, as soon as The bishop to conveniently may be after the time for the transmission of make an order, objections has expired, and in contested cases after consideration of the whole matter, make an order stating the repairs and their cost for which the late incumbent, his executors or administra- tors, is or are liable." Sect. 35. " The order shall be signed by the bishop in tripli- Delivery of cate, and he shall send one copy to the new incumbent, another bishop's order, to the late incumbent, his executors or administrators, and the other to the registrar of the diocese, to be filed in the registry, and the registrar shall send a copy thereof to the governors." Sect. 42. " The new incumbent shall cause the repairs specified Repairs to be executed (r) 1 Ex. D. p. 107. («) 2 C. P. D. p. 562. 1272 PROPERTY OF THE CHURCH. •within eighteen months. Sum payable for dilapida- tion to be a debt due. Ranking of debts so pay- able. 50 & 51 Vict, c. 23. Set-off of dilapidation moneys against pen- sion. Payments to and powers of governors. Extension of time within which such payment must be made. in the order to be executed within eighteen months after the date of the order, unless, with the consent of the patron and bishop, he shall decide upon rebuilding the premises in question, in which case the money standing to the credit of his dilapida- tion account in the books of the governors shall be applied towards the cost of the new building." Sect. 36. " The sum stated in the order as the cost of the repairs shall be a debt due from the late incumbent, his execu- tors or administrators, to the new incumbent, and shall be recoverable as such at law or in equity." It has been decided that this debt ranks in the administra- tion of the estate of a deceased incumbent pari passu with other debts, though under the old law dilapidations were sometimes postponed to debts (t) . The pension payable to a retired incumbent under the Incumbents Resignation Acts must generally be paid without deduction, and cannot be charged or incumbered. But now, by 50 & 51 Yict. c. 23, s. 6, " If a retired clerk shall on retirement have become liable to the payment to his successor of any sum on account of dilapidations under the Ecclesiastical Dilapidations Act, 1871, and shall not have paid such sum in manner in the said act mentioned, it shall be lawful for the incumbent of the benefice for the time being to withhold the amounts due from time to time in respect of 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 (u). By sect. 37, the new incumbent is to pay over the dilapida- tion money to the governors. By sect. 38, the governors may advance money to him for the repairs on the security of the benefice (x). By sect. 39, the governors shall keep a dilapidation account of the moneys received and the moneys lent by them. By sect. 40, the new incumbent shall pay the balance of the cost of the repairs to the governors within six months. Sect. 41. " The bishop, if from any special circumstances he think fit, may, upon the application of the new incumbent, enlarge the period within which such incumbent is required to pay such last-mentioned sum for any period not exceeding twelve months from the date of the order, and may authorize the payment of such amount either in one sum or by instal- ments of such amounts and on such days (not being beyond the end of such twelve months) as the bishop shall determine." (t) Re Maule, Way man v. Monk, 35 Ch. D. p. 583 ; vide supra, p. 1261. (u) Vide supra, p. 393. (x) As to the provisions in 35 & 36 Vict. c. 96, ss. 1, 2, affecting these loans, vide supra, p. 1267. WASTE AND DILAPIDATIONS. 1273 Sect. 43. "If the moneys payable under this act to the Payment of governors by the new incumbent of any benefice shall not be ™ °^*°s by paid by such incumbent before the expiration of the time new incum- specified in this act for such payment to be made, the governors bent may be shall give notice thereof to the bishop, and it shall be lawful for seqSratwn. the bishop to raise the amount thereof by sequestration of the profits of the benefice. " As to the execution of works : — By sect. 44, where money is standing to the credit of the Payment by dilapidation account of an incumbent required by this act to °f execute repairs, the surveyor shall certify from time to time ^ork^.on° that a certain sum is due, and on such certificate, countersigned by the bishop, the governors shall " cause the amount therein specified to be paid to the person or persons named therein as entitled to receive the same." By sect. 45, " The repairs to be executed in the case of a Execution of benefice under sequestration, and the repairs to be executed in d the case of the refusal or neglect of the incumbent to execute sequesteation1" the same (including rebuilding or repairing in case of fire), or on refusal shall be executed under the direction of the surveyor." The of incumbent, surveyor may employ a builder or contractor under a contract and specifications prepared by him ; and payments are to be made from time to time as in the last section ; " but neither the governors, the bishop, nor the patron, shall incur any liability at law or in equity to any builder or contractor, or otherwise, under or by virtue of any such specification or contract, further than the obligation on the part of the governors to pay the moneys standing to such dilapidation account in manner aforesaid." Sect. 46. " When the repairs shall have been finished, the Final certifi- surveyor, if the same shall be completed to his satisfaction, shall give a certificate of the same having been completed, which works! ° certificate shall be in triplicate, and one of the 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 certificate shall be conclusive evidence of the due execution of the prescribed works." Sect. 47. " No further or subsequent report shall be made as Protection to to the buildings belonging to the benefice, and specified in the incumbent last-mentioned certificate (except at the request of the incumbent nabmtyfor* himself), before the end of five years from the filing of the said five years, 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 execu- tion of the works shall not have insured, to the satisfaction of 1274 PEOPERTY OF THE CHURCH. Payment of surveyor, secretary and registrar. Benefice be- coming vacant during repairs, lia- bility of out- going incum- bent or bis representa- tives. Execution of works other than those specified in surveyor's re- port. Special certificate of surveyor. Where such additional works do not render im- tlie 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." By sect. 48, the charges of the surveyor and the fees of the bishop's secretary and registrar, shall, except as otherwise pro- vided, be paid by the incumbent or by the sequestrator, and shall be a debt due from him or them. When the governors advance a sum in respect of surveyor's charges, it shall be paid by them to the surveyor. Sect. 49. " If an inspection shall have been made of any benefice under this act, and the incumbent liable to execute the prescribed repairs 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 be liable to the payment of all moneys in respect of such repairs (not previously paid by him to the governors in respect thereof), and of the surveyor's inspection, report, and certificate, which such incumbent would respectively have been liable to pay in case he had not vacated, which moneys shall be a debt due from such incumbent, his executors or administrators, to the next incum- bent, 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 incumbent 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." Sect. 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 any of them, so as to render such repairs or any of them imprac- ticable or unnecessary, it shall be lawful for such incumbent, with the consent of the bishop and patron, to execute the pro- posed works in lieu of such repairs; and in such case the surveyor shall, upon the completion of such works to his satis- faction, 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 incumbent, and another to the bishop, who shall cause the same to be regis- tered 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." Sect. 51. "If such additional or substituted works shall not render the whole of such repairs impracticable or unnecessary, then so much of the money standing to the credit of the dilapi- WASTE AND DILAPIDATIONS. 1275 dation account as the surveyor shall certify to be necessary for practicable or the execution of the repairs not so rendered impracticable or ai^the works unnecessary shall be retained by the governors, and shall be specified in dealt with, as regards certificates and otherwise, in the same the report, manner as if the repairs not so rendered impracticable or un- necessary had been the only repairs specified in the order." Sect. 52. "If an incumbent, after having paid to the governors Postponement the amount specified in the report, desire to defer the execution °* allowed^ of the works specified in the report, or any of them, for a limited payment of a period, and the surveyor shall certify in writing that such post- sum to meet ponement may be safely made, the bishop, with the consent of f urth^rdila £. the patron, may authorize such postponement, and may require dations. the incumbent to pay to the governors such a sum, annually or in gross, as shall be certified by the surveyor to be proper to meet any probable further dilapidations, 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 dilapida- tions, 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." Sect. 53. "No sum shall be recoverable for dilapidations in No sum re- respect of any benefice .... to which this act shall be applicable, °?7er.a,blf. for unless the claim tor such sum be rounded on an order made except on a under the provisions of this act." surveyor's As to insurance (ij) : — report. Sect. 54. " The incumbent of every benefice shall insure, and Insurance of during his incumbency keep insured, the house of residence and beScf b°tne farm and other buildings for the time being standing on the incumbent, lands belonging to such benefice, and the outbuildings and offices respectively belonging thereto, and also the chancel of the church when the incumbent is liable to repair the chancel, against loss or damage by fire, in some office or offices for in- surance against loss or damage by fire, to be selected by such incumbent, to the satisfaction of the governors, in at least three- fifths of the value thereof." Sect. 55. " Every such insurance shall be effected in the joint Filing of an- names of the incumbent and the governors, and the incumbent f^aJhrgCeipts shall cause the receipt for the premium for such insurance for premium, each year to be exhibited at the first 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 " 1 & 2 Yict. c. 106 (s), (y) Vide supra, pp. 1135, 1137, the acts there mentioned. 1146, as to insurance on residence (z) Vide supra, pp. 895, 896. houses built under the provisions of P. VOL. IT. 4 O 1276 PROPERTY OF THE CHURCH. Sums received from insur- ance office on destruction of buildings by- fire to be expended in restoring them, &c. Destruction of buildings not insured. Cost of restor- ing to be paid by the incum- bent, and to be recoverable by sequestration. Providing for case of buildings of benefice when let on lease. " that is to say, ' In what office and for what amount are the buildings of your benefice insured against fire ? 9 and ' What was the amount and date of the last annual payment for such insurance ? ' " Sect. 56. " In case any building belonging to any benefice, and insured in pursuance of this act, shall be destroyed or damaged by fire, and the office in which the same shall be insured shall elect to pay the sum insured instead of causing the buildings to be reinstated at the expense of the office, the sum so paid shall be paid to the governors and dealt with in the same manner as moneys standing to the credit of a dilapidation account." By sect. 57, if, when a building shall be destroyed or damaged by fire, such building shall not be insured for an amount suffi- cient to reinstate the same, the surveyor shall give to the bishop a certificate (in triplicate) specifying the sum which will be required, in addition to the insurance money, for reinstating the building, one of which triplicates shall be filed in the bishop's registry, another sent to the incumbent or sequestrator, and another to the governors ; and the incumbent or sequestrator shall have the same opportunity of making objections, and the bishop the same power of consulting another surveyor or taking the opinion of counsel, as are given in sect. 16 (a) ; and the incumbent, if the benefice is not under sequestration, shall pay the amount so specified to the governors within three months from the date of such certificate ; and if the amount is not paid, the bishop may raise the same by sequestration ; and the amount so raised shall be paid to the governors, and the moneys 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 building to be forthwith reinstated, and the cost thereof shall be paid as the works progress, on certificates, in the manner specified in sect. 44 (b) ; and if the incumbent shall refuse or neglect to reinstate such building, it may be reinstated as if it were a building belonging to a benefice under sequestration. If the benefice is 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 as mentioned in sect. 20 ; and the provisions in sects. 20 and 21 (c), 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. The following are miscellaneous provisions : — Sect. 58. " The provisions contained in this act in regard to buildings standing on the lands belonging to any benefice shall not be applicable to the buildings (if any) belonging to the benefice, which shall be comprised in any lease for years or lives, for the time being subsisting, so long as such lease shall (a) Vide supra, p. 1266. (6) Vide supra, p. 1273. (c) Vide supra, pp. 1267, 1268. WASTE AND DILAPIDATIONS. 1277 be subsisting, except so far as the 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." By sect. 59, when such an exemption is claimed the lease or counterpart shall be produced, unless it has already been de- posited in the bishop's registry or with the ecclesiastical com- missioners. By sect. 60, every sum of money raiseable by the bishop by Remedy 0n sequestration shall be deemed a debt due from the incumbent ; ^eat£ of in- and any money which shall not be recovered by sequestration or cum en ' otherwise during an incumbency shall continue to be due from the incumbent ; and in case of his death while he shall be incumbent, so much thereof as shall remain due shall be paid by his personal representatives. Sect. 61. "All moneys which respectively would have been Moneys paid raiseable by the bishop by sequestration during an incumbency, to bishop by and which shall be paid by a succeeding incumbent, or shall be incumbent to recovered by sequestration during such succeeding incumbency, be a debt due shall be a debt due from such prior incumbent or his estate to the incumbent by whom or out of whose income, derived from mcum en ■ the benefice, the same shall be paid, and shall be recoverable as such at law or in equity." Sect. 62 gives a form of security (d) , and provides that the cer- Form and tificate of the treasurer to the governors of any sum having been effect of placed to the credit of the account mentioned in the certificate shall be conclusive evidence of the fact ; that the governors shall, for the recovery of the sums due upon the said security, have the same remedies as if the advance had been made for repairing or rebuilding under the provisions of the following acts : — 17 Geo. 3, c. 53 ; 21 Geo. 3, c. 66 ; 7 Geo. 4, c. 66 ; 1 & 2 Yict. c. 23 ; 28 & 29 Yict. c. 69 ( Sect. 8. " Provided also that where any such accustomably Where sti- entire leases as aforesaid shall have usually contained covenants jj^^&c on the part of the lessee or lessees for the payment or delivery, reServed. ' or shall have in any other manner subjected or charged such lessee or lessees to or with the payment or delivery, of any sum or sums of money, stipend, augmentation, or other thing to or for the use of any vicar, curate, schoolmaster, or other person or persons, other than and besides the lessor or lessors, and his or their heirs or successors, all or any such leases as shall hereafter be granted of the same lands or tenements in severalty as afore- said shall and may lawfully provide for the future payment and delivery of such sum or sums of money, stipends, augmentations, or other things, by and out of any part or parts of the lands Or tenements accustomably charged therewith, not being of less annual value than three times the amount of the payment so to be charged thereon, exclusive of the proportion of rent or other annual payments to be reserved to the lessor or lessors." By 41 Geo. 3, c. 109, s. 38, " ... It shall be lawful for 41 Geo. 3, the rector or vicar for the time being of any parish wherein c- 109- the lands and grounds intended to be enclosed shall be situate, Enclosure^ by indenture or indentures, under his hand and seal, with the Acts, consent and approbation of the bishop of the diocese, and of the patron of the said rectory or vicarage, to lease or demise all or (a) "An Act for the Maintenance of the Colleges in the University, and of Winchester and Eton." 1302 PROPERTY OF THE CHURCH. any part or parts of the allotment or allotments to be set out and alloted to any such rector or vicar, by virtue of any such act, to any person or persons whomsoever, for any term not exceeding twenty- one years, to commence within twelve calendar months next after executing the award ; so that the rent or rents for the same shall be thereby reserved to the rector or vicar for the time being, by four equal quarterly payments in every year ; and so that there be thereby also reserved and made payable to such rector or vicar the best and most improved rent or rents that can reasonably be had or gotten for the same, without taking any fine, foregift, premium, sum of money, or other consideration, for the making or granting any such lease or demise ; and so that no such lessee by any such lease or demise be made dis- punishable for waste, by any express words to be therein con- tained ; and so that there be inserted in every such lease power of re-entry on non-payment of the rent or rents to be thereby reserved, within a reasonable time to be therein limited, after the same shall become due ; and so that a counterpart of such lease be duly executed by the lessee or lessees to whom such lease shall be so made as aforesaid ; and every such lease shall be valid and effectual, any law or usage to the contrary notwith- standing " (b). l & 2 Geo. 4, By 1 & 2 Greo. 4, c. 23, where any leases granted under the c- 23- above act shall determine before the effluxion of the term, it shall be lawful for the incumbent, with the consent of the ordinary and patron, to grant new leases for the remainder of the term, and under the same provision as former leases. 6 & 7 Will. 4, By 6 & 7 Will. 4, c. 115, s. 31, " It shall and may be lawful c 115. £or faie rectors of the said rectories and the vicars of the said consent of ^ vicarages respectively for the time being, by indentures under bishop, may their respective hands and seals, with the consent and approba- demise their tion of the bishop of the diocese for the time being, and of the enclosures 0r Pa^ron °^ ^ne sa^ rec^ories and vicarages, from time to time to lease and demise all or any part of the allotments to be set out and allotted to them respectively by virtue of this act, to any person or persons whomsoever, for any term not exceeding twenty-one years ; so that the rent or rents for the same shall be thereby reserved to such rectors and vicars for the time being by four equal quarterly payments in every year ; and so that there be thereby reserved to such rectors and vicars the best and most improved rent or rents that can be reasonably gotten for the same, without taking any fine, foregift, premium, sum of money, or other consideration for granting any such lease ; and so that no such lessee by any such lease or demise be made dis- punishable for waste by any express words to be therein con- (b) Without this provision newly borough, 7 Moo. J. B. p. 258 ; 1 enclosed land could not have been Bing. p. 24. Vide supra, p. 1298. validly demised : Doe v. Lord Yar- LETTING AND ALIENATION. 1303 tained ; and so that there be inserted in every such lease power of re-entry on non-payment of rent or rents to be thereby reserved within a reasonable time, to be therein limited, after the same shall become due ; and so that a counterpart of such lease be duly executed by the lessee or lessees to whom such lease shall be made as aforesaid ; and every such lease shall be valid and effectual, any law or usage to the contrary notwithstanding." By sect. 30 of the same act rectors and vicars may erect May charge buildings, and may charge the expenses of such buildings, and ™^ve" of planting, fencing, &c, their allotments, upon them, by way of mortgage or demise. By 6 & 7 Will. 4, c. 20, it is enacted as follows :— jj ^ wm- 4> Sect. 1. "No archbishop or bishop, ecclesiastical corporation ' , . , . . f x -it i.1 .restrictions sole or aggregate, dignitary, canon, or prebendary, or other 0n ecclesias- spiritual person, nor any master or guardian of any hospital, tical persons shall grant any new lease of any house, land, tithes or other j^gg1118" hereditaments, parcel of the possessions of his or their see, chapter, dignity, canonry, prebend, benefice or hospital, by way of renewal of any lease, which shall have been previously granted of the same for two or more lives, until one or more of the persons for whose lives such lease shall have been so made shall die, and then only for the surviving lives or life, and for such new life or lives as, together with the life or lives of such survivor or survivors, shall make up the number of lives, not exceeding three in the whole, for which such lease shall have been so made as aforesaid ; and where any such lease shall have been granted for forty years, no such archbishop, bishop, ecclesiastical corpo- ration sole or aggregate, dignitary, canon, prebendary, spiritual person, master, or guardian shall grant any new lease, by way of renewal of the same, until fourteen years of such lease shall have expired ; and where any such lease shall have been made as aforesaid for thirty years, no such archbishop, bishop, ecclesiastical corporation sole or aggregate, dignitary, canon, prebendary, spiritual person, master, or guardian shall grant any new lease by way of renewal of the same until ten years of such lease shall have expired; and where any such lease shall have been granted for twenty-one years, no such arch- bishop, bishop, ecclesiastical corporation sole or aggregate, digni- tary, canon, prebendary, spiritual person, master, or guardian shall grant any new lease, by way of renewal of the same, or (in the case of archbishops or bishops) concurrently therewith, until seven years of such lease shall have expired ; and where any such leases shall have been granted for years, no such arch- bishop, bishop, ecclesiastical corporation sole or aggregate, digni- tary, canon, prebendary, spiritual person, master, or guardian shall grant any lease by way of renewal of the same or other- wise, for any life or lives ; any law, statute, or custom to the contrary notwithstanding." By sect. 2, where any renewed lease is granted it shall con- Recitals to be evidence. 1304 PROPERTY OF THE CHURCH. Ecclesiastical persons may- grant certain leases con- formable to ancient practice. Not to prevent exchanges. Or leases for same term as preceding leases. Act not to render valid illegal leases. Leases con- trary to this act void. tain statements or recitals showing that the lessor is empowered to grant it, and the recitals of the lease shall be taken as evidence of the fact. By sect. 3, a penalty is imposed on persons introducing recitals into leases, knowing the same to be false. Sect. 4. " Provided, nevertheless, that in cases where it shall be certified in manner hereinafter mentioned, that for ten years now last past it hath been the usual practice (such practice having in the case of a corporation sole, commenced prior to the time of the person for the time being representing such corpo- ration) to renew such leases for forty, thirty, or twenty-one years respectively, at shorter periods than fourteen, ten, or seven years respectively, nothing herein contained shall prevent any archbishop, bishop, ecclesiastical corporation sole or aggregate, dignitary, canon, prebendary, spiritual person, master or guar- dian, from granting a new lease conformably to such usual practice; provided that such usual practice shall be made to appear to the satisfaction of the archbishop of the province, in the case of a lease granted by such archbishop or by a bishop, and in the case of a lease granted by any other corporation or person, to the satisfaction of such archbishop, and also of the bishop having jurisdiction over such corporation or person, and shall, before the granting of such lease, be certified in writing under the hand of the archbishop in the one case, and of the archbishop and bishop in the other case ; the certificate so signed by an archbishop only to be afterwards deposited in the registry of such archbishop, and the certificate so signed by an arch- bishop and also by a bishop to be afterwards deposited in the registry of such bishop, which certificate shall be conclusive evidence of the facts thereby certified." By sects. 5 and 6, this act is not to prevent ecclesiastical per- sons effecting exchanges under certain conditions, or granting leases under special statutes. Sect. 7. "Provided also that nothing in this act contained shall prevent a lease from being granted, with a view to confirm any title or otherwise, for the life or lives of the same person or persons, or for the lives or life of the survivors or survivor of them, or for the same term of years, and commencing at the same period, as the lease last granted for a life or lives, or a term of years respectively." Sect. 8. " Provided also that no lease not authorized by the laws and statutes now in force shall be rendered valid by any- thing in this act contained." Sect. 9. " If any lease .contrary to this act shall have been granted since the first day of March," 1836, " or shall be granted after the passing of this act, every such lease shall be void to all intents and purposes whatsoever : Provided always, that nothing in this act contained shall be deemed or taken to affect any lease granted or to be granted pursuant to any cove- LETTING AND ALIENATION. 1305 nant or agreement entered into previously to the first day of March," 1836. A statute passed in the same session (c), enacts that leases 6 & 7 Will. 4, granted under this last act are not to be void by reason of not c- 64- containing the several recitals mentioned in section 2. By 18 Eliz. c. 11, s. 2, it is enacted, that every bond and i8Eliz. c. 11. covenant for renewing or making of any lease or leases, contrary Bonds to de- to the true intent of the said act of the 18 Eliz. c. 11, or of the disabling act of the 13 Eliz. c. 10, shall be utterly void. statutes? In Rudge v. Thomas (d), a parson covenanted with another, Budge v. that he should have his tithes for thirteen years ; afterwards he Thomas- resigned, and another parson was inducted ; the lessee brought an action of covenant against the lessor, and the defendant pleaded 18 Eliz. c. 11, in bar. But Coke, Dodderidge, and Haughton agreed, that the covenant was not made void by this statute ; which was only intended to void bonds and covenants contrary to 13 Eliz. c. 10, but does not extend to bonds and covenants made for the enjoyment of leases which become void by the common law, as leases do by resignation, or the like. But when a dean and canons made bonds among themselves, to ascertain to each other the benefit of particular leases, and the whole body engaged, under such and such forfeitures, to make the leases respectively as there should be occasion ; such bonds were declared to be void by this statute. And so it was, where the dean and chapter obliged themselves to make to one a lease of lands, which were then in lease to another for fifteen years to come : the covenant was declared void upon this statute (e). But this statute does not avoid bonds and covenants touching leases of houses in cities, boroughs, corporations or markets, according to 14 Eliz. c. 11, s. 5 (/). Besides the restrictions above mentioned, it is enacted by 1 & 2 Vict. 1 & 2 Yict. c. 106, s. 59, that all contracts for letting houses in last's f which any spiritual persons are required by the bishop to reside houses of resi- shall be void ; and a penalty of 40s. a day is imposed on all denoe. persons attempting to hold possession contrary to that act (g) . By 2 & 3 Will. 4, c. 80, archbishops, bishops, deans and 2 & 3 Will. 4, chapters, and cathedral dignitaries were empowered to make c* 80, special arrangements with their tenants for ascertaining by menTof^ arbitration the boundaries between church lands so let and boundaries, lands of the tenant's own (h). It should be here observed that by virtue of 11 Geo. 2, c. 19, 11„Gf;2;.?1-19' s. 15, 4 & 5 Will. 4, o. 22, and lastly 33 & 34 Yict. c. 35, all * %£ WllL 4' rents and other periodical payments are due from day to day, 33 & 34 Vict, and are apportionable where the incumbent lessor dies or vacates c- 35- Apportion- ment. (c) 6 & 7 Will. 4, c. 64. (/) Gibs. p. 738 ; Crane v. Tay- Id) 3 Bulst. p. 202 ; Gibs. p. 737. lor, Hob. p. 269. (e) Gibs. p. 738; Lean and Canons (g) Vide supra, p. 887. of Windsor v. Penwin, Mo. p. 789. [h) Vide supra, p. 1123. 1306 PROPERTY OF THE CHURCH. his preferment at a day other than that on which such rent or payment becomes due, between him and his successor. 17 Geo. 3, c. 53. Where new residence house is necessary for incumbent, ordinary, patron and incumbent may purchase convenient house within one mile of the church ; and two acres of land. Sect. 2. — The Exchange of Church Property. The statute 17 Geo. 3, c. 53, an act primarily intended to facilitate the erection and improvement of houses of residence for the parochial clergy (i) , has the following provisions relating to this subject (k) : Sect. 10. " Provided always .... that where new buildings are necessary to be provided or erected for the habitation and residence of the rector, vicar, or other incumbent, pursuant to the authority hereby given, it shall and may be lawful for the ordinary, patron, and incumbent of every such living or bene- fice, to contract, or to authorize, if they shall think fit, the person so to be nominated by them as aforesaid, to contract, for the absolute purchase of any house or buildings, in a situation convenient for the habitation and residence of the rector or vicar of such living or benefice, and not at a greater distance than one mile from the church belonging to such living, benefice, or chapelry ; and also to contract for any land adjoin- ing or lying convenient to such house or building, or to the house or building belonging to any parochial living or benefice, having no glebe lying near or convenient to the same, not ex- ceeding two acres, if the annual value of such living, to be ascertained as aforesaid, shall be less than one hundred pounds per annum, nor two acres for every one hundred pounds per annum, if of greater value, and to cause the purchase-money for such house or buildings to be paid out of the money to arise under the powers and authorities of this act ; in all which cases the said buildings and lands shall be conveyed to the patron of such living or benefice, and his heirs, in trust, for the sole use and benefit of the rector, vicar, or other incumbent of such living or benefice for the time being, and their successors, and shall be annexed to such church or chapel, and be enjoyed and go in succession with the same for ever ; but no contract so made by the nominee shall be valid, until confirmed by the ordinary, patron, and incumbent, by writing under their hands ; and every such purchase deed shall be in the form or to the effect contained in the schedule hereunto annexed, and shall be (i) Vide supra, p. 1126; and generally throughout this section compare Part V. Chap. II. (k) Parsons, not being able to alien, could not exchange their glebes : Turther's Case, Noy. 5 ; 40 Eliz. ; Gibs. p. 661. There is a case in the Chancery, in 5 Car. 1, of Morgan v. Clark, 1 Rep. Ch. p. 22, where such an exchange was ac- complished by decree of the Court of Chancery : Gibs. p. 661. LETTING AND ALIENATION. 1307 registered in such manner, and in such office, as the other deeds are hereby directed to be registered." Sect. 11. " Provided also .... that when any such land Purchase- lyinof near to the parsonage house and buildings belonging to money for J , °, . . i Ln , -i -i i i i such land to such living or benefice, or to be so purchased or exchanged as b8 TSLise& by aforesaid, shall be thought fit to be taken and used as a con- sale, or ex- venience for the same, the purchase-money or equivalent for ^^S^?"* such land shall be raised and had by sale or exchange of some tithes, part of the glebe or tithes of such living or benefice, which shall appear to the said ordinary, patron, and incumbent most convenient for that purpose ; and every such sale or exchange shall be by deed, in the form or to the effect contained in the sche- dule hereunto annexed, and registered as hereinbefore directed." These provisions were much extended by 55 Geo. 3, c. 147. 55 Geo. 3, That act, reciting that glebe lands, or some parts thereof, some- c- 14 ' • times lie at a distance from the parsonage houses ; and that many parsonage houses are mean and inconvenient ; and that it would tend to the accommodation, and thereby also to promote the residence of the incumbents, if the glebe lands and parsonage houses could be exchanged for other lands of greater value, or more conveniently situated, and for other and more convenient houses : and also reciting that there are lands and tenements which have been accustomed to be granted or demised by the incumbent for one, two, or three lives, or for a term or terms of years absolutely or determinable on a life or lives, as being holden by copy of court roll or otherwise, under some manor or lordship belonging to the benefice, and that it would be advan- tageous if these lands were annexed as glebe to the benefice to which they belong : enacts, in sect. 1, " that it shall be lawful Po^er to for the parson, vicar, or other incumbent for the time being, of parsonage any ecclesiastical benefice, perpetual curacy, or parochial chapelry, houses and by deed indented, and to be registered in manner hereinafter glebe lands mentioned, and with the consent of the patron of such benefice, b°ou°L and perpetual curacy, or parochial chapelry, and of the bishop of the lands, diocese wherein the same is locally situate (to be signified as hereinafter is mentioned), to grant and convey to any person or persons, and to his, her, or their heirs and assigns, or otherwise, as he or they shall direct or appoint, or to any corporation sole or aggregate, and his or their successors, the parsonage or glebe house, and the outbuildings, yards, gardens, and appurtenances thereof, and the glebe lands, and any pastures, feedings, or rights of common or way appendant, appurtenant, or in gross, or any or either of such house, outbuildings, yards, gardens, and glebe lands, pastures, feedings, or rights of common or way, or any part or parts thereof, belonging to any such benefice, perpetual curacy, or parochial chapelry, in lieu of and in exchange for any house, outbuildings, yards, gardens, and appurtenances, and any lands, or any or either of them, whether lying within the local limits of such benefice, perpetual curacy, or parochial chapelry or not, but so as that the same be situate P. VOL. II. 4 Q PROPERTY OF THE CHURCH. conveniently for actual residence or occupation by the incumbent thereof, the same also being of greater value or more con- veniently situated than the premises so to be given in exchange, and being of freehold tenure, or being copyhold of inheritance, or for life or lives, holden of any manor belonging to the same benefice, and also for the parson, vicar, or incumbent for the time being of the same benefice, perpetual curacy, or parochial chapelry, by the same or a like deed, and with the like consent, and testified as aforesaid, to accept and take in exchange to him and his successors for ever, from any person or persons, or corporation sole or aggregate, any other house, outbuildings, yards, gardens, easements, and appurtenances, and any other lands, or any or either of such house, outbuildings, yards, gardens, lands, easements, and appurtenances, the same respec- tively being of freehold tenure, or being copyhold of inheritance, or for life or lives, holden of any manor belonging to the same benefice, and being of greater value or more conveniently situated, in lieu of and in exchange for such parsonage or glebe house, outbuildings, yards, gardens, glebe lands, and appur- tenances, and such pastures, feedings, and rights of common, or way, or any or either of them, so to be granted and conveyed, and which said house, outbuildings, yards, gardens, lands and ajDpurtenances so to be accepted and taken in exchange, by any parson, vicar, or other incumbent, shall for ever, from and after such grant and conveyance thereof, be the parsonage and glebe house and glebe lands and premises of the said benefice, per- petual curacy, or parochial chapelry, to all intents and purposes whatsoever, and shall become annexed to the said benefice, perpetual curacy, or parochial chapelry, to all intents and purposes whatsoever, and be holden and enjoyed by such incumbent and his successors accordingly, without any licence or writ of ad quod damnum ; and the whole, or any part or parts of the said house, outbuildings, lauds, and premises so to be annexed, which before such annexation were of copyhold tenure, shall for ever, from and after such annexation, become and be of freehold tenure ; the statute of mortmain, or any other statute or law to the contrary notwithstanding (/);.... Provided also that in all cases when such exchange shall be made by any owner or owners having any less estate or interest than in fee simple of or in the messuage, buildings, lands^and premises so to be by him, her, or them granted or conveyed in exchange, or being any corporation aggregate or sole, or person or persons under any legal disability, the parsonage house, out- buildings, and glebe lands respectively to be so taken in exchange as aforesaid, shall at the time of making such exchange be of equal value with, or not of less value than the said mes- suage, buildings, lands, and premises respectively so to be granted and conveyed in exchange to such parson, vicar, or other incumbent " (/) The proviso here omitted was repealed by 6 Geo. 4, c. 8, s. 2. LETTING AND ALIENATION. 1309 By sect. 2, the premises given in exchange are to be subject Tithes of to the same tithes as those taken in exchange (unless it be agreed i^gange chial chapelry, the existing glebe whereof shall not exceed five statute acres, with the consent of the patron and bishop, to be signified as hereinafter mentioned, to purchase any lands not exceeding in the whole twenty statute acres, with the necessary outbuildings thereon, whether being within the local limits of the said benefice, perpetual curacy, or parochial chapelry, or not, but so as that the same be situate conveniently for building a parsonage or a glebe house and outbuildings, and for gardens and glebe thereof, or for any of the said purposes, and for actual residence and occupation by the incumbent thereof, such land being of freehold tenure, or being copyhold of inheritance, or for life or lives, holden of any manor or lordship belonging to the same benefice, perpetual curacy, or parochial chapelry; and to be annexed which lands so purchased shall for ever, from and after the to, ^enefices as grant and conveyance thereof, be and become annexed to and glebe of such benefice, perpetual curacy, or parochial chapelry, to all intents and purposes whatsoever, and be holden and enjoyed by such incumbent, and his successors accordingly, without any licence or writ of ad quod damnum; and the whole Copyhold land or any part or parts of the said lands, which before such annex- *o be^olde^f ation were or was of copyhold tenure, shall for ever, from and as freehold.11 after such annexation, become and be of freehold tenure ; the statute of mortmain or any other statute or law to the contrary notwithstanding." By 6 Geo. 4, c. 8, s. 3, it is further provided, that " It shall 6 Geo. 4, c. 8. and may be lawful for the parson, vicar or other incumbent for Exchanges the time being of any ecclesiastical benefice, perpetual curacy or f^^a'^^r 6 parochial chapelry, to grant and convey, in the manner, and by tenements and under the several powers, provisions, conditions, and restric- that are copv- tions contained in the" 55 Geo. 3, c. 147, and in 56 Geo. 3, S'0fnadnot c. 52, " and in this act, to any such person or persons, or corpora- manor belong- tion, as in the said first-mentioned act are described, any such i^g to the lands or tenements as are described in the same act belonging to benefice> &c« ; his benefice, in lieu of and in exchange for any lands or tene- ments of the description mentioned in the said first-mentioned act, as those which are thereby authorized to be accepted and taken in exchange by any such parson, vicar or other incumbent, although such last-mentioned lands or tenements may be copy- hold of inheritance holden of a manor not belonging to such ecclesiastical benefice, perpetual curacy or parochial chapelry : Provided always, that no such exchange be made without the ^h consent consent of the lord of the manor of which the lands to be taken ^a °or. in exchange are holden : Provided always, that from and Lands' &c so immediately after such conveyance, the lands or tenements taken by in- accepted and taken in exchange by any such parson, vicar or cumbent to other incumbent, shall become and be of freehold tenure, and ^^premLes the lands or tenements by him granted and conveyed, and which granted, before such conveyance belonged to his benefice, perpetual curacy copyhold 1312 PROPERTY OF THE CHURCH. 28 & 29 Vict, c. 69. Money may- be raised by- mortgage. 55 Geo. 3, c. 147. Limited owners can convey. Where ex- change or pur- chase shall be made, notice to be pre- viously given. A map and valuation on actual survey to be made of the premises to be given and taken in exchange or purchased. or parochial chapelry, shall become copy hold of the same manor, and subject to the same rents, fines, services, customs, and manorial rights and properties, to all intents and purposes, as the lands or tenements so to be accepted and taken in exchange were subject to before the making of such exchange " By 28 & 29 Yict. c. 69, s. 1, a power to raise money for effect- ing the purposes of the last-mentioned act by the mortgage of the tithes and emoluments of the benefice to an amount not exceeding two years' income is extended to any sum not less than £100, and not more than three years' net income. By sect. 12 of 55 Greo. 3, c. 147, powers analogous to those contained in the Lands Clauses Consolidation Act, 1845 (m), are given to owners of limited estates and corporations of conveying land, either for exchange or sale, under that act. But by sect. 13, persons under legal incapacity are not to convey (except in exchange) more than five acres. By sect. 14, as amended by 6 Greo. 4, c. 8, s. 3, " in all cases where any exchange or purchase shall be made under the autho- rity of this act," three " calendar months' previous notice, describing the particulars, extent and situation of the premises respectively to be given and taken in exchange or purchased, shall be given of the intention to make such exchange or pur- chase, by the insertion of the same notice for three successive weeks in some one and the same newspaper of and in general circulation in each county wherein the premises so to be given and taken in exchange or purchased, or any part thereof, are situate ; and also by affixing such notice in writing on a con- spicuous part of the door of the church or chapel of each jDarish or chapelry wherein such premises, or any part thereof, are situate, on three Sundays successively whereon divine service shall be performed, and shortly before the commencement of such service on each Sunday in such church or chapel." By sect. 15 of 55 Greo. 3, c. 147, "Whenever any exchange or purchase is intended to be made under the authority of this act, a map or maps under an actual survey, on oath (which oath any justice of the peace is hereby authorized to administer) by some competent surveyor to be approved of by the patron, bishop, and incumbent, shall in cases of exchange be made and taken of the whole of the said glebe lands, or of such part or parts thereof as will sufficiently enable the bishop to judge of the convenience and expediency of the proposed exchange, and also of the glebe or parsonage house, buildings, and premises, any part of which it is proposed to exchange, as well as of the other lands, house, buildings, and premises, proposed to be taken in exchange ; and shall in cases of purchase be made and taken of the whole of the lands or hereditaments so to be purchased; and in cases of exchange the same surveyor shall in like manner make a valua- tion on oath (to be administered as aforesaid) of the said glebe (m) 8 Yict. c. 18. LETTING AND ALIENATION. 1313 lands and glebe or parsonage house, buildings, and premises, and also of the lands, house, buildings, and premises in- tended to be taken in exchange, and in cases of purchase the same surveyor shall in like manner make a valuation on oath of the lands or hereditaments so intended to be purchased; and every such valuation shall include and distinctly specify the value of all timber and other trees growing thereon, and of the rights of common, and of all mines, minerals, and quarries (if any), and of all other rights, profits, and advantages whatso- ever (if any) to the said premises, or either of them, or any part or parcel of the same, respectively belonging." By sect. 16, " Provided also, that in all cases, as well of Bishop to exchange as of purchase under this act, the bishop, on receiving mission™™' such map or maps and valuation, shall, if he shall in the first inquiry, instance so far approve of the said exchange or purchase, issue a commission of inquiry under his hand and seal, directed to such persons as he shall think proper, not being fewer than six in number, and of whom three at the least shall be beneficed clergymen actually resident in the neighbourhood of the bene- fice, perpetual curacy, or parochial chapelry, whereto it shall be proposed to annex any buildings or lands by exchange or purchase under the authority of this act, and of whom one shall be a barrister at law of three years' standing at the least, to be named by the senior judge in the last preceding commission of nisi prius for the county in which the said benefice, perpetual curacy, or parochial chapelry, shall be situate (n), and the return to which commission of inquiry shall be made and signed by a majority of the persons therein named, after an actual inspection by them of all the premises, with such map and valuation before them, and not otherwise, and three at least of the persons making and signing the same shall be either three such bene- ficed clergymen actually resident as aforesaid, or two at least of such beneficed clergymen resident as aforesaid, together with such barrister as aforesaid ; and in no case whatever shall any exchange or purchase be effected under the authority of this act, unless such commission shall have been previously issued and returned, and unless the return to such commission, so made and signed as aforesaid, shall certify that, after an actual in- spection and examination of the 'premises, such exchange or purchase, in the judgment of the persons making the said return, is fit and proper to be made, and will promote the permanent advantage or convenience of the incumbent of such benefice, perpetual curacy, or parochial chapelry, and his successors in the same." By sect. 17, " Whenever the patron of any benefice, perpetual Consent for curacy, or parochial chapelry, to which the provisions of this act ^q^03 extend, shall happen to be a minor, idiot, lunatic, or feme lunacy or covert, it shall and may be lawful for the guardian, committee, marriage ; («) In Middlesex by the Lord Chief Justice (1 Geo. 4, c. G, s. 1). 1314 PROPERTY OF THE CHURCH. in case of Crown or Duchy of Lancaster. Registration of deeds. Registrar's 56 Geo. 3, c. 52. Incumbent with consent of patron and bishop may apply money arising from sale of timber for or towards exchange or purchase of parsonage house or glebe lands. 1 & 2 Vict, c. 106. Where new buildings are or husband of every such patron to transact the several matters, and' execute the requisite deeds as aforesaid, for such patron, who shall be bound thereby in such manner as if he or she had been of full age or sound mind, or feme sole, and had done such acts and executed such deeds." By sect. 18, provision is made for the consent of the patron where livings belong to the crown, or to the Duchy of Lancaster. By sect. 19, the deeds and instruments, with maps and valua- tions, are to be deposited in the archbishop's or bishop's registry, within twelve months, and the registrar shall give an office copy, certified under his hand, which " shall in all cases be admitted and allowed as legal evidence thereof in all courts whatsoever ; " and the registrar " shall be entitled to the sum of ten shillings and no more (over and besides the stamp duty, if any) for such commission and the previous requisites thereof ; and the sum of five shillings and no more for so depositing as aforesaid the deeds, settlements, map, survey, valuation, com- mission, and instruments and so aforesaid, certifying such deposit thereof ; and the sum of one shilling and no more for each such search ; and the sum of sixpence and no more (over and besides the said stamp duty) for each folio of seventy-two words of each such office copy so certified as aforesaid." By 56 Geo. 3, c. 52, s. 1, "It shall and may be lawful for the incumbent of any benefice, perpetual curacy, or parochial chapelry, with the consent of the patron of such benefice, per- petual curacy, or parochial chapelry, and of the bishop of the diocese wherein the same is locally situate, or of the archbishop or bishop to whom the peculiars wherein such benefice, perpetual curacy, or parochial chapelry is situate shall belong (such con- sent to be signified in manner as in the said recited act is mentioned) , to pay and apply the monies to arise by sale of any timber cut and sold from the glebe lands of such benefice, perpetual curacy, or parochial chapelry, or from any other land, whether copyhold, holden under any manor of such benefice, perpetual curacy, or parochial chapelry, or otherwise, the timber whereof belongs to such benefice, perpetual curacy, or parochial chapelry, either for equality of exchange, or towards and in part of equality of exchange, or for the price or purchase-money, or towards and in part of the price or purchase-money of any house, outbuildings, yards, gardens and appurtenances, or any lands, or any or either of them, by the said recited act authorized to be taken in exchange or to be purchased, and from and after such exchange or purchase to be annexed to and to be and become the parsonage and glebe house and glebe lands and premises of such benefice, perpetual curacy, or parochial chapelry, as in the said recited act " (i.e., 55 Geo. 3, c. 147) " is mentioned." By 1 & 2 Vict. c. 106, s. 70, "Where new buildings are necessary to be provided for the residence of the incumbent of any benefice, exceeding in value one hundred pounds a year, LETTING AND ALIENATION. 1315 and avoided after the passing of this act, and where such build- necessary, ings cannot be conveniently erected on the glebe of such benefice, blsll°P may it shall be lawful for the bishop to contract, or to authorize, if conveniently he shall think fit, the person so to be nominated by him as situated aforesaid to contract, for the absolute purchase of any house or ^^and_a buildings in a situation convenient for the residence of the tion of land, incumbent of such benefice, and also to contract for any land adjoining or lying convenient to such house or building, or to contract for any land upon which a fit house of residence can be conveniently built, and to raise the purchase-money for such house or buildings and land adjoining, or for such land upon which a house of residence can be conveniently built (as the case may be), by mortgage of the glebe, tithes, rents, and other profits and emoluments arising or to arise from such benefice, in the same manner in all respects as is hereinbefore directed with respect to the mortgage hereinbefore authorized or directed to be made (/), which mortgage shall be binding upon the incumbent and his successors, and he and they and their representatives are hereby made liable to the payment of the principal, interest, and costs, in the same manner and to the same extent as herein- before directed with respect to the aforesaid mortgage ; and the receipt of such nominee or nominees as aforesaid shall be a sufficient discharge to the person or persons who shall advance or pay the money so to be raised : provided always, that no greater sum shall be charged on any benefice under the authority of this act than four years' net income and produce of such benefice (after such deduction as aforesaid)." Sect. 71. "The buildings and lands so to be purchased shall Buildings and be conveyed to the patron of such benefice and his heirs or ^te^d^o successors, as the case may be, in trust for the sole use and patron in trust benefit of the incumbent of such benefice for the time being and for the incum- his successors, and shall be annexed to such benefice, and be bein^ enjoyed and go in succession with the same for ever; but no contract of purchase made by the nominee shall be valid until confirmed by the bishop by writing under his hand ; and every such purchase deed shall be in the form or to the effect contained in the schedule hereunto annexed, and shall be registered in such manner and in such office as the other deeds are hereby directed to be registered." By 1 & 2 Yict. c. 23, s. 6, "When it shall happen that any 1 & 2 Vict, existing house and offices belonging to any benefice shall be c- 23- unfit for the residence of the incumbent thereof, and shall be touses'incer- incapable of being enlarged or repaired so as to be rendered fit tain cases may for his residence ; and it shall be so certified to the bishop of be converted the diocese wherein such benefice shall be situate by some com- ^^"sTot petent surveyor or architect, and that it will be advantageous to the tenants of the benefice that such house and offices should be suffered to tne glebe, remain, it shall be lawful for such incumbent, with the consent in writing of such bishop (such consent to be registered in the (?) Vide supra, pp. 1130 et seq. 1316 PROPERTY OF THE CHURCH. registry of such bishop), to allow such house and offices to remain standing as a dwelling-house and offices, or to convert the same into farming buildings for the use and occupation of the occupier or occupiers of the glebe lands belonging to such benefice ; and from and after the complete erection or the pur- chase of a new house and offices to the satisfaction of the bishop of the diocese, such old house and offices shall from thenceforth be used for and converted to the purposes aforesaid ; and the house and- offices to be so erected or purchased shall from thence- forth to all intents and purposes be deemed and taken to be the residence house of and for such benefice, without the necessity of obtaining any licence or faculty for that purpose " (m). Power to in- Sect. 7. "Where the residence house, gardens, orchard, and consent ofWltl1 aPPur^enances belonging to any benefice shall be inconveniently patron and situate, or for other good and sufficient reasons it shall be ordinary and thought advisable to sell and dispose thereof, it shall and may archbishop) to ~he }awful for the incumbent of such benefice, and he is hereby residence authorized and empowered, with the consent and approbation of with contigu- the ordinary and patron thereof, and of the archbishop of the ous land not pr0vince, to be signified by their executing the deed or convey- twelve acres ance hereby authorized to be made, absolutely to sell and dispose if house in- of such house, gardens, orchard, and appurtenances, any or srtuatedorly e^ner °f "them, with any land contiguous thereto not exceeding under special acres, to any person or persons whomsoever, either alto- circum- gether or in parcels, and for such sum or sums of money as to such ordinary and patron and archbishop shall appear fair and reasonable, and upon payment of the purchase-money for the same as hereinafter mentioned by deed indented to convey and assure such house, gardens, orchard, land, and appurte- nances unto and to the use of the purchaser or purchasers thereof, his or their heirs or assigns, or as he or they shall direct or appoint " (n). Another statute (0) was passed, on purpose to fill up this blank, with the word " twelve." Purchase- Sect. 8. " The monies to arise from such sale or sales as af ore- moneys to be said shall be paid to the said governors of the bounty of Queen Po\^morsof Anne; anc^ ^ne receipt or receipts of the treasurer for the Q°uee™ Anne's time being of the said governors shall be and be deemed and bounty; taken to be an effectual discharge to the person or persons paying such monies, or for so much thereof as in such receipt or receipts shall be expressed ; and after obtaining such receipt or receipts such purchaser or purchasers shall be absolutely dis- charged from the money for which such receipt or receipts shall be given, and shall not be answerable or accountable for the loss, misapplication, or nonapplication of such monies or any part thereof." to be applied Sect. 9. " The monies to arise from such sale or sales as afore- aho^wcfor11*1 sa*^ sna^> a^er payment of all costs, charges, and expenses of m) Vide supra, p. 1263. (0) 1 & 2 Vict. c. 29. n) Vide infra, p. 1321. stances. LETTING AND ALIENATION. 1317 such sale or sales, be applied (p) and disposed of by the said incumbent's governors in or towards the erection or purchase of some other residence- house and offices, or the purchase of an orchard, garden,'and appur- tenances, or land for the site of a house, any or either of them, together with land contiguous thereto, and not exceeding twelve acres, suitable for the residence and occupation of the incumbent of such benefice, and approved of by the said ordinary and }Datron, such approval to be signified under the respective hands of such ordinary and patron, and to be deposited in the registry of such ordinary ; and such house shall from thenceforth be deemed and taken to be the house of residence of such benefice for all jmrposes whatsoever." By sect. 14, in case of the purchase of land for the purposes Purchase from of that act the powers and provisions of 7 Geo. 4, c. 66, enabling P?rs°^ under persons under disability to sell lands, were to be applied. This c sa 1 J' act has, however, practically been superseded by the larger pro- visions of 28 & 29 Vict. c. 69, s. 4, which are as follows : — 28 & 29 Vict. " It shall be lawful for the principal officer of any public c- 69- department holding any messuages, buildings, lands, tenements, Towers of or hereditaments for or on behalf of her Majesty, or otherwise ^ent^co?-1*" for the public use or the use of such department, and for every porations, body politic, corporate, or collegiate, and corporation aggregate trustees, &c, or sole, and for all trustees, guardians, commissioners, or other ^dln^or611 j>ersons having the control, care, or management of any hospital, lands for par- school, charitable foundation, or other public institution, and sonages, &c. for all other persons by the Lands Clauses Consolidation Act, 1845 ( q), empowered to sell and convey or release lands by any assurance under the hand and seal or under the common seal, as the case may be, of such principal officer, body, or corporation, or under the hands and seals, or hand and seal, of such trus- tees, guardians, commissioners, or other persons or person, to grant and convey or release, either by way of voluntary gift or of sale, to the said governors (r), in fee simple or otherwise, any messuages, buildings, lands, tenements or hereditaments to be used as and for parsonages or residences for incumbents of benefices, or the outbuildings, yards, gardens, or appurtenances thereto, or as and for sites or for enlarging sites for such par- sonages or residences or the outbuildings, yards, gardens, or appurtenances thereto; and all such assurances may be made according to the form contained in the 20th section of the act" 1 Yict. c. 20, " or as near thereto as the circumstances of the case will admit, or in any other form which the said governors may approve ; but no such assurance or assurances from the same body or persons, otherwise than upon a sale for the fair value, shall comprise (including the site of any buildings) more than one acre, and upon every such assurance by way of sale the purchase-money may be paid to the seller or sellers, or as (p) Till such application, they (r) That is, the Governors of are, by 2 & 3 Vict. c. 49, s. 14, to Queen Anne's Bounty. Vide infra, be invested and accumulated. Part IX. Chap. II. (q) 8 Vict. c. 18. 1318 PROPERTY OF THE CHURCH. 2 & 3 Vict, c. 49. Power of sale given by 1 & 2 Vict. c. 23, extended. Purchase- monies to be appropriated to the parti- cular benefice on account of which the same shall have been received, and to be subject, in regard to the applica- tion thereof, to all the powers, regu- lations, &c. of the said governors. he or they shall appoint, and the receipt of them or him, or their or his appointees, shall be a sufficient discharge for the same, except that in the case of a sale for more than 20/. by a tenant for life, or other person having only a partial estate, the purchase-money shall be paid to and applied by two trustees in manner provided by the 71st section of ' The Lands Clauses Consolidation Act, 1845.' " By 2 & 3 Yict. c. 49, s. 17, " In any case in which any dwelling house, shop, warehouse, or other erection or building (other than the house of residence) belonging to any benefice shall be so old and ruinous as that it would be useless or inex- pedient to expend money in repairing and maintaining the same, or for other good and sufficient reasons it shall be thought advisable to sell and dispose of the same, it shall and may be lawful for the incumbent of such benefice, and he is hereby authorized and empowered, with the consent and approbation of the ordinary and patron thereof and of the archbishop of the province, to be signified in the manner prescribed by the last- mentioned act, absolutely to sell and dispose of such dwelling house, shop, warehouse, or other erection or building, with the yards, gardens, orchard, croft, and appurtenances thereto belong- ing, or any of them, to any person or persons whomsoever, either altogether, or in parcels, and for such sum or sums of money as to such ordinary, patron, and archbishop shall appear fair and reasonable, and upon payment of the purchase-money for the same as hereinafter mentioned, by deed indented, or in the case of copyhold or customary hereditaments by surrender or other customary mode of assurance, to convey and assure the hereditaments which shall be so sold unto and to the use of the purchaser or purchasers thereof, his or their heirs or assigns, or as he or they shall direct or appoint " (q). By sect. 18, the purchase-monies are to be paid to the governors of Queen Anne's bounty. By sect. 19, " All the monies to arise from any such sale or sales as aforesaid (subject nevertheless, in the case of any lands or hereditaments which shall have been appropriated or annexed to any benefice by or with the concurrence of the said governors of the bounty of Queen Anne, to any stipulation or agreement which the said governors in their discretion may think proper to make for payment thereout of the costs and expenses of such sale or sales or any part thereof) shall be appropriated by the said governors to the particular benefice to which the heredita- ments comprised in such sale shall have previously belonged, and shall be applicable and disposable by them for the benefit and augmentation of such benefice in such and the same manner, and with such and the same powers of investment, and other powers and authorities, in all respects, according to the rules and regulations of the said governors for the time being, as if the said monies, or the stocks or funds which might be purchased therewith, were then originally appropriated by the said (?) Vide infra, p. 1321. LETTING AND ALIENATION. 1319 governors to such benefice out of the general funds and profits of the said governors, or otherwise, for the benefit and augmen- tation thereof." Sect. 20. " In any case in which upon the sale of any such Who are to lands or hereditaments as aforesaid, the patronage of the benefice consent as to which the same shall belong shall be in the crown, or the Pdtrons- advowson and right of patronage of such benefice shall be part of the possessions of the duchy of Cornwall, or the patron of such benefice shall be a minor, idiot, lunatic or feme covert, then and in every such case the consent required by this act on the part of the patron of such benefice shall and may be testified by the execution of such deed or assurance or other writing as aforesaid by such and the same persons as by " 1 & 2 Yict. c. 23 (r) " are in like cases directed or authorized to testify the consent of the patron to the exercise of the several powers given by the said act, or by certain other acts therein mentioned or referred to ; and in all other cases the consent required by this act on the part of the patron of any benefice shall be given by the person or persons who would be entitled to present or nominate or to collate to such benefice in case the same were actually vacant at the time of giving such consent." As to the resale of lands formerly purchased or annexed by or Re-sale of with the consent of the governors to particular benefices, where ldnds Pur_ such lands ' 'are situate elsewhere than within the parish or oueen $juie parishes of such benefice, or some adjoining parish or parishes," bounty it is provided by sect. 15, that it shall be lawful for the incum- otherwise an- bent of the benefice (with the consent of the governors, ordinary to bene and patron) " absolutely to sell and dispose of the said lands or hereditaments, or any part thereof, to any person or persons whomsoever, either together or in parcels, and either by public sale, or by private contract, for such sum or sums of money as to the said governors, ordinary, and patron shall seem fair and reasonable ; and upon payment of the purchase-money for the same, as hereinafter directed, by deed indented, or, in the case of any lands or hereditaments of copyhold or customary tenure, by surrender or other customary mode of assurance, to convey and assure the lands or hereditaments comprised in such sale, unto and to the use of the purchaser or purchasers thereof, his, her, or their heirs, executors, administrators or assigns respec- tively, or as he, she, or they shall direct or appoint." The consent of the patron and ordinary is to be testified by their executing the conveyance, except in the case of copyhold or customary freeholds, where it may be testified by writing under hand and seal to be produced to the lord or steward of the manor. By sect. 16, this power is extended to cases where the lands " shall be situate within the parish or parishes of such benefice, or some adjoining parish or parishes, but on account of any special circumstance or circumstances a sale of the said lands or B [r) Vide supra, pp. 1140, 1141. 1320 PROPERTY OF THE CHURCH. 5 & 6 Vict, c. 54. Powers for defining and exchanging glebe. 41 & 42 Vict, c. 42. Exchange of annual pay- ment charged on land for land. hereditaments or any part thereof shall be deemed advan- tageous." Only in these cases the further consent of the arch- bishop is required. By 5 & 6 Vict. c. 54 (one of the Tithe Eedemption Acts), sect. 5, "For the purpose of defining and settling the glebe lands of any benefice, on the application of the spiritual person to whom the same belongs in right of such benefice, and with the consent of the landowner or landowners having or claiming title to the land so defined as glebe, and being in possession thereof, the tithe commissioners shall, during the continuance of the commission, as well before as after the completion of any commutation, have the same powers which they have for ascer- taining, drawing, and defining the boundaries of the lands of any landowners on their application ; and also upon the like application of any spiritual person the said commissioners shall have power to exchange the glebe lands, or any part thereof, for other land within the same or any adjoining parish, or otherwise conveniently situated, with the consent of the ordinary and patron of the benefice and of the landowner or landowners having or claiming title to the land so to be given in exchange for the glebe lands, and being in actual possession thereof as aforesaid, such consent to be testified as their consent under the first-recited act (s) is testified to anything for which their consent is therein required ; and in every such case the tithe commissioners shall make an award in like manner as awards are made, under the first-recited act (s), setting forth the con- tents, descrijotion and boundary of the glebe lands, as finally settled by them, and of the lands awarded to the several parties to whom any lands theretofore part or reputed part of the glebe lands are to be awarded ; and every such award shall have all the incidents of an agreement confirmed by the said commis- sioners for giving land instead of tithes, and in every case of exchange shall operate as a conveyance of the lands theretofore part or reputed part of the glebe lands to the several persons to whom the same shall be awarded, and to their heirs and successors, executors and administrators, as the case may be; and such lands shall thereupon be holden by the same tenure, and upon the like uses and trusts, and subject to the like incidents, as the land awarded as glebe in exchange for the same was formerly holden ; and the expense of so defining, exchanging, and settling any glebe lands shall be borne in such manner as the tithe commissioners shall think just." By 41 & 42 Yict. c. 42, s. 7 {t), " The provisions of the said acts (u) with reference to the exchange of glebe lands for other lands shall extend to and be deemed to authorise any spiritual person to exchange for lands or for tithe rentcharge, any annual payment or augmentation belonging to him in right of s) 6 & 7 Will. 4, c. 91. t) Vide supra, p. 1200. (u) The tithe acts from 6 & 7 Will. 4, c. 91 to 23 & 24 Vict. c. 93, inclusive. LETTING AND ALIENATION. 1321 his benefice and charged upon or payable out of any lands or tithe rentcharge." By 9 & 10 Yict. c. 73, s. 22, the provisions of 5 & 6 Yict. 9 & 10 Vict, c. 54, " for the exchange of glebe lands for other lands shall c- 73- authorise and be deemed to have authorised the exchange of ^^b^ex8 glebe lands for other lands, although at the time of such changed exchange, or of the applications in relation thereto, no pro- although no ceedings for or concerning the commutation of tithes in the ^™^^~n parish in which such glebe lands may be situate shall have been " pending, and whether the commutation of tithes in such parish shall or shall not have been completed." By 23 & 24 Yict. c. 93, s. 41, " So much of the said recited 23 & 24 Vict, acts (v) as provides that the land given to any spiritual person in c- 93- exchange for glebe of any benefice shall be free from incum- otner^nds11^ brances, and shall not be of copyhold or customary tenure, may be ex- subject to arbitrary fine or the render of heriots, shall be changed for repealed, and all conditions, charges, incumbrances and every ©kn- ottier incident affecting the land so given shall upon such an exchange be transferred to the said glebe taken in exchange for the same land ; and the glebe land taken in exchange for any copyhold or customary land shall be held of the lord of the same manor, under the same rent, custom and services, as the said copyhold or customary land previously was or ought to have been held, and without any new admittance in respect thereof, but the consent of the lord of the same manor shall be necessary to any exchange in which any land of copyhold or customary tenure shall be included. " By 3 & 4 Yict. c. 113, s. 68 (a?), for the purposes of that act, 3 & 4 Vict, and with the consent of the bishop or chapter as the case may c- 113- be, lands and hereditaments belonging to any bishop or chapter L.an(ls of may be sold or exchanged by the ecclesiastical commissioners. and chapters13 By 5 & 6 Yict. c. 26, s. 8, these provisions are extended and 5 & 5 may be put in force for procuring new residence houses for c. 26. bishops, deans, or canons under that act. Sect. 3. — The Leasing Statutes of Victoria (y). These statutes are 5 & 6 Yict. c. 27 ; 5 & 6 Yict. c. 108, and 21 & 22 Yict. c. 57. By 5 & 6 Yict. c. 27, provision is made for the letting of glebe 5 & 6 Vict. lands on agricultural leases by the incumbents as follows : — c- 27- By sect. 1, any incumbent may by deed, with the consent of Agricultural leases. (v) I.e., 6 & 7 Will. 4, c. 7 1 ; 7 Will! and 2 & 3 Yict. c. 49, extending 1 7 4, & 1 Yict. c. 69; 1 & 2 Yict. Geo. 3, c. 53, s. 11, houses of c. 64 ; 2 & 3 Yict. c. 62 ; 3 & 4 residence and glebe may, in certain Yict. c. 15 ; 5 & 6 Yict. c. 54; 9 & cases, be sold in order to purchase 10 Yict. c. 73; 10 & 11 Yict. c. 104. better houses of residence. Yide (x) Yide supra, p. 185. supra, pp. 1316, 1318. (y) By 1 & 2 Yict. c. 23, 1322 PROPERTY OF THE CHURCH. Restrictions on powers of letting. Appointment of surveyors. Evidence of compliance. Surrender of leases. Peculiars. Consent of patrons. the patron and bishop (and of the lord of the manor where the lands, being copyhold, &c, could not usually be let without his licence), who are to be parties to the deed, let any part of the glebe with the buildings and cottages thereon, for a term not exceeding fourteen years in possession. The best rent is to be gotten, to be paid quarterly ; and the lessee is to covenant for payment of the rent, rates and taxes, not to assign or underlet the premises without the consent of the incumbent, patron and bishop, to cultivate the lands according to the best system of husbandry, to leave the premises in good repair, to insure against fire, and to lay out the insurance monies, when there is a fire, in rebuilding. All timber and minerals are to be reserved, and there is to be a power of re-entry for non-payment of rent and in case of felony, bankruptcy, &c, or breach of covenant by the lessee. Leases for twenty years may be granted where a more expensive mode of cultivation is to be entered on, or where draining or building is to be done. By sect. 2, the house of residence and ten acres of ground round it, if there be so much land within five miles of it, other- wise all the land within five miles of it, are excepted from the provisions of this act. By sect. 3, before any lease is made a surveyor is to be appointed by bishop, patron and incumbent, who shall make a map of the lands intended to be let and the other lands of the benefice, so that the bishop and patron may have full oppor- tunities of judging of the situation and convenience for actual occupation of the lands intended to be reserved, and shall certify that the lands are fit to be let, and what is the best way of cultivat- ing or improving them and the best rent to be gotten ; and his map and report is to be signed by him, verified before a justice of the peace and delivered to the bishop ; but an old map may be used. By sect. 4, an acknowledgment in writing by the incumbent shall be evidence of the execution of the counterpart of the lease, and the execution of the lease by bishop and patron that the other conditions required by the act have been complied with. By sect. 5, no surrender of any lease made under this act shall be valid for any purpose unless the bishop, patron, and incumbent are parties to and execute the instrument of surrender, and a surrender shall only have force from the time when the instrument is so executed. Sect. 6 enables bishops having jurisdiction over peculiars to execute in those peculiars the powers given by this act to the bishop of the diocese ; but where there are peculiars not be- longing to any bishop or archbishop, the powers are to be executed by the bishop of the diocese within which such peculiars are locally situate. Sects. 7 — 11 make provision for the giving of the consent of the patron where he is under legal disability or beyond seas, or where the patronage is in the crown, the duke of Cornwall, corporations, or more than one set of patrons. LETTING AND ALIENATION. 1323 By sect. 12, where one person happens to fill more than one Consent of the positions of bishop, patron, lord of the manor, or incum- in 8ev.®?al bent, he may consent and act once for all his several capacities. By sect. 13, the provisions of this act are extended to the Lands holden case of lands vested in trustees, whereof at least three-fourths of m t^u8t• the net income are payable to an incumbent authorized to lease under this act ; and the trustees are to execute the lease. By sect. 14, provision is made for the deposit of documents Documents, in the registry of the diocese or peculiar, and for making copies of such documents evidence. In the case of Green v. Jenkins (s), it was holden by the Lord Green v. Chancellor (Lord Campbell) and Lord Justice Turner {dmen- Jenkins- tiente Lord Justice Knight Bruce) that this statute does not operate to restrict any power of leasing possessed by incumbents under the old law. By 5 & 6 Yict. c. 108, The Ecclesiastical Leasing Act, 1842, 5 & 6 Vict, all ecclesiastical corporations, aggregate or sole (except colleges c* or corporations of vicars choral, priest vicars, senior vicars, custos and vicars or minor canons, and ecclesiastical hospitals or the masters thereof), are empowered to lease by deed any lands or houses for any term of years not exceeding ninety-nine in possession only " to any person who may be willing to improve Building or repair the present or any future houses thereon, or any of leases- them, or to erect other houses instead thereof, or to erect any houses or other buildings on any lands whereon no building shall be standing, or who shall be willing to annex any part of the same lands to buildings erected or to be erected on the said lands, or any part thereof, or otherwise to improve the said premises or any part thereof. " The lessee may be allowed to take down and sell the old buildings, and may make ways, passages, drains, reservoirs, yards, etc., and may dig up and carry away earth, clay or gravel in order to build or repair. The best rent is to be reserved, payable half-yearly ; and there are to be covenants to build or repair within a specified time, to keep in repair, to pay rent, rates and taxes, to insure in special insurance offices, to use the insurance money, when there has been a fire, in rebuilding, to yield up possession at the end of the term, and to give a copy of any assignment of the lease to the reversioner within twenty-one days after it has been made ; and there are to be powers of entry to inspect the premises and of re-entry for non-payment of rent or breach of covenants. Counterparts of the leases are to be executed by the lessees. By sect. 2, for the first six years, or any other six years to be Less rent for specified, a smaller rent may be reserved than is afterwards or S1X years- at other times during the term reserved. By sect. 3, the ecclesiastical corporation may lay out and Dedication of appropriate any part of the ground which they are empowered ^dens ^ (z) 1 De G. F. & J. p. 454; 6 (No. 1), 27 Beav. p. 440; 28 Beav. Jur., N. S. p. 515 ; Jenkins v. Green p. 87 ; 5 Jur., N. S. p. 906. P. VOL. IT. 4 R 1324 PROPERTY OF THE CHURCH. to lease for streets, avenues, gardens, squares or manufacturing yards, either in such manner as shall be provided in the lease or by a general deed enrolled within six months after execution in one of the Courts of Eecord at Westminster. Way and By sect. 4, ecclesiastical corporations may in the same manner water leases. grant licences or privileges with respect to any water flowing in or through their lands, and may let any wayleaves, waterleaves, canals, watercourses, tramroads or railways for a term not exceeding sixty years in possession only, for the best rent or toll to be paid half-yearly ; so that there be a power of re-entry or making void the licence or lease for non-payment of rent, and so that the grantee or lessee execute a counterpart of the grant or lease. And there may be a condition in the grant or lease compelling the grantee or lessee to repair or help to repair any ways, and to keep open any watercourses. Mining leases. By sect. 6, ecclesiastical corporations may in the same manner let for a term not exceeding sixty years in possession only mines, minerals, quarries or beds, with the right of opening the same, or of working any other mine from them, with such portions of land and such facilities of way or passage as may be expedient for getting the minerals or stone. No premium or fine is to be taken for the lease, and the lease is to reserve such rents or royalties, and have such powers and covenants as may be approved by the ecclesiastical commissioners, having due regard to the custom of the district. Confirmation By sect. 5, where a void lease has been granted, an eccle- of void leases. gias^ca]_ corporation may, in the same manner as they might grant a lease, or by general deed purporting to have been granted under this act, and with the consent hereafter required, confirm such void lease. In the same manner a surrender of any lease under this act may be accepted ; and upon such surrender mines or quarries may be leased afresh for the full term of this act ; so may land or houses, if less than a quarter of the old term remains unexpired ; if, however, a quarter or more remains unexpired, they may only be let again for a term not exceeding the old unexpired term, and at not less than the old rents : but the old lease may be divided, and separate leases at apportioned rents may be made of the property, so long as such apportioned rent is in no case less than 40s. or more than one-fifth of the rack-rent value of the land and houses comprised in it when built and finished. No fine or premium, however, may be asked for any con- firmation or for a surrender or re-grant of any lease, and the lessee is to consent to any such confirmation or new lease and to execute a counterpart. Effect on ex- By sect. 8, this act is not to affect any existing powers of isting powers. ieasing.? except that where once this act has been put in force, every lease granted otherwise than under it shall reserve the best improved rent, payable half-yearly. Restrictions By sect. 9, the houses of residence of any corporation sole, or LETTING AND ALIENATION. 1325 member of a corporation aggregate, with the offices, appur- on powers of tenances, pleasure grounds, &c, are not to be leased ; nor is any leasm£- grant of minerals, ways or watercourses which might lessen the enjoyment of any such house of residence to be made ; and the act is not to be construed to enable persons disabled from leasing by any local or private act of parliament. By sect. 7, the execution of the lease, grant or general deed Evidence, by the persons required to consent thereto is to be evidence that all the conditions required by the act have been complied with. By sects. 16, 17, it is provided that leases granted otherwise Surrender of than under the act maybe surrendered, and new leases according old leases- to the act granted at once upon such surrender to the surren- deror or to any other person. Provisions are made for deducting the value of the interest surrendered from the rents or royalties which would otherwise have been payable on a lease granted under the act, and for the interests of under-lessees. By sect. 19, no person shall be liable for dilapidations in Dilapidations, respect of any houses or buildings let on lease under the act (a) . By sects. 20, 21, the parties who are to consent to all leases, Consent to grants or general deeds are denned, and their consent is ordered to be evidenced by executing the deed. These consenting parties are the ecclesiastical commissioners in all cases; the patron also where a lease is granted by the incumbent of a benefice ; and the lord of the manor where the lands or here- ditaments to be leased are of copyhold or customary tenure and the lease is such as would in ordinary cases require his licence. By sects. 22 — 28, the same provisions as to the consent of patrons in special circumstances, the power of consenting in more than one character, and the extension of the act to lands held in trust for ecclesiastical corporations, are enacted as in the act preceding, 5 & 6 Yict. c. 27. By sect. 29, provision is made for the deposit of the counter- Documents, parts of the leases, grants, or general deeds with the ecclesiastical commissioners and for making copies thereof evidence. Sect. 30 makes absolutely void any lease, grant, or confirma- As to fines, tion for which any fine or premium directly or indirectly shall have been given (b). By sects. 10 — 13, it was provided that the ecclesiastical commis- Application sioners should either receive directly, or gain to the extent of ?f mcreased i • • • income having a smaller sum to pay to the bishop in consequence of, any improvement in the value of any see arising from leases granted under this act (c) ; and it is declared that they shall receive any increase in the incomes of any cathedral chapter from improved value of the chapter property which shall give to the dean and canons of such chapter more than is allowed by 4 & 5 Yict. c. 39 to the deans and canons of St. Paul's, Westminster 13 Vide supra, p. 1276. (c) Eepealed by 13 & 14 Yict. Sed yide infra, 21 & 22 Yict. c. 94, s. 16. c. 57. 4r2 1326 PROPERTY OF THE CHURCH. Reservation in mining leases. 21 & 22 Vict, c. 57. Leases in consideration of premiums. Sale, ex- change, and partition. Payment to ecclesiastical commis- sioners. and Manchester (c) ; that they shall receive the improved value of all archdeaconries over an annual income of 500/. ; and that they may by order in council within three years from the date of any lease, after giving notice to the patron and allowing him to he heard before the privy council, appropriate any part of the rents or royalties payable on any lease made by the incum- bent of a benefice, " in making additional provision for the cure of souls." But the annual income of the benefice is never to be left at less than 300/., or less than 500/. if the population amount to 1,000, or 600/. if to 2,000. By sect. 14, where the lease is one of minerals or quarries, in all cases from three-fourths to a moiety, as may be determined by order in council, of the improved value shall be paid to the ecclesiastical commissioners and " shall be subject to the provi- sions relating to moneys payable to them," and the remainder only shall be deemed the "improved value " for the purpose of the foregoing sections (d). By 21 & 22 Yict. c. 57, the Ecclesiastical Leasing Act, 1858, s. 1, the provisions of the preceding act are much altered and are extended to enable all ecclesiastical corporations with the consents required, if it shall seem to the ecclesiastical commis- sioners to be for the permanent advantage of the estate of the corporation, to lease their lands, houses, mines, minerals or other property, either in consideration of premiums or partly of premiums or not, and for any term and subject to such covenants, stipulations, conditions, and agreements on the part of the lessee as the ecclesiastical commissioners may think proper : and further, with the same consents (except the consent of the lord of the manor in cases of copyhold) to sell, exchange and make partition of their property for an equivalent in money, lands or hereditaments, or partly in one and jDartly in the other or other- wise. Provided only that where a sale is to be made of lands belonging to the incumbent of a benefice three months' notice must first be given to the bishop of the diocese. By sect. 2, all sums of money payable in respect of premiums on the granting of leases or on sales, exchanges, or partitions, and all rents, royalties and other reservations reserved or made payable by any lease (except " moneys which in respect of any sale shall become due and payable by way of perpetual annual chief or other rent or rent- charge " (e)), are to be paid to the ecclesiastical commissioners. The commissioners may leave the money on mortgage of the lands, or may invest it in the public stocks or funds. And the money is to be applied by them in the purchase of other lands and hereditaments ; and the lands and hereditaments so purchased or received by way of partition and exchange are to be conveyed to the ecclesiastical (c) See 31 & 32 Vict. c. 114, s. 11. cure of souls by 21 & 22 Yict. c. 57, {d) Repealed as to rectors, vicars s. 10. or incumbents of any benefice with (e) 28 & 29 Yict. c. 57. LETTING AND ALIENATION. 1327 corporation, and to be subject to the same powers of lease, sale, exchange and partition as the original lands. By sect. 3, in order to raise money to pay for equality of Power to exchange or partition, or to purchase land or any outstanding mortgage- leasehold interest in land belonging to any ecclesiastical corpo- ration, the corj)oration with the consent of the ecclesiastical commissioners may borrow on mortgage. By sects. 4, 5, power is given to enter into and vary contracts, Subsidiary to grant licences or permissions to search for mines, to accept Powers- surrenders of leases and release breaches of covenant by lessees : and the expenses incurred in putting these provisions in opera- tion may be charged on the property of the corporation, if at least one-twentieth of the principal be paid off every year. By sect. 8, where the interest of a lessee under any ecclesias- Apportion- tical corporation in part of the lands in his lease is determined ment of rents* by sale or purchase under the act, the ecclesiastical commis- sioners may by a memorandum in writing apportion the old rent between the land so sold or purchased and the lands still retained under the lease, and such apportioned rent becomes the ancient and accustomed rent for these latter lands. By sect. 10, all the provisions contained in the 5 & 6 Yict. Provisions as c. 108, as to the improved value of any (/) dignities, offices, or *^greased benefices, are extended to improved values gained under the act : and it is further provided (in extension of sect. 13 of that act) that, where any improvements are made in the income of any benefice, the ecclesiastical commissioners may, in the manner indicated and after the notice to the patron required in the former act, at any time or times after the beginning of the improvement, without regard to the limit of three years imposed by the former act, cause such portion of the improved income as they shall think expedient to be paid to them. This however is not to operate retrospectively, nor to affect the incumbent in possession at the time of the granting of the lease. By the same section incumbents of benefices with cure of souls are exempted from the operation of sect. 14 of the former act. By sect. 9, " No lease of any lands purchased or acquired, or No lease to be in which the estate or interest of a lessee, or of a holder of copy- ^raJt®d °? d hold or customary land, shall be purchased or acquired by any under thcTact ecclesiastical corporation under the act, shall (except under the except at express power contained in 5 & 6 Yict. c. 108, or in this act) be rack-rent, made or granted otherwise than from year to year, or for a term of years in possession, not exceeding fourteen years, at the best annual rent that can be reasonably gotten, without fine, and the lessee not to be made dispunishable for waste or exempted from liability in respect of waste." ( / ) It is presumed that these operation of the former act by the words do not include bishoprics, now repealed act, 13 & 14 Vict, which were exempted from the c. 94, s. 16. 1328 PROPERTY OF THE CHURCH. c. 81 Isle of Man 14 & 15 Vict. Relation of The 21 & 22 Yict. c. 57, in many of its provisions, especially c* 57 2toVlCt ^nose contained in sects. 4 and 8, runs parallel with those con- li & 15 Vict, tained in 14 & 15 Yict. c. 104, and its amending acts, which c. 104 ; will be mentioned shortly. There is, however, this peculiarity that what is authorized under the one set of acts to be done by the' ecclesiastical com- missioners is required by the other set of acts to be done by the church estates commissioners. Sect. 6, however, of 21 & 22 Yict. c. 57, provides that no sale, exchange, or partition shall be made under that act which could be made under 14 & 15 Yict. c. 104, so long as the last- mentioned act (which was a temporary one, continued from time to time) is in force, to other Sect. 7 provides that nothing in the act shall repeal any enabling acts. p0Wers or provisions vested in the ecclesiastical commissioners by 6 & 7 Yict. c. 37, or by any acts relating to the ecclesiastical commissioners, or in the acts relating to the enfranchisement of copyholds or the inclosure of lands, or in the Church Building Acts; but the act shall be cumulative thereof or alternative therewith. 29 & 30 Vict. By 29 & 30 Yict. c. 81, neither 21 & 22 Yict. c. 57, nor 5 & 6 Yict. c. 108, were to apply to the Isle of Man. By 14 & 15 Yict. c. 104, s. 9 (g), " No lease of any lands pur- q*104.° vxcr' chased or acquired or in which the estate or interest of a lessee, How leases of or °^ a holder of copyhold or customary lands, is purchased or lands acquired acquired by any ecclesiastical corporation under the act, shall, by any corpo- except as hereinafter provided, be granted bv such ecclesiastical the act may corporation, otherwise than irom year to year, or tor a term of be made. years in possession not exceeding fourteen years, at the best annual rent that can be reasonably gotten, without fine, the lessee not to be made dispunishable for waste or exempted from liability in respect of waste : provided always, that it shall be lawful for such ecclesiastical corporation, with the approval of the church estates commissioners, from time to time to grant mining or building leases of any such lands, for such consider- ations, upon such terms, and generally in such manner as such commissioners, under the circumstances of each case, may think fit; and it shall be lawful for such commissioners to require that any portion of the rent received on any such lease shall be invested and disposed of in like manner as herein provided with respect to monies to be received on the sale of any lands by any such corporation." 23 & 24 Vict. By 23 & 24 Yict. c. 124, providing for the assignment of new c* 124, estates, in lieu of the old ones, to archbishops and bishops : — signed as" sec^* ^' lands assigned or secured as the endowment endowments, of any see under this act shall be granted by the archbishop or how to be bishop otherwise than from year to year, or for a term of years in possession not exceeding twenty- one years, at the best annual leased. (g) The rest of this act will be dealt with later. Vide infra, p. 1337. LETTING AND ALIENATION. 1329 rent that can be reasonably gotten, without fine, the lessee not to be jnade dispunishable for waste or exempted from liability in respect of waste, and so that in every such lease such or the like covenants, conditions and reservations be entered into, reserved, or contained with or for the benefit of the archbishop or bishop and his successors " as under 5 & 6 Vict. c. 27, s. 1, " are to be entered into, reserved, or contained in a lease granted under that enactment to or for the benefit of the in- cumbent and his successors, or as near thereto as the circum- stances of the case will permit ; but where, under the said section of the last-mentioned act, any consents are provided for or required, the consent only of the archbishop or bishop for the time being shall be requisite : provided always, that it shall be lawful for the archbishop or bishop, with the approval of the estates committee of the ecclesiastical commissioners testified under the common seal of the said commissioners, which the said committee are hereby empowered to affix to any lease for this purpose, from time to time to grant mining or building or other leases of any such lands, for such periods, for such con- siderations, upon such terms, and generally in such manner as such committee under the circumstances of each case may think fit, and it shall be lawful for such committee to require that any portion of the rent reserved on any such lease shall be payable to the said ecclesiastical commissioners." Sect. 11. "The estates committee shall, when required by Estates com- any archbishop or bishop to whom lands may have been assigned mitt?e> where as an endowment under this act, undertake the management of manage the such lands, and receive the rents and profits thereof during the lands incumbency of the archbishop or bishop ; and in every such case assi&ned- as aforesaid the estates committee, during their management, may grant all such leases as might have been granted by such archbishop or bishop if the lands had continued under his or their management, and may, with the approval of such arch- bishop or bishop, grant such other leases as might have been granted by him or them, with the approval of the estates com- mittee ; and the commissioners shall, during the time such lands are under the management of the said estates committee, pay to such archbishop or bishop the annual income to secure which the lands may have been assigned.' ' By 31 & 32 Yict. c. 114 (which provides for the vesting of 31 & 32 Vict, capitular estates in the ecclesiastical commissioners in any case c- 114- where it may be expedient (A) ) , sect. 9, "After the passing of aeTn^^a this act none of the deans and chapters mentioned in the terwhen re- schedule to 31 Yict. c. 19, and no dean and chapter after the endowed, making of any order in council respecting them in pursuance of this act, shall demise any lands vested in them otherwise than from year to year, or for a term of years in possession, not exceeding twenty-one, at the best annual rent that can be (7i) Yide infra, p. 1336 ; and Part IX. Chap. III. 1330 PROPERTY OF THE CHURCH. 46 & 47 Vict, c. 61. Agricultural holdings. Effect where landlord, archbishop or bishop. Where landlord incumbent of benefice. Earlier acts. reasonably got, without fine, and shall not make the lessee dis- punishable for or exempt from liability in respect of waste ; and in every such lease such or the like covenants, conditions, and reservations shall be entered into, reserved, or contained with or for the benefit of the dean and chapter, and their successors, as under sect. 1 of 5 & 6 Yict. c. 27, are to be entered into, reserved, or contained with or for the benefit of the lessor and his successors in a lease granted under that section, or as near thereto as the circumstances admit." By sect. 11, however, " The provisions contained in this act or in the act," 23 & 24 Yict. c. 124, " shall not affect any of the provisions relating to leases, appropriations, sales or exchanges contained in the Ecclesiastical Leasing Acts." The Agricultural Holdings (England) Act, 1883 (46 & 47 Yict. c. 61), which allows tenants to execute certain improve- ments, with consent of the landlord, and provides for the tenant receiving compensation for these improvements executed after such consent, and for improvements by drainage after notice, and of a third class of improvements, executed without consent, and which further allows the landlord and tenant to agree as to the amount and mode and time of payment of compensation, and gives the landlord power to obtain a charge on the land for the compensation which he has paid to the tenant, contains the following provisions as to ecclesiastical landlords : — Sect. 38. " Where lands are assigned or secured as an endow- ment of a see, the powers by this act conferred on a landlord shall not be exercised by the archbishop or bishop in respect of those lands, except with the previous approval in writing of the Estates Committee of the Ecclesiastical Commissioners for England." Sect. 39. " Where a landlord is incumbent of an ecclesiastical benefice the powers by this act conferred on a landlord shall not be exercised by him in respect of the glebe land, or other land belonging to the benefice, except with the previous approval, in writing, of the patron of the benefice (that is, the person, officer or authority who in case the benefice were vacant would be entitled to present thereto) or of the Governors of Queen Anne's Bounty (that is, the Governors of the Bounty of Queen Anne for the augmentation of the maintenance of the poor clergy). " In every such case the Governors of Queen Anne's Bounty may, if they think fit, on behalf of the incumbent, out of any money in their hands, pay to the tenant the amount of com- pensation due to him under this act ; and thereupon they may, instead of the incumbent, obtain from the county court a charge on the holding in respect thereof in favour of themselves. Every such charge shall be effectual, notwithstanding any change of the incumbent." Similar provisions were contained in the earlier act, 38 & 39 Yict. c. 61, as amended by 39 & 40 Yict. c. 74, both now repealed. LETTING AND ALIENATION. 1331 Sect. 4. — The Sale of Glebe by the Land Commission. By the Grlebe Lands Act, 1888, 51 & 52 Yict. c. 20, a further 51 & 52 Vict, step has been taken, and sales of glebes are now authorized c- 20- under the following conditions : — Sect. 2. " The incumbent of any benefice may from time to Application time, after the prescribed notice to the bishop of the diocese and ^ LanoTcom- the patron of the benefice, apply in the prescribed manner (t) to missioners for the Land Commissioners (J ) to approve the sale of the glebe sale of glebe, land (k) of such benefice, or any part thereof, except the par- sonage house and such land appurtenant thereto as herein-after mentioned." Sect. 3. " (1.) If the Land Commissioners, on an application Sale of glebe being made to them to approve the sale of any glebe land under J^^^qJ^J this Act, think fit to entertain the application, and are satisfied missioners. that the application has been duly made by an incumbent authorised to apply, and that the 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 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 land com- missioners 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 Land Commissioners are satisfied that such objection ought not to prevent the sale, the Land Commissioners shall inform the bishop or patron, as the case may be, in writing, of their reasons for being so satisfied." Sect. 4. " (1.) Upon the sale under this Act of the glebe land Payment and of any benefice, the purchaser shall pay the purchase money to application the Land Commissioners, and the prescribed receipt of the Land money! aSG" Commissioners for such money shall be a sufficient discharge to the purchaser. " (2.) The Land Commissioners shall apply the purchase money so paid in defraying the prescribed expenses of or (?') " By rules made in pursuance endowment of a benefice," s. 12. of this act," s. 12. See s. 9. (I) The terms "benefice" and (j) " For England," s. 12. "patron" have, by s. 12, the same (k) This expression ' ' includes meaning as in the Ecclesiastical any manor, land or tenement form- Dilapidations Act, 1871. Vide supra, ing the endowment or part of the p. 1264. 1332 PROPERTY OF THE CHURCH. 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 herein-after mentioned as may be selected by the incumbent of the benefice, with the approval of the Land Com- missioners, or (in default of such selection) by the Land Com- missioners; 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 incor- porated 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 published next before the date of the purchase, a population exceeding one hundred thousand ; 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 land adjacent to the parsonage house the possession of which in the judgment of the Land Commissioners 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 Commissioners " are to be entered in the books kept in relation to those securities in the name of those commissioners, but on a separate account ex parte the benefice. Those commissioners are, however, to be treated as the owner of the securities. Divi- dends may be paid either 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 are to hold the securities .... 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 and for the said purposes, LETTING AND ALIENATION. 1333 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 con- veyed to the 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." Sect. 5. " (1.) Before approving the sale of any land under Restrictions this act the Land Commissioners shall ascertain whether the M to sales- 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 pay- ment 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 recoupment 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. " (2.) Nothing in this act shall empower the Land Commis- sioners 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." Sect. 6. " (1.) Where any glebe land sold under this act, or Provision the benefice to which it belongs, is subject to any mortgage or where landia other debt, the land when conveyed to the purchaser shall vest m0rt?a°-e or in him free from such mortgage or debt, but such mortgage or otherdebt. debt, if not discharged, shall attach to the purchase-money of the land and to any securities or land in or in connection with which such purchase-money is invested, 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 1334 PROPERTY OF THE CHURCH. glebe land shall be given to the mortgagee or creditor, and the mortgagee 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 Land Commissioners 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 Land Commissioners may, if it seems to them necessary, make provision either for securing the rights of the mortgagee or creditor, 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 instal- ments 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 prejudice the future interest of the benefice, and such provision, and any provision which the Land Commissioners may make for preventing any prejudice to the future interest of the benefice, shall be binding on the incum- bent for the time being of the benefice. " (3.) The Land Commissioners may require the mortgagee or creditor to accept payment of the principal and interest due together with such additional sum (if any) as seems necessary in order to dispense with any notice which would otherwise be required for such payment." Provision as Sect. 7. " Where any glebe land sold under this act, or the to annua] benefice to which it belongs, or any part of the endowment of benefice. such benefice, is subject to a permanent 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 the ecclesiastical commissioners may " 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." Supplemental Sect. 8. " (1.) For the purpose of facilitating the acquisition to^ale0nS aS ^an(^ c°ttagers, labourers, and others, it shall be the duty of the Land Commissioners 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 (m), or to satisfy them- (m) 50 & 51 Yict. c. 48. LETTING AND ALIENATION. 1335 selves 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 Land Commissioners 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 Land Commissioners 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 (n), 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 life under that act, and may do all things necessary and proper for carrying into effect a sale under this act." Sect. 9 gives power to the land commissioners with the Power to approval of the Lord Chancellor, and, " where any rule affects make rules- any costs payable out of the Exchequer, with the further consent of the Commissioners of Her Majesty's Treasury," to "from time to time make, and when made alter and rescind, rules with respect to the proceedings of the Land Commissioners under this act, and the procedure to be observed 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." The Commissioners of the Treasury may also make, alter and rescind, rules fixing the fees to be paid to the land commis- sioners, and the mode in which such fees are to be taken. Eules made by the land commissioners are to be judicially noticed, and laid before Parliament. By sect. 10, " (1.) Where any act is authorised or required to As to action be done or any notice is required to be given by or to any by patron, patron or person for the purpose of this act, such act and notice may, in the case of the patrons mentioned in " sects. 126 and 127 of 1 & 2 Yict. c. 106 (o), " 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 enactments, or the Duke of Cornwall, shall be done and given in the prescribed manner." The section goes on to provide, that " where the advowson of any benefice is part of the possessions of the Duchy of Corn- (w) 45 & 46 Yict. c. 38. (o) Tide supra, p. 1141. 1336 PROPERTY OF THE CHURCH. wall, 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 seal of the Duchy of Cornwall." There is a further provision, " in the event of the Duke of Cornwall being under the age of twenty-one years, or of there being no Duke of Cornwall." Saving for Sect. 11. Such notice to the bishop of the diocese as may be LeasinaSActs Prescribed f°r the purposes 0f this act shall be substituted for easing c s. ^e period of three months' notice which, in pursuance of sect. 1 of the Ecclesiastical Leasing Act, 1858 (p), 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 Queen Anne's Bounty. ♦ Sect. 5. — The Transfer of Property to the Ecclesiastical Commissioners. It should now be mentioned that by force of various statutes promoted by the ecclesiastical commissioners and orders in council made thereunder (q) the estates of all archbishops and bishops, and most of the cathedral and collegiate deans and chapters, have become vested in the ecclesiastical commissioners. As to bishops, The commissioners are then to restore to the bishop or dean and chapters^ chapter sufficient lands to produce the income now appointed for them. In the case of bishops the estates committee of the ecclesiastical commissioners may be required by the bishop to manage the lands for him, and the arrangements are to be revised from time to time on each avoidance. Till sufficient new lands have been transferred by the ecclesiastical commis- sioners to the see or dean and chapter, they are to pay to the bishop or dean and chaj)ter a fixed annual income instead thereof. c^thed^f01 27 & 28 ^ict* C* minor ephedra! corporations may corporations. w^n the consent of their visitor transfer all their property to the ecclesiastical commissioners in consideration of a fixed annual income. (jo) 21 & 22 V. c. 57. Vide supra, (?) 23 & 24 Vict. c. 124 ; 29 & 30 p. 1326. Vict. c. Ill ; 31 Vict. c. 19; 31 &32 Vict. c. 114. LETTING AND ALIENATION. 1337 The whole subject will be treated more fully in the chapter on "The Ecclesiastical Commissioners" (r). ♦ Sect. 6. — The Extinguishment of old Leasehold Interests. Besides the foregoing provisions another set of enactments Statutes have been passed enabling ecclesiastical corporations, or the ^is^ub'ect ecclesiastical commissioners in their right, to do away with the 1S su Jec • old system of leasing ecclesiastical property ; and for this pur- pose either to buy up the interest of lessees or to sell the rever- sion to them or to make exchange of interest in different lands. The acts are 14 & 15 Yict. c. 104, and its continuing acts, 17 & 18 Yict. c. 116, and 23 & 24 Vict. c. 124. By 14 & 15 Yict. c. 104, entitled "An Act to facilitate the 14 & 15 Vict. Management and Improvement of Episcopal and Capitular c- 104- Estates in England," sect. 1, every ecclesiastical corporation sole Ecclesiastical or aggregate, with the approval in writing of the church estates mSLJ seii, ex- commissioners (whose consent alone is to be sufficient by sect. 5), change and may sell to any lessee of lands under them their reversion, enfrancnise- estate and interest in such lands, for such consideration, upon such terms and in such manner as they may think fit ; and they may, with the like approval, enfranchise copyhold or customary lands holden of any manor of theirs ; or exchange with any lessee of lands under them all or any of the lands comprised in such lease, or their reversion, estate and interest therein for any other lands of freehold, copyhold or customary tenure, or for the estate and interest of the lessee in any other of their lands ; and may receive or pay money by way of equality of exchange. They are also empowered with the like approval to purchase the estate and interest of any lessee of lands under them, or any holder of copyhold or customary land in their manors. The church estates commissioners are to " pay due regard to the just and reasonable claims of the present holders of lands under lease or otherwise arising from the long-continued prac- tice of renewal." By sect. 2, where the lessee surrenders his estate or interest Apportion- in part of the lands holden by him under the ecclesiastical cor- ment of rent- poration, the church estates commissioners may, by a memo- randum in writing, apportion the old rent between the lands surrendered and the lands still retained under the lease, and such apportioned rent becomes the ancient and accustomed rent for these latter lands. By sects. 3, 4, the interest acquired by any lessee under this Interest of act is to be deemed in equity to be acquired in respect of his lease, and shall be subject to the same trusts and charges and (r) Vide infra, Part IX. Chap. HL 1338 PKOPERTY OF THE CHURCH. Payment to ecclesiastical commis- sioners. Provisions where increase or diminution of income. Definitions. 17 & 18 Vict, c. 116. Extension of sect. 2 of pre- vious act. covenants for renewal with and other rights of the sub-lessee as the former lease or a renewal of it would have been. And where lands have been sub-let, and notice of such underlease is given to the ecclesiastical corporation, the interest of the lessee shall not be purchased by them without the consent of the sub-lessee. By sects. 6, 7, all moneys to be received by any ecclesiastical corporation for sale, exchange, or enfranchisement under the act may be allowed to remain on mortgage of the lands in question ; but when paid are to be paid into the Bank of England to an account to be appointed by the church estates commissioners, and are to be applied in payment for equality of exchange, or in the purchases authorized by the act, or in buying other lands for the corporation. The moneys may be invested in government stocks till they are required ; and any other moneys applicable to the purchase of lands for the corporation may be applied for the purposes of this act. By sect. 8, if any person being a corporation sole or member of a corporation aggregate shall receive an increase of his income in virtue of his office in consequence of what has been done under the act, the church estates commissioners may require and enforce payment at any time of such annual or other sum by such person in respect of his increased income as they may think fit : and they may, if they please, make such payment a condition of their approval under the act. And where any person suffers diminution of income they are to compensate him " out of any moneys received by them under the act on behalf of such corporation or the investments thereof." By sect. 11, tithes, but not advowsons, are to be deemed to be included under the word " lands;" and the expression " ecclesiastical corporation " is to include archbishops, bishops, deans and chapters, deans, archdeacons, canons, prebendaries and other dignitaries or officers of, and minor ecclesiastical corporations in, cathedral or collegiate churches ; but is not to include Christ Church, Oxford, or any college or hospital, or " any parson, vicar, or perpetual curate or other incumbent of any benefice " (s). This act was originally limited to three years ; but has since been continued by various acts, the last being 57 & 58 Vict, c. 48. By 17 & 18 Yict. c. 116, s. 2, the provisions as to apportion- ment of rent, where a portion of the lands holden under a lease are surrendered by the lessee under sect. 2 of 14 & 15 Yict. c. 104, are extended to all cases where a portion of the lands holden under a lease are sold, exchanged or enfranchised, if the church estates commissioners deem it expedient to apportion the rent. (s) This provision is repealed by cumbents of benefices as to other 24 & 25 Vict. c. 105, s. 3 ; and the ecclesiastical corporations, same power of sale is given to in- LETTING AND ALIENATION. 1339 By sect. 3, trustees of leases or other interests under ecclesi- Trustee may astical corporations, who are empowered to raise money for pur- raise money- chasing the renewal of leases, may raise money for purchasing the reversion or for enfranchisement under these acts. By sect. 4, upon any treaty for sale, purchase or exchange Arbitration, under these acts the value of the fee simple of the estate and the annual value thereof may he referred to arbitration, and the finding of the arbitrators shall be adopted in computing the terms of the sale, purchase or exchange, " regard being had, in the final settlement of such terms, in every such case, to the just and reasonable claims of the present holders of land under lease or otherwise, arising from the long continued practice of re- newal." Provision is made for the appointment of arbitrators. By sect. 10, the same provisions as to arbitration are extended to cases where the ecclesiastical commissioners have become the owners of the lands formerly belonging to ecclesiastical corpora- tions and wish to deal with the lessees under them. By sects. 6, 7, money paid into the Bank of England under the Distribution 6th section of 14 & 15 Yict. c. 104, is to be apportioned by the of money, church estates commissioners in such a manner as to set apart for the permanent endowment of the ecclesiastical corporation a sum, which will secure to that corporation a permanent net income equal to that which they would have received from the lands had they not been dealt with under these acts ; and the residue is to be handed over to the common fund of the ecclesiastical commissioners. And where an ecclesiastical corporation takes land under these acts they may be required to pay over to the church estates commissioners a sum of money " equivalent to the surplus share thereof." Sect. 11. "In computing the due regard to be paid to the Basis on just and reasonable claims of the present holders of lands under ^ich ^aims lease or otherwise, arising from the long continued practice of computed, renewal, the basis of compensation may, at the discretion and with the approval of the church estates commissioners, be that laid down by the episcopal and capitular revenues commissioners in their report of 1850 or according to the recommendations laid down in the lords' report on the same subject in 1851." By sect. 12, the expectation of a life shall not be calculated according to the Northampton tables, or upon any tables less favourable to the duration of life than those appended to the twelfth report of the registrar general of births, deaths and marriages, or any others to be from time to time issued by authority. Provision is also made by sect. 5 of this act for determining Provision for by trial at law the right of renewal of any lands held for a life ^^n^ne or lives or for years by copy of court roll from or under any Renewal, ecclesiastical corporation, whenever such corporation or the ecclesiastical commissioners dispute the right, or the person claiming the right desires to have the question decided. The act 23 & 24 Yict. c. 124, dealing more especially with 23 & 24 Vict. p. vol. ii. 4 s c'124- 1340 PROPERTY OF THE CHURCH. Power to cor- porations, with approval of the church estates com- missioners, to sell lands in possession, for facilitating negotiations with lessees. Schools and incumbents of benefices. Trustees and others having power to raise money for renewals may raise money for enfran- chisements. relations between the ecclesiastical commissioners and former tenants under ecclesiastical corporations, has completed the series of enactments with reference to the extinguishment of the old system of ecclesiastical leases. By sect. 16 of the last-mentioned act, " Where it appears to the church estates commissioners that inconvenience is occa- sioned in the negotiations between any ecclesiastical corporation, sole or aggregate, and its lessees (in relation to property which it is now authorized to dispose of) by reason of its disability to sell or exchange intermixed or other lands held by such corporation in possession, or for some other estate which it is not now authorized to dispose of, it shall be lawful for such ecclesiastical corporation, with the approval in writing of the said church estates commis- sioners, to sell any such lands (whether of freehold or copyhold or customary tenure), or to exchange any such lands for other lands or any estate or interest therein ; and all the provisions of the act " 14 & 15 Yict. c. 104, as amended by the act 17 & 18 Vict, c. 116, "and this act, authorizing the receiving or paying of money by way of equality of exchange, and concerning the payment, application, and investment of any money payable to or for the benefit of any such corporation on any such sale, exchange or enfranchisement as is mentioned in the said act" 14 & 15 Vict, c. 104, " and all other the provisions of the said acts in anywise applicable for effectuating any such sale, exchange or enfran- chisement or in consequence thereof, shall, so far as the nature of the case may require, extend and be applicable to and in con- sequence of any sale or exchange authorized by this act." By sect. 17, small portions of lands holden under leases usually renewed for schools may be conveyed to trustees for the schools without consideration. By sects. 18, 19, a similar course may be taken with respect to lands usually leased for no or merely nominal fines for the endowment of the incumbent of any parish or chapelry, and with respect to rents or other annual payments usually reserved by any such corporation on any lease for the benefit of any such incumbent. By sect. 20, "In any case in which any estate or interest under any lease or grant made by any such ecclesiastical cor- poration may be vested in any person or persons as a trustee or trustees, whether expressly or by implication of law, with power to raise money for the purpose of procuring a renewal of such lease or grant, and in every other case in which a power is vested in any person or persons for that purpose, it shall be lawful for such person or persons to raise money for the purpose of purchasing the reversion of or otherwise enfranchising the property comprised in such lease or grant, and to apply the same accordingly, in the same manner, and subject to the same conditions, mutatis mutandis, so far as the same may be applic- able to the case, as such person or persons might by virtue of such power have raised money for the purpose of renewing such lease or grant and have applied the same accordingly." LETTING AND ALIENATION. 1341 The effect of this and other sections upon settlements of and Cases on con- other dealings with the leasehold estates by the lessees, and the ^crtuctlon of respective rights of tenants for life and remaindermen under -such settlements, were fully considered in the cases of Hayward v. Pile (7), Re Wood's Estate (u), Hottier v. Burnc (#), Madchj v. Hale (?/), and He Lord Ranelagh's Estate (z). By sects. 26, 27, provision is made for the rights of lessees and underlessees inter se. By sect. 28, the powers and provisions in 14 & 15 Yict. c. 104, Apportion- s. 2, and 17 & 18 Yict. c. 116, s. 2, as to apportionment shall ment- extend to authorize the apportionment of heriots and fines certain and the substitution of money payments for heriots ; and shall extend to all cases of surrender, conveyance or assign- ment to the ecclesiastical commissioners of lands in which they have a reversionary interest, and all cases of sale, exchange and enfranchisement of a part of the lands comprised under any lease, grant or copy of court roll. By sect. 29, where there is a difficulty in making out the Payment lessee's title the ecclesiastical commissioners may pay the money mto bank* into the Bank of England as under the Lands Clauses Consoli- dation Act, 1845 (a). Sect. 30 preserves the rights and obligations imposed by special acts in particular cases. Sects. 31, 32, extend the power of partition and confirm the powers of partition and exchange. The following provisions are made in the act for ascertaining the interests of lessees : — Sect. 21. "In estimating, for the purposes of any sale, pur- In estimating chase, or exchange, under the said acts of " 14 & 15 Yict. c. 104, v^rs' leases and 17 & 18 Yict. c. 116, " and this act, or any of them, the value ^extension of the estate or interest of any lessee of any lands holden of any to nth Octo- archbishop or bishop, or of the ecclesiastical commissioners, under ^^Jo^*0 any lease granted for a term of twenty-one years, an extension of the unexpired term to the 11th day of October, 1884, at the accustomed rate of fine, shall, as a rule, be allowed, and a like extension at the accustomed rate of fine shall, for the purposes of sale, purchase or exchange, be allowed in the case of any lease for lives, the extent and value of which shall be computed by arbitrators in default of an agreement between the parties to be less than the extent and value of a term ending on the said 11th day of October, 1884." Sect. 22. " The said ecclesiastical commissioners, or any eccle- In estimating- siastical corporation aggregate or sole, in carrying out the powers of leasing mines and minerals vested in them, shall, in the an extension granting to the lessees of mines and minerals holden of the to 1884 to be ecclesiastical commissioners or any ecclesiastical corporation allowed- (t) L. E., 5 Ch. App. p. 214. (y) 3 Ch. D. p. 327. (w) L. E., 10 Eq. p. 572. (z) 26 Ch. D. p. 590. (x) L. E., 16 Eq. p. 163. (a) 8 Yict. c. 18. 4s2 1342 PROPERTY OF THE CHURCH. Differences between min- ing lessees and lessors to be referred to arbitration. Upon treaty for sale, &c, either party- may require reference to arbitration. Valuation of lauds and houses. aggregate or sole, whether for years or for lives, an extended term or estate therein, and fixing the terms of such grant, have regard to the value of the estate and interest of the lessees of all such mines and minerals under any lease or leases heretofore ordinarily renewable on the payment of a fine, and shall as a rule in computing such value estimate and include an extension of the existing unexpired term or estate of the lessees to the 11th day of October, 1884, at the accustomed rate of fine, and in the case of such of the said leases for lives as, according to the expectancy of human life according to the life tables which are appended to the twelfth annual report of the registrar general of births, deaths, and marriages in England, would not deter- mine until after the said 11th day of October, 1884, shall have regard to the actual value of the estate and interest of the lessees." Sect. 23. " In case any such lessees shall require any extended term in such mines and minerals to be granted to them, and any difference shall arise between the said ecclesiastical com- missioners or other ecclesiastical corporation and such lessees thereupon, or as to the value so to be estimated, or as to the rents to be reserved, or the term of years to be granted, or other the terms and conditions on which such lease for any extended term or estate shall be granted, it shall be lawful for either party to require the other party to join in referring to arbitra- tion the matter or matters so in difference, and the same shall be referred to arbitration." Sect. 24. " In any case where a treaty shall have been or shall be entered into under the said acts " 14 & 15 Vict. c. 104, and 17 & 18 Yict. c. 116, " and this act, or any of them, for any sale, exchange or purchase, it shall be lawful for either party to require the other party to join in referring to arbitration the finding of the annual value of the property comprised in the lease or grant, and of the value of the fee simple, and when such values have been found it shall be binding on both parties if either party require to proceed to such sale, exchange or purchase, on terms to be computed according to such finding : Provided always, that whenever the ecclesiastical commissioners shall decline to enter into a treaty with a lessee for either the sale of the reversion or the purchase of the term of or in the lands held by such lessee, it shall nevertheless be lawful for such lessee, at any time within two years after the said commissioners shall have so declined to treat, to require that his estate and interest therein shall be purchased by the ecclesiastical commissioners so declining to treat as aforesaid, and that the value of such estate and interest shall be ascertained by such methods and with such extension of the unexpired term on his said lease as are by this act provided in respect of other leaseholds." Sect. 25. " Provided always, that under any arbitration under the said act of " 17 & 18 Vict. c. 116, " or this act, where any lease shall relate to lands (except building ground or houses) , the LETTING AND ALIENATION. 1343 beneficial interest of the lessee shall be valued at the same rate of interest at which the value of the fee simple has been deter- mined, and where such lease shall relate to houses or to building ground it shall be lawful for the arbitrator or arbitrators, or umpire, as the case may be, simply to find the gross sum to be paid for such sale or enfranchisement, in such manner as he or they may deem just : provided also, that regard shall be had to any consideration given to the lessee by this act on account of the long continued practice of renewal : provided further, that in the case of houses the unrpire shall, notwithstanding any- thing in the last-mentioned act or this act contained, be appointed by her Majesty's principal secretary of state for the Home Department." Sect. 35. " And whereas in some cases leases or grants made Power to by ecclesiastical corporations are in settlement, or held in trust, trustees and without power to raise money for renewals, or the manner pre- having inte- scribed for raising money for renewals may not be applicable for rests to charge raising the money required for purchase or enfranchisement : it enfranchise - shall be lawful for any person or persons being a trustee or ^fthelands8 trustees, expressly or by implication of law, of any such lease or enfranchised, grant, or any person being under any will or other settlement &c- in the actual possession or receipt of the rents and profits of the lands comprised in such lease or grant, upon purchasing the reversion or otherwise procuring the enfranchisement of such lands, to charge such lands (or where the whole thereof is settled to the same uses, trusts, or purposes, any part thereof, exclusively of the residue thereof,) with the payment to any person advancing any money paid for such purchase or enfran- chisement, and for the expenses incident to such purchase or enfranchisement, or for either of those purposes, of the money so advanced, with interest thereon at a rate not exceeding five pounds per centum per annum, and to convey or cause to be conveyed such lands by way of mortgage for securing such pay- ment accordingly ; and such charge shall be effectual, as well on the subsisting term or estate under such lease or grant as on the reversion or interest acquired by such purchase or enfran- chisement, and not only against the person making the same, and all persons claiming through him or for whom he may be a trustee, but also against all persons claiming any estate or in- terest in the same lands through or under the same will or settlement, but so as not to prejudice any prior charge or incum- brance, under-lease, or tenancy affecting such lands ; and, sub- ject and without prejudice to such charge and mortgage so made as aforesaid, the interest acquired by such purchase or enfranchisement shall be subject in equity as is provided by section three of the said act" 14 & 15 Vict. c. 104 (b), " concerning the interest in land acquired by any lessee under that act." Sect. 36. " Wherever the estate and interest under any such Wherever estate under (6) Vide supra, p. 1337, 1344 PROPERTY OF THE CHURCH. such lease or grant is vested in trustees, and moneys are vested in same trustees, they may raise out of such moneys suffi- cient for renewal of lease, &c. Lands in the lease or other lands settled to like uses may be sold or mortgaged to raise money for purchase of reversion under direc- tion of the Court of Chancery. lease or grant may be vested in any trustee or trustees, either expressly or by implication of law, and any moneys, stocks, funds, or securities for money are vested in the same trustees or trustee, upon the same or like trusts, it shall be lawful for such trustees, or trustee, with the consent of the person or persons entitled for the time being to the beneficial receipt of the dividends or annual proceeds of such moneys, stocks, funds, or securities, if such person or persons shall be capable of giving consent, or if there shall be no person capable of giving consent, or if such consent shall be withheld, and the trustee or trustees shall consider such a course essential to the interest of the parties entitled under the settlement, then with the sanction and approbation of the Court of Chancery, to be obtained on petition to the said court, to raise out of such moneys, or by sale of such stocks, funds, or securities, a sufficient sum for the purpose of purchasing the reversion of, or otherwise enfranchising, the property comprised in such lease or grant, and of procuring, if necessary for the purpose of enfranchisement, the renewal of such lease or grant, and to pay and apply the same accordingly, and all payments and applications of moneys, or of the proceeds of the sale of such stocks, funds, or securities so made as afore- said, shall be valid and binding on all persons interested under the trust, will, or settlement under or by which such moneys, stocks, funds, or securities for money may be held in trust or settled as aforesaid. " Sect. 37. " Where any such lease or grant may be vested in any person or persons as a trustee or trustees, whether expressly or by implication of law, and other lands, whether freehold, copyhold, or leasehold, are vested in the same trustees or trustee upon the same or like trusts, or are settled to the same uses or purposes, or as near thereto as the different tenures of the lands admit, or where any person is under any will or settlement in the actual possession or receipt of the rents and profits of the lands comprised in such lease or grant and of other lands settled to like trusts or uses as aforesaid, it shall be lawful for such trustees or trustee, or such person as aforesaid, with the sanction and approbation of the Court of Chancery, to be obtained on petition to the said court, to raise money, either by sale or mort- gage of all or any part of the property comprised in the lease or grant, and the other lands, whether freehold, copyhold, or lease- hold, vested in such trustee or trustees, or settled as aforesaid, as the said court shall direct, for the purpose of purchasing the reversion of or otherwise enfranchising the property comprised in such lease or grant, in such manner, and subject to such pro- visions for protecting or adjusting the equities arising under such purchase or enfranchisement and such mortgage or sale as aforesaid, as the court shall think fit ; and all sales and mort- gages effected for the purposes aforesaid shall be valid and binding on all persons interested under the trust, will, or settle- ment under which such lands may be held in trust or settled as aforesaid." LETTING AND ALIENATION. 1345 Sect. 38. " In any case in which the estate and interest under Trustees em- any lease or grant made by any ecclesiastical corporation may ^^g^tes be vested in any trustee or trustees, and such trustee or trustees held under shall not have power to sell, it shall be lawful for such trustee lease, or trustees, with the consent in writing of the person or persons entitled for the time being to the beneficial receipt of the rent or annual proceeds thereof, if such person or persons shall be capable of giving consent, or if there shall be no person capable of giving consent, or if such consent shall be withheld and the trustee or trustees shall consider a sale essential to the interests of parties entitled under the settlement, then, with the sanction and approbation of the Court of Chancery, to be obtained on petition to the said court (c), to sell and dispose of all or any part of such property ; and in every such case the purchase- money shall be paid to such trustee or trustees, whose receipt shall be a good discharge for the same, and the money so paid to such trustee or trustees shall be invested and be held by him or them upon the same trusts, as far as the circumstances of the case will admit, as the leasehold property, if not sold, would have been subject to ; and such investment may, with the sanc- tion and approbation of the Court of Chancery, be made in the purchase of other leasehold estates, whether held under any ecclesiastical corporation or not." Sect. 39. " Any person authorized under this act or otherwise Persons em- to raise any money for the purchase of the reversion of any powered to lease or grant may exchange with the corporation by which such fo^enfem?" lease or grant was made, or with the ecclesiastical commissioners, chisement any part of the lands comprised in such lease or grant, for the ^5s^n ex reversion, estate, or interest of such corporation or the ecclesi- change for" astical commissioners in any other part of the lands comprised reversion, therein, or may exchange such lands or any part thereof for the reversion, estate, or interest of the corporation by which any lease or grant was made in any lands comprised in any other lease or grant held under the same trusts, or settled to the same uses, trusts, or purposes." Sect. 41. "Where by this act it is provided that any matter Provision as to in difference shall be referred to arbitration, or where any differ- arbltl'atl°n. ence shall arise between the commissioners and any body or person touching the annual or other sums of money to be paid to any archbishop or bishop as herein directed, or touching the value or nature of the estates proposed to be assigned as endow- ment for any archbishop or bishop, the matter in difference shall be referred to two arbitrators, one to be appointed by each party, and all the provisions of ' The Common Law Procedure Act, 1854' (d), applicable in the case of such an arbitration, (c) Where the person entitled to tices sitting in lunacy : Be Cliesliire, the beneficial receipt of the rent is L. E., 7 Ch. App. p. 50. a lunatic, the petition should never- (d) But see now the Arbitration theless be made to the Chancery Act (52 & 53 Yict. c. 49). Division, and not to the lords jus- 1346 PROPERTY OF THE CHURCH. Not to affect Christ Church, Oxford, or Collegiate Church at Manchester. 31 & 32 Vict, c. 114. Arbitration with lessees under deans and chapters, whose estates are transferred to the com- missioners. shall apply accordingly ; and for the purpose of the application of the said act this act shall be deemed the ' document ' autho- rizing the reference to arbitration ; and, where any matter is so referred, the award of the arbitrators or umpire shall be final." Sect. 44. "Nothing in this act contained, except sections eighteen, nineteen, and forty -two, shall in any manner affect or apply to the cathedral church of Christ in Oxford, nor shall anything in this act contained affect or apply to the cathedral or collegiate church of Manchester, or The Parish of Man- chester Division Act, 1850 " (e). By 31 & 32 Yict. c. 114, the act giving power to the eccle- siastical commissioners to take by scheme the estates of deans and chapters : — Sect. 10. "In all cases where an agreement has been or shall be entered into, or a treaty has been or shall be commenced or is or shall be pending between a dean and chapter and any of their lessees, for any sale and purchase under" 14 & 15 Yict. c. 104, 17 & 18 Yict. c. 116, or 23 & 24 Yict. c. 124, " and the capitular estate is transferred to the commissioners under the provisions of this act, it shall be competent to the church estates commis- sioners to approve and confirm as heretofore such agreement, and to continue and bring to a conclusion and approve such treaty : provided always that in the event of the church estates commissioners declining to approve such agreement or treaty, the ecclesiastical commissioners shall be bound to purchase the lessee's interest, if required by the lessee, with all the benefits as to arbitration and otherwise to which lessees are entitled under the above-mentioned acts or any of them ; and in every case the costs of such arbitration and award shall be in the dis- cretion of the said arbitrators or umpire as the case may be." General copy- hold acts. 21 & 22 Vict, c. 94. Copyhold acts not to Sect. 7. — The Enfranchisement of Copyholds, Ecclesiastical persons or corporations, when lords of manors, were subject like all other lords of manors to the provisions for compulsory enfranchisement of copyholds in certain cases, as provided by the various copyhold acts of the earlier part of the present reign. These acts were in fact cumulative of the powers of enfran- chisement specially given to ecclesiastical corporations by the statutes mentioned in the last section. Afterwards, however, it was provided by 21 & 22 Yict. c. 94, s. 4, that " the copyhold acts shall not extend to any manors belonging, either in possession or reversion, to any ecclesiastical (e) 13 & 14 Yict. c. 41. LETTING AND ALIENATION. 1347 corporation, or to the ecclesiastical commissioners for England, extend to where the tenant hath not a right of renewal." _ The 21 & 22 J^^8*^ Viet. c. 94 act then proceeded to enact certain provisions as to the tenant has not enfranchisement of ecclesiastical copyholds and the application of a right of the enfranchisement moneys, all of which have again been renewal- superseded and repealed by the Copyhold Act, 1894 (57 & 58 57 & 58 Viot. Yict. c. 46). c-46- This last act provides as follows : Sect. 72. — " (1.) An agreement for an enfranchisement shall Consent of not be valid— ecclesiastical (a) where the manor or land to be affected by the enfran- &°crp req^ed chisement is held under an ecclesiastical or other cor- to dealings poration (/) ; or wXhe (b) where any such corporation or the patron of a living is Selnterested. interested in the manor or land to the extent of one- third of the value thereof ; or (c) where in the opinion of the Board of Agriculture any such corporation would be affected by the enfranchise- ment, unless the agreement is made with the consent in writing of that corporation or person. " (2.) A consent under this section must, in the case of a cor- poration aggregate, be under the seal of the corporation, and in other cases be signed by the person giving it, and must in every case be annexed to the agreement to which it relates." Sect. 73. "Where land proposed to be enfranchised under the Notice to provisions of this act with respect to compulsory enfranchise- ecclesiastical * . . t n , « i i • -j-i • • commissioners ment is held oi a manor belonging either m possession or in certain reversion to an ecclesiastical corporation, the Ecclesiastical Com- cases, missioners shall have notice of the proceedings, and shall have the like power of expressing assent to or dissent from the proceedings as is provided by this act with respect to a person entitled in reversion or remainder, and the provisions of this act with respect to the notice, and the proceedings thereon, shall apply accordingly." Sect. 74. — " (1.) Any compensation or consideration money Enfranchise- to be paid under this act for the use of any spiritual person in ment money respect of his benefice or cure may at the option of the lord be gpLrtualper- paid to Queen Anne's Bounty, and the receipt of the treasurer son may be shall be a sufficient discharge. Paid t° Queen " (2.) Money paid under this section shall be applied by the Bo^ty Bounty as money in their hands appropriated for the augmen- tation of the benefice or cure, as the case may be." Sect. 75. " Where on an enfranchisement under this act it Application appears to the Board of Agriculture that the enfranchisement ^g^^" might have been effected under the Episcopal and Capitular money where Estates Act, 1851, or any act amending the same — enfranchise- ment might (/) As to the meaning of the term "ecclesiastical corporation" see sect. 94, infra, p. 1348. 1348 PKOPERTY OF THE CHURCH, have been under 14 & 15 Vict. c. 104. 24 & 25 Vict, c. 105. Prohibits any lease by copy of court roll for fine or premium. Not to inter- fere with pre- sent interests. (a) the consideration for the enfranchisement shall be paid and applied in like manner as if an enfranchisement had been effected under the said Episcopal and Capitu- lar Estates Act and the acts amending the same ; and (b) the Church Estates Commissioners and Ecclesiastical Com- missioners respectively shall have the same powers over the consideration money and the interest thereon, and over any land, rent-charges, or securities acquired in respect of the enfranchisement, and over or against any ecclesiastical corporation interested therein respec- tively, as they would have had if the enfranchisement had been effected with the consent of the Church Estates Commissioners under the said acts : Provided that where an ecclesiastical corporation or the Eccle- siastical Commissioners have only a reversionary interest in the manorial rights extinguished by the enfranchisement, the con- sideration, if it is a gross sum, shall be paid into court or to trustees, and applied under this act accordingly until the time when the reversionary interest would if it were not extinguished have come into possession, and the consideration money and the investments thereof shall then be paid or transferred to the Church Estates Commissioners as persons absolutely entitled thereto." Sect. 78 has special provisions for manors belonging to the Universities of Oxford and Cambridge, the colleges therein, and the colleges of Eton and Winchester. By sect. 94, an " ecclesiastical corporation " " means an ecclesiastical corporation within the meaning of the Episcopal and Capitular Estates Act, 1851 " (14 & 15 Vict. c. 104), " and the acts amending the same." By sect. 95 "Nothing in this act . . . shall extend to manors belonging either in possession or reversion to any ecclesiastical corporation or to the ecclesiastical commissioners where the tenant has not a right of renewal." By sect. 1 of 24 & 25 Yict. c. 105, after a recital that there are ecclesiastical benefices to which belong manors, lands and hereditaments which by custom the incumbents have had power to lease for lives or long terms of years, it is enacted that no prebendary of any prebend, not being a prebend in any cathedral or collegiate church, and no rector, vicar, perpetual curate or incumbent, who becomes, after the passing of the act, entitled to any manors, lands or hereditaments, shall make any grant thereof by copy of court roll (/) or lease in consideration of any fine, premium or f oregif t ; but the same may be dealt with under 5 & 6 Yict. c. 27, 5 & 6 Yict. c. 108, and 21 & 22 Yict. c. 57 (g). By sect. 2, nothing in the act is to interfere with the right of (/) Vide supra, p. 1294. (g) Vide supra, Sect. 3. LETTING AND ALIENATION. 1349 any then present incumbent, or affect any grant heretofore made, or any right of renewal or tenant right if any such there he ; nor prejudice any existing power of sale, exchange or enfranchisement under any statute then in force, or any right of admission of any person to copyholds according to the custom of the manor. By sect. 3 the provisions of 23 & 24 Yict. c. 124, so far as Provisions in they " relate to powers for the raising or application of money ^lt/t^Hed by trustees, allowances to lessees, arbitration, valuation, rate of to ^s Jj$m l° interest, apportionment of rent, and substitution of title on exchange," shall be applied mutatis mutandis to cases under 24 & 2d Vict. c. 105, relating to rectors, vicars and perpetual curates. But the proceeds of any sales or enfranchisements and any moneys received by way of equality of exchange shall be applied according to the provisions in 5 & 6 Yict. c. 108, and 21 & 22 Yict. c. 57. By 25 & 26 Yict. c. 52, s. 1, the prohibition contained in the 25 & 26 Vict, previous act shall extend not only to cases where a fine or c" 52 ' premium is asked for the grant or lease, but to all cases where the grant or lease is made for a longer term or in a different manner from that prescribed by 5 & b" Yict. c. 27 ; 5 & 6 Yict. c. 108, and 21 & 22 Yict, c. 57. By sect, 2, the provisions in sect. 3 of the previous act are extended to prebendaries of any prebend not being a prebend of a cathedral or collegiate church. 1350 PROPERTY OF THE CHURCH. CHAPTEE VII. CHARGES ON BENEFICES. Sect. 1. — Benefices with Cure. 2. — Benefices without Cure. Special re- straint on charging benefice with cure. 13 Eliz. c. 20. How long the lease of a benefice shall endure. No pension or profit to be charged. Act repealed and re- enacted. Sect. 1. — Benefices with Cure. Besides the general restraints imposed by law upon the waste or dilapidation of ecclesiastical property, the alienation of it by sale or lease or exchange, or the burdening of it, in the hands of the successor, by the grant of new and unnecessary offices, a special enactment has been made as to benefices with cure of souls, forbidding the imposition of any charge thereon by their incumbents ; so that, even during the tenure of the incumbency, such a benefice cannot be charged with payments to other persons, and such charges if made are absolutely void. The enactment in question is 13 Eliz. c. 20, intituled " An Act touching Leases of Benefices and other Ecclesiastical Livings with Cure." Sect. 1. " That the livings appointed for ecclesiastical ministers may not by corrupt and indirect dealings be trans- ferred to other uses ; be it enacted by the authority of this present parliament, that no lease after the fifteenth day of May next following the beginning of this parliament, to be made of any benefice or ecclesiastical promotion with cure, or any part thereof, and not being impropriated, shall endure any longer than while the lessor shall be ordinarily resident and serving the cure of such benefice without absence above fourscore days in any one year ; but that every such lease, so soon as it or any part thereof shall come to any possession or use above forbidden, or immediately upon such absence, shall cease and be void ; and the incumbent so offending shall for the same lose one year's profit of his said benefice, to be distributed by the ordinary among the poor of the parish ; and that all chargings of such benefices with cure hereafter with any pension, or with any profit out of the same to be yielded or taken, hereafter to be made, other than rents to be reserved upon leases hereafter to be made according to the meaning of this act, shall be utterly void." 43 Geo. 3, c 84, wholly repealed the above act («), but 57 Geo. 3, c. 99, repealed 43 Geo. 3, c 84, and revived 13 Eliz. c. 20. (a) See Doe v. Somerville, 6 B. & C. p. 126 ; 9 D. & E. p. 100. CHARGES ON BENEFICES. 1351 In Saltmarshe v. Hewett and Skrine v. Hewett (b)9 attempts had Saltmarshe v. been made to evade this statute, the incumbent Hewett, who ^^f/^nd desired to borrow money, purporting to grant annuities on his life. j£ewett. ' In the first case the annuity was secured by a bond for 3,600/. and an indenture charging the annuity upon the rectory of Rotherhithe and the glebe lands, and further secured by a warrant of attorney from Hewett to confess judgment for 3,600/. It was declared that the judgment on the warrant of attorney was to be entered up as a collateral security only for payment of the annuity, and that no execution should issue on such judgment unless and until the payment of the same or some part thereof should be twenty-one days in arrear after any of the specified days of payment ; but that, in case of such arrear, it should be lawful for Saltmarshe to sue out execution on the judgment, and also to sequester the rectory and the glebe lands, or any other benefice or benefices which Hewett might take in lien thereof, and for that purpose to instruct counsel, &c, to act for both the parties in such proceedings as should be necessary to obtain an immediate sequestration of the said rectory or other ecclesiastical preferment, to the intent that, by virtue of all or any of the ways aforesaid, Saltmarshe might recover the arrears of the said annuity and his costs. In Skrine v. Hewett, there was a similar warrant of attorney and an annuity deed, whereby the annuity was to be charged and chargeable upon, and issuing and payable out of, the rectories of Ewhurst and Rotherhithe, and whereby it was also declared that the judgment was to be considered as a security for the annuity ; that in case default should be made in the payment thereof for twenty-one days, it should be lawful for Skrine to issue thereupon one or more writs of fi. fa. de bonis ecclesiasticis, and such other writ or writs as he should think fit to ground the same, in order that Skrine might sequester the glebe lands, &c, belonging to the rectories, and thereby be in possession in trust for better securing to him all arrears then due on the said annuity, and all future payments thereof. The Court of Queen's Bench, thought it " hardly to admit of a doubt but that the rectory of Rotherhithe is charged with the payment of the annuity in the event of its being in arrear, or in other words, that the said benefice is charged with a f profit, out of the same to be yielded and taken ; ' " and after consider- ing the cases, was " of opinion that enough appears to show that the warrant of attorney was given ' to charge the benefice/ and is, therefore, void by the statute," and that, upon the whole, the security could not be supported in either case. In Alchin v. Hopkins, it was holden that a composition with Alchin v. a clergyman in consideration that his future income might be H°Pktns- received by a trustee, and applied in liquidation of his debts, after providing for a curate, is void under the above act (c) . (6) 1 A. & E. p. 812; 3 Nev. & (c) 4 Moo. & S. p. 615 ; 1 Bing. M. p. 656. N. C. p. 99. See also Johnson v. 1352 PROPERTY OF THE CHURCH. Wdithew v. In a later case, Walthew v. Crafts, to a declaration in covenant Crafts. a sequestrator for rent due under a lease, whereby a rector demised to the defendant the rectory and parsonage, with the tithes, except the parsonage house, for a term of fourteen years, if the rector should so long live, at the yearly rent of 980/., the defendant pleaded, that, before the execution of the lease, the rector was indebted to V. and M. and others, and in consider- ation thereof, and of a further sum to be lent by V., and of the defendant consenting to be Y.'s agent, the rector agreed with the defendant and Y. to charge the rectory with that sum and the others, by making the lease in the declaration mentioned, and appointing the defendant receiver of the tithes, rents, &c, in order that he might apply the rent reserved by the lease in payment of the moneys so to be charged on the benefice ; that the money was advanced by V., and that the rector in pursuance of the agreement, and in order to charge the benefice, executed the lease, and also an indenture appointing the defendant receiver ; that the lease was part of the same transaction, and was a charging of the benefice contrary to the statute. On demurrer to this plea : — It was holden that, under the second indenture, there was an equitable assignment or valid appro- priation of so much of the rent as was necessary to pay Y. and M. their debts; and that such assignment was a charge upon the benefice, and therefore the lease, which was part of the same transaction, was void under the act (cl). Long v. Storie. And in Long v. Storie, where a rector, who was also the patron of a living, gave warrants of attorney to various creditors, who had mortgages on the advowson, subject to an agreement that the judgment to be entered up by the first mortgagee should have priority over the rest, whenever execution should be issued : — It was holden, that the agreement pointed so particu- larly to making the judgments charges on the living, that the court could not give effect to it by granting an injunction and a receiver (e) . Hawkins v. And in spite of the language in 1 & 2 Yict. c. 110, s. 13, now GathercoU. modified by later acts, providing that all judgments of the Superior Courts at Westminster entered up and registered against any person should operate as a charge upon all lands, rectories, advowscns, tithes, and other hereditaments of or to which the person should be seised, entitled or possessed for any estate or interest, it was holden by the lords justices, reversing a decision of Lord Cranworth, when vice-chancellor, that a judg- ment so entered up and registered against a clergyman does not create a charge upon his benefice entitling the judgment creditor to the appointment of a receiver (/). Brasier, 3 Nev. & M. p. 653 ; 1 P. C. p. 753 ; Bishop v. Hatch, ibid. A. & E. p. 624; Cottle v. Warr- p. 763; 4 Jur. p. 318. ington, 5 B. & Ad. 447 ; 2 Nev. & (d) 6 Ex. p. 1. M. p. 227 ; Metcalfe v. Abp. of York, (c) Long v. Storie, 3 De O. & Sm. 6 Sim. p. 224 ; Moore v. Bamsden, p. 308. 3 Nev. & P. p. 180. As to warrants (f) Hawkins v. Gathercole, 1 of attorney, SQQBendryj* Price, 7 D. Sim., N. S. p. 63; 14 Jur. p. 1103 ; CHARGES ON BENEFICES. 1353 Where pew-rents can legally be imposed, the incumbent Charge on cannot charge them any more than he could any other revenues Pe^-rents. of his benefice (g). Charges, however, may in certain cases be made by the What charges incumbents on benefices with cure. may be made We have seen that such charges may be made for the pur- for residence pose of building or repairing the house of residence, or for nouses> buying plots of land convenient to be annexed to the glebe (//). In these cases the charges can only be made with the consent of certain persons specified in the statutes authorizing them, and where one of the persons to consent, e. g. the bishop of the diocese, himself takes the charge, the transaction will be con- sidered contrary to the principles of equity, and the charge will be holden void in his hands (i). By 6 & 7 Will. 4, c. 71, ss. 77, 78, and 2 & 3 Yict. c. 62, in obtaining ss. 16, 17, incumbents were empowered to charge the expenses, ^^^^^ to which they as tithe owners were put in obtaining a proper ' tithe commutation, on the lands of the benefice for a certain number of years (/»•). Benefices may now be charged with pensions to previous in- on resigna- cumbents under the provisions of the Incumbents Eesignation tl0n> Acts (J). Incumbents are also by 1 & 2 Will. 4, c. 45, s. 21, and 28 for benefit of Yict. c. 42, empowered to charge their benefices for the benefit Strict and of chapels and district churches within the limits of their churches, parishes (m). By 3 & 4 Yict. c. 113, s. 74, it is enacted, that arrangements may be made by an Order in Council framed upon a scheme of the ecclesiastical commissioners, " for the apportionment of the income of two benefices belonging to the same patron between of churches the incumbents or ministers of such benefices, or the churches or ?r cnaPels chapels connected therewith ; provided that no such arrange- patronage, ment shall be made with respect to benefices in lay patronage without the consents of the respective patrons, nor in any case so as to prejudice the interests of any existing incumbent, nor without the consent of the bishop of the diocese, nor, in the case of benefices lying in more than one diocese, without the consent of the bishop of each diocese ; nor where a bishop is himself one of the patrons, without the consent of the archbishop also " (n). 6 De a. M. & G. 1 ; 1 Jur., N. S. 394. p. 481. See the curious and very (m) Vide infra, Part IX., Chap, special case of McBean v. Deane, 30 IV. ; and, as to alteration in such Ch. D. p. 520. charges where the income of the (g) Ex parte Arroiusmith, Be benefice is diminished by the opera- Leveson, 8 Ch. D. p. 96. tion of the Extraordinary Tithe (h) Vide supra, pp. 1126, 1312. Eedemption Act, 1886, vide supra, (i) Greenlaw v. King, 3 Beav. p. 1188. p. 49 (1840). (n) See 48 & 49 Vict. c. 31, ex- (k) Vide supra, p. 1177. tending this provision specially to (Z) 34 & 35 Vict. c. 44, and 50 & the rectory of Tatonshill. 51 V. c. 23. Vide supra, pp. 389— 1354 PROPERTY OF THE CHURCH. Charges on Charges may be made of glebe as of other lands for drainage drainage and an(^ imPr°vements under the General Land Drainage and Im- improve- provement Company Act, 1849 (12 & 13 Yict. c. xci.) (o) ; and ments. where a rent- charge created by the Inclosure Commissioners under that Act was in arrear, the Chancery Division of the High Court of Justice ordered a sale of the glebe lands to satisfy the charge (p). Charges may also be made by the Inclosure Commissioners under the Improvement of Land Act, 1864 (27 & 28 Yict. c. 114). Ws'not to1 But n°W' hj 47 & 48 Yict C* 67' S' " TllG Commissioners be charged for shall not sanction any improvement of any land held in right of improvements any church, chapel, or other ecclesiastical benefice unless and sTnt^f t atron ^ne Patron of such benefice, and the bishop of the diocese and bishop™11 in which such lands are situate, shall signify to the Commis- sioners by writing under their hands their consent respectively to such application, nor shall any charge upon any such land of money expended, or purporting to be expended, for the im- provement thereof, whether under any general or local act, or any contract or agreement, be valid or effectual, and whether with or without the sanction of the Commissioners, unless and until the patron of the benefice and the bishop of the diocese shall have respectively signified their consent in writing thereto. Provided that nothing herein contained shall invalidate, or pre- judicially affect, any charge which may have been validly and effectually made before the passing of this act." Under Agri- Charges under the Agricultural Holdings (England) Act, 1883 ingtsTc1tH°ld" (46 & 47 Yict c- 61) have been already mentioned (q). ♦ Benefices without cure may be charged. Uutcher v. Musgrave. Sect. 2. — Benefices without Cure. The act 13 Eliz. c. 20, applies only to benefices with cure of souls ; and it has been in fact holden that a canonry of Windsor having no cure of souls attached may be assigned, and that, on a bill filed by a mortgagee, a receiver would be appointed (r) . In Doe d. Butcher v. Musgrave , being an action by another mortgagee of the same canonry, the Court of Common Pleas on the 23rd June, 1840, decided that an action of ejectment would not lie for the canonry in question, it being a mere office, of which the sheriff could not give possession ; and that ejectment did not lie for the residentiary house in which the canon resided, as it appeared to be vested in the corporation, and not in the canon («). (o) See Ex parte Rector of Kirks- W. N. 1889, p. 74. meaton, 20 Ch. D. p. 203. (q) Vide supra, p. 1330. (p) Scottish Widows' Fund v. (r) Orenftll v. Dean and Canons Craig, 20 Ch. D. p. 208. See of Windsor, 2 Beav. p. 550. Northern Assurance Co. v. Harrison, (s) 1 M. & G. p. 625. ( 1355 ) CHAPTER VIII. PUBLIC IMPOSTS. Sect. 1. — First Fruits and Tenths, 2. — Land Tax. 3. — Rates. This Chapter is intended to comprise the several charges or taxes imposed by the State on the revenues arising from the property of the church. The first class of charges are now, since the reign of Queen Anne, returned to the church, though distributed to different ecclesiastical corporations. — ♦ — Sect. 1. — First Fruits and Tenths. Annates, primitice, or first fruits, were the value of every First fruits, spiritual living by the year, which the pope, claiming the dis- position of all ecclesiastical livings within Christendom, reserved out of every living (a). What pope first imposed first fruits may be doubtful (b) . History. Hume, in his history of Edward I., says " the levying of first fruits was also a new device begun in this reign, by which his holiness thrust his fingers very frequently into the purses of the faithful ; and the king seems to have unwarily given way to it." Blackstone, discoursing of first fruits and tenths (c), says, " these were originally a part of the papal usurpations over the clergy of these kingdoms ; first introduced by Pandulph, the pope's legate, during the reigns of King John and Henry III. in the see of Norwich ; and afterwards attempted to be made universal by the popes Clement V. and John XXII. about the beginning of the fourteenth century. The first fruits, primitics, or annates, were the first year's whole profits of the spiritual preferment, according to a rate or valor made under the direction of pope Innocent IV. by "Walter, bishop of Norwich, in 38 Hen. 3, and afterwards advanced in value by commission from pope Nicholas the third, a.d. 1292, 20 Edw. 1, which valuation of pope Nicholas is still preserved (d) . The tenths, or decimce, (a) Of First Emits and Tenths, (c) Vol. i. p. 274. 12 Co. p. 45. \d) See 3 Inst. p. 154. (6) 4 Inst. p. 120. P. VOL. II. 4 t 1356 PROPERTY OF THE CHURCH. Tenths. 25 Hen. 8, c. 20. Taken from the pope. 26 Hen. 8, c. 3. Given to the king. were the tenth part of the annual profit of each living by the same valuation." When the first fruits and tenths were trans- ferred to the king by 26 Hen. 8, c. 3, confirmed by 1 Eliz. c. 4, commissioners were appointed in each diocese to make a new valor beneficiorum, by which the clergy are at present rated. This is commonly called the King's Books, and a transcript of it is given in Ecton's Thesaurus, and Bacon's Liber Regis (e). The reason alleged by the canonists for the exaction of these first fruits by the pope was, pro conservando decenti statu suo, ut qui omnium curam habet de communi alatur (/). Tenths, decimce, are the tenth part of the yearly value of all ecclesiastical livings (g). These tenths the pope (after the example of the high priest among the Jews, who had of the Levites a tenth part of the tithes), claimed as due to himself by divine right. And this portion or tribute was by ordinance yielded to the pope in the 20 Edw. 1, and a valuation then made, as already stated, of the ecclesiastical livings within this realm, to the end the pope might know and be answered of that yearly revenue ; so as the ecclesias- tical livings chargeable with the tenth (which was called spiritual) to the pope were not chargeable with the temporal tenths or fifteenths granted to the king in parliament, lest they should be doubly charged; but their possessions acquired after that taxation were liable to the temporal tenths or fifteenths, because they were not charged to the other. So as the tenths of eccle- siastical livings were not yielded to the pope de jure after the example of the high priest among the Jews, for then he should have had the tenths of all ecclesiastical livings whensoever they were acquired, but he contented himself with what he had got, and never claimed more ; and that he might the better keep and enjoy that which he had got, the popes did often after grant the same for certain terms to divers of the kings of England, as by our historians appears (Ji). By 25 Hen. 8. c. 20, s. 2, " .... no person nor persons hereafter shall be presented, nominated or commended to the said bishop of Eome, otherwise called the Pope, or to the see of Rome, to or for the dignity or office of an archbishop or bishop within this realm .... nor shall send nor procure there for any manner of bulls, breves, palls or other things requisite for an archbishop or bishop, nor shall pay any sums of money for annates, first fruits, nor otherwise for expedition of any such bulls, breves or palls ; " but the same shall utterly cease, and no longer be used within this realm. And by 26 Hen. 8, c. 3, s. 1, " . . . . the king's Highness, his heirs and successors, kings of this realm, shall have and (e) 1 Black. Com. p. 285, with the note of Mr. Christian. (/) God. p. 337. See The Case of First Fruits and Tenths, 12 Co. p. 45 ; and Degge, pt. 2, c. 15. (g) 4 Inst. pp. 120, 121. (h) 2 Inst. pp. 627, 628. PUBLIC IMPOSTS. 1357 enjoy from time to time, to endure for ever, of every such person and persons which .... shall be nominated, elected, prefected, presented, collated, or by any other means appointed to have any archbishopric, bishopric, abbacy, monastery, priory, college, hospital, archdeaconry, deanry, provostship, prebend, parsonage, vicarage, chauntry, free chapel, or other dignity, benefice, or promotion spiritual, within this realm .... of what name, nature or quality so ever they be, or to whose foundation, patronage, or gift so ever they belong, the first fruits, revenues and profits for one year of every such arch- bishopric, bishopric, &c." Sect. 8. And he " shall yearly have, take, enjoy, and perceive united and knit to his imperial crown for ever, one yearly rent or pension amounting to the value of the tenth part of all the revenues, rents, farms, tithes, offerings, emoluments, and of all other profits as well called spiritual as temporal, now apper- taining, belonging, or that hereafter shall belong to any arch- bishopric, bishopric, abbacy, monastery, priory, archdeaconry, deanry, hospital, college, house collegiate, prebend, cathedral church, conventual church, parsonage, vicarage, chauntry, free chapel, or other benefice or promotion spiritual, of what name, nature or quality so ever they be, within any diocese of this realm or in Wales " («). By sect. 1, every person, before any actual or real possession Compounding or meddling with the profits of his benefice, shall pay or ^gn^ ^st" compound for the first fruits to the king's use, at reasonable Su?ts.° rS days, and upon good sureties. By sect. 4, " .... if any person or persons which .... shall Penalty on be nominated, elected, prefected, presented, collated, or by any not paying- or other means appointed to any of the dignities, offices, bene- comPoun m%- fices, or other promotions spiritual before mentioned, do enter into the actual or real possessions thereof or meddle with the profits thereof, before they shall have truly satisfied and paid to the king's use the first fruits and profits thereof for one year, or else shall have agreed or compounded of the same at reasonable days upon good sureties in manner and form as by this act is above specified, that then every such person or persons so doing and offending and being thereof convict by presentment, verdict, confession or witness, before the said lord chancellor, or such other as shall have authority by commission to compound for ' the same,' shall be accepted and taken an intruder upon the king's possession," and shall forfeit double value. In order to ascertain the valuation, it was enacted by sects. 9, Value how to 10, that the chancellor of England should have power to direct ^^er" into every diocese commissions in the king's name under his great seal, as well to the archbishop or bishop as to such other persons as the king should appoint, commanding them to {i) See 2 & 3 Edw. 6, c. 20. 4t2 135a PROPERTY OF THE CHURCH. In what diocese to be rated. 28 Hen. 8, c. 11. Year when to commence. 26 Hen. 8, c. 3. Incumbent dying. 2 & 3 Phil. & Mar. c. 4. 1 Eliz. c. 4. examine and inquire of the true yearly values of all the manors, lands, tenements, hereditaments, rents, tithes, offerings, emolu- ments, and all other profits as well spiritual as temporal, apper- taining to any such benefice or promotion ; with a clause to be contained in every such commission, that they should deduct and allow these deductions following and none other, that is to say, the rents resolute to the chief lords, and all other annual and perpetual rents and charges which any spiritual person is bound yearly to pay to any person, or to give yearly in alms by reason of any foundation or ordinance, and all fees for stewards, receivers, bailiffs and auditors, and synods and proxies; and with another clause to be contained in their commission, that they should certify under their seals, at such days as should be limited by the said commissions, as well the whole and entire value as the deductions aforesaid. Sect. 25. " Provided also that all such fees which any arch- bishop, bishop, or other prelate of the church is bounden yearly to pay to any chancellor, master of the rolls, justices, sheriffs, or other officers, or ministers of record, for temporal justice to be done or ministered within their diocese or jurisdictions, shall be allowed and deducted by the commissioners in and upon the valuation of the dignities, monasteries, or churches chargeable with such fees : anything in this act to the contrary thereof notwithstanding." And by sect. 12, every archbishopric, bishopric, and other benefice and promotion above specified, shall be severally and distinctly rated in the proper diocese where they be, wheresoever their possessions or profits shall happen to lie. By 28 Hen. 8, c. 11, s. 1, the year in which the first fruits shall be paid, shall begin and be accounted immediately after the avoidance ; and the profits belonging to any archdeaconry, deanery, prebend, parsonage, vicarage, or other spiritual pro- motion, benefice, dignity, or office during the vacation (chauntries only excepted), shall go to the successor towards the payment thereof. By 26 Hen. 8, c. 3, s. 23, a person presented or collated to a parsonage or vicarage, not exceeding eight marks a year (that is, according to the valuation then to be made), was not to pay first fruits except he lived three years after his admission ; and in the composition there was to be a clause, that if the incum- bent died within three years, the obligation should be void. By the statute 2 & 3 Phil. & Mar. c. 4, the payment of first fruits and tenths to the crown ceased, until the repeal of that statute by 1 Eliz. c. 4, when the above-mentioned statutes of Hen. 8 were revived, and the law with respect to such pay- ments to the crown, subject to any alterations made by 1 Eliz. c. 4, again brought into force as it existed under such statutes, and 1 Mar. sess. 2, c. 10. By 1 Eliz. c. 4, s. 6, " if an incumbent live to the end of half a year next after the avoidance," "so as he hath received PUBLIC IMPOSTS. 1359 or without fraud might lawfully have received or enjoyed the rents and profits of that half year, and before the end of the other half year then next following shall die or be lawfully evicted, removed, or put from the said promotion spiritual, by judgment at common law without fraud or covin " ; he, his heirs, executors, administrators or sureties " shall be charged and chargeable but only with a fourth part of the said first fruits due to be paid for such his promotion, and no more of the said first fruits ; anything in this act contained, or any bond or writing to be made for the payment of the said first fruits, or other matter to the contrary notwithstanding. And if he live for one whole year next after such avoidance, and before the end of half a year then next following shall die or be removed as aforesaid, he shall be charged but with half of the first fruits. And if he live to the end of one whole year and a half, and before the end of six months then next following shall so die or be removed, he shall be charged, but only with three parts of the first fruits. And if he shall live to the end of two whole years, and not be lawfully evicted, removed, or put out as afore- said, he shall pay the whole." By 6 Ann. c. 54, s. 5 (k) " . . . . every archbishop and bishop 6 Ann. c. 54. shall have four years allowed him, when he or they shall com- Within what pound for the same, for the payment of his first fruits, which *1.n^ arcn" shall commence from the time of restitution of his temporalities ; bishops shall and .... in every year he shall pay one fourth part of the pay. whole sum ; and if it shall please God he shall die or be removed before the full term of four years shall be expired, he, his heirs, executors, or administrators shall be discharged of so much as did not become due or payable at or before the time or times of his death or removal, in like manner as the heirs, executors and administrators of rectors and vicars are authorized to do." By 6 Ann. c. 54, s. 6, " all deans, archdeacons, prebendaries, 6 Ann. c. 54. and other dignitaries, shall compound for their first fruits in Deans, arch- such manner and form as rectors and vicars have been accus- ^daries*6" tomed to do ; and in case of death or removal within the time t^pa'y. usually allowed to rectors and vicars for payment of their said first fruits, they, the said deans, archdeacons, prebendaries, and other dignitaries shall be in the like condition, and have the same benefit as is allowed to rectors and vicars by 1 Eliz. c. 4." And whereas by 26 Hen. 8, c. 3, there was no provision for 27 Hen. 8, deduction of the tenths of that same year for which the first c- 8- fruits were due to be paid, whereby there became a double charge ; Je^thts J0 ^ therefore by 27 Hen. 8, c. 8, ss. 1, 2, 3, it is enacted as follows : 0| ^ first*1 viz. "for reformation thereof, the King's Highness, for the fruits, entire and hearty love that his Grace bears to the prelates and other incumbents chargeable to the payment of the said tenth and first fruits, of his excellent goodness is pleased and contented (k) This act is printed as 6 Ann. c. 27, in some editions of the statutes. 1360 PROPERTY OF THE CHURCH. 1 Eliz. c. 4. Grants of ex- emption from first fruits and tenths to continue. "What livings are exempted from first fruits accord- ing to the valuation in the king's books. 6 Ann. c. 24. Grant of first fruits and tenths to the Corporation called Queen Anne's Bounty. Small bene- fices dis- charged from tenths and first fruits. Except where previously granted away. Special pro- visions where charges on first fruits and tenths of any diocese would be insufficient. that it be enacted that " .... at the composition for the pay- ment of the said first fruits, allowance and deduction shall be made " of the tenth part of the whole out of the sum to be paid for the said first fruits," which tenth shall be paid to the king for that first year. By 1 Eliz. c. 4, s. 7, all grants made to the universities or any college or hall therein, and to the colleges of Eton and Winches- ter, by any kings of this realm or by act of parliament, for the discharge of first fruits and tenths, shall remain in force. By 1 Eliz. c. 4, s. 5, vicarages not exceeding the yearly value of 10/. after the rate and value upon the records and books of the rates and values for the first fruits and tenths remaining in the exchequer (according to the valuation made in the 26 Hen. 8), and parsonages not exceeding the like yearly value of ten marks, shall be discharged of first fruits. And the reason why vicarages not exceeding 10/. should be freed of this charge, and parsonages of ten marks should pay, was because the vicarages in former times, and when the valua- tion was taken, had a great income by voluntary offering, which falling to little or nothing upon the dissolution of monasteries this favour was afforded them in their first fruits (/). By 6 Ann. c. 24, reciting that, pursuant to 2 & 3 Ann. c. 11, her then Majesty did establish the Corporation of the Bounty of Queen Anne for the augmentation of the poor clergy, and did by letters patent bearing date the 3rd day of November, in the third year of her Majesty's reign, give and grant to the said governors all the revenues of first fruits and tenths payable to her Majesty under 26 Hen. 8, c. 3, and 1 Eliz. c. 4, it is provided (sect. 2), that all ecclesiastical benefices with cure of souls not exceeding the clear yearly value of 50/. by the im- proved valuations of the same (the tenths whereof are by the said recited charter vested in the said corporation), shall be free and clearly discharged and acquitted for ever of the said first fruits and tenths. Sect. 4. " Provided always .... that this act or anything herein contained shall not extend to discharge any benefices with cure of souls the tenths whereof were granted away by any of her Majesties predecessors to any person or persons, bodies politic or corporate in perpetuity, before the said third day of November, in the third year of her Majesties reign." Sect. 7. Provided nevertheless that this act or any thing herein contained shall not extend, or be construed to extend, to avoid or diminish any annual sum, stipend, pension or annuity, now in being, which hath heretofore been granted to any person or persons, body politic or corporate, and charged upon the said revenues of first fruits and tenths or any part thereof, but in case it shall so happen that by discharging such small livings or benefices with cure of souls .... the first (Z) Degge, pt. 2, c. 13. PUBLIC IMPOSTS. 1361 fruits and tenths which hereafter shall be collected in any diocese or dioceses " shall not be sufficient to pay such annual sums as they now stand charged with " the whole revenues of the first fruits and tenths throughout the kingdom shall be liable to make good such deficiency, during the continuance of such grants. And for ascertaining the said clear yearly value, the bishops How value of of every diocese or guardians of the spiritualties (scde vacant e), benefice and the ordinaries of peculiars and places of exempt jurisdic- ascer ame tion, were required by the act of 6 Ann. c. 24, s. 3, as well by the oaths of witnesses as by other lawful means, to inform themselves of the clear improved yearly value of every benefice with cure of souls within their respective jurisdictions, the clear improved yearly value whereof did not then exceed 50/., and were to certify the same under hand and seal into the exchequer, which certificate being mads and filed in the said court, was to ascertain the clear yearly value of such benefices to be discharged. 6 Ann> c 54< And by 6 Ann. c. 54, s. 1, all ecclesiastical benefices with where tenths cure of souls, not exceeding the clear yearly value of 50/. by not vested in the improved valuation of the same, the tenths whereof are ^J^^^06 not vested in the corporation of the governors of Queen Anne's exceeds like Bounty, shall be discharged for ever from the first fruits. value ex- Also, by 1 Eliz. c. 4, s. 8, the dean and canons of the free ^^J^ chapel of St. Greorge within the Castle of Windsor, and all the l 4 possessions thereof, shall be discharged of tenths and first fruits. gt Qeor' i By 1 Eliz. c. 4, s. 13, also, nothing therein shall charge any chapel, hospital or " the possessions thereof employed for the relief of Windsor, ex- poor people, or any school or schools, or the possessions or ^P1^- revenues of them or any of them, with the payment of any ^oois^ex-^ tenths or first fruits . . . ." empted. By 26 Hen. 8, c. 17, farmers and lessees of any manors, 26 Hen. s, lordships, lands, parsonages, vicarages, portions of tithes, or J- 17- other profits or commodities belonging to any archbishop, bishop, fi/sStf^tsPSd or other prelate or spiritual person, or spiritual body corporate tenths and not or politic, shall be discharged of first fruits or tenths ; but the lessee, lessors and owners shall pay the same. There were in 1837 two archbishoprics and twenty -three Amount of bishoprics liable to first fruits, but only eighteen bishoprics liable pat fruits and to tenths; and out of 10,498 benefices with or without cure of tentllsmlS37- souls, there were only 4,898 which remained liable to tenths, and of that number 4,500 were also liable to first fruits (m). By 1 & 2 Vict. c. 20, the old Office of First Emits and I & 2 Vict. Tenths is abolished, and the treasurer of Queen Anne's Bounty c- 20- is made sole collector (»). FLretlVuite By sect. 8 of the last-mentioned act, " The treasurer for the abolished, time being of the bounty of Queen Anne shall, upon or im- Account of mediately after the receipt of every return of institutions made first fmits and tenths pay- (m) Report -of Select Committee on (n) As to other parts of this act, First Fruits, Session 1837. vide infra, Part IX., Chap. II. 1362 PROPERTY OF THE CHURCH. able to be sent to clerks on institution. Notice of ar- rears to be sent to the party omit- ting to pay. Provisions of former acts relating to first fruits and tenths to con- tinue in force, except where altered by this act. 26 Hen. 8, c. 3. Times of payment of tenths. 3 Geo. 1,0. 10. by the bishops of the respective dioceses in England or Wales, or other ordinaries, deliver or transmit by the post or otherwise to every clerk or other person instituted to any ecclesiastical benefice, an account or statement in writing of the payments (if any) which are to be made by him for or in respect of the first fruits and yearly tenths of such benefice, and of the times and manner of making such payments." Sect. 9. " When and as often as it shall appear to the treasurer for the time being of the governors of the bounty of Queen Aune that any person liable to the payment of first fruits or tenths shall have omitted or neglected to pay the same respec- tively for one calendar month over or after the proper time for such payment, the said treasurer for the time being shall thereupon give to each such person a notice in writing, or transmit the same by the post addressed to him at the place of residence belonging to the benefice or other ecclesiastical pre- ferment in respect of which such payment is required, or other his usual place of residence, if known to the said treasurer, stating the amount then appearing to be due from such person for or in respect of first fruits and tenths respectively ; and such notice shall from time to time be repeated as often as the said treasurer may deem expedient ; and in particular between the twenty-ninth day of September and the twenty-fifth day of December in every year such a notice shall be given, sent or transmitted as aforesaid to every archbishop, bishop, or other dignitary, rector, vicar or other person from whom any first fruits or yearly tenths or any sum or sums of money in respect thereof, may then appear to be due, to the end that the pay- ments of such first fruits and tenths may in no case be omitted or neglected through ignorance or inadvertence." Sect. 10. "All the laws, statutes and provisions touching or concerning the said revenues of first fruits and tenths, and the imposing, charging, assessing and levying, and the true answer- ing and payment of the said first fruits and tenths, or touching the charge or discharge or alteration of them or any of them, or any matter or thing relating thereto, which were in force imme- diately before the passing of this act, and which are not hereby or hereinbefore altered or repealed, shall be, remain and con- tinue in their full force and effect, and shall hereafter be observed and put in due execution according to the tenor or purport of the same and every of them in all things, excepting such as are in or by this act altered or repealed." By 26 Hen. 8, c. 3, s. 8, the tenths are to become due yearly at the feast of the Nativity of our Lord Grod. And by 3 Greo. 1, c. 10, s. 3, if any person charged with the payment of tenths shall not pay or duly tender the same yearly before the last day of April succeeding the feast of the Nativity whereon the same shall become due ; then upon certificate thereof made by the collector or receiver, on or before the first day of June following, he shall be allowed upon his PUBLIC IMPOSTS. 1363 account all such sums as any persons against whom such certificates shall be made should or ought to have paid. And in every such case the treasurer, chancellor and barons of the exchequer shall issue upon every such certificate such process as to them shall seem proper and reasonable, against every such person against whom such certificate shall be made, his execu- tors or administrators, whereby the same may be truly levied and paid to the said collector or receiver. And every sum so levied and paid the collector or receiver shall bring to account, and charge himself therewith in his next account. By 26 Hen. 8, c. 3, s. 15, and 2 & 3 Edw. 6, c. 20, persons 26 Hen. 8, making default in payment were to be deprived of their benefice. c- 3- But now by 3 Greo. 1, c. 10, s. 2, persons making default of l &2^ Edw" 6' payment shall forfeit double value of the tenths. Forfeiture on By 26 Hen. 8, c. 3, s. 12, the bishops were charged to collect non-payment, the tenths, and upon their certificate into the exchequer on non- 3 Geo. l, c. 10. payment by any incumbent, process was to be issued out of the ^Q^en' 8' said court against such incumbent, his executors and adminis- Executors trators ; or for insufficiency of them, against the successors of administrators such incumbent ; whereby the kins: might be truly answered and succes- j 'j J o o j sors charged. and paid. 5 And by 27 Hen. 8, c. 8, s. 4, in cases whereby the successor 27 Hen. 8, shall be chargeable to the payment of tenths unpaid in the time c- 8- or life of his predecessor, he may distrain such goods of his pre- decessor as shall be upon the premises, and retain the same till the predecessor, if he be alive, and if he be dead till his executors or administrators, shall pay the same ; and if the same shall not be paid in twelve days, then he may cause the goods to be appraised by two or three indifferent persons to be sworn for the same ; and according to the same appraising may sell so much thereof as shall pay the same and also the reasonable costs that shall be spent by the occasion of distraining and appraising the same ; and if no such distress can be found, then such predecessor if he be alive, and if he be dead his executors or administrators, may be compelled to the payment thereof by bill in chancery, or by action or plaint of debt at common law. But by 3 Greo. 1, c. 10, s. 1, the bishops are discharged from 3 Geo. l,c. 10. the said collection : nevertheless, all former statutes for the im- ^j81101^ is" posing, charging, assessing and levying, and the true answering c0ne1Sn°\0m and payment of the first fruits and tenths, not altered by the said statute of 3 Geo. 1, shall continue in force. And by 7 Edw. 6, c. 4, s. 3, if any promotion spiritual should 7 Edw. 6,c. 4. chance to be or remain in such sort void, that no incumbent ^ere there^s could be conveniently provided, the bishops were to certify the n0 incumbent, same specially ; in which case it is enacted, that the king may levy and take all the glebe lands, tithes, issues or profits of such benefice, until he be paid the whole arrearages of the tenths. 26 Hen. 8 By 26 Hen. 8, c. 3, s. 22, in cathedral churches and colleges, c. 3. every distinct head and member shall pay according to his own ^^^sof7 respective salary, and not for any others. c^XriraWd colleges. 1364 PROPERTY OF THE CHURCH. 6 & 7 Will. 4, c. 77. Apportion- ment of first fruits and tenths to new incomes of bishops. 4 & 5 Vict, c. 39. On estates vested in com- missioners. Present appli- cation of first fruits and tenths. By 6 & 7 Will. 4, c. 77, one of the objects of the act, which is to be carried into effect by the ecclesiastical commissioners, is, that on the alteration of the incomes of the several sees made according to that act the first frnits shall be apportioned, so as to leave the same aggregate sum payable to the governors of Queen Anne's Bounty, but so as to divide that sum pro rata according to the new incomes of the several sees, throwing also a portion of the charge on the excess of income of the sees of Durham and Ely, which is received by the commissioners for the purposes of their general fund. The same rule was to be applied to the tenths. By 4 & 5 Yict. c. 39, s. 4, where the estates of holders of dignities, prebends and offices are vested in the commissioners, the holders thereof are to be discharged from all liability to pay first fruits and tenths ; and the commissioners are yearly to pay over to the treasurer of Queen Anne's Bounty one twentieth of the estimated first fruits of the estates as an average compensa- tion for the loss of the first fruits ; and are also to pay the regular tenths of all these offices and of the sinecure rectories in their possession annually to the said treasurer. It will be shown hereafter how the receipt and management of all first fruits and tenths has now been given to the governors of Queen Anne's Bounty (o). The use of the funds by way of loans to the incumbents of benefices for the building and repairing of their houses, the purchase of small portions of glebe, &c, has been already mentioned (;;). The ultimate application of the funds to the augmentation of the poorer benefices and otherwise to the relief of spiritual destitution will also be mentioned hereafter (q). Sect. 2. — Land Tax. Besides the liability to first fruits and tenths, ecclesiastical property in England, in common with all other real estate, is subject to land tax. History of This tax has been often imposed at various periods of our tax- history, but the act which first put the tax and the assessment of 33 Geo. 3, ft on a regUlar footing was 38 Geo. 3, c. 5. This act expressly (by sect. 4) charged all manors, lands, tithes, annuities and other yearly profits and all hereditaments ; and special provision is made for the seizing and sale of tithes, where the tax on them is unpaid (by sect. 42). (o) Vide infra, Part IX., Chap. and Chap. VI., sect. 2. II. (?) Vide infra, Part IX., Chap. (p) Vide supra, PartV., Chap. II. II. PUBLIC IMPOSTS. 1365 By 38 Geo. 3, c. 60, various provisions were made for the 38 Geo. 3, redemption of land tax by persons having any interest in the c- 60- land, and for keeping the tax on foot as an annuity in favour ^ej^ptaxn of the person making the redemption, where his interest was only a partial one (sect. 37). But these provisions, except as to contracts already made or begun, are repealed by 42 Geo. 3, c. 116. There was also an act, 39 Greo. 3, c. 21, which was repealed by the same act. In Wilson v. Grc//(r), a contract for the sale of lands, with Wilson v. their appurtenances, belonging to a rectory, was entered into Gre^- under the 38 Geo. 3, c. 60, and 39 Geo. 3, c. 6, which enabled ecclesiastical corporations to sell lands for the redemption of land tax. Before the payment of the purchase-money into the Bank of England, as directed by the acts, and the execution of the conveyance, the 39 Geo. 3, c. 21 was passed, which enacted that no minerals under lands belonging to any ecclesiastical corporation which should be sold should pass to the purchaser ; and that the provisions of this act should, in the execution of the former acts, be applied as if they had been specially enacted in those acts : — The conveyance did not pass the minerals except by general words. It was holden, nevertheless, that the minerals passed to the purchaser. By 42 Geo. 3, c. 116, s. 9, " . . . it shall be lawful for all 42 Geo. 3, bodies politic and corporate, and companies, notwithstanding c- 116- any statutes of mortmain or other statutes or acts of parliament CorPoratlons find trustees to the contrary, and for all feoffees or trustees for charitable or for public other public purposes, having any estate or interest in any purposes may manors, messuages, lands, tenements, or hereditaments whereon theredem°r- any land tax shall be charged, to contract and agree for the tion of laud redemption of such land tax or any part thereof." tax- Sect. 10. " . . .it shall also be lawful for all other persons All persons having any estate or interest in any manors, messuages, lands, ^sTtrack tenements, or hereditaments whereon any land tax shall be reut or of charged (except tenants at rack rent for any term of years, or crown lands, from year to year, or at will, and except tenants holding under t^t^/re^" the crown any lands or tenements within the survey and receipt demption of of the exchequer or the duchy of Lancaster, or, under the duke land tax. of Cornwall, any lands or tenements belonging to and parcel of the duchy of Cornwall, for any term of years, or from year to year, or at will), to contract and agree for the redemption of such land tax or any part thereof." It was holden in a case turning on a similar section in the An incumbent act of 38 Geo. 3, c. 5, that an incumbent of a benefice is a ma7 redeem, person entitled to redeem the land tax, and that the tax may (r) L. R., 3Eq. p. 117. In Whid- firming invalid sales for redenip- borne v. Ecclesiastical Commissioners tion of land tax arose ; but the (7 Ch. D. p. 375), a curious ques- circumstances were very special, tion of construction of an exception and no general principle can be upon a reservation of minerals, and deduced from the decision, of an act of 57 Geo. 3, c. 100, con- 1366 PROPERTY OF THE CHURCH, 42 Geo. 3, c. 116. Queen Anne's Bounty may- contract for redemption of the land tax on livings. Trustees of property given for the benefit of the poor clergy may contract for redemption. Patrons of livings may contract for redemption of land tax thereon not redeemed by incumbents. What con- sideration to be paid for the redemp- tion. be kept on foot for the benefit of his assignees or representa- tives (s) . By 42 Geo. 3, c. 116, s. 15, "... . it shall be lawful for the governors of the bounty of Queen Anne for the augmenta- tion of the maintenance of the poor clergy to contract and agree for the redemption of the land tax charged or hereafter to be charged upon the lands, tithes, or other profits arising from any living or livings within the meaning of the charter granted in the reign of Queen Anne, or any act or acts now in force directing the application of such bounty, which shall not have been contracted for by the incumbent or incumbents thereof. " Sect. 16. " .... it shall be lawful for the trustees for the time being of any trust property heretofore given by any will for the purpose of being laid out in the purchase of lands or impropriate tithes for the benefit of the poor clergy in England, with such consent as is required by such will, to contract and agree for the redemption of the land tax charged or hereafter to be charged upon the lands, tithes, or other profits arising from such living or livings belonging to the Church of England as the trustees for the time being, with such consent as aforesaid, shall think fit." Sect. 17. " . . . . where the land tax charged upon the glebe lands, tithes, or other profits of any living or livings, in the patronage of any college, cathedral church, hall, or house of learning in either of the universities of Oxford or Cambridge, or in the patronage of either of the colleges of Eton or Win- chester, or of any trustee or trustees for any such college, cathedral church, hall, or house of learning as aforesaid, or in the patronage of any other bodies politic or corporate, or companies, or feoffees or trustees for charitable or other public purposes, or other person or persons, shall not then have been redeemed by the incumbent or incumbents of such living or livings, it shall be lawful for the corporations of such colleges, cathedral churches, halls, or houses of learning respectively, or for such other bodies politic or corporate, or companies, or other person or persons aforesaid in whose patronage any such living or livings shall be, to contract and agree for the redemption of such land tax, upon the same terms and with the same benefits and advantages as the incumbent or incumbents of such living or livings could or might have contracted to redeem the same." By sect. 22, the consideration to be given for the redemp- tion of any such land tax was to be so much Consolidated or Reduced Annuities as would yield an annuity or dividend exceeding the amount of the land tax so to be redeemed as aforesaid by one tenth part thereof, such capital stock to be transferred to the commissioners, for the reduction of the national debt, in trust for the purposes of this act(^). (s) Kilderbeev. Ambrose, 24 L. J., (t) Now by 52 & 53 Vict. c. 42, Ex. p. 49. s. 9, so much 2| per cent. Con- solidated Stock. PUBLIC IMPOSTS. 1367 By sect. 44, " .... it shall be lawful for the governors of Governors of the bounty of Queen Anne for the augmentation of the main- Queen Anne's tenance of the poor clergy from time to time to apply any sum layout money or sums of money or other funds which under or by virtue of in redeeming any laws now in force, or of the charter granted in the reign of }^inJjxa°^ in Queen Anne, now is or are or hereafter shall be applicable purchasing" towards the augmentation of any living or livings within the rent- charges meaning of such laws or charter respectively, in and for the ^^^^ redemption of the land tax charged or hereafter to be charged upon the lands, tithes, or other profits arising from any such living or livings which at any time before or on or after the 24th day of June, 1802, shall have been or shall be con- tracted for by the incumbent or incumbents of such living or livings (with the consent of the said governors), or which may be contracted for by the said governors in pursuance of this act, and the transfer or payment of the consideration for such redemption by the said governors, or by their order or direction, shall, from the quarter day next preceding the making thereof, wholly exonerate and discharge the lands, tithes, or other profits of such living or livings from such land tax, which shall from thenceforth sink and be extinguished for the benefit of such living or livings ; and it shall also be lawful for the said governors from time to time to apply any such sum or sums of money, or other funds as aforesaid, in, for, and towards the purchasing any rent-charge or rent-charges which shall have been or shall be granted under the authority of any of the said recited acts or of this act, by any incumbent or incumbents of any living or livings which the said governors have already agreed or shall hereafter agree to augment; and every such rent-charge, when so purchased, shall be surrendered to the incumbent for the time being of the living upon which the same shall have been charged, to the intent that the same may sink and be extinguished for the benefit of such living or livings." Sect. 45. " . . .It shall be lawful for the trustees for the Trustees for time being of any trust property heretofore given by any will t]}e poor for the purpose of being laid out in the purchase of lands or iay 5ut trust impropriate tithes for the benefit of the poor clergy in England money in re- (with such consent as is required by such will) to apply from Jeemm? |and • • / XT XT •/ tclX OH llVlll c- 36- repairing or rebuilding the chancel (o) ; and the rector or impro- priator of the great tithes is liable to be rated towards the re- payment of the money so borrowed, and cannot claim exemption from rates levied for that purpose, as he could from an ordinary church rate (p). {n) I.e., the one-fourth part of the net annual value of the pro- perty ascertained by the valuation list at the time being in force, or if there is none, by the rate for the relief of the poor made next before the making of the assessment under the act : see 38 & 39 Vict. c. 55, s. 211. (o) Rippin and Wilson v. Bastin, L. E., 2 Adm. & Eccl. p. 386. See Bex v. Barker, 6 A. & E. p. 388. (p) Smallbones v. Edney, L. R., 3 P. C. p. 444; 7 Moo. P. C. 0., N. S. p. 286. 1380 PROPERTY OF THE CHURCH, Recovery of rates on rent- charge. 6 & 7 Will. 4, c. 71. 7 Will. 4, and I Vict. c. 69. Roberts v. Potts. 2 & 3 Vict, c. 62. Name of each occupier and sum charged on him to be specified by- assessor on notice from owner. 54 & 55 Vict, c. 8. Rating of owner of tithe rent -charge. The following provisions for the recovery of rates on a rent- charge, and for the power of the owner of the rent- charge to appeal against the rates, are contained in the Tithe Commuta- tion Acts. By 6 & 7 Will. 4, c. 71, s. 70, rates and charges were to be recovered from the occupier of the lands out of which such rent- charge issued. By 7 Will. 4 and 1 Yict. c. 69, s. 8, " Eates and charges to which any rent-charge payable in lieu of tithes were liable might be assessed upon the owner of the rent-charge, and the whole or any part thereof might be recovered from any one or more of the occupiers of the lands out of which such rent-charge issued in case they were not sooner paid by the owner of the rent-charge, upon giving to such occupier twenty-one days' notice in writing previous to any one of the half-yearly days of payment of the rent-charge." These sections, upon which the case of Lamplugh v. Norton (q) was decided, are repealed by 54 & 55 Yict. c. 67, and in the case of Roberts v. Potts (r) it was decided that they were not now even in force in respect of arrears of rates accruing due before the Tithe Act, 1891. By 2 & 3 Yict. c. 62, s. 3, " The assessor or collector of any rate or tax shall, within forty days after the receipt of a notice in writing signed by any land-owner or tithe-owner interested therein, specify in his assessment made for the purpose of collecting and levying such rate or tax the names of the several occupiers of tithes, lands, and tenements subject to such rate or tax, as well as the sum assessed on the tithes, lands, or tenements held by each such occupier." The procedure as to rates enacted by the 6th section of the Tithe Act, 1891 (54 & 55 Yict. c. 8) is as follows :— " 1. Any rate to which tithe rent- charge is subject, shall be assessed on, and may be recovered from, the owner of the tithe rent- charge, in the like manner and by the like process as on and from any occupying ratepayer ; and so much of any act as authorises any rate or tithe-rent charge to be assessed on, or recovered from, the occupier of any lands out of which the tithe rent- charge 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 rent-charge, the Court may, after such service on the owners of the tithe rent- charge, and of the lands out of which the tithe rent-charge 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 rent-charge to the collector until the amount of the rate, and any costs allowed by the court, are fully paid ; and the (?) 22 Q. B. D. p. 452. (r) 2 Q. B. 1893, p. 33 ; 1 Q. B. 1894, p. 213. PUBLIC IMPOSTS. 1381 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 rent-charge. " 3. The court may, if satisfied that the circumstances justify it, make such order as aforesaid in respect of any future rate, either generally or during the time limited by the order. " 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 rent-charge by a public authority for public purposes ; and the expression ' collector ' means the overseer, surveyor of highways, rate collector, or other person authorised, for the time being, to collect the rate." ( 1382 ) PART VI. FABEICS AND OFFICERS OF FABRICS OF THE CHURCH. — ♦ — CHAPTER I. INTRODUCTORY. It remains to consider the law applicable to the following subjects : — 1. The fabric of churches and chapels, and the ground attached by consecration thereto, — apart from the questions of ornament, already treated of under the head of Liturgy and Ritual (a) , and of monuments of the dead, treated of under the head of Burial (b). 2. Officers having duties connected with the fabric and the churchyards, such as — 1. Churchwardens with their Assistant Sidesmen or Quest- men— and in connection therewith the Law of Yestries. 2. Trustees under the Compulsory Church Rate Abolition Act, 1868. 3. Parish Clerks. 4. Sextons. 5. Organists. 6. Lay Readers. (a) Vide supra, Part III., Chap. (b) Vide supra, Part III., Chap. XI., Sect. 4. X., Sect. 7. ( 1383 ) CHAPTER II. CHURCHES AND CHURCHYARDS. Sect. 1. — General Observations. 2. — Consecration of Churches. 3. — Chancel. 4. — Aisle. 5. — Churchyard. 6. — Repairs, Alterations and Faculties. 7. — Church Seat. 8. — Church Way. 9. — Church Rate. — ♦ — Sect. 1. — General Observations. Dr. Burn observes that the ancient Saxon word is cyrce, the Origin of Danish kircke, the Belgio kercke, the Cimbric kirkia or knrk ; word- probably from the Greek word Kvpioaiovf belonging to the Lord, or Kvplov ofxof, the Lord's house ; so that we have lost the ancient pronunciation of the word (except in the northern parts of England and in Scotland) by softening the letters c or ch, as we have done in many cases ; which letters the ancient Greeks and Eomans always pronounced hard, as the letter k. The ancient manner of founding churches was, after the Ancient founders had made their application to the bishop of the diocese, ^^j^ °f and had his licence, the bishop or his commissioners set up a caches, cross, and set forth the ground, where the church was to be built ; and then the founders might proceed in the building of the church : and when the church was finished, the bishop was to consecrate it, but not till it was endowed ; and before, the sacraments were not to be administered in it (a) . For albeit churches or chapels may be built by any of the king's subjects, yet before the law take knowledge of them to be churches or chapels, the bishop is to consecrate or dedicate the same : and this is the reason, that a church or not a church, a chapel or not a chapel, shall be tried and certified by the bishop (b) . It is to be borne in mind that the freehold of churches and Freehold, churchyards is in the rector or vicar, that of the chancel in the (a) Degge, pt. i. c. 12; Gibs. (6) 3 Inst. p. 201. p. 188. 1384 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. But incum- bent has not all the lia- bilities of an owner. Churches are not rateable. 3 & 4 Will. 4, c. 30. 38 & 39 Vict, c. 55. Exemption of incumbent as owner of church from new street expenses. 55 & 56 Vict, c. 57. Exemption from expenses of private street works. Power of incumbent. rector. In the case of perpetual curates it is questionable whether the freehold be not in the lay impropriator (b) . But the incumbent of a church, though he have the freehold, is not such an " owner " of the church as to be liable under the Metropolitan Building Act, 1855 (18 & 19 Yict. c. 122), ss. 72, 73, for the expenses incurred by a public body in removing a part of the church which was a dangerous structure within the meaning of that act (c) . Nor is a church rateable, nor is the incumbent liable as owner or occupier for rates upon it. By 3 & 4 Will. 4, c. 30, churches and chapels are exempted from the payment of poor rates. Nor is a church to be assessed either as land or building to contribute towards the making or paving of a street under the Metropolis Management Acts (d). By the Public Health Act, 1875 (38 & 39 Yict. c. 55), s. 151, " The incumbent or minister of any church, chapel, or place appropriated to public religious worship, which is now by law exempt from rates for the relief of the poor, shall not be liable to any expenses under the last preceding section (e) , as the owner or occupier of such church, chapel or place, or of any churchyard or burial-ground attached thereto, nor shall any such expenses be deemed to be a charge on such church, chapel, or other place, or on such churchyard or burial-ground, or to subject the same to distress, execution, or other legal process; and the urban authority may, if they think fit, undertake any works from the expenses of which any such incumbent or minister is hereby exempted." By the Private Street Works Act, 1892 (55 & 56 Yict. c. 57), s. 16, " The incumbent, or minister, or trustee of any church, chapel or place appropriated to public religious worship, which is for the time being by law exempt from rates for the relief of the poor, shall not be liable to any expenses of private street works as the owner of such church, chapel or place, or of any churchyard or burial-ground attached thereto, nor shall any such expenses be deemed to be a charge on such church, chapel or other place, or on such churchyard or burial-ground, or to subject the same to distress, execution or other legal process, but the proportion of expenses in respect of which an exemption is allowed under this section shall be borne and paid by the urban authority." It is partly a consequence of the church being the freehold of the incumbent, and partly of the law as to the use of all things connected with the church, such as the playing of the (&) Vide supra, pp. 237, 244. (c) Reg. v. Lee, 4 Q. B. D. p. 75. "Vide supra, pp. 477, 478. (d) A ngell v. Vestry of Paddington , L. E,., 3 Q-. B . p. 714. Under some earlier local acts churches had been holden rateable and the church- wardens liable to pay. Yide infra, Part VI., Chap. IV. (e) I.e., the expenses of paving new streets not repairable by the inhabitants at large. CHURCHES AND CHURCHYARDS. 1385 organ (/) during service and the like, being under the control of the incumbent, that the custody of the key of the church is in him, and that the ringing of bells on all occasions is subject to his As to bells, control, and the ringing contrary to his order becomes an eccle- siastical offence ; although, on the other hand, some authority in this matter is vested in the churchwardens. Thus, in Lee v. Matthews (g), Sir John Nicholl said, — As to key. "... the minister has, in the first instance, the right to the possession of the key, and the churchwardens have only the cus- tody of the church under him. If the minister refuses access to the church on fitting occasions, he will be set right on appli- cation and complaint to higher authorities." In Dewdmy v. Good and Ford (/?), the churchwarden was ordered to deliver up a duplicate key to the church which he had obtained. By Can. 88 of 1603, " The church- wardens or quest-men, Canons as to and their assistants, shall suffer no plays, feasts, banquets, bell-ringing, suppers, church-ales, temporal courts or leets, lay -juries, musters, Canon 88. or any other profane usage to be kept in the church, chapel or church-yard ; neither the bells to be rung superstitiously upon holy-days 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." Can. Ill provides that the churchwardens shall present all Canon ill. persons who, by untimely ringing of bells, do hinder the minister or preacher (i). By Can. 15, " . . . . upon Wednesdays and Fridays, weekly, Canon 15. though they be not holy-days, the minister, at the accustomed hours of service, shall resort to the church or chapel, and warn- ing being given to the people by tolling of a bell, shall say the litany " (J). Can. 67. "And when any is passing out of this life, a bell Canon 67. shall be tolled, and the minister shall 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 but one short peal, and one other before the burial, and one other after the burial" (k). " Although the churchwardens may concur in directing the Opinions as to ringing or tolling of the bells on certain public and private incumbent's occasions, the incumbent nevertheless has so far the control over £eus10 ° the bells of the church, that he may prevent the churchwardens from ringing or tolling them at undue hours and without just cause. Indeed, as the freehold of the church is vested in the incumbent, there is no doubt that he has a right to the custody of the keys of the church, subject to the granting admission to /) Tide supra, p. 765. & Eccl. p, 113. Vide supra, p. 237; g) 3Hagg.~Eccl. p. 173; Perry infra, p. 1421. v. Webb, Arches Court, March 18, (?) Vide supra, p. 738, for this 1876. canon in full. (h) 7 Jui-., N. S. 673. See Bitch- (j) Tide supra, p. 762. ings v. Cordingley, L. E., 3 Adm. (k) Vide supra, p. 648. 1386 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Decisions as to incum- bent's control of bells. Brawling. Ornaments. the churchwardens, for purposes connected with the due execu- tion of their office. Proceedings may be instituted in the Ecclesiastical Court against churchwardens who have violently and illegally persisted in ringing the bells without consent of the incumbent. The citation may be as follows : — ' For violently and outrageously breaking into the belfry of the parish church of , and without the leave and permission of the rector, and in defiance of his authority, several times ringing the bells in the said church"' (/). Lord Stowell gave the following opinion on this subject : — " Case. Churchwardens insist they have a right at all times to ring the bells at the church, to the great annoyance of the rector and family, whose house is close to the church. — Opinion : — I think that the bells cannot be rung without the consent of the rector; the 88th Canon is precise to this point, and is, I conceive, binding upon the churchwardens. I think that the churchwardens might be articled against for breach of the canon, and permitting or directing the bells to be rung without and against the consent of the rector at times not proper or stated for that purpose. If the bells are so constantly rung as really to be what they are described — a nuisance, the parties who are guilty of that nuisance might be punished at the common law, and the mere consent of the churchwardens would not be a sufficient defence to such a prosecution. I do not know that any injunction could be obtained pending such a suit, but a fresh citation might be taken out for each offence. " If the rector could induce them to come to some agreement as to the times of ringing, it would be the most desirable way upon the whole of settling this matter. " Wm. Scott. " Doctors' Commons, Jan. 29, 1793 " (m). Dr. Lushington ruled to the effect above stated in Bedhead v. Wait (h), and in Harrison v. Forbes and Sisson(o). In Daunt v. Crocker (p), a criminal suit promoted by the incumbent for ringing the church bells, it was holden by Sir Robert Phillimore, that it is not sufficient to allege that the ringing took place without the consent of the incumbent ; it must be alleged to have been against his express wish. The offence of creating a disturbance of divine service in church, or of brawling in the church or churchyard, has been dealt with in a former chapter (q) . The internal ornaments and decorations of churches have also been already treated of, as incidental to the performance of divine service (r). (I) The statement is taken from an opinion of Dr. Phillimore ; it was also contained in the last edition of Burn's Ecclesiastical Law, vol. i. p. 134 [ed. 1842]. (m) Toker MSS. p. 333. (??) 6 L. T. p. 580. (o) 6 Jur., N. S. p. 1353. [p) L. E., 2 A. &E. p. 41. (q) Vide supra, pp. 736 — 742. (r) Vide supra, pp. 721, 736. CHURCHES AND CHURCHYARDS. 1387 This chapter deals with the law relating to the several parts structure and of a church, its structure and architectural fittings. fittings. If a man do break and enter a church in the night of intent Robbing of to steal, this is burglary, for the church is the mansion house of churches. Almighty God («). And here is to be noted a diversity between a spiritual man when Eccl. of the church consecrated to the service of God, and goods Courts have dedicated to divine service, or merely ecclesiastical ; for laying junsdictl0n- of violent hands upon a person in holy orders the Ecclesiastical Court used to have conusance, but for the violent taking away or consuming of the ornaments of the church or goods dedicated to divine service, that court (Lord Coke says) has no conusance, for that it is not given to them; as for taking away of the Bible, the Book of Common Prayer, the chalice, and the like, or for the taking away of an image out of the church ; but remedy must be taken for these at the common law (t) . Nevertheless I am disposed to agree with Dr. Watson, who says, a libel (or articles) may be also in the spiritual court against the offender, pro salute animcB et reformat ione morion, although not to recover damages (u). Anciently, the church and churchyard was a sanctuary, and Sanctuary, the foundation of abjuration ; for whoever was not capable of this sanctuary, could not have the benefit of abjuration ; and therefore he that committed sacrilege, because he could not have the privilege of sanctuary, could not abjure. This abjuration was, when a person had committed felony, and for safeguard of his life had fled to the sanctuary of a church or churchyard, and there before the coroner of that place, within forty days, had confessed the felony, and took an oath for his perpetual banish- ment out of the realm into a foreign country, choosing rather to lose his country than his life ; but the foreign country into which he was to be exiled might not be amongst infidels (x) . And the law was so favourable for the preservation of sanctuary, that if the felon had been in prison for the felony, and before attainder or conviction had escaped and taken sanctuary in the church or churchyard, and the gaolers or others had pursued him, and brought him back again to prison, upon his arraignment he might have pleaded the same, and should have been restored again to the sanctuary (i/). But by 21 Jac. 1, c. 28, s. 7, it was enacted, that no sanctuary, 2Uac. l,c. 23. or privilege of sanctuary, shall be admitted or allowed in any case. By which act, such abjuration as was at the common law, founded upon the privilege of sanctuary, was wholly taken away. Under the Eiot (Damages) Act, 1886 (49 & 50 Yict. c. 38), 49 & 50 Vict, s. 7, " Where a church or chapel has been injured or destroyed, c- 38- or any property therein has been injured, stolen, or destroyed, ^^o^fg1011 destruction. (s) 3 Inst. p. 64.f (cc) 3 Inst. p. 115. It) 2 Inst. p. 492. (y) 3 Inst. p. 217. (u) Wats. c. 39, p. 399. P. VOL. II. 4 X 1388 FABEICS AND OFFICERS OF FABRICS OF THE CHURCH. the churchwardens or chapelwardens, if any, or, if there are none, the persons having the management of such church or chapel, or the persons in whom the legal estate in the same is vested ; . . . . shall be deemed to be the persons who have sus- tained loss from such injury, stealing, or destruction, and claims may be made by any one or more of such persons in relation both to the building, and to the property therein, and payment to any such claimant shall discharge the liability of the police authority to pay compensation, but shall be without prejudice to the right of any person to recover the compensation from such payee." ♦ Sect. 2. — Consecration of Churches (z). No church till The law (as was said before) takes no notice of churches or consecration. chape}s ^ they are consecrated by the bishop : but the canon law supposes, that, with consent of the bishop, divine service may be performed, and sacraments administered in churches and chapels not consecrated; inasmuch as it provides, that a church shall have the privilege of immunity, in which the divine mysteries are celebrated, although it be not yet consecrated : and there are many licences to that effect (granted on special occasions) in our ecclesiastical records (a) . This, however, is an exception to the general rule, " that a church is to be conse- crated as soon as may be." Another exception obtained in cases of extreme necessity ; for if the church was destroyed by fire, the service must be performed in chapels, tents, or in the open air, before the consecrated altar table (b). No consecra- And after a new church is erected, it may not be consecrated, endowment without a competent endowment. And this was made a law of the Church of England in the 16th Canon of the Council of London, " A church shall not be consecrated, until necessary provision be made for the priest." And the canon law goes further ; requiring the endowment, not only to be made before consecration, but even to be ascertained and exhibited before they begin to build. And the civil law is yet more strict ; enjoining that the endowment be actually made, before the building be begun (c). Which endowment was commonly made, by an allotment of manse and glebe by the lord of the manor, who thereby became patron of the church (d). Other persons, also, at the time of dedication, often contributed small portions of ground ; which (z) See 2 Ought, pp. 249 et seq. (b) Con. i. 30; Inst. Juris. Can. (a) Gibs. p. 190 ; Con. i. 12 ; ii. 18. X. iii. 49, 9. (c) Gibs. p. 189. (d) Vide supra, p. 1125. CHURCHES AND CHURCHYARDS. 1389 is the reason why in many parishes the glebe is not only distant from the manor, but lies in remote divided parcels (e). By a constitution of Otho, " The dedication of churches is Consecration known to have had its beginning under the Old Testament, and ^i^nstitu was observed by the holy fathers under the New Testament ; tions> under which it ought to be done with the greater care and dignity, because that under the Old Testament were only offered sacrifices of dead animals, but under the New Testament is offered for us upon the altar by the hands of the priest, the heavenly, living and true sacrifice, the only begotten Son of (rod. Wherefore the holy fathers provided, that so sublime an office should not be performed (unless in case of necessity) but in places dedicated. Now because we have seen and heard, that so wholesome a mystery is contemned, or at least neglected, by some ; having found many churches, and some of them cathedrals, which, although they have been built of old time, yet have not as yet been consecrated with the oil of sanctifica- tion : therefore, being desirous to remedy so dangerous a neglect, we do decree, that all cathedral, conventual, and parochial churches, which are now built and the walls thereof perfected, be consecrated by the diocesan bishops, or others authorized by them, within two years : and let it be so done within the like time, in all churches hereafter to be built. And to the end that so wholesome a mystery and ordinance may not pass into con- tempt ; if such places be not dedicated within two years from the time of the finishing thereof, they shall be interdicted from the solemnities of the mass, until they be consecrated, unless they be excused for some reasonable cause. Moreover, by the present ordinance, we do forbid the abbots and rectors of churches to pull down ancient consecrated churches, under pretence of building larger or more beautiful, without licence and consent of the diocesan : and the diocesan shall diligently consider, whether it be expedient to grant or to deny such licence ; and if he shall grant the same, let him take care that the work be finished as soon as may be " (/). Interdicted from the solemnities of the Mass.~\ — That is, from the solemn or high mass ; but not from the common celebration of mass, or other inferior offices (g). And by a constitution of Othobon : " The rector or vicar of an unconsecrated church shall apply to the bishop, (if it can conveniently be done,) otherwise to the archdeacon that he may apply to the bishop, within a year after the building of the church, for the consecration thereof : upon pain that such rector, vicar or archdeacon, making default, shall be suspended from their office till they comply : and the bishop shall exact nothing therefore, but the accustomed procuration " (h). The consecration of churches may be performed, indifferently, Time of con- secration. e) Ken.Paroch.Ant.pp.222,223. (g) Otho. Athon, p. 1. f) Otho. Athon, pp. 5—8. (h) Otho. Athon, p. 83. 4x2 1390 FABRICS AND OFFICEES OF FABRICS OF THE CHURCH. Form of con- secration. Authority for service. Special instances of forms of con- secration. on any day : so it was established by a decretal epistle of Pope Innocent II. (/). And according to the calculation of learned men, Constantine's famous dedication of the church at Jerusalem, in a full synod, was on a Saturday, and not on the Sunday (A*). And this consecration ought to be in the time of divine service. The gloss upon the canon law makes a doubt whether this is not of the substance of the consecration : but, be that as it will, it is certainly very decent (/). The Emperor Justinian, in his care of the church, has prescribed a form of consecration of churches (or rather of the ground upon which it is to be built) in this manner : his law is, " That none shall presume to erect a church, until the bishop of the diocese hath been first acquainted therewith, and shall come and lift up his hands to heaven, and consecrate the place to Grod by prayer, and erect the symbol of our salvation, the venerable and truly precious rood (m). The canon law also requires, that the bishop should mark out the consecrated ground, erect the cross, celebrate mass, &c. (n). In the Church of England, every bishop is left to his own discretion, as to the form of consecrating churches and chapels : only by the statute of the 21 Hen. 8, c. 13 (o), for limiting the number of chaplains, it was assigned as one reason why a bishop may retain six chaplains because he must occupy that number in the consecration of churches. Consecration services therefore rest, as originally all services rested, on the authority of the bishop. It is to be supposed (in the view of the editor) that either consecration services are outside the scope of the acts of uniformity, or that bishops (notwithstanding the decision in Read v. Bp. of Lincoln (p)) are, when officiating, outside its scope. Otherwise it would be difficult to find legal warrant either for these well established services or for those of dedicating sacred vessels, or bells, or lifeboats, or colours, or ships about to be launched. Laud, when Bishop of London, used (if the reports are accu- rate) a very detailed and ceremonious form when consecrating (q). The form prepared by Bishop Wren and used for him by Bishop Eield at the consecration of the Church of Abbey Dore in a.d. 163-1 (r) is full of interest. In 1661 a form of consecra- tion was drawn up by convocation, but was not authorized or published (*). Forms of consecration, " Office of Restauration," and " Expiation and Illustration of a Church desecrated and prophaned " are appended to the Irish Prayer-book already mentioned as published by Grrierson, Dublin, 1723 (t). («') X. iiL 40, 2. (k) Gibs. p. 189. (0 Ibid. [m) God. p. 47 ; Nov. v. c. 1 ; Nov. cxxxi. c. 10. (n) Con. i. (o) Now repealed ; but in full force till 57 Geo. 3, c. 99. (p) 14 P. D. p. 148. Tide supra, p. 754. (q) 2 Rushw. pp. 76, 77. (r) Edited and published by the late Eev. J. Fuller Eussell. (s) Gibs. p. 189 ; Johns, p. 28. (t) Vide supra, p. 407. CHURCHES AND CHURCHYARDS. 1391 In the year 1712, a form of consecrating churches and chapels Form of AD- and churchyards or places of burial was sent down from the 1712' bishops to the lower house of convocation, on the 2nd day of April, and was altered by the committee of the whole house, and reported to the house on the 9th day of the same month, which was agreed to, with some alterations : which form, as it did not receive the royal assent, was not enjoined to be observed ; but has been since with some few variations, generally, though not necessarily, used, and is as follows : — Preparations in order to the Consecrating of a Church. The church is to be paced (u), and furnished icith a reading desk, Preparations Common Prayer, and great Bible, and one or more surplices, as in order to also with a pulpit and cushion, a font, and a communion table, and ^o^oi^™" with linen and vessels for the same. church. The endowment^ and the evidences thereof, are to be laid before the bishop, or his chancellor, some time before the day appointed, in order to the preparing of the act or sentence of consecration against that day. An intimation of the bishop's intention to consecrate the church, with the day and hour appointed for it, is to be fixed on the church door at least three days before. A chair is to be set for the bishop on the north side of the com- munion table, within the rails; and another for his chancellor without the rails, on the same side. All things are to be prepared for a communion. The church is to be kept shut, and empty, till the bishop comes, and till it be opened for his going in. The Form of Consecrating a Church. The bishoj) is to be received at the west door, or at some other Form of part of the church or churchyard, which is most convenient for his consecrating entrance, by some of the principal inhabitants (v). a churcn- At the place where the bishop is received, a petition is to be delivered to him by some one of the persons who receive him, praying that he will consecrate the church. The petition is to be read by the register. The bishop, his chaplains, the preacher, and the minister who is to read divine service, together with the rest of the clergy, if any other be present, enter the church, and repair to the vestry, or (if (u) This is the old fashion ; but old parish ; then to be met by the now chairs or moveable seats may minister of the place, the church- be used. wardens, and some of the principal (v) If the church to be conse- inhabitants, crated be a new church, built in an 1392 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. there be no vestry) to some convenient part of the church, where, as many m are to officiate, put on their several habits ; during which time the parishioners are to repair to their seats, and the middle aisle is to be kept clear. As soon as the church is quiet, the bishop and his chaplains, with the preacher, and the minister who is to officiate, and the rest of the clergy, if any other be present, return to the west door, and go up the middle aisle to the communion table, repeating the 24tth psalm alternately, as they go up, the bishop one verse, and they another. Psalm xxiv. The bishop and the chaplains go within the rails ; the bishop to the north side of the communion table, and the chaplains to the south side: the minister officiating goes to the reading desk, and the preacher to some convenient scat near the pulpit. The bishop, sitting in the chair, is to have the instrument or instruments of donation and endowment presented to him by the founder, or some propter substitute (a?) : which he lays upon the communion table, and then standing up, and turning to the congre- gation, says — " Dearly beloved in the Lord ; forasmuch as devout and holy men, as well under the law as under the gospel, moved either by the secret inspiration of the Blessed Spirit, or by the express command of (rod, or by their own reason and sense of the natural decency of things, have erected houses for the public worship of God, and separated them from all profane and com- mon uses, in order to fill men's minds with greater reverence for his glorious majesty, and affect their hearts with more devotion and humility in his service ; which pious works have been approved and graciously accepted by our heavenly Father : Let us not doubt but he will also favourably approve our godly pur- pose, of setting apart this place in solemn manner, to the per- formance of the several offices of religious worship, and let us faithfully and devoutly beg his blessing on this our under- taking." Then the bishop kneeling, says the following prayer : — " 0 Eternal Grod, mighty in power, and of majesty incompre- hensible, whom the heaven of heavens cannot contain, much less the walls of temples made with hands, and who yet hast been graciously pleased to promise thy especial presence in whatever place even two or three of thy faithful servants shall assemble in thy name to offer up their praises and supplications unto thee ; vouchsafe, 0 Lord, to be present with us, who are here gathered together, with all humility and readiness of heart, to consecrate this place to the honour of thy great name ; separating it from (x) This is not needful, if it be a new church built in an old parish. CHURCHES AND CHURCHYARDS. 1393 henceforth from all unhallowed, ordinary, and common uses, and dedicating it to thy service, for reading thy holy word, for celebrating thy holy sacraments, for offering to thy glorious Majesty the sacrifices of prayer and thanksgiving, for blessing thy people in thy Name, and for the performance of all other holy ordinances : Accept, 0 Lord, this service at our hands, and bless it with such success, as may tend most to thy glory, and the furtherance of our happiness both temporal and spiritual, through Jesus Christ our blessed Lord and Saviour." Amen. After this, let the bishop stand up, and turning his face toward the congregation, sag : — " Eegard, 0 Lord, the supplications of thy servants : and grant, that whosoever shall be dedicated to thee in this house by baptism, may be sanctified with the Holy Ghost, delivered from thy wrath and eternal death, and received as a living member of Christ's Church, and may ever remain in the number of thy faithful and elect children. Amen. " Grant, 0 Lord, that they who at this place shall in their own persons renew the promises and vows made by their sureties for them at their baptism, and thereupon shall be confirmed by the bishop, may receive such a measure of the Holy Spirit, that they may be enabled faithfully to fulfil the same, and grow in grace unto their lives end. Amen. " Grant, 0 Lord, that whosoever shall receive in this place the blessed sacrament of the body and blood of Christ, may come to that holy ordinance with faith, charity and true repen- tance ; and, being filled with thy grace and heavenly benediction, may to their great and endless comfort, obtain remission t)f their sins, and all other benefits of his passion. Amen. " Grant, 0 Lord, that by thy holy word which shall Jbe read and preached in this place, and by thy Holy Spirit grafting it inwardly in the heart, the hearers thereof may both perceive and know what things they ought to do, and may have power and strength to fulfil the same. Amen. " Grant, 0 Lord, that whosoever shall be joined together in this place in the holy estate of matrimony, may faithfully per- form and keep the vow and covenant betwixt them made, and may remain in perfect love together unto their lives end. Amen. " Grant, we beseech thee, blessed Lord, that whosoever shall draw near unto thee in this place, to give thee thanks for the benefits which they have received at thy hands, to set forth thy most worthy praise, to confess their sins unto thee, and to ask such things as are requisite and necessary, as well for the body as the soul, — may do it with such stedfastness of faith, and with such seriousness, affection, and devotion of mind, that thou mayest accept their bounden duty and service, and vouchsafe to give whatever in thy infinite wisdom thou shalt see to be most 1394 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. expedient for them : All which, we beg for Jesus Christ his sake, our blessed Lord and Saviour." Amen. The bishop sitting in his chair. Then the sentence of consecration is to be read by the chancellor, and signed by the bishop , and by him ordered to be registered, and then laid upon the communion table. After this, the person appointed is to read the service for the day, except where it is otherwise directed. Proper psalms, lxxxiv., cxxii., cxxxii. First lesson, 1 Kings, viii. from verse 22 to verse 62, inclusive. Second lesson, Heb. x. from verse 19 to verse 26 inclusive. After the collect for the day, the minister who reads the service stops till the bishop hath said the following prayer : — " 0 most blessed Saviour, who by thy gracious presence at the feast of dedication didst approve and honour such religious services, as this which we are now performing unto thee, be present at this time with us also by thy Holy Spirit; and, because holiness becometh thine house for ever, sanctify us we pray thee, that we may be living temples, holy and acceptable unto thee ; and so dwell in our hearts by faith, and possess our souls by thy grace, that nothing which defileth may enter into us ; but that, being cleansed from all carnal and corrupt affec- tions, we may ever be devoutly given to serve thee in all good works, who art our Saviour, Lord, and God, blessed for ever- more." Amen. Then the minister proceeds in the service of the day, to the end of the general thanksgiving. After which the bishop says the following prayer [if it be not one of the fifty new churches'] : — " Blessed be thy name, 0 Lord, that it hath pleased thee to put it into the heart of thy (y) servant N. to erect this house to thy honour and worship. Bless, 0 Lord (z) him, his family, and substance, and accept the work of his hands ; remember him concerning this ; wipe not out this kindness that he hath shewed for the house of his Grod and the offices thereof ; and grant that all who shall enjoy the benefit of this pious work may shew forth their thankfulness by making a right use of it, to the glory of thy blessed name, through Jesus Christ our Lord." Amen. If the church that is to be consecrated be one of the fifty new churches wh ich are ordered to be built by the late acts of parlia- ment (a), the bishop says : — " Blessed be thy name, 0 Lord Grod, that it hath pleased thee by thy good Spirit to dispose our gracious sovereign and the estates of this realm, to supply the spiritual wants of thy people, by appointing this and many other churches to be erected and (y) Or servants. shall require. (z) Throughout this prayer, for (a) 9 Anne, c. 17; 10 Anne, c. 20; him, his, he, hath; say them, they, 1 Geo. 1, st. 2, c. 23. their, she, her, have, as the occasion CHURCHES AND CHURCHYARDS. 1395 endowed for thy worship and service ; multiply thy blessings upon them, for their pious regard to thy honour, and to the good of souls ; remember them concerning this, and wipe not out the kindness they have shewed to thy church, and to the offices thereof ; and grant that our gracious king may see and long enjoy the fruits of his godly zeal, in the edification of the members of our church, and in the reduction of those, in the spirit of meekness, who dissent from it ; that we may all live together in the unity of the Spirit, and in the bond of peace, through Jesus Christ our Lord." Amen. Then the minister who officiates is to go on with the prayer of St. Chrysostom, and the Grrace of our Lord Jesus Christ. Then a psalm is to be sung, viz., xxvi. 6, 7, 8, with Grloria Patri. Communion Service. The bishop standing on the north side of the communion table, as before, reads the communion service. After the collect for the king, lie says the following prayer : — " 0 most glorious Lord Grod, we acknowledge that we are not worthy to offer unto thee any thing belonging to us ; yet we beseech thee, in thy great goodness graciously to accept the dedication of this place to thy service, and to prosper this our undertaking : receive the prayers and intercessions of us, and all others thy servants, who either now or hereafter entering into this house shall call upon thee ; and give both them and us grace to prepare our hearts to serve thee with reverence and godly fear : Affect us with an awful apprehension of thy Divine Majesty, and a deep sense of our own un worthiness ; that so, approaching thy sanctuary with lowliness and devotion, and coming before thee with clean thoughts and pure hearts, with bodies undefiled, and minds sanctified, we may always perform a service acceptable to thee, through Jesus Christ our Lord." Amen. The two chaplains are to read, one the epistle, and the other the gospel. The Epistle, 2 Cor. vi. 14 to 17 inclusive. The Grospel, John ii. 13 to 18 inclusive. Then the bishop reads the Nicene Creed. After which, a psalm is sung, viz. Psalm c. The Sermon. The sermon being ended, and all who do not receive the holy communion returned, and the doors shut, the bishop proceeds in the communion service ; and he and the clergy having made their obla- tions, the churchwardens collect the offerings of the rest of the con- gregation. 1396 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. After the communion, and immediately before the final blessing, the bishop says the following prayer : — " Blessed be thy name, 0 Lord God, for that it pleaseth thee to have thy habitation among the sons of men, and to dwell in the midst of the assembly of the saints, upon earth ; bless, we beseech thee, the religious performance of this day : and grant that in this place, now set apart to thy service, thy holy name may be worshipped in truth and purity to all generations, through Jesus Christ our Lord." Amen. " The peace of God, which passeth all understanding, keep your hearts and minds in the knowledge and love of God, and of his Son Jesus Christ our Lord : and the blessing of God Almighty, the Father, the Son, and the Holy Ghost, be amongst you, and remain with you always." Amen. Consecration of a Churchyard together with the Church. Form of con- When the service in the church is finished, the bishop, clergy and secration of a people proceed to the churchyard. And the bishop, standing in the tofetherwith. P^ace prepared for the performance of the office there, the act or a church. sentence of consecration is read by the chancellor, and signed by the bishop, and ordered to be registered. After which the bishop says the following prayer : — "0 God, who has taught us in thy holy word, that there is a difference between the spirit of a beast that goeth downwards to the earth, and the spirit of a man which ascendeth up to God who gave it ; and likewise by the example of thy holy servants, # in all ages, has taught us to assign peculiar places, where the bodies of thy saints may rest in peace, and be preserved from all indignities, whilst their souls are safely kept in the hands of their faithful Eedeemer : Accept, we beseech thee, this charitable work of ours, in separating this portion of ground to that good purpose ; and give us grace, that by the frequent instances of mortality which we behold, we may learn and seriously consider, how frail and uncertain our condition here on earth is, and so number our days, as to apply our hearts unto wisdom. That in the midst of life thinking upon death, and daily preparing our- selves for the judgment that is to follow, we may have our part in the resurrection to eternal life, with Him who died for our sins, and rose again for our justification, and now liveth and reigneth with Thee and the Holy Ghost, one God world without end. Amen (b). " The grace of our Lord Jesus Christ, and the love of God, and the fellowship of the Holy Ghost, be with us all evermore." Amen. (b) This prayer is referred to by 2 A dm. & Eccl. p. 30 ; vide infra, Sir Robert Phillimore in his jndg- p. 1409. ment in Adlam v. Colthurst, L. E., CHURCHES AND CHURCHYARDS. 1397 Consecration of a Churchyard singly. The ordinary service for the day is to be read at the church, Form of con except where it is otherwise ordered. secrahon of _4 . . chur.hyard Psalms XXXIX. XC. simply. First lesson, Gren. xxiii. Second lesson, John v. verse 21 to verse 30 inclusive, or 1 Thess. iv. 13, to the end. When the service at the church is over, the bishop, clergy and parishioners repair to the ground which is to be consecrated : and the bishop, sta ruling in the place prepared for the performance of the office, says : — " The glorious majesty of the Lord our Grod be upon us ; prosper thou the work of our hands upon us, 0 prosper thou our handywork." Then the instrument of donation is presented to the bishop. Next, the act or sentence of consecration is read by the chancellor, and signed by the bishop, and ordered to be registered. This done, the bishop reads the prayer that is before directed to be used in a churchyard which is consecrated together with the church. Then are sung two staves of the 39th psalm, viz. v. 5, 6, 7, 8. After which the bishop lets them depart with the blessing. " The peace of Grod which passeth all understanding, keep your hearts and minds in the knowledge and love of Grod, and of his Son Jesus Christ our Lord ; and the blessing of Grod Almighty, the Father, the Son, and the Holy Grhost, be amongst you, and remain with you always." Amen (c). The Editor has compared the forms of consecration Service nOW Forms in in use in the dioceses of London and Lincoln, and finds very few present use. alterations from the above forms. The same prayers come in the same order. In the intercessory prayer relating to the several offices of the church, there are a few alterations, though such alterations are almost entirely verbal. Alternative lessons, epistle and gospel are given. Different psalms are used, and no lessons are read in the diocese of Lincoln at the consecra- tion of a churchyard. The rubrical directions at the beginning of the service are rather different. In the form in use in the diocese of Lincoln the direction as to pews is omitted, and a more elaborate procession is provided for. By 30 & 31 Vict, c. 133, s. 1, "Where any ground adjoining 30 & 31 vict. to an existing churchyard has been or is added thereto, the 0. 133. bishop of the diocese may if he thinks fit, at the churchyard or Power for in the church to which it belongs, by his own hand, or by the ^fiXlenfof1 hand of any bishop of the United Church of England and consecration Ireland lawfully appointed as his commissary, sign an instru- at churchyard ment declaring or recording the consecration of such ground, JjJJj^f ciTn- without the presence of the chancellor or registrar of the diocese cellor, &o. (c) Vide 2 Oughton, pp. 269 et seq., as to the consecration of churchyards. 1398 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Form of instrument of consecration under above act. being necessary ; and the signature of the bishop to such in- strument shall be attested by the chancellor or by a surrogate or by any two clergymen of the diocese and shall be in the following form, endorsed on a plan of the ground so added : — I., A. B., bishop , do hereby declare and record the ground added to the churchyard of , as on the written plan, to be consecrated ground and part of the said churchyard ; and such instrument, so signed and attested, on being deposited in the registry of the diocese, shall have the same effect as a sentence of consecration " (d). Other churches not to be pre- judiced thereby. Procuration. 30 & 31 Vict, c. 135. Table of fees on con- secration. According to the general law, in the consecration of a new church, provision is to be made, that no damage accrue, in point of rights or revenues, to any other church (e). It used to be the practice for a reasonable procuration to be given to every bishop who consecrates a church, by the person or persons praying such consecration ; not for the consecration, but for the necessary refreshment of the bishop and his servants. For whereas ordinations, institutions, and other acts of the like nature, are performed by the bishop within his own walls ; this draws him sometimes to a great distance from his palace, where proper accommodations cannot be procured : and therefore, as in his visitations, so also in his consecration of churches, the law provided a reasonable procuration (/) . Bishops now do not take procuration, but it had long been the practice to pay fees to their officers for their work in connection with the legal and other formalities. These are now regulated hy the table of fees fixed according to 30 & 31 Yict. c. 135 (g), and published in the London Gazette of March 19, 1869, as follows : — Vicar General, Chancellor, Archdeacon or Official. Registrar or other officer by usage per- forming the duty. Secretary of Archbishop or Bishop. Apparitor. £ 5. d. £ s. d. £ 5. d. £ s. d. 1. Consecration of a Chnrch and Burial Ground . . . 3 3 0 7 7 0 1 1 0 1 1 0 2. Consecration of a Ceme- tery or Burial Ground 2 2 0 6 6 0 1 1 0 1 1 0 " 1 and 2. The chancellor's fee includes the approval of plans, the perusal of the petition and other papers, the settling the (d) Vide supra, p. 664; infra, (/) Gibs. p. 190. See Ken. p. 1399. Paroch. Ant. p. 515. (e) Gibs. p. 189. (g) Vide supra, p. 107. CHURCHES AND CHURCHYARDS. 1399 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 regis- tering the deeds and the act in the register book of the diocese. The secretary's fee includes the inspection of plans and corre- spondence 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" (h). By the common law " a consecrated church cannot ever be Legal effect used as a habitation for man It cannot be let at a rent" (?'). °/ consecra- " By the consecration of a church the status of the building and tl0n* of the soil is altered. The building is, by the ecclesiastical law, separated for ever from the common uses of mankind. It is dedicated thenceforth to sacred uses, and the law precludes it from beirjg ever capable of use for ordinary secular purposes" (k). A church once consecrated, may not be consecrated again. Reconcilia- To which general rule of the canon law, one exception was, tl0n- unless they be polluted by the shedding of blood ; and in that case, the canon supposes a re-consecration ; though the common method in England was, a reconciliation only, as appears by many instances in our ecclesiastical records (/). But in point of ruins or decay, the only exception to the general rule, laid down in the canon, is, unless they be burnt (that is, says the gloss, for the greater part thereof, and not otherwise). And a decretal epistle of Innocent III., where the roof was consumed, is, that since the walls were entire, and the communion table not hurt, neither the one nor the other ought to be re-consecrated. Thus, a chapel in the suburbs of Hereford, which belonged to the priory of St. J ohn of Jerusalem, had been from the time of the dissolution of monasteries applied to secular uses and profaned, by making the same a stall for cattle, and a place for laying up their hay and other provender ; yet because the walls and roof were never demolished, a reconciliation was judged sufficient. In like manner, when another chapel had been long disused, and was repaired, and made fit for divine service, the tenor of the reconciliation was, "the same chapel from all canonical impedi- ment, and from every profanation (if any there were) contracted and incurred, as much as in us lieth, and so far as lawfully we may, by the authority aforesaid we do exempt, relax and re- concile the same" (m). (h) By 30 & 31 Viet. c. 133, (X.iii.40,4.) See Lincoln Cathedral 88. 2, 3, where additional land to a Statutes, Novum Registrum, p. 71 ; churchyard is to be consecrated Irish Prayer Book, supra, pp. 407, only, no fees are to be paid except 1390 ; Gibs, p. 135, note (o). In os. to the registrar. St. Paul's Cathedral, there was a (i) Per Lord Esher, M. E., in reconciliation service after a suicide, Wright v. Ingle, 16 Q. B. D. at on October 13th, 1890. Vide The pp. 391, 392. Reconciliation Sentence and Service (k) Per Lord Bowen, L. J., ibid. in St. Paul's Cathedral, Tristram, p. 399. p. 164. (I) This reconciliation was also (to) Gibs. p. 189. allowed by the Decretal of Gregory. 1400 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Re -consecra- tion. Parker v. Leach. 30 & 31 Vict, c. 133. Where com- munion table has been moved, or walls of church have beeD partly demolished, marriages, &c. to be valid, although the church be not re-consecrated or reconciled. But on the contrary, when the church of Southmalling had not- only been polluted in manner as aforesaid, but was also new-built, and then used for divine offices without new consecra- tion, Archbishop Abbot interdicted the minister, churchwardens, and parishioners, from the entrance of the church, until the said church and churchyard thereof should be again consecrated (n). When a churchyard has been enlarged, there is a new con- secration of the additional part (o) . It was decided by Dr. Robertson, Chancellor of Rochester, that an ecclesiastical court could not entertain a suit as to the allotment of seats in a place for divine worship, unless such place be a legally consecrated building ; and that where the altar of a consecrated church had been removed, a re-consecration was necessary to found the jurisdiction of the ecclesiastical court (7;). But in Parker v. Leach where a parishioner instituted a suit in the chancery court of York against the incumbent, for perturba- tion of a pew holden as appurtenant to the manor-house, and occupied by him therewith for nearly forty years, and the in- cumbent admitted the destruction of the pew by his orders and direction, but pleaded to the jurisdiction of the court, on the ground that the church was not in law a church, never having been re-consecrated since its general repair in 1825, the judicial committee of the Privy Council decided that, it appearing from the evidence, that the church had been repaired and rebuilt under a faculty, upon its old foundation, the tower and eastern wall and windows never having been removed, and some of the offices of the church having been performed during the repairs, it had never ceased to be a parish church, so as to require re-consecration, but remained subject to the authority of the diocesan ; and that the judgment of the court below overruling the protest to the jurisdiction was right (q). After this decision, the statute 30 & 31 Yict. c. 133 (r), was passed, which enacted as follows : — Sect. 12. " Whereas doubts are entertained whether in cases where a church or chapel has been rebuilt, repaired or enlarged, and the external walls have been partly destroyed, or the position of the communion table altered, a re-consecration of such church or chapel be not necessary in order to the due and valid administration of divine offices there : be it declared and enacted, that all marriages, rites and ceremonies heretofore or hereafter celebrated or performed in a consecrated church or chapel which may have been rebuilt, repaired, or enlarged prior to such celebration or performance, and wherein such marriages, rites, and ceremonies might have been legally solemnized or performed previously to such rebuilding, repair, or enlargement, shall be valid and effectual for all purposes, notwithstanding (n) Gibs. p. 190. ParisJiioners of Eanwell, 1 N. C (0) Ibid. p. 368. (p) Battiscombe v. Eve, 9 Jur., (q) L. R., 1 P. C. p. 312. N. S. p. 210 (1862). See Turner y. (r) Vide supra, p. 664. CHURCHES AND CHURCHYARDS. 1401 that upon such repair or enlargement the external walls of such church or chapel may not have remained entire, or the position of the communion table may have been altered : and notwith- standing that since the rebuilding, repair, or enlargement no re-consecration of such church or chapel may have taken place." In Clayton v. Dean (s) , a faculty was granted for removing a Removal of consecrated chapel to another site ; but the learned judge who chapel, granted the faculty observed, that it was possible that different legal considerations might apply to the case of a parish church. By 59 Geo. 3, c. 134, one of the Church Building Acts, 59 Geo. 3, sect. 40, a general provision was made for the pulling down c- 134- of old parish churches and rebuilding them on new sites, as follows : — " When any parish shall be desirous of extending and increas- Power to pull ing the accommodation in the parish church, and it shall be down °* re- found necessary or expedient to that end to take down the exist- Xu-ch. ing church, and to rebuild the same on the same site, or on a more convenient site, it shall and may be lawful for the churchwardens of any such parish, with the consent of the vestry, or persons possessing the powers of vestry, and with the consent also of the ordinary, patron, incumbent and lay impro- priator, if any such there be, to take down such existing church, and to rebuild the same upon the same or upon a new site." By 8 & 9 Yict. c. 70, s. 1, " where a new church has been 8 & 9 Vict, already built, or shall hereafter be built in any parish " . . . . c. 70. the ecclesiastical commissioners may, with the consent of bishop, Power to sub- patron, and incumbent, substitute the new church for the old s*ltute^ew r -ijii-i • • • i • i- i • church m one, and the bishop may issue a commission to investigate claims place of old to pews, " and the old or existing church, if such bishop shall church, think fit, may thereupon be wholly or partly pulled down under a faculty." The whole matter will be found treated of more at length in the Chapter on the Building of Churches (f). In a form of consecrating churches, which we meet with in a Dedication of canon of the synod holden at Celchyth under Wulfred, Arch- church to bishop of Canterbury, in the year 816, it is ordained, that when samt" a church is built, it shall be consecrated by the proper diocesan, who shall take care that the saint, to whom it is dedicated, be pictured on the wall, or on a tablet, or on the altar. And Sir William Dugdale had an old transcript of a decree made by Robert cle Winchelsea, Archbishop of Canterbury, and confirmed by Walter Reynolds, his immediate successor, whereby the parishioners through that whole province were commanded to provide, that the image of that saint to whose memory the church was dedicated, should be carefully preserved in the chancel of every parish church. (s) 7 N. C. p. 46. (t) Yide infra, Part IX., Chap. V., and sect. 7 of this Chapter. 1402 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Sect. 3. — Chancel. Origin of Chancel, cancellus, seems properly to be so called a cancellis, name. from the lattice- work partition betwixt the quire and the body of the church, so framed as to separate the one from the other, but not to intercept the sight. Rubric. ruDric before the Order for Morning and Evening Prayer in the Prayer Book it is ordained, that the chancels shall remain as they have done in times past. That is to say, distinguished from the body of the church in manner aforesaid ; against which distinction Bucer (at the time of the Reformation) inveighed vehemently, as tending only to magnify the priesthood ; but though the king and parliament yielded so far, as to allow the daily service to be read in the body of the church, if the ordinary thought fit ; yet they would not suffer the chancel itself to be taken away or altered (u) . Chancel Where the proper consents have been obtained, no doubt screens and seems to exist at the present time as to the legality of erecting chancel gates. chancel screens without gates, whether in a new or old church, but notwithstanding this rubric and the construction put upon it, Dr. Lushington, in Beal v. Liddett (a?), expressed his disapproval of chancel gates, though he refused to order their removal : and in Re St. Augustine's, Haggerston, Dr. Tristram stated that it had been thenceforth the practice in the Consistory of London to decline to issue faculties for chancel gates, or for screens with gates (?/). In Bradford v. Fry(z), Lord Penzance, on appeal from the Consistory of Rochester, confirmed the decision of that court, removing chancel gates put up without a faculty. And in The Rector of St. Andrew, Romford v. All Persons, etc. (a), the Chan- cellor of the diocese of St. Albans, considering himself bound by this decision, refused to issue a faculty for such gates. On the other hand, in Re St. Agnes (b), the Chancellor of Liverpool authorized them, as protecting the chancel and its ornaments : and in Re St. James, Norland (c), Re Church of St. John, Isle of Dogs(d), and The Vicar and Churchwardens of St. Peter's, Eaton Square v. Parishioners (e), Dr. Tristram allowed them on the same grounds, notwithstanding the previous prac- tice of the diocese. In The Vicar of St. John, Timberhitt v. Parishioners (f), the Chancellor of the diocese of Norwich did the same. The editor has allowed them in the diocese of Lincoln. Other names The chancel was originally known by a variety of names, one for chancel. 0f the most common being fir^a, or tribunal ; and this word had (w) Gibs. p. 199. (d) Tristram, p. 67. ) Moore, Special Report, at (e) P. 1894, p. 350, where also a 77. faculty was granted for the erection (y) 4 P. D. p. 111. of a screen with gates separating (z) Ibid. p. 93. a side chapel from the body of the (a) P. 1894, p. 220. church. \b) 11 P. D. p. 1. (/) P. 1895, p. 71. (c) P. 1894, p. 256. CHURCHES AND CHURCHYARDS. 1403 also various significations, denoting sometimes the ambo or reading-desk, sometimes the altar, sometimes the seats or thrones of the bishops and presbyters, sometimes the whole space where these thrones and the altars stood. The name of " sanctuary " was also applied to this part of the church ; and it would seem in some of the canons to have borne the name of " chorus," whence is derived our English " quire " or " choir." The highest part of the chancel had the various names of " apsis" " exedra" " conchula bematis" all words that signify any arched or spherical building (e) . It was h olden by the Exchequer Chamber, affirming the judg- Right of vicar ment of the Court of Queen's Bench, that though the freehold ln chancel, of a parish church may be in a lay rector, the right of the possession of the church is in the minister and churchwardens ; and therefore a lay rector cannot maintain trespass against the vicar of the parish for breaking open a door leading from the churchyard into the chancel (/). The ornaments and furniture of chancels have been dealt with Ornaments of in the chapter on " Liturgy and Eitual" (g). chancel. Seats in the chancel are treated of in sect. 7 of this chapter. Seats in. ♦ Sect. 4. — Aisle. The word "aisle" is said to proceed from the French word Derivation of aile (ala), a wing; for that the Norman churches were built in the word, the form of a cross, with a nave and two wings. An aisle in a church which has time out of mind belonged to Aisle a private a particular house, and been maintained and repaired by the property, owner of that house, is part of his frank tenement ; and the ordinary cannot dispose of it, or intermeddle in it. And the reason is, because the law in that case presumes that the aisle was erected by his ancestors, or those whose estate he has, and is thereupon particularly appropriated to their house. But otherwise it is, if he has only used to sit and bury in the aisle, and not repaired it ; for the constant sitting and burying, without reparation, does not gain any peculiar property therein ; but the aisle being repaired at the common charge of the parish, the common right of the ordinary takes place, and he may, from time to time, appoint whom he pleases to sit there (h). And in the case of Corven v. Pym, in 10 Jac. 1, it was re- Corven v. Tijm. (e) Cf. Bingham, Orig. Eccles. supra, pp. 217 — 238. bk. viii. ch. vi. s. 1, vol. 2, p. 429. (#) Vide supra, pp. 721 — 736. (/) Griffin v. Dighton, 5 B. & S. (h) Gibs. p. 197 ; Lousleyv. Hay- p. 93 ; 33 L. J., Q. B. p. 181 ; vide ward, 1 Y. & J. p. 583. P. VOL. II. 4 Y FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. solved, that albeit the freehold of the church be in the parson, yet if a lord of the manor, or any other, has a house within the town or parish, and he and all those whose estate he has in the mansion-house of the manor or other house, has had a seat in an aisle of the church for him and his family only, and have repaired it at its proper charges, it shall be intended, that some of his ancestors, or of the parties whose estate he has, did build and erect that aisle for him and his family only ; and therefore if the ordinary endeavour to remove him, or place any other there, he may have a prohibition (k) . And in Francis v. Ley, in 12 J ac. 1, in the Star Chamber, it was resolved by the court, that if an inhabitant and his ancestors only have used, time out of mind, to repair an aisle in a church, and to sit there with his or their family to hear divine service, and to bury there, this makes the aisle proper and peculiar to his house, and he cannot be displaced or interrupted by the parson, churchwarden, or ordinary himself : but the constant sitting and burying there, without using to repair it, does not gain any pecu- liar property or pre-eminence therein. And if the aisle has been used to be repaired at the charge of all the parish in common, the ordinary may then, from time to time, appoint whom he pleases to sit there, notwithstanding any usage to the con- trary (/). In Chapman v. Jones it was ruled as follows : — That the freehold of a side aisle or chapel or lesser chancel may be vested in a private person, though such chapel or chancel forms an integral portion of, and is under the same roof with, a parish church ; that the enjoyment of such a chapel or chancel, and the right to its exclusive use, is not necessarily annexed to a dwelling-house (m) ; and that immemorial repair of a chapel or lesser chancel which is part of a parish church, coupled with other acts of ownership, is evidence of a freehold of inheritance in it being vested in those who have executed the repairs and exercised the acts of ownership (n). In Churton v. Frewen, upon a bill filed to establish a right to a side aisle or lesser chancel as part of the parish church, against the lord of the manor, who claimed it as appendant to the manor or manor-house, it appearing that the chancel was an ancient chapel, coeval with the church, and that it was a private chapel erected by the lord of the manor : — It was holden, that imme- morial use and occupation, coupled with reparation, entitled the lord of the manor by prescription to the perpetual and exclusive use of the chancel; and that this right might exist, notwithstand- ing that the freehold might not be in the person prescribing, and (k) 3 Inst. p. 202. p. 105 ; Crook v. Samson, 2 Keb. {I) Cro. Jac. p. 366. Vide infra, p. 92 ; May v. Gilbert, 2 Bulst. pp. 1430, 1434. p. 150; Buxton v. Bateman, 1 Sid. (rn) Though the contrary seems p. 88. to have been laid down in some (n) L. E., 4 Ex. p. 273 (1869). old cases : Corven's Case, 12 Co. CHURCHES AND CHURCHYARDS. 1405 although the estate or house to which the chancel was appendant might not be situate in the parish (o) . And the reason of any person's property in an aisle, is from Reason of the the prescription to repair and use it alone ; because it is from law* thence presumed, that the aisle was erected by him whose estate he has, with the assent of the parson, patron, and ordinary, to the intent to have it only to himself ( . And therefore where any person has good title to such aisle, Remedies for if the ordinary places another person therein with the proprietor, °^er of the proprietor may have his action upon the case against the ordinary ; and if he be impleaded in the spiritual court for the same, a prohibition will lie ; or if any private person sits therein, or keeps out him that has the right, or buries his dead there without his consent, an action upon the case lies for the proprietor (q). The case of The Duke of Norfolk v. Arhuilinot (r) , in which Duke of the Duke successfully maintained his claim to the Fitzalan ^{^^ Chapel, a building structurally, though not ritually, in the position of a chancel to the parish church, does not supply an instance of a private aisle or side chancel, though the law as to such buildings was referred to in the course of the case. The Fitzalan Chapel was, in truth, the separate chapel of a college of priests, secularized in the time of Henry VIII., and granted by that king to the Earl of Arundel. Dunster, in Somersetshire, is a parallel case. Sect. 5. — Churchyard (s). It is clear that by the common law the rector has the freehold Rector's in the churchyard, qualified undoubtedly by the rights of the rights in parishioners, but he may bring an action for trespass if his right c urc yar be unjustly invaded (t). The Mortmain Act (15 Eic. 2, c. 5) was aimed at an invention 15 Ric. 2, c. 5. for defeating the law against mortmain, by which " some Mortmain, religious persons, parsons, vicars, and other spiritual persons, have entered in divers lands and tenements which be adjoining to their churches, and of the same, by sufferance and assent of the tenants, have made churchyards, and by bulls of the bishop of Eome have dedicated and hallowed the same, and in them do make continually parochial burying without licence of the King and of the chief lords." (o) L. R., 2 Ex. p. 634 (1866). (s) Vide supra, Part III., Chap. (p) Corven's Case, 12 Co. p. 105. X., Sects. 1, 2, 7. (q) Wats. c. 39, p. 388. (t) Walter v. Mountague, 1 Curt, (r) L. R., 4 C. P. p. 290 ; 5 C. P. p. 260. p. 390. 4y2 1406 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Churchyard fence. Generally re- pairable by parish. Custom for adjoining owners to re> pair. Canon 85. 13 Edw. 1, stat. 4. Suits to com- pel repair. Trees growing in church- yard. By a constitution of Archbishop Winchelsea, the parishioners shall repair the fence of the churchyard at their own charge (u). And Lord Coke says, that the parishioners ought to repair the inclosure of the churchyard, because the bodies of the more common sort are buried there, and for the preservation of the burials of those that were or should have been, while they lived, the temple of the Holy Grhost (x) . And if the churchyard be not decently inclosed, the church, which is (rod's house, cannot decently be kept, and therefore this the parishioners ought to do, by custom known and approved ; and the conusance thereof belongs to the ecclesiastical court (y) . But nevertheless, if the owners of lands adjoining to the churchyard, have used time out of mind to repair so much of the fence thereof, as adjoins to their ground; such custom is a good custom ; and the churchwardens have an action against them at the common law for the same (z). By Can. 85 of 1603, " . . . . The church-wardens or quest- men shall take care, and provide that the churches shall be well and sufficiently repaired The like care they shall take that the churchyards be well and sufficiently 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 (a) . . . ." By the statute of Circurmpecte agatis, 13 Edw. 1, st. 4, " Also if prelates do punish for leaving the church-yard unclosed," . . . . " the spiritual judge shall have power to take knowledge, notwithstanding the king's prohibition" (b). Nevertheless, if the churchwardens sue a person in the Court Christian, supposing by their libel, that he and all they whose estate he has in certain land next adjoining to the churchyard, have used time out of mind to repair all the fences of the churchyard which are next adjoining to the said land, a prohibition will lie ; for this ought to be tried at the common law, inasmuch as this is to charge a temporal inheritance (c). A constitution of Stratford says : " Seeing it is prohibited by the law both ecclesiastical and secular, for laymen to have power to dispose of things ecclesiastical ; in order therefore that the scandal of such usurpation may be utterly abolished, whereby certain parishioners of the parishes within our province, not knowing the limits of their own power, or rather not regarding the same, have cut down, or rooted up the trees, or mowed the grass growing in the churchyards of the churches or chapels of our said province, against the will of the rectors or vicars of such (w) Lind. p. 253. {x) 2 Inst. p. 489. (y) ibid. (2) 2 Eoll. Abr. 287 ; Gibs. p. 194. (a) Tide supra, p. 722, for this canon in full. (b) Vide supra, pp. 832, 834. Prohibition, (c) 2 Eoll. Abr. Prohibition, p. 287 ; The King v. Reynell, 6 East, p. 315. CHURCHES AND CHURCHYARDS. 1407 churches or chapels, or others deputed by them for the custody or cure thereof, aud have sacrilegiously applied the same to their own use, or to the use of the churches, or of other persons, at their will and pleasure ; from whence peril of souls, contentions, and grievous scandals do arise betwixt the ministers of such churches and their parishioners : we do declare by the authority of the present council, that persons guilty of such contempt shall incur the sentence of the greater excommunication, until they shall make sufficient amends and satisfaction" (d). Against the will of the Rectors or Vicars.'] — This is, in churches Whether the where there is a rector only, or a vicar only. But if in the same *£ees be^». church there be both rector and vicar, it may be doubted (says 0° vicar?Ct°r Lindwood) to whether of them the trees or grass shall belong. But I suppose (says he) they shall belong to the rector ; unless in the endowment of the vicarage they shall be otherwise assigned (e) . In Bellamy's case, in 13 Jac. 1, this point, unto which of the two the trees do belong, was considered but not determined ; where the vicar sued the parson impropriate in the spiritual court, for cutting them down ; and the suit being for damages, and an action of trespass lying at common law, a prohibition was granted, and afterwards upon the same grounds a consulta- tion denied ; but what became of the main point, that is, to whom the trees of right belonged, appears not ; only Eolle seems to make the right turn upon this, that they did belong to him who is bound to repair ; which determination agrees well with what is said in the statute here following, namely, that the parson shall not cut them down, but when the chancel wants reparation (/) . Or to the Use of the Churches.'] — That is, to the use of the fabric of the church ; which it is not lawful to do, without the consent of the rector or vicar to whom they belong. And it is very reasonable, that neither rector nor vicar do fell such trees but for evident necessity of the reparation of the manse of the rectory, or of the chancel. But if the nave of the church want repairing, the rector or vicar will do well (says Lindwood) not to be difficult in granting leave to cut down one or two for that use (g). By 35 Edw. 1, st. 2, or the statute Ne rector prosternat arbores 35 Edw. l, in coemiterio : " Because we do understand, that controversies do st- 2- ofttimes grow between parsons of churches and their parishioners, touching trees growing in the churchyard, both of them pretend- ing that they do belong unto themselves : . . . "We have thought it good, rather to decide this controversy by writing than by statute : . . . Forasmuch as a churchyard that is dedicated is the soil of a church, and whatsoever is planted belongeth to the 77) Lind. p. 267. •) Ibid. (/) 2 Roll. Abr. Parson, p. 33^ Gibs. pp. 207, 208. (g) Lind. p. 267. 1408 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. soil ; it must needs follow : . . . That those trees which be growing in the churchyard are to be reckoned amongst the goods of the church, the which laymen have no authority to dispose, but as the Holy Scripture doth testify, the charge of them is committed only to priests to be disposed of. II. And yet seeing those trees be often planted to defend the force of the wind from hurting the church ; we do prohibit the parsons of the church, that they do not presume to fell them down un- advisedly, but when the chancel of the church doth want neces- sary reparation : neither shall they be converted to any other use, except the body of the church doth need like repair : . . . In which the parsons of their charity shall do well to relieve the parishioners, with bestowing upon them the same trees ; which we will not command to be done, but we will commend it when it is done." Rather to decide this Controversy by Writing than by Statute.-] — And therefore Lord Coke calls this law a treatise only, and adds that it is but a declaration of the common law (h). In Milliard v. Jefferson, in 9 Will. 3, a parson was libelled against the defendant in the spiritual court of York, for having cut elms in the churchyard; and a prohibition was granted upon suggestion that they grew on his freehold (/). On this subject of waste and felling timber, the reader is referred to the previous Chapter on Waste and Dilapidations (h) . Ways Although the church and churchyard be the parson's and be through consecrated ; yet a man may prescribe to have a way through churchyard ; the Q Wh Qr churchyard (/) > door into ; No one can make a private door into the churchyard, without the consent of the minister whose freehold the churchyard is, and a faculty also for the same, boundary of; In Peiv v. The Churchwardens of St. Mary Rotherhithe, in 8 Greo. 2, Pew was libelled against in the spiritual court, for nuisance and encroachment on the churchyard : to which he pleaded that he was the owner of four tenements, which formerly stood on the ground in question, and that his present building was upon the old foundation, and did not project further. And this not being a matter properly triable there, a prohibition was granted. For though interrupting the use of a churchyard, as a churchyard, is properly cognizable in the ecclesiastical court ; yet the bounds of it, which is matter of freehold, ought not to be determined there (m). Acttam x. The case of Adlam v. Colthurst should be mentioned here ; it CoUhurst. was on this wise — In a suit promoted by one parishioner against Interference another for having, without lawful authority, caused human ^un^shedW bones and portions of the soil to be removed from a churchyard to a field belonging to the defendant, the Court of Arches (A) Li ford's Case, 11 Co. p. 49 b; (7) 2 Roll. Abr. Prescription, Gibs. p. 208. p. 265. Tide infra, Sect. 8. (?) Ld. Raym. p. 212. (m) 2 Stra. p. 1013. Sed vide \k) Supra, Part V., Chap. V. Qu&te'e Case, Carth. p. 151. CHURCHES AND CHURCHYARDS. 1409 decreed that the defendant had offended against the laws eccle- siastical, and issued a monition to him to replace in the burial ground, before a certain day, the bones and earth so removed. The defendant failed to comply with the order, alleging that he was unable to do so by reason that the field in which the bones and earth had been placed was no longer in his occupation or possession : — It was holden, that his conduct amounted to contempt, and that unless he obeyed the monition within six days and certified his obedience, he should be pronounced in contempt, and his contempt signified (n). Where a portion of a churchyard is taken under the powers Right of of an act of parliament incorporating the Lands Clauses Con- rector to com- solidation Act, 1845 (8 & 9 Vict. c. 18), the rector is entitled to C^wL the interest of the purchase-money, even though the burial yard, ground had been previously closed so that he was in receipt of no fees from burials (o) . But where a churchyard is taken under similar powers, and the amount to be paid by the takers to the then incumbent is to be settled by arbitration, it has been holden that the arbitrator should not award to the incumbent an amount calculated upon the value that might be put upon the lands divested of their ecclesiastical position, but only so much as will compensate him for his actual loss (p). In Ex parte The Vicar of St. Botolph Aldgate (q)i funds repre- senting the purchase money of part of a churchyard taken for street improvements, were applied by the court in the purchase, alteration, and repair of a house for a vicarage. The lawfulness of building upon churchyards has been fre- Building upon quently a matter of judicial consideration. In the case of The churchyards. Rector of St. George's, Hanover Square v. Steuart(r), a prohibi- tion was granted to restrain the Ecclesiastical Court from granting to Mr. Steuart a faculty to erect a charity school in the churchyard, without the consent and against the will of the rector and parishioners. But with the consent of the incumbent and the majority at any rate of the parishioners, faculties have been granted to build on churchyards — schools (s), a vestry room (t), and mortuaries, or places for the reception of dead bodies, until interment (u). But the effect of three acts of Parliament, which are now to (w) L. R., 2 Adni. & Eccl. p. 30. (o) Ex parte Hector of Liverpool, L. R., 11 Eq. p. 15; 19 W. R. p. 47 ; Ex parte Rector of St. Martin's, Birmingham, L. R., 11 Eq. p. 23. ( p) Stebbingy. Metropolitan Board of Works, L. R., 6 Q. B. p. 37. As to the right of a perpetual curate with respect to the churchyard, vide supra, p. 244. \q) 3 Ch. 1894, p. 544. (V) 2 Stra. p. 1126. (s) Russell v. Parish of St. Bot- olph's, 5 Jur., N. S. p. 300; Re Bettison, L. R., 4 Adm. & Eccl. p. 294. (t) Campbell y. Parishioners of Paddington, 2 Roberts, p. 558 ; 16 Jur. p. 646. See Reg. y. Twiss, L. R,, 4 Q. B. p. 407. (u) Hansard v. Parishioners of Bethnal Green, 4 P. D. p. 46 ; Burial Board of St. George's, Hanover Square y. Hall, 5 P. D. p. 42. 1410 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Now for- bidden. 47 & 48 Vict, c. 72. 50 & 51 Vict, c. 32. 44 & 45 Vict, c. 34. Use of church- yard as open spaces or gardens. be mentioned, is to prohibit all building upon any churchyard or cemetery which has been used for burial, unless such building be for the enlargement of the church (u). By the Disused Burial Grounds Act, 1884 (47 & 48 Yict. c. 72), s. 3, it is not to " be lawful to erect any buildings upon any disused burial-ground, except for the purpose of enlarging a church, chapel, meeting-house, or other place of worship." By section 4, this provision is not to " apply to any burial ground which has been sold or disposed of under the authority of any Act of Parliament." The words " disused burial ground" are defined by sect. 2 to mean " a burial ground in respect of which an Order in Council has been made for the discontinuance of burials therein, in pur- suance of the provisions of " 15 & 16 Yict. c. 85, and 16 & 17 Yict. c. 134 (*). But this definition has been enlarged by the Open Spaces Act, 1887 (50 & 51 Yict. c. 32) ; s. 4 of which makes the term " disused burial ground " in the act last recited, as well as in the act itself, mean " any burial ground which is no longer used for interments, whether or not such ground shall have been partially or wholly closed for burials under the provisions of any statute or Order in Council." The same section prohibits as well temporary or moveable, as other buildings. Moreover, the same section gives to the term "burial ground" the same meaning as in the Metro- politan Open Spaces Act, 1881 (44 & 45 Yict. c. 34), s. 1, as amended by the act 50 & 51 Yict. c. 32 : that is to say, the term in question is to mean " any ground, whether consecrated or not, which has been at any time set apart for the purposes of interment ; " the succeeding words, " and in which interments have taken place since the year 1800," being repealed by the schedule to 50 & 51 Yict, c. 32. In Be The Ecclesiastical Commissioners and The New City of London Brewery Co., Limited ■(#), the prohibitions contained in these acts were said not to apply to building on the site of churches pulled down under 23 & 24 Yict, c. 142 (y). Disused or closed churchyards had been occasionally treated in such a fashion as to make them available to some extent for walks, and as open spaces in the metropolis and other cities. But the first reported case in which this was done under eccle- siastical authority is the case, Be The Rector and Churchwardens of St. George's in the Last (s), in which a faculty for laying out the churchyard as a garden for use and enjoyment by the public on certain terms, was granted by Dr. Tristram, Chancellor of the diocese of London. A few years after this last-mentioned decision was passed the (u) See Be Pomford and Newport District School Board, 1 Ch. 1894, p. 297. (v) Vide supra, pp. 657 — 659. (x) W. N. 1895, p. 52. (y) Vide supra, p. 410. (z) 1 P. D. p. 311. CHURCHES AND CHURCHYARDS. 1411 Metropolitan Open Spaces Act, 1881 (44 & 45 Yict. c. 34), 44 & 45 Vict, already referred to. This Act enacts as follows : — c- 34- Sect. 4. " The owner of any churchyard, cemetery, or burial Power to ground situate within the (a) metropolis, and closed for burials ^^^1" either under an order of Her Majesty the Queen in Council, or gr0unds to otherwise, may convey the soil of such churchyard, cemetery, or local autho- burial ground, or grant any term of years or other limited nt^- interest therein to or enter into any agreement with the Metro- politan Board or the vestry or district board of the parish or district in which such churchyard, cemetery, or burial ground, or any part thereof, is situate for the purpose of giving the public access to the said churchyard, cemetery, or burial ground, and preserving the same as an open space accessible to the public, and under the control of such board or vestry, and for the purpose of improving and laying out the same." Sect. 5. " The Metropolitan Board (b) and the vestry or Powers and district board of the parish or district within which any open dut|es of local space, churchyard, cemetery, or burial ground, or any part au on J' thereof, is situate may, by agreement, and for valuable or nominal consideration by way of payment in gross or of rent, or otherwise, or without any consideration, take and hold the soil and freehold of, or any term of years or other limited estate or interest in, or any right or easement in or over any open space, churchyard, cemetery, or burial ground, and may, with reference to any open space, churchyard, cemetery, or burial ground, undertake the entire or partial care, management, and control thereof, whether any interest in the soil is transferred to the board or vestry or not, and may for the purposes aforesaid enter into any agreement with the persons authorised by this Act to agree with reference to any open space, churchyard, cemetery, or burial ground or with any other persons interested therein. "Any estate or interest in or control over any open space, churchyard, cemetery, or burial ground acquired by the Metro- politan Board (6), or any vestry or district board under the provisions of this Act, shall be held and administered by such board or vestry in trust to allow, and with a view to, the enjoyment by the public of such open space, churchyard, cemetery, or burial ground in an open condition, free from buildings and under proper control and regulation, and for no other purpose, .... (c) and the board or vestry shall maintain and keep the same in a good and decent state, and may inclose or keep the same inclosed with proper railings and gates, and may drain, level, lay out, turf, plant, ornament, light, seat, and (a) The word "owner" in this connection is defined by s. 1, as " the person or persons, corporation sole or body corporate, in whom the soil and freehold ... is vested whether as appurtenant or incident to any benefice, or cure of souls, or otherwise." (b) This now will be the London County Council. (c) The words here omitted are repealed by 50 & 51 Yict. c. 32, s. 2. 1412 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Faculty required. Power to make bye- laws. Joint action of local authorities. Provision for extra- parochial places. Provision for compensation. 50 & 51 Vict, c. 32. Playing of games, when allowed in disused burial ground transferred to local authority. otherwise improve the same, and do all such works and things, and employ snch officers and servants, as may be requisite for the purposes aforesaid, or any of them." " Provided that no board or vestry shall exercise any of the powers of management in this Act mentioned with reference to any consecrated ground, unless and until they are authorised so to do by the license or faculty in that behalf of the bishop of the diocese in which such consecrated ground is situate, which license or faculty may be granted by such bishop upon the application of the board or vestry, and may extend to the removal of any tombstone or monument, under such conditions and subject to such restrictions as to the bishop may seem fit." By sect. 6. The local authority " may, with reference to any open space, churchyard, cemetery, or burial ground in or over which it has acquired any estate, interest, or control under the provisions of this Act, make byelaws for the regulation thereof, and of the days and times of admission thereto, and the preserva- tion of order and prevention of nuisances therein " By sect. 7. Local authorities may jointly carry out the provisions of the Act. Sect. 8. " Where any open space, churchyard, cemetery, or burial ground, by virtue of any Act of Parliament or otherwise, is extra-parochial, or forms part of some parish other than that which surrounds the same, the vestry or district board acting for the parish surrounding the same may carry out, or may enter into agreement with any one or more vestries or district boards acting for any other parishes, on such terms as may be arranged between them, and may jointly carry out the provisions of this Act, and shall have the same powers in every respect as if such open space, churchyard, cemetery, or burial ground were part of the parish or district of such vestry or district board." Sect. 9. " No estate, interest, or right of a profitable or beneficial nature in, over, or affecting an open space, churchyard, cemetery, or burial ground shall, except with the consent of the body or person entitled thereto, be taken away or injuriously affected by anything done under this Act without compensation being made for the same " By the Open Spaces Act, 1887 (50 & 51 Vict. c. 32), already referred to, sect. 2, subsect. (2), "The playing of any games or sports shall not be allowed in any churchyard, cemetery, or burial ground in or over which any estate, interest, or control is acquired under section five of the Metropolitan Open Spaces Act, 1881. " Provided that— (a) In the case of consecrated ground, the bishop, by any license or faculty granted under the Metropolitan Open Spaces Act or this Act, and (b) In the case of any churchyard, cemetery, or burial ground which is not consecrated, the body from which any such estate, interest, or control as aforesaid is acquired CHURCHES AND CHURCHYARDS. 1413 may expressly sanction any such use of the ground, and may specify any conditions as to the extent or manner of such use." Sect. 3. "In the case of any disused churchyard, cemetery, or Provision as burial ground, at least three months before any tombstone or *° r^°Veg°f monument is moved, the following steps shall be taken : jj^.8 (a) A statement shall be prepared sufficiently describing by ments. the name and date appearing thereon the tombstones and monuments standing or being in the ground, and such other particulars as may be necessary ; (b) Such statements shall be deposited with the clerk of the board or vestry, and shall be open to inspection by all persons ; (c) An advertisement of the intention to remove or change the position of such tombstones and monuments shall be inserted three times at least in some newspaper cir- culating in the neighbourhood of the burial ground, and such advertisement shall give notice of the deposit of such statement as is hereinbefore described, and of the hours within which the same may be inspected ; (d) A notice in terms similar to the advertisement shall be placed on the door of the church (if any) to which such churchyard, cemetery, or burial ground is attached, and shall be delivered or sent by post to any person known or believed by the board or vestry to be a near relative of any person whose death is recorded on any such tombstone or monument. " In the case of any consecrated ground no application for a faculty shall be made until the expiration of one month at least after the appearance of the last of such advertisements as afore- said. " Provided that on any application for a faculty, nothing shall prevent the bishop from directing or sanctioning the removal of any tombstone or monument if he is of opinion that reasonable steps have been taken to bring the intention to effect such removal to the notice of some person having a family interest in such removal." The care of closed churchyards is vested in the churchwardens Care of closed by 18 & 19 Yict. c. 128, sect. 18 (d). By the same section the churchyards, costs are to be repaid by the overseers on the certificate of the churchwardens out of the poor rate. Now by the Local 56 & 57 Vict. Government Act, 1894 (56 & 57 Vict. c. 73), sect. 6, if the c- 73- churchwardens now, since the passing of that act, give such a certificate, their powers, duties, and liabilities thenceforth vest in the parish council. Paths across churchyards, so far as they are not public high- Paths across ways, fall under the jurisdiction of the ecclesiastical courts. churchyards. (d) Yide supra, p. 664, for this section in full, and the cases on its construction. 1414 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Alteration of them requires a faculty. Power of the Ecclesiastical Commis- sioners with respect to. 59 Geo. 3, c. 134. 55 Geo. 3, c. 68. No appeal under 59 Geo. 3, c. 134. In Walter v. Mount ague (e), it is said of such paths: "Indi- viduals may by prescription have a right of way ; and parish- ioners have the same right for attendance on divine worship, vestries, and other fit occasions I apprehend that neither the rector nor the churchwardens can make a new path without a faculty from this Court. In strictness that is by law required. With regard to the jurisdiction, the churchyard being consecrated ground, this Court has cognizance of the matter, and it is my duty to protect it against any unauthorized or illegal invasion whatsoever ; and supposing the alterations were most convenient, still the Court would not sanction them, unless the consent of the rector had been previously given, or at least asked. If this is an ancient footpath, it is competent to any individual to proceed at law; and if the question were raised here this Court might be stopped by a prohibition." In that case the Court condemned the churchwardens in 40/. costs, nomine expensarum, monishing them to be more careful in future, and not considering it a good defence that the new footpath they had made through the churchyard was bond fide for the good of the parishioners. By 59 Ceo. 3, c. 134, s. 39, " It shall be lawful for the said commissioners" [now the Ecclesiastical Commissioners (/)], " if they should think fit, to alter, repair, pull down and rebuild, or order or direct to be altered, repaired, pulled down and rebuilt, the walls or fences of any existing churchyard or burial ground of any parish or chapelry, and to fence off', with walls or otherwise, any additional or new burial ground, to be set out or provided by virtue of this act ; and also to stop up and discontinue, or alter or vary, or order to be stopped up and discontinued, or altered or varied, any entrance or gate leading into any churchyard or burial ground, and the paths, footways and passages into, through or over the same, as to them may appear useless and unnecessary, or as they shall think fit to alter or vary " ; provided that the same be done "with the consent of any two justices of the peace of the county, city, town or place where any such entrance, gate, path or passage shall be stopped up or altered ; and on notice being given in the manner and form prescribed by an act," 55 Geo. 3, c. 68. Schedule A of that act (55 Geo. 3, c. 68) gives a form of notice of an order for stopping up an useless road, and the form states that such order will be enrolled at sessions, unless, upon an appeal against the same to be then made, it be otherwise determined. It has been holden that 59 Geo. 3, c. 134, though incorpo- rating 55 Geo. 3, c. 68, did not give an appeal against the order of the commissioners ; for an appeal cannot be given by implica- tion, otherwise it would not have been taken away by the repeal of 55 Geo. 3, c. 68, by 5 & 6 Will. 4, c. 50, s. 11 (g). (e) 1 Curt. p. 261. See also Batten v. Oedye, 41 Ch. D. p. 507. (/) At the passing of the act the Church Building Commissioners. {a) Beg. v. Stock, 8 A. & E. p. 405. CHURCHES AND CHURCHYARDS. 1415 Under 59 Greo. 3, c. 134, it has been ruled, that the notice Notice must required must be given before the making of the order by the be given • • / 7 \ before order commissioners (A). made Questions have arisen as to the power of the ecclesiastical Throwing court to authorize the making of new public or private paths portions of across churchyards, or the throwing of a portion of a churchyard -^streets8 into a street or roadway so as to widen it. Expressions are to k be found in some older cases raising doubts as to whether this could lawfully be done (/) ; and very recently the Chancellor of the diocese of Rochester (k) has held that the ecclesiastical court has no jurisdiction to issue a citation in such a case (/). On the other hand it has been holden by the Chancellor of the diocese of London (m) that where the churchyard has been closed for burials, and the ecclesiastical jurisdiction is preserved and public convenience requires it, a faculty for such a purpose may be granted (n). The editor, as Chancellor of the diocese of Lincoln, has felt himself at liberty to follow this last-men- tioned precedent, and to grant a faculty for the purpose of widening a street, taking care that the ecclesiastical jurisdiction is asserted and the boundaries of the churchyard marked on the pavement. Similar faculties have also been granted in the dioceses of Worcester and Chichester (o). Sect. 6. — Repairs, Alterations and Faculties. It is said that anciently, the bishops had the whole tithes of Repair of the diocese ; a fourth part of which, in every parish, was to be church an- ap plied to the repairs of the church ; but upon a release of this bishop ^ interest to the rectors, they were consequently acquitted of the repairs of the churches (p). And by the canon law, the repair of the church belongs to xext by him who receives this fourth part, that is, to the rector, and not rector, to the parishioners (q) . But custom (that is, the common law) transferred the burden Finally by of reparation, at least of the nave of the church, upon the inhabitants, parishioners, and likewise sometimes of the chancel, as par- ticularly in the city of London in many churches there, and this custom the parishioners might be compelled to observe, where such custom is (r). Where there is no such custom, the parson is to repair the chancel (s) . (A) Reg. v. Arkwright, IS L. J., (n) Vicar of St. Botoiph v. Parish- Q. B. p. 26. toners, P. 1S92, p. 161. (?') See Harper v. Forbes, 5 Jur., (o) See Be Plumstead Bur I'd N. S. p. 275 ; Rector, &c. of St. Ground, P. 1895. John's, Walbrook y. Parishioners, 2 (p) Degge, pt. 1, c. 12. Roberts, p. 515. (q) Bad v. Cross, 1 Salk. p. 164. (A-) L. T. Dibdin, Esq. (r) Lind. p. 53 ; and see Bad (I) Re Plumstead Buried Ground, v. Cross, 1 Salk. p. 165. March 16, 1894, P. 1895. (s) Pense v. Prouse, Ld. Rayni. (//<) Dr. Tristram. p. 59. 1410 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Repair of chancel by- rector. Sometimes by vicar. By lay rectors. For, generally, the parson is bound to repair the chancel. Not because the freehold is in him, for so is the freehold of the church ; but by the custom of England, which has allotted the repairs of the chancel to the parson, and the repairs of the church to the parishioners ; yet so, that if the custom has been for the parish, or the estate of a particular person, to repair the chancel, that custom shall be good ; which is plainly intimated by Lindwood as the law of the church, and is also confirmed by the common law in the books of reports. But as to the obliga- tion resting upon the parson, or upon the vicar, concerning that, the books of common law say nothing ; and so it is wholly left upon that foot on which the law of the church has placed it(p). As to vicars, it is ordained by a constitution of Archbishop Winchelsea, that the chancel shall be repaired by the rectors and vicars, or others to whom such repair belongs (q) . Whereupon Lindwood observes, that where there is both rector and vicar in the same church, they shall contribute in proportion to their benefice (r) . Which is to be understood, where there is not a certain direc- tion, order, or custom, unto which of them such reparation should appertain (s) . And as rectors or spiritual persons, so also lay rectors impro- priators, are bound of common right to repair the chancels. This doctrine under the limitations expressed in the foregoing article is clear and uncontested ; there has been some doubt as to how they shall be compelled to do it ; whether by spiritual censures only, in like manner as the parishioners are compelled to con- tribute to the repairs of the church, since impropriations are now become lay fees ; or whether by sequestrations (as it should seem, spiritual impropriators of all kinds, may be compelled) (f). The better opinion seems to be, that the spiritual court may grant sequestration upon an impropriate parsonage for not re- pairing the chancel (u). Dr. Gibson observes, that impropriations, before they became lay fees, were undoubtedly liable to sequestration : that the king was to enjoy them in the same manner as the religious had done, and nothing was conveyed to the king at the dissolution of monasteries but what the religious had enjoyed, that is, the profits over and above the finding of divine service, and the repairing of the chancel, and other ecclesiastical burdens : and the general saving (he says) in the 31 Hen. 8, c. 13, may be well extended to a saving of the right of the ordinary in this particular, which right he undoubtedly had by the law and practice of the church, which said right is not abrogated by any statute whatsoever (a?) . (p) Gibs. p. 199; Pense v. Prouse, 1 Ld. Raym. p. 59. (q) Lind. p. 253. (r Ibid. («) Ibid. \t) Gibs. p. 199. (u) Anon., M. 29 Car. 2, 3 Keb. p. 829 ; Wallwyn v. Auberry, T. 32 Car. 2, 2 Vent. p. 35; 8, C, 2 Mod. pp. 254, 257. (a?) Gibs. p. 199. CHURCHES AND CHURCHYARDS. 1417 And he observes further these things : 1. That although (as was expressly alleged in the two cases above referred to) this power has been frequently exercised by the spiritual courts ; yet no instances appear, before these, of any opposition made. 2. That in both the said instances, judgment was given, not upon the matter or point in hand, but upon errors found in the pleadings. 3. That one argument against the allowing the ordinary such jurisdiction, was ab inconvenienti, that such allow- ance would be a step towards giving ordinaries a power to aug- ment vicarages : as they might have done, and frequently did, before the dissolution (y) . Where there are more impropriators than one (as is very frequently the case) and the prosecution is to be carried on by the churchwardens to compel them to repair, it was, in the times when church rates were levied, thought advisable for the church- wardens first to call a vestry, and there get an order made for them to sue the impropriators at the parish expense. In such a suit, which may still be brought though no longer at the cost of the parish, the court will not settle the proportion amongst the impropriators, but admonish all who are made parties to the suit to repair the chancel, under pain of excommunication. Nor will it be necessary to make every impropriator a party, but only to prove that the parties prosecuted have received tithes or other profits belonging to the rectory sufficient to repair it ; and they must settle the proportion amongst themselves. For it is not a suit against them for a sum of money, but for a neglect of the duty which is incumbent on all of them, though it may be advisable to make as many of them parties as can be come at with certainty. The sequestrator of a rectory is bound to keep the chancel in Duty of repair (z) . sequestrator > By sect. 54 of 1 & 2 Vict. c. 106, a part of the profits of a as to chanceL living sequestered by the bishop for non-residence is to be \ ^026Vlct' applied to the repairs of the chancel (a) . A suit was brought by the churchwardens of Clare, in the Custom to diocese of Norwich, against the Bishop of Ely, as impropriator jj™^ re^air of a portion of the great tithes, to compel him to repair the parishioner^ chancel. The bishop pleaded, that from time immemorial the parishioners had by custom repaired the chancel. A prohibition was granted to try the issue by jury, and their verdict was in favour of the bishop. Sir John Nicholl held the finding of the jury decisive of the case, and that custom controlled in this in- stance the general law, — that the parson repairs the chancel (b) . Eep airing of the chancel was a discharge from contributing to Repairing- the the repairs of the church. This is supposed to be the known law chancel a dis- charge from (y) Gibs. p. 199. Hagg. Eccl. pp. 156, 162; see Sega* _ (z) Hubbard v. Bedford, 1 Con- and Hill v. Dean and Chapter of sist. pp. 311, 312. Vide supra, Christ Church; suit fomot repairing p. 1266. the chancel, cited by Sir J. Nicholl (a) Vide supra, p. 1004. in Wilson y. McMath, 3 Phillini. (b) The Bp. of Ely y. Gibbons, 4 p. 90. 1418 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. the repair of the church. Repair of chapel of ease no discharge from repairs. Unless by prescription. Repairs in cases of union. Duty of arch- deacon. Old constitu- tions. of the church in the gloss of John de Athon, upon a constitution of Othobon (hereafter mentioned) for the reparation of chancels ; and is also evident from the ground of the respective obligations upon parson and parishioners to repair, the first the chancel, the second the church ; which was evidently a division of the burden, and, by consequence, a mutual disengaging of each from that part which the other took. And therefore, as it was declared in Serjeant Da vies' case (c), that there could be no doubt but the impropriator was rateable to the church, for lands which were not parcel of the parsonage, notwithstanding his obligation, as parson, to repair the chancel ; so, when this plea of the farmer of an impropriation (d) to be exempt from the parish rate because he repaired the chancel, was refused in the spiritual court, it must probably have been a plea offered to exempt other possessions also from church rates (e) . As a general rule, the repairing of a chapel of ease was no discharge from the repair of the church of the parish (f) . But there were cases where the inhabitants of a chapelry might prescribe to be exempt from repairing the mother church, as where it buries and christens within itself, and has never contributed to the mother church ; for in that case it shall be intended coeval and not a latter erection in ease of those in the chapelry (g). If two churches be united, the repairs of the several churches were to be made as they were before the union (/?). " The archdeacon shall cause chancels to be repaired by those who are bound thereunto" (*). By a constitution of Archbishop Eeynolds : " We enjoin the archdeacons and their officials, that in the visitation of churches, they have a diligent regard to the fabrick of the church, and especially of the chancel, to see if they want repair : and if they find any defects of that kind, they shall limit a certain time under a penalty, within which they shall be repaired. Also they shall inquire by themselves or their officials in the parishes where they visit, if there be aught in things or per- sons which wanteth to be corrected ; and if they shall find any such, they shall correct the same either then or in the next chapter" (k) . _ By a constitution of Archbishop Stratford : " Forasmuch as archdeacons and other ordinaries in their visitations, finding defects as well in the churches as in the ornaments thereof, and the fences of the churchyard, and in the houses of the incumbent, do command them to be repaired under pecuniary penalties ; and from those who do not obey do extort the same penalties (c) 2 Roll. p. 211. (d) Sloivman v. The Church- tuardens of Longrevil, 2 Keb. pp. 730, 742. (e) Gibs. pp. 199, 200. (/) 2 Rolle, Abr. Prohibition (H.), pp. 289, 290 ; Ball v. Cross, 1 Salk. pp. 164, 165. (g) Ball v. Cross, 1 Salk. pp. 164, 165 ; Craven v. Sanderson, 7 A. & E. p. 880. (h) Degge, pt. 1, c. 12. Vide supra, p. 398. (?) Othobon, Athon, p. 112. (k) Lind. p. 53. CHURCHES AND CHURCHYARDS. 1419 by censures, wherewith the said defects ought to be repaired, and thereby inrich their own purses to the damage of the poor people ; therefore that there may be no occasion of complaint against the archdeacons and other ordinaries and their ministers by reason of such penal exactions, and that it becometh not ecclesiastical persons to gape after or inrich themselves with dishonest and penal acquisitions ; we ordain that such penalties, so often as they shall be exacted, shall be converted to the use of such repairs, under pain of suspension ab officio which they shall ipso facto incur, until they shall effectually assign what was so received to the reparation of the said defects" (/). By the statute of Circumspecte agatis, 1 3 Edw. 1, st. 4 (m), "Also No prohibi- if prelates do punish .... for that the church is uncovered, or ^j311 111 .case, r . i i i 19 9 . . . i . i , , ' ot repairs 01 not conveniently decked, .... "the spiritual judge shall have church, power to take knowledge, notwithstanding the king's prohibi- tion" (n). By Can. 85 of 1603, " The church- wardens or quest-men shall Canon 85. take care and provide that the churches be well and sufficiently a^0^8*" 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 . . . ." (o). Where the duty of repairing church or chancel fell upon the Effect of parishioners, the funds were raised by a church rate. As to the com^ulsor^ manner of making such a rate, and the persons liable to pay it, church rates, there was much law, which has now, since the abolition of com- pulsory church rates by the act 31 & 32 Yict. c. 109 (p), be- come obsolete. The duty of parishioners to keep their church and its fittings in good repair is now, almost entirely, a moral one. The editor has used a qualified phrase, because, as will be seen, trustees may contribute out of trust funds to a church rate regularly levied, though it be not compulsory, and because there are, in many parishes, charitable funds which must be so applied by the parishioners. No alteration, either by way of addition or diminution in the Eaw as to fabric or utensils or ornaments of the church, ought, according refeenceTo11 to strict law, to be made without the legal sanction of the ordi- alterations, nary. That legal sanction is expressed by the issue of an in- strument called a faculty, and in no other way (q) . The court, however, to use Lord Stowell's expression, is not hungry after jurisdiction in really small matters of no general moment or significance. It also often happens that a faculty issues to confirm what has been illegally but usefully done (r) . It has been ruled that if the question as to the alteration comes (I) Lind. p. 224. (q) Westerton v. Liddell, Moore's (m) Vide supra, p. 834. Special Report. (n) See 2 Inst. p. 489 ; 3 Black. (r) See Sieveking and Evans v. Com. p. 92. Kingsford, 36 L. J. Eccl. p. 1 ; (o) Vide supra, p. 722, for this Gardner v. Ellis, L. R., 4 Adm. & canon in full. Eccl. p. 265 ; Bradford v. Fry, 4 (p) Vide, infra, p. 1446. P. D. p. 93; and see 37 & 38 Vict. c. 85, s. 14, supra, p. 1033. P. VOL ii. 4 z 1420 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Cathedrals. Principal decisions. Hopton, §c. v. Minister, §c. of Kernerton. to be litigated, the bishop's consent, unless expressed by the issue of a faculty from his court, does not bind the court before which the litigation takes place (s). An ornament illegally put up cannot be legally taken down without the monition of the ordinary. The peace and good order of the church require this rule, which is firmly established in practice (t). Questions of faculty belong, as a general rule, to the civil procedure of the court. Questions arising out of disobedience to a monition may, and generally do, assume a criminal shape ; and a clerk in holy orders may be proceeded against criminally for making alterations without a faculty ; but such a course is inexpedient. It may be well to observe that the term " ordinary" applies in legal intendment to the bishop and the chancellor of his court. A faculty may be granted to sell ornaments or utensils found to be unnecessary, as in the case of old bells when a new peal is set up, and the like. It is the practice of the court to take a view of the church in cases of difficulty arising out of suggested alterations (u). This course has often been pursued. In parish churches the opinion of the parishioners for or against a proposed alteration has great weight with the ordinary when he has to determine whether to grant a faculty ; but it is not conclusive (x). Where the matter relates solely to the interior of the church, and its use for divine worship, the ordinary will not be bound by the vote of a majority in vestry, made up by the votes of Nonconformists (?/). The above provisions of the law as to faculties do not apply to alterations made in cathedrals by the authority of the dean and chapter (z). It will be found that, in the following decisions, the prin- ciples of law just referred to are put in execution (a). In the case of Hopton and QuarreU v. The Minister and Church- wardens of Kernerton (b) (decided at a time when church rates were compulsory), the judge said : — " It is the bounden duty of (s) Harper v. Forbes, 5 Jur., N. 8. p. 275 ; Ritchings v. Cording- ley, L. R., 3 Adm. & Bed. p. 113. (i) Ritchings Y. Cordingley, L. P., 3 Adm. & Eccl. p. 113. (u) E.g., in the case of Hopton and QuarreU v. Vicar and Church- wardens of Kernerton, 6 N. C. p. 74; by the Chancellor of Ely in Faulkner v. Litchfield, 9 Jurist, p. 234 ; by Lord Stowell in Bard in v. Calcott, 1 Consist, p. 14 ; by Dr. Lushington in Westerton v. Lid dell ; and by Mr. Pemberton Leigh, one of the lords of the Privy Council, in the same case on appeal ; and in many recent cases. (x) Peck v. Trower, 7 P. D. p. 21 ; Nickalls v. Briscoe, (1892) P. p. 269. (y) Vicar of Tottenham v. Venn, L. P., 4 Adm. & Eccl. p. 221. (z) Boyd v. Phillpotts, L. P., 4 Adm. & Eccl. p. 297 ; Phillpotts v. Boyd, L. E., 6 P. C. p. 435. Yide supra, p. 133. (a) As to mode of proceeding to obtain a faculty, vide supra, pp. 964, 998—1001. (b) 6 N. C. p. 74. CHURCHES AND CHURCHYARDS. 1421 the ordinary never to grant a faculty for expensive alterations in any church, which are professed not to be paid by a church rate, unless the judge has before him the most ample security that the funds will be otherwise provided for than by the parish " (c). In Sicvcking and Evans v. Kingsford, articles having been filed Sieveking and against a clergyman for making certain alterations in his church ^ansJ'^ without having first obtained a legal sanction for them, he gave %n9*f01 • an affirmative issue thereto. The court then requested the arch- deacon of the district in which the church was situated to inspect such alterations, and to report to it as to their nature and propriety, which he did. The court then ordered a confirmatory faculty to issue in regard to those alterations which met with the archdeacon's approval, and admonished the clergyman to restore the church in every other respect to the state it was in before he commenced the alterations (d). In Dewdncy v. Good and Ford, one of the church wardens of DeicdneyY. the parish of GK, accompanied by another parishioner, acting 00 an 01 ' upon a resolution of the vestry of the parish, but against the expressed prohibition of the rector, and without any lawful authority from the bishop of the diocese, broke open with a crowbar the principal door of the parish church, and with the assistance of some workmen, proceeded to alter the position of the pulpit, and to pull down and re- arrange certain of the seats within the church. It was holden, that all who took part in these proceedings had been guilty of a grave ecclesiastical offence. They were admonished to restore that which had been altered, and condemned to pay the costs of the suit, and the churchwarden was ordered to deliver up to the rector a new key he had fitted to the door of the church (e) . In Ritchings v. Cordingky, a ledge or super-altar was placed Bitching* v. on the holy table in a parish church by the order of the incum- Cordm9ky- bent, without the consent of the ordinary ; after a lapse of many months a vestry meeting was holden, at which a resolution was passed that the churchwardens should take steps to remove the super- altar ; the morning after the vestry meeting the defendant, one of the churchwardens, went to the church with a workman, and found the church door locked ; the workman, acting by the orders of the defendant, picked the lock, entered the church in (c) This was also said to be the It is the practice now not to autho- uniform practice of the Court of rize alterations which involve pull- Arches; aDd the case of Roop and ing down or defacing the existing Clark v. Vicar, dr. of Chesterfield structure unless the court either was referred to, where the faculty sees that funds sufficient are in was not allowed to pass till a bond hand, or that there is a reasonable in the sum of 3,200/. had been given certainty of their being forth- by the applicants, with sureties, for coming. the performance of the intended (d) 36 L. J., Eccl. p. 1 (1866). alteratioas and the payment of all («) 7 Jur., N. S. p. 637 (1861). the expenses attending the same. 4 z2 1422 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Bishop of St. Davids v. De Eutzen. Unauthorized alterations restrained by- injunction. company with, the defendant, and pulled down the super- altar: — It was holden that the conduct of the defendant was illegal (/). The Bishop of St. Davids v. Be Ratzen is a very important case with respect both to the law as to repairs and as to the unlawfulness of removing, without a faculty, portions of the building, or ornaments, of the church. The defendant, in that case, owned in right of his wife the greater part of three adjoining parishes, the joint population of which was very small. In 1843, a sum of money was obtained from the Public Works Loan Commissioners, on the security of a mortgage of the rates of one of the three parishes — B. — for the express purpose of building a new church in that parish ; but such sum of money was appropriated towards the expenses of building a new church in another of the three parishes, and no portion of it had been repaid by the parish B. In 1844, at the instance of the defendant, the three parishes were, by an order of her Majesty in council, united for all ecclesiastical purposes. In 1843, divine service was performed in the parish church of B. for the last time, it being then in a state of great dilapidation. In the following year the roof of the church, the pews, font and other fittings were removed by the servants and by the directions of the defendant, but without any legal authority. The new church erected in the adjoining parish to B. was large enough to hold the church-going population of the three parishes, but was inconveniently placed for a large portion of them. No visitations of the archdeacon are holden in this district ; and at those of the bishop, in 1851, 1854 and 1857, his attention was not particularly called to the state of the parish church of B. : — It was decided that the parishioners had a right to demand that divine offices should be celebrated in their own parish church, unless such right has been limited by lawful authority ; that, notwithstanding the delay in instituting proceedings, the court was bound to order the defendant to restore the ancient parish church of B., to the state it was in when he had it dismantled, and to condemn him in the costs of the suit (g) . In former times the Court of Chancery would grant, and now the High Court of Justice, exercising equitable jurisdiction, will grant an injunction to restrain an alteration in the fabric of the church or the walls of the churchyard, unless and until a faculty is obtained. In Marriott v. Tarpley (h) the Vice-Chancellor granted such an injunction, observing, " In my opinion this court ought in such a case to be ancillary to the ecclesiastical court, and to grant an injunction as in other cases where any act in the nature of waste is either threatened or committed." Cardinall v. Molyneux (i) was a case of a like nature. (/) L. R., 3 Adm. & Eccl. p. 113 (1870). (g) 7 Jur., N. S. p. 884 (1861). (h) 9 Sim. p. 288. (i) 2 Giff. p. 536; 4 De G., F. & J. p. 117; 7 Jur. N. S. pp. 254, CHUKCHES AND CHURCHYARDS. 1423 A further provision against the making of alterations without Public a faculty has, since the previous edition of this book appeared, 5r°r^}11? been supplied by the Legislature by a provision before cited, Act in the Public Worship Act (37 & 38 Vict. c. 85), s. 8 (k). The law requiring faculties for alterations in churches applies, Monuments with certain limitations, to the setting up of tablets and monu- and vaults, ments in churches or churchyards, the removal of human remains, and the making of vaults and brick graves (/). It applies also to Houses of the removal of houses and buildings belonging to the glebe of residence, a parochial incumbent (m). Faculties are directed also by 8 & Churches 9 Vict. c. 70, s. 1, in cases where churches are pulled down puUeddown. under that act (h). There is now no stamp duty on faculties. By the order in council of March, 1869, made under 30 & 31 Tees. Vict. c. 135 (a), the Court fees on faculties are fixed as follows : — Vicar-General, Chancellor, Archdeacon, or Official. Registrar or other Officer by usage perform- ing the duty. Apparitor. £ s. d. £ s. d. £ s. d. 4. Faculty for alterations in Churches or Churchyards . . 1 1 0 3 13 6 0 10 6 4. " The chancellor's fee includes the perusal of the petition, 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 vestry and the petition, the drawing of the notice on citation and attending the chancellor 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." Under the Public Worship Eegulation Act (37 & 38 Vict, c. 85), s. 14, if the judge direct that a faculty shall be applied for, such fees only shall be paid for such faculty as may be directed by the rules and orders (o) . 854 ; and see Batten v. Gedye, 41 (m) Vide supra, pp. 1263, 1279, Ch. D. p. 507. 1316. (&) Tide supra, p. 1028. (n) Vide infra, Part IX., Chap. V. (I) Vide supra, pp. 692—696. (o) Vide supra, p. 1033. 1424 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Origin of the distinct pro- perty in seats No payment for pews. Church Build- hog Acts. Of common right to be repaired by the parish- ioners. Use of the seats in the parishioners. Sect. 7. — Church Seat (p). Before the age of the Reformation, no seats were allowed, nor any distinct apartment in the church assigned to distinct in- habitants, except for some very great persons. The seats that were, were moveable, and the property of the incumbent, and so in all respects at his disposal. Many wills of incumbents are to be seen, whereby they did of old bequeath the seats in the church to their successors or others as they think fit. Athon and Lindwood are, however, silent on this subject. The com- mon law books mention but two or three cases before this time, and those relating to the chancels, and seats of persons of great quality (q). It is clearly the law on this subject, that, where no statute has intervened, a parishioner has a right to a seat without pay- ing for it (>•) . The Church Building Acts, however, have authorized in certain circumstances payments for pews in churches built under their provisions, having in this respect only followed the usual course of English legislation, embracing in one general act those provisions which had appeared in local acts for building indi- vidual churches since the reign of William III. (s). And generally, the seats in churches are to be built and repaired as the church is to be built and repaired, at the general charge of the parishioners, unless any particular person be chargeable to do the same by prescription (f). And although the freehold of the body of the church be in the incumbent thereof, and the seats therein be fixed to the free- hold ; yet because that the church is dedicated to the service of God, and is for the use of the inhabitants, and the seats are erected for their more convenient attending upon divine service, the use of them is common to all the people that pay to the repair thereof. And for this reason, if any seat, though affixed to the church, be taken away by a stranger, the churchwardens, and not the parson, may have their action against the wrong- doer (u) . (p) The most comprehensive work on this subject is the History and Law of Church Seats or Pews, by Mr. Alfred Heales, Proctor, London, 1872 ; see also two very learned dis- sertations in the Law Magazine, vols. i. and ii. ; and see " Eemarks on the History of Seat Reservation in Churches,"by W. T. Hardy, E.S.A., Archoeologia, vol. 53, pt. 1, pp. 95 — 106. (q) Johns, p. 178; Ken. Paroch. Ant. p. 596. (r) Per Lord Stowell, Walter v. Gunner, 1 Consist, p. 317. "It being contrary to law (observes the learned Dr. Harris in an opinion 1788) that pews should be disposed of for money, or otherwise than gratuitously by the churchwardens or by the ordinary." Mr. Toker's MSS. p. 344. Further extract from this opinion : "As all churches ought by law to be open during celebration of divine service, it is clear that no person whatever (who is not excommunicated) ought to be excluded whilst he behaves decently." s) Vide infra, p. 1437. t) Degge, pt. 1, c. 12. {u) Wats. c. 39, p. 389. CHURCHES AND CHURCHYARDS. 1425 There can be no property in pews ; they are erected for the use of the parishioners. The ordinary may grant a pew to a particular person while he resides in the parish, or there may be a prescription, by which a faculty is presumed ; but as to per- sonal property in a pew, the law knows of no such thing (%). Every man who settles as a householder, has a right to call on the parish for a convenient seat (//). All the pews in a parish church are, by general law and of common right, for the use in common of all the parishioners, who are to be so provided with seats as may most conveniently and orderly accommodate all (z) . It was holden that a person who had permission from the church- wardens to sit in a pew temporarily, and in order, by keeping possession for a future tenant, to carry into effect the conditions of sale of a house with which the pew had for above a century been holden under an unexpired faculty, had no possession on which he could bring a suit for perturbation against a mere in- truder, such permission being illegal, as confirming the sale of the pew (a) . Non-parishioners, whether extra-parochial or residing in Non-parish- an other parish, have no such rights; and directly an occupier lonershave • • •• no sTicli of a pew ceases to be a parishioner, his right to the pew, how- rights, ever founded and valid during his continuance in the parish, at once ceases and determines (b). But the authority of appointing what persons shall sit in Ordinary to each seat is in the ordinary ; who is to take care to order all things appertaining to divine service, so that the service of God e same* may be best celebrated, that there be no contention in the church, and that all things be done decently and in order ; for he, having the cure of souls, is presumed by the law to be a person that will have a prudent regard to the qualities of men in this case, and to give precedence to such as ought to have it (c). In Re the Peics of the Cathedral of St. Colomb, London- In cathedrals. deny (d), it was said by Dr. Todd, Vicar- Greneral of the diocese of Londonderry, — that in a parish church which is also a cathe- dral, seats are to be allotted to the parishioners by the church- wardens, subject to the control of the ordinary, as in any other parish church. The same learned judge thought that in a cathedral, which is not a parish church, or so far as it is not a parish church, seats could only be allotted by the bishop. With respect to this latter position, it must be observed that this is the decision of an Irish court respecting an Irish cathe- (x) Haivkins v. Compiegne, 3 Pkillim. p. 16. (y) Per Lord Stowell, Groves v. The Hector of Hornsey, 1 Consist, p. 194. (2) See Blake v. Usborne, 3 Hagg. Eccl. p. 733; Fuller v. Lane, 2 Add. p. 425 ; Walter v. Gunner, 1 Consist, p. 317 ; Fettman v. Bridger, 1 Phillim. p. 323; Hawkins v. Compiegne, 3 Phillim. pp. 11, 16. (a) Blake v. Usborne, 3 Hagg. Eccl. p. 733. {b) Fuller v. Lane, 2 Add. pp. 426, 427 ; Byerly v. Windus, 5 B. & C. p. 19; 7 D. & R. p. 564. (c) Wats. c. 39, p. 389. \d) 8L. T., N, S, 861. FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. dral. The statutes of each cathedral must be consulted, as well as usage, as to the authority of the bishop, or dean, or dean and chapter. In Cor ven v. Pym, it was resolved that if any man has a house in a town or parish, and he and those whose estate he has in the house, have had time out of mind a certain pew or seat in the church, maintained by him and them, the ordinary cannot remove him (for prescription makes certainty, the mother of quietness), and if he do, a prohibition lies against him. But where there is no prescription, there the ordinary, that has the cure and charge of souls, may for the avoiding of contention in the church or chapel, and the more quiet and better service of Grod, and placing of men according to their qualities and de- grees, take order for the placing of the parishioners in the church or chapel public, which is dedicate and consecrate to the service of God (e). For the disposal of the seats in the nave of the church apper- tains of common right to the bishop of the diocese ; so that he may place and displace whomsoever he pleases (/). Parishioners are not at liberty to choose what seats they like ; the distribution of seats among them rests in the discretion of the ordinary, which he generally exercises by the church- wardens, who are his officers as well as those of the parish (g) . To exclude the ordinary from his jurisdiction, it is necessary not merely that a possession should be shown for many years, but that the pew should have been built and repaired time out of mind (//). But by custom the churchwardens may have the ordering of the seats, as in London ; which, by the like custom, may be in other places (i). For a custom time out of mind of disposing of seats by the churchwardens and major part of the parish, or by twelve or any particular number of the parishioners, is a good custom ; and if the ordinary interpose, a prohibition will be granted (k) . But the churchwardens must show some particular reason why they are to order the seats exclusive of the ordinary ; for a general allegation, that the parishioners have used to repair and build all the seats in the church, and by reason thereof the churchwardens have used to order and dispose of the seats, is not sufficient to take away the ordinary's power in disposing and ordering the seats ; because this is no more than the parishioners are bound to do of common right, to wit, building and repairing the seats, for which they have the easement and convenience of sitting in them (/). (e) 3 Inst. p. 202. ( / ) 2 Roll. Abr. p. 288, Prohibi- tion (G.). The law is the same as to ordinary architectural aisles. Vide infra, p. 1434. (g) Pettman v. Bridger, 1 Phillim. pp. 316, 323; 1 Hagg. Eccl. p. 39. (h) Stocks v. Booth, 1 T. R. p. 428 ; Walter v. Gunner, 1 Consist, p. 322. ft) Wats. c. 39, p. 389. (k) Gibs. p. 198 ; Presgrave v. Churchwardens of Shrewsbury, 1 Salk. p. 166. (I) Wats. c. 39, p. 389. CHURCHES AND CHURCHYARDS. 1427 Their general authority must be exercised justly and dis- Duty, creetly (m) by the churchwardens, or they may be corrected by the ordinary (n). In churches where the seats are fixed they should place the parishioners with some regard to their rank and stations (o), and families should be seated together (p) ; but in no case are the higher classes to be accommodated beyond their real wants, to the exclusion of their poorer neighbours ( q) . Where the seats in the church are free, the churchwardens have authority to direct, for the maintenance of order and decorum, in which of these seats certain classes of the congre- gation (such as the boys and young men) may and others may not sit (r). But churchwardens have no right to prevent by force a parishioner from entering church for the purpose of attending divine service because, in their opinion, there is not room for him («) . The incumbent has no authority in the seat- ing and arranging of parishioners, beyond that of an individual parishioner, and that which his station and influence naturally give him (t). If through the increase of inhabitants more seats be neces- sary, the churchwardens cannot erect them of their own head. It cannot be done without the licence of the ordinary. If there be a dispute whether more seats are necessary, or where they shall be placed, the ordinary is sole judge in that case. A person claiming a pew against any one but a mere in- Appropria- truder must show either a faculty, or prescription which presup- J^^be^y^ poses a faculty (u). If a pew is rightly appurtenant, the faculty or occupancy of it must pass with the house, and the individuals prescription, cannot, by contract between themselves, defeat the general right of the parish ($) ; even if there is a prescriptive right, it could not be exercised by transferring it to persons not inhabitants of the house or the parish (y) . Where the prescription is inter- rupted, a jury is not bound to presume a faculty from long undisturbed possession (z) . It will be well to deal first with the case of prescription. Prescription. If a person prescribe that he and his ancestors, and all they Reparation whose estate he has in a certain messuage, have used to sit in a make^Utl^ certain seat in the nave of the church for time out of mind, in consideration that they have used time out of mind to repair the said seat ; if the ordinary remove him from this seat, a prohibi- [rri) Reynolds v. Monkton, 2 Moo. & R. p. 384. (n) Wyllie v. Mott and French, 1 Hagg. Eccl. p. 33. (o) Pettman v. Bridyer, 1 Phillim. p. 323. ( p) Fuller v. Lane, 2 Add. p. 434. [q) Fuller v. Lane, 2 Add. p. 426. (V) Asher v. Calcraft, 18 Q. B. D. p. 607. (s) Taylor v. Timson, 20 Q. B. D. p. 671. (t) Tattersallv.KniyhtA Phillim. p. 233. (u) Per Ld. Stowell, Walter v. Gunner, 1 Consist, p. 322 ; Fuller v. Lane, 2 Add. p. 247 ; 1 Hagg. Eccl. p. 39. (x) Walter v. Gunner, 1 Consist, p. 319. (y) Ibid. (z) Moryan v. Curtis, 3 Man. & R. p. 389. 1428 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Seat may be prescribed for, as belonging to a house. If the claim- ant repair it. Length of time from which pre- scription -will be inferred. tion lies ; for the ordinary has not any power to dispose thereof, for this is a good prescription, and by intendment there may be a good consideration for the commencement of this prescription, although the place where the seat is be the freehold of the parson (a). But if a person prescribe to have a seat in the nave of the church generally, without the said consideration of repairing the seat, the ordinary may displace him (b). A seat in the nave or body of a church may be prescribed for as belonging to a house. Lord Kenyon said that a pew may be annexed to a house by a faculty, as well as by prescription, which supposes a faculty, and in that case may be transferred with the messuage ; and that he had seen a faculty for exchang- ing seats in a church which were annexed to houses (c) . This doctrine was heretofore doubted, and sometimes denied and overruled, with regard to the general right of the ordinary, and the jurisdiction of the spiritual authority : but it seems now to be the doctrine received. Only the reparation of it by the person pleading such prescription, and praying a prohibition thereupon, must of necessity be alleged here ; because the ordinary in the body of the church prima facie has the right : and nothing but such private reparation can divest him of that right ; which right stands good and entire (notwithstanding possession and use time out of mind) if the parish have but repaired. Possession for thirty-six years was holden to be presumptive evidence of a prescriptive right, in a case where the church had been rebuilt about forty years before (d) . Yet in a later case, it appearing that the seat itself was built thirty-five years ago, for the accommodation of the plaintiff, and to put an end to a dis- pute between two families, this proof was holden to rebut the presumption which would otherwise arise from so long a posses- sion (e). In one case Lord Stowell said, " The strongest evidence of that kind is the building and repairing time out of mind ; for mere repairing thirty or forty years will not exclude the ordi- nary. The possession must be ancient, and going beyond memory ; and though on this subject I do not mean the high legal memory, it must be longer than appears in the circum- stances of this case (/). That a house has been built only eighty years is not sufficient to establish a prescriptive right, because it might be presumed that the evidence of the grant of a faculty was not extinct in that time (g). A prescriptive right (a) 2 Roll. Abr., p. 288, Prohibi- tion (G.). (b) Ibid. (c) Stocks v. Booth, 1 T. R. p. 431. (d) Rogers v. Brooks, 1 T. R. p. 431, n. (e) Griffith v. Matthews, 5 T. R. p. 296. ( / ) Walter v. Gunner, 1 Consist, p. 322. (flO Ibid. CHURCHES AND CHURCHYARDS. 1429 must be clearly proved ; the facts must not be left equivocal, and they must be such as are not inconsistent with the general right. In the first place, use and occupation of the pew must be shown to have gone from time immemorial, as appurtenant to a certain messuage, not to lands. Secondly, it must be shown that if any acts have been done by the inhabitants of such a messuage, they maintained and upheld the right. At all events, if any repairs have been required within memory, it must be proved that they have been made at the expense of the party setting up the pre- scriptive right. The onus and beneficium are supposed to go together; mere occupancy does not prove the right (h). The latest case as to prescriptive title to pews is that of Philipps v. Halliday. There it was holden by the House of Lords as follows : — A pew may be annexed to a dwelling-house in the parish by Philipps v. a faculty, and a faculty may be presumed upon evidence of SalUday. exclusive possession and repair for a long period ; and the owner of a freehold dwelling-house having brought an action in respect of the disturbance of his possession of a pew in the parish church, and there being evidence that for more than seventy years he and his predecessors in title had occupied the pew, and had kept it locked and repaired, the grant of a faculty ought to be presumed, upon the principle that a legal origin ought to be presumed if a legal origin be possible ; and that consequently the action was maintainable ; and this was so though it appeared that 200 years ago the then lessee of the house (before he became the freeholder) first acquired possession of the pew in a manner which gave no legal title, the subsequent enjoyment not being more consistent with the illegal origin than with the presumption of a later faculty. By this judgment of the House of Lords the decision of the Court of Appeal was affirmed, and that of the court of first instance reversed (/). Where on an application for a faculty to repair and repew a When repair church, a parishioner appeared and prayed that a faculty might must be not be granted without a proviso that a pew, claimed to be holden pimec ■ by him by prescription, should not be removed or altered, and it was ruled that a prima facie title by prescription was established, and that the faculty should issue with the proviso, it was said that evidence of repair to a pew claimed by prescription is not absolutely necessary, as no repair may have been made within the period of any one living (k). It has however been generally holden (/) that reparation from time to time is necessary to be pleaded and proved in order to make out a prescriptive right to a pew (m). Lining and putting new cushions into pews are not (A) Pettman v. Bridger, 1 Phillim. [k) Knapp v. Parishioners of p. 325. See also Stocks v. Booth, 1 WiUesden, 2 Roberts, p. 358. T. R. pp. 428, 431 ; Mainwaring v. (1) See also Pepper v. Barnard, 7 Giles, 5 B. & A. p. 356. Jur. p. 1128. (0 App. Cas. 1891, p. 228; 23 (m) Woollocombe v. Ouldridge, 3 Q. B. D. p. 48. Add. p. 6. 1430 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Right to pew not an ease- ment within Presr-ription Act. Seats cannot be claimed as belonging to the land. Priority in a seat may be prescribed for. Seat not to go to a man and his heirs. repairs, but mere ornament ; these are not usually done by the parish (n). In the latest case on this branch of the subject Lord Penzance, sitting in the Arches Court on appeal from the Consistory Court of Ely, decided that a parishioner who claims a legal right by prescription to a pew in the nave of his parish church must, in order to displace the general right of the ordi- nary, not only show that the pew has been occupied by him or his predecessors in title in respect of an ancient house in the parish for a period more or less extended, but must also prove, if any alteration or repair of the pew has been necessary, that such repairs or alterations were executed at the expense of those who at the time claimed the prescriptive right to it (o). It has been sometimes attempted to be said that the right to a pew is an easement within the Prescription Act (3 & 4 Will. 4 c. 71), so that user during the short fixed periods provided by that statute shall be sufficient evidence of building and repairing time out of mind ; but the courts have not acceded to this view (p) . A seat cannot be claimed by prescription, as appendant to land, but the claim may be as for a pew appendant to a house (q). For such a seat belongs to the house in respect of the inhabitants thereof. And yet it has been holden that a seat in an aisle may be prescribed for by an inhabitant of another parish (q) ; for the inhabitant may have built the aisle, and may be bound to repair it. But the court doubted if such prescription would be good for a seat in the nave of the church (r). In the Court of Exchequer it was holden, that a pew in the aisle of a church may be prescribed for as appur- tenant to a house out of the parish (s). As a seat in the church, so priority in a seat may be pre- scribed for. Thus it was declared in the case of Carleton v. Hutton, in 2 Cha. 1. Carleton claimed the upper place in a seat. Hutton disturbed him. The Archbishop of York sent an inhibition to Carleton, till the matter should be determined before him. But prescription was surmised, and thereupon pro- hibition obtained ; because as well the priority in the seat, as the seat itself, may be claimed by prescription (t). A seat may not be granted by the ordinary to a person and his heirs absolutely ; for the seat does not belong to the person, (n) Pettmany. Bridger, 1 Phillim. p. 331. (o) Crisp v. Martin, L. E., 2 P. D. p. 15 (1876). (p) Crisp v. Martin, L. E., 2 P. D. p. 15 ; Pliilipps v. Haiti day, 23 Q. B. D. p. 48; App. Ca. 1891, p. 228. (q) Gibs. p. 198 ; Barrow v. Keen, Sid. p. 361 ; nomine Barrow v. Kew, 2 Keb. p. 342. Vide supra, Sect. 4. (r) Barrow v. Keen, Sid. p. 361. (s) Lonsley v. Hayward, 1 Y. & J. 583 ; Davis v. Witts, Forrest, p. 14. SeeWoollocombe v. Ouldridge, 3 Add. p. 6. (t) Carleton v. Hutton, Noy. p. 78; Latch, p. 116; S. C, nomine Hut- ton's Case; Eoll. Abr. p. 288, Pro- hibition (G.) ; Gibs. p. 198 ; Wythe v. Mott and Francis, 1 Hagg. Eccl. p. 39 ; Lonsley v. Hayward, 1 Y. & J. p. 583. CHURCHES AND CHURCHYARDS. 1431 but to the inhabitant ; otherwise, if he and his heirs go away, and dwell in another parish, they shall yet retain the seat, which is unreasonable (it). The right to sit in a pew may be apportioned ; and therefore Apportion- where by a faculty, reciting, " that A. had applied to have a ment of seat- pew appropriated to him in the parish church in respect of his dwelling-house," a pew was granted to him and his family for ever and the owners and occupiers of the said dwelling-house, and the dwelling-house was afterwards divided into two, it was holden that the occupier of one of the two (constituting a very small part of the original messuage) had some right to the pew, and in virtue thereof might maintain an action against a wrong- doer (x) . " With this experience of the mischief that has resulted from Faculty, a too lavish grant of these faculties in former times, it is the ^J1^^ duty " (says Sir J. Nicholl) " of the ordinary to prevent its should guide recurrence, by proceeding in this whole matter with the utmost ordinary in prudence and circumspection." Faculties which might with lssmnS one- propriety have been granted a century or two ago, the present state of population may render most improper. " True it may be that, at the particular time the faculty is applied for, its issue may not be generally inconvenient : the parishioners at large may be sufficiently accommodated after, and notwithstanding, its issue. But in this even, the most favourable case, there are obvious reasons for inducing the ordinary to entertain such applications with a good deal of reserve " (y). The court should inquire, 1, whether such a grant be prejudicial to the parish ; 2, whether to the persons opposing the grant : 3, whether the ap- plicant for the grant is qualified for it by station and property in the parish (s) . The following is an extract from an opinion of Dr. Swabey, given in 1808 : — " I am of opinion that the vicar and church- wardens, who were severally entitled to be cited specially, may express their dissent against any appropriation, and it would be deserving of weight in a grant which is discretionary, and not of right. I should also strongly doubt the propriety of the granting of a faculty for the appropriation of a pew to an indi- vidual for the use of his or her servants, though it may be proper that they should not be disturbed in their possession without just cause, which I think may in a great measure depend upon the sufficiency of seats for persons of high pretensions generally." The same doctrine was laid down in Woollocombe v. Ould- f^f^0^ ridge (a), where the Court of Arches confirmed the decree of anttoYnter- the inferior court, observing that faculties generally are matters fere in matter so much within the discretion of the local judge, that there must of faculties. (w) Gibs. p. 197. 429, 431. (x) Harris y. Dr ewe, 2 B. & Ad. (z) Partington v. Hector of Barnes, p. 164. 2 Lee, p. 345. (y) Fuller v. Lane, 2 Add. pp. 428, (a) 3 Add. 1. 1432 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Form of grant of a faculty. Not now usual. How far revocable. Seats in chancel. Ordinary's disposition of seats in chancel. Part of chancel may not he granted away. Impro- priator's seat in chancel. be a considerable degree of general inconvenience to induce a reversal of his decree. The best form of a grant of this description is " to a man and his family so long as they continue inhabitants of a certain house in the parish ;" though modern usage sometimes omits " of a certain house " (b). All intimations should run " to show cause why a faculty should not be granted to appropriate," &c. (c). Faculties for pews are, however, hardly ever now granted. Butt v. Jones seems to have established that a faculty obtained by surprise and undue connivance may be revoked (d). When a faculty limited to a certain period expires, the right of the parishioners revives to the pews which were the subject of the faculty (e). Generally speaking, the faculty, if once issued, is good, even against the ordinary himself (/). Thus much as to seats in the nave or body of the church. Next as to the chancel. Dr. Gribson asserts, that the seats in the chancel are under the disposition of the ordinary, in like manner as those in the body of the church. Which needs only to be mentioned (he says) because there can be no real ground for exempting it from the power of the ordinary ; since the freehold of the church is as much in the parson as the freehold of the chancel ; but this hinders not the authority of the ordinary in the church, and therefore not in the chancel. And in one of our records, he says, in Archbishop Grindal's time, we find a special licence issued, for the erecting seats in the chancel of a church, together with the rules and directions to be observed therein (g). After the parson and his family be seated, if there be room for any other seats, the bishop can grant faculties for the building and disposing of them in the chancel as well as the body of the church (fi). A general grant of part of the chancel of a church by a lay impropriator to a man, his heirs and assigns, is not valid, because it would take the chancel entirely out of the jurisdic- tion of the ordinary. The chancel was unalienable by the rector, without consent of the ordinary, before the dissolution of the monasteries ; and the general saving in 31 Hen. 8, c. 13, s. 4, leaves the right as it existed before (/). The parson or rector impropriate is entitled to the chief seat in the chancel. This was resolved by the Court of King's Bench, in 7 Jac. 1, in the case of Hall v. Ellis, that so it is of (b) Fuller v. Lane, 2 Add. p. 426 ; 1 Phillim. p. 237. (c) Partington v. Rector of Barnes, 2 Lee, p. 354. d) 2 Hagg. Eccl. p. 417. e) Blake v. Usborne, 3 Hagg. Eccl. p. 733. (/) Fuller v. Lane, 2 Add. p. 431. (g) Gibs. p. 200. (h) Prideaux, Churchwarden's Guide, p. 387, ed. 15. In Clifford v. Wicks, 1 B. & A. p. 506, Bayley, J., repeats this rule. (t) Per Holroyd, J., in Clifford v. Wicks, 1 B. & A. p. 498. CHURCHES AND CHURCHYARDS. 1433 common right, in regard to his repairing the chancel ; but it was declared at the same time, that by prescription another parishioner may have it (A*). In Spry v. Flood, Dr. Lushington said, " I apprehend that sPry v- Flood' the rector would be entitled, according to the common law of the land, to the chief seat in the chancel, whether he be endowed rector, or spiritual rector only, unless some other person were in a condition to prescribe it for himself from time immemorial ; and that the Ecclesiastical Court, in the exercise of its ordinary authority, would allot to him the possession of such sitting, and protect him against the disturbance of such right (i). In some places, where the parson repairs the chancel, the Vicar's seat vicar by prescription claims a right of a seat for his family (m). m chancel- As to the right of a seat in the chancel, it was originally in- herent in every vicar. For before the Reformation, the hours of the breviary were to be sung or said in the chancel (not in the body of the church) by the express words of a constitution of Archbishop Winchelsea ; and this was to be done, not only on Sundays and festivals, but on other days, by another consti- tution of the said archbishop ; and these hours were to be sung or rehearsed, not by the vicar alone, but with the consort and assistance of all the clergymen belonging to the church, which were the ecclesiastical family of the vicar. So that it is evident, that all vicars had a right of sitting there before the Reforma- tion, and by consequence must retain this right still, unless it appear that they have quitted it ; and if they have not for forty years past used the right, this breeds a prescription against them in the ecclesiastical courts. In many chancels are to be seen the ancient seats or stalls used by the vicar and his brethren in performing these religious offices, like those which remain in the old choirs of cathedral and collegiate churches ; and from hence it is, that canccllus and chorus (the chancel and the choir) are words of the same signification ; this being the place where the body of the clergy of every church did sing, or at least rehearsed their breviary, and if any common parishioner may prescribe to a pew in the chancel, much more may the vicar (n). As these seats were placed at the lower end of the choir or chancel, for the daily use of the vicar, so at the upper end stood the high altar of every church, where, as the vicar, or his representative, was obliged to celebrate mass every Sunday and holiday of obligation, so he might do it every day, if there was occasion, or if he pleased ; so that it is clear, the use of the chancel was entirely in the vicar, whoever repaired it ; and therefore no wonder if the pavement were not to be broken up without his leave ; and that thereupon he should acquire a (k) Hall v. Ellis, Noy. p. 133; Johns, p. 264. (?) 2 Curt. p. 359. (m) Johns, pp. 269, 270. (n) Ibid. 1434 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Difference between great chancels and lesser ones. Ordinary aisles. As to seats pulled down. right of receiving what fees were due on such occasions. And the Reformation left the rights of parson and vicar as it found them (o). " It is therefore," Mr. J ohnson says, " a very groundless notion with impropriators, that they have the same right in the great chancel that a nobleman hath in a lesser. These lesser chancels are supposed by lawyers to have been erected for the sole use of these noble persons ; whereas it is clear the great chancels were originally for the use of clergy and people ; but especially for the celebration of the eucharist, and other public offices of reli- gion, there to be performed by the curate and his assistants. That the parsons repair these great chancels doth not at all prove their sole right to them, for they were bound originally to repair the church as well as chancel ; and of common right the repairs of the church are still in the parson ; it is custom only eases them of this burden. The ordinary hath no power to order morning or evening prayer to be said in noblemen's chancels, but he can order them to be said in the great chancel" (p). "Where seats in aisles are spoken of as having a peculiar privilege, the reference is to such aisles as form lesser chancels. Ordinary architectural aisles are, as the editor believes, in law part of the nave. As to the material fabric of seats it is said, that if any seats annexed to the church be pulled down, the property of the materials is in the parson, and he may make use of them if they were placed in the church by any one of his own head, without legal authority ; but for the seats erected by the parishioners by good authority, it seems that the property of the materials upon removal is in the parishioners (q). If any persons of their own heads shall presume to build any seat in the church, without licence of the ordinary, or con- sent of the minister and churchwardens, or in any inconvenient place, or too high, it may be pulled down by order from the bishop or his archdeacon, or by the churchwardens with the con- sent of the parson : for the freehold of the church, and all things annexed to it, are in the parson ; and therefore if any presume to cut or pull down any seat annexed to the church, the parson may have an action of trespass against the misdoer (though he formerly set it up), if he do it without the parson's consent, or order from the ordinary; but if the seat be set loose, he that built it may remove it at his pleasure (r) . In Gihon v. Wright, in an action of trespass brought by Gfilson, for breaking and cutting in pieces his pew, and taking it away ; the defendants pleaded that they were churchwardens, and that the plaintiff had built it in the church without licence. (o) Johns, p. 270. (q) Degge, pt. 1, c. 12; Prideaux, (p) Johns, pp. 270, 271. Vide Churchwarden's Guide, p. 384. supra, pp. 761, 762, 1402. (r) Degge, pt, 1, c. 12. CHURCHES AND CHURCHYARDS. 1435 And by the court, the trespass is confessed; for though they may remove the seat, they cannot cut the timber and materials into pieces (s). This decision has, however, been doubted (t). All persons (says Sir J. Nicoll) ought to understand that the Power of the sacred edifice of the church is under the protection of the eccle- courtto ^ siastical laws as they are administered in these courts ; that the punish those possession of the church is in the minister and the church- who illegally wardens ; that no person has a right to enter it when it is not ^ect °r open for divine service, except under their permission and with their authority; that pews already erected cannot be pulled down without the consent of the minister and churchwardens, unless, after cause shown, by a faculty or licence from the ordinary. The learned judge, in that case, condemned a lessee of an impropriator of great tithes in the costs of the proceeding, admonished him to pull down the seats he had erected, to rein- state the chancel as it was, and to certify by the first day of next term that he had complied with the sentence (u). Trifling alterations, however, may be made in a pew without a faculty from the ordinary, unless some private right is in- fringed thereby (x) . There remains yet to be considered that sort of right to a pew Possessory which is termed " possessory " (?/). This, by the common law of righttoapew. the church, is holden sufficient to maintain a suit against a mere disturber (s) : the fact of possession implies either the virtual or actual authority of those having power to place ; the disturber must show that he has been placed there by this authority. But a possessory right is not good against the churchwardens and ordinary ; they may displace and make new arrangements, but they ought not, without cause, to displace persons in possession ; if they do, the ordinary would reinstate them. The posses- sion, therefore, will have weight : the ordinary would give a person in possession cceteris paribus the preference over a mere stranger (a). Possession based upon an obviously illegal title will, however, give no right (b). A possessory title is sufficient ground for resisting a faculty ( Pews are to be set apart for the minister and churchwardens, and one-fifth at least of the sittings shall be free where the church is built or assisted out of the rates (r) . The commissioners are to fix the pew rents, which might, under the earlier Acts (s), be altered with the consent of the in- cumbent, patron and bishop, and in some cases the vestry ; now, however, by 3 & 4 Yict. c. 60, s. 5, this power is given to the commissioners and bishop. The pews may be let to any parishioner ; subscribers to the building of the church to have the first choice, and, where no parishioner is desirous of renting them, to non-parishioners. Subscribers towards building the church or procuring the site may be discharged from pew rents in consideration of their subscription (f). The rents are to be recoverable by the church- wardens (u). Out of these rents the commissioners, with the consent of the Payments out bishop (in case of difference the matter to be settled by the arch- of pew-rents, bishop), are to allot a stipend to "the spiritual person serving the church or chapel," and a salary to the clerk ; or they may assign the pew rents to the churchwardens of the parish or dis- trict, who shall thereout pay the stipend and salary, so far as they are sufficient. The surplus of the pew rents is to be invested and accumulated to form a fund for building or purchasing a p. 755; Rogers v. Brooks, 1 T. R. s. 11. p. 431 ; Morgan y. Curtis, 3 Man. (r) 58 Geo. 3, c. 45, s. 75; 59 & R. p. 389. See Philippe v. Geo. 3, c. 134, s. 30. Halliday, App. Ca. 1891, p. 228; (*) 58 Geo. 3, c. 45, ss. 63, 78; 23 Q. B. D. p. 48. Vide supra, 59 Geo. 3, c. 134, s. 31. p. 1429. (t) 58 Geo. 3, c. 45, s. 76; 59 (0) Per Hale, C.B., in Steven's Geo. 3, c. 134, s. 33; 3 Geo. 4, Case, 1 Sid. p. 203. c. 72, ss. 24, 25; 1 & 2 Will. 4, (p) Buxton v. Bateman, 1 Sid. c. 38, s. 21. p. 201. (n) 58 Geo. 3, c. 45, ss. 73, 77, (q) See also 8 & 9 Yict. c. 70, 79. 5 a2 1438 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Lloyd v. Burrup. 59 Geo. 3, c. 134. Endowment out of pew- rents. 3 Geo. 4, c. 7 Transfer of pews. Proportion of free seats. house for the minister, and after that is to be applied either to increase the minister's stipend, or to reduce the pew rents, or to increase the accommodation, as the bishop shall direct ; or the commissioners may apply the surplus in payment of any loan raised for building the church, or in aid of the church rate in the parish (x) . It seems from the case of Lloyd v. Burrup (if), that the minister can bring an action against the churchwardens for non-payment of his stipend when they have sufficient funds from the pew rents in their hands to pay it. In that case the plaintiff was, as the minister of a district church, entitled to receive out of pew rents from the defendants, the churchwardens, a stipend of 550/. a year under a deed of assignment duly executed by the commissioners, whereby that sum was assigned to the minister of the church, and was ordered to be paid from Christmas, 1826, on the " four most usual feast days, viz., Michaelmas Day, Christmas Day, Lady Day, and Midsummer Day, in even and equal portions." The deed also provided that the stipend should in no case exceed the amount produced by the pew rents in any one year. At Michaelmas, 1867, two quarters were due, amounting to 275/., which the plaintiff claimed of the defendants. They had in hand, at the commencement of the action, in October, 1867, only 199/. 10s. 10r/., of which 120/. 5s. 6d. was made up wholly of pew rents paid in advance for the occupation of pews after Michaelmas. They paid the 79/. 9s. 4c/., but this sum of 120/. os. 6c/. being insufficient to meet the then accruing quar- ter's stipend, they refused to pay over to the plaintiff. And it was holden that under the terms of the assignment and the cir- cumstances of the case, the plaintiff was not entitled to receive from the defendants, in respect of his stipend for the quarters previous to Michaelmas, money paid in advance for the occupa- tion of pews after Michaelmas. It should be noticed that, under 59 Greo. 3, c. 134, s. 15, cor- porations and persons possessing a limited interest or under disability "may endow or agree to the endowment of any chapel heretofore built out of the pew rents thereof." By 3 Greo. 4, c. 72, s. 23, the commissioners may transfer the right to any pews in an existing church belonging to any person residing in the district of a new church, with his consent and in order to increase the free seats in the old church, to such new church. The Acts for enabling private persons to build churches or chapels require that every application to the bishop for leave to build such a church " shall offer to set apart such number or proportion of free seats as is required," by the previous Church Building Acts, " in cases in which churches or chapels are built or purchased under the provisions of the said recited Acts with (x) 58 Geo. 3, c. 45, ss. 64, 72; {y) L. E., 4 Ex. p. 63. 59 Geo. 3, c. 134, ss. 26, 27, 28. CHURCHES AND CHURCHYARDS. 1439 any money advanced by the commissioners under the said re- cited Acts," and to provide out of the pew rents a competent salary for the minister ; and no pew rents are to be taken till the chapel is consecrated (z) . Subject to this, all the provisions of the previous Church Building Acts are to ap£>ly (a). By 1 & 2 Will. 4, c. 38, s. 4, the trustees may fix and alter 1 & 2 Will. 4, the scale of pew rents. c* 38, By 1 & 2 Yict. c. 107, s. 18, where a chapel is converted into ] ^027Vlct* a parish church, the commissioners, with consent of the bishop, pew.ren^8 0f may make provision for the minister and clerk of the old and chapels, new parish church out of the pew rents of either, so long as they do not touch the rights of any persons claiming by faculty or prescription (b). By 14 & 15 Yict. c. 97, s. 1, where a permanent endowment 14 & 15 Vict, in lieu of pew rents to the satisfaction of the commissioners is c- 97, made for any church for which pew rents have been previously J^tTto cease fixed under any of the previous Church Building Acts, and where such pew rents have not been appropriated under any local act, the commissioners may, with the consent of the bishop, declare that pew rents shall cease for the whole or part of the church (according to the amount of the endowment), and the seats thus freed shall be at the disposal of the churchwardens like those in an " ancient parish church." By 19 & 20 Yict. c. 104, s. 5, " Every person resident within J9^420 Vict' the limits of any new parish or district already formed under j^^t'to ews any of the Church Building Acts, or hereafter to be formed generally^8 under the provisions of " 6 & 7 Yict. c. 37, and 7 & 8 Yict. in the old c. 94, "or of this act, who shall have claimed and have had P*™J ^ assigned to him sittings in the church of such new parish, shall tained after thereby surrender, as to any right that he may have possessed, occupation of an equal number of sittings in the church of the original parish ng^ng8 m tlie or other ecclesiastical district out of which such parish shall have been taken, unless such last-mentioned sittings be held by faculty or under an act of parliament." Sect. 6, "It shall be lawful for the commissioners, if it shall Pew-rents appear to them that sufficient funds cannot be provided from ^rding^11 other sources, but not otherwise, with the consent of the bishop scale, and of the diocese under his hand, to order and declare by an applied to- instrument in writing under their common seal that annual Church and rents may be reserved and taken in respect of any pews or providing en- sittings in any church to or for which a district may hereafter be dowment. assigned under the provisions of the said recited acts or of this act, and such rents shall be charged, levied, and taken by the churchwardens for the time being of such church after a rate or scale which shall be specified in such instrument, and the proceeds (z) 5 Geo. 4, c. 103, s. 10. (a) Ibid. s. 18. See 1 & 2 Will. 4, c. 38, s. 22. (h) The commissioners may, by 47 & 48 Yict. c. 65, s. 4, revoke or alter this provision. Vide infra, Part IX., Chap. V. 1440 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Alteration of scale. Upon per- manent en- dowment of any church or chapel a pro- portionate number of sittings to be declared free, or scale of pew-rents to be reduced. 32 & 33 Vict, c. 94. Pews or sit- tings may be surrendered to ecclesiastical commis- sioners. not otherwise appropriated by law shall he applied towards the repair and maintenance of the same church, and the maintenance of the minister and the services thereof, and the endowment of such church, in such manner as shall he specified in such instru- ment, and to no other uses : Provided always, that one half part at least of the whole number of pews or sittings in such church shall be free sittings, and that it shall be shown to the satisfaction of the said commissioners that the said free sittings will, with respect to position and convenience, be as advantageously situated as those for which a rent may be fixed and reserved." By sect. 8, the scale of pew rents may be altered from time to time. Sect. 7. " Upon a permanent endowment being provided for any church in which pew rents have previously been authorized to be taken, and upon such endowment being approved by the commissioners, they may thereupon, under such an instrument under their common seal as is hereinbefore mentioned, with the consent of the bishop of the diocese, make an equivalent reduction in the total amount of the rents authorized to be taken for the pews or sittings in such church, if the same shall not be appro- priated by law for specific purposes, either by a reduction of the rate or scale, or by declaring certain specific pews or sittings theretofore chargeable with the rents to be absolutely free : Provided always, that if any sum or sums of money have been borrowed under the authority of any act of parliament or order in council upon the security of pew rents such instrument shall not take effect until after the repayment of all sums so charged or chargeable." By 32 & 33 Yict. c. 94, s. 2, " Whenever by virtue of any public or private act of parliament now or hereafter in force, or by virtue of any deed or instrument, the pews or sittings, or some or one of the pews or sittings, in any church or chapel, consecrated or unconsecrated, are or is or shall be subject to any trust as to the grant, demise, sale, or disposal of such pews or sittings, pew or sitting, or are, is, or shall be the private property for any estate whatsoever of any person or persons, then and in every such case it shall be lawful for the trustees of such church or chapel, or other the persons exercising powers of grant, demise, sale, or disposal as aforesaid, or for all or any persons possessing on their own behalf or on the behalf of others any rights, qualified or unqualified, of ownership, by reason of any such grant, demise, sale, or disposal as aforesaid, or for any person or persons to whom any pews or sittings, pew or sitting, in such church or chapel, shall belong, for any estate whatsoever, under or by virtue of such act of parliament, deed, or instrument as aforesaid, with or without consideration, to surrender and for ever yield up, either altogether or separately, and according to the nature and extent of their several rights and interests, to the bishop of the diocese wherein such church or chapel is situate, or to the Ecclesiastical Commissioners for England, who are hereby respectively authorized to accept every such surrender, all rights CHURCHES AND CHURCHYARDS. 1441 of ownership, grant, demise, sale, disposal, or other right what- soever which they the said trustees, persons or person, may have in, over, or in respect of such pews or sittings, pew or sitting." Sect. 3. " Every such surrender shall be made by deed Surrender to executed by all the parties to the same, amongst whom shall beebyd^' be included the bishop of the diocese wherein the church or theparties7 chapel to be affected by it is situate, and the patron or patrons including" of such church or chapel aforesaid; and such deed shall be ^|^°^of registered in the registry of the said diocese." Sect. 4. " So soon as all rights and powers over or in respect Upon surren- of the pews or sittings in any such church or chapel shall have ^jjjjjjj^*8 been surrendered to the bishop of the diocese or to the said ^^ceaso?' commissioners as aforesaid, the trusts or rights of ownership, and the obligations affecting such pews or sittings, or any of them, under such act of parliament, deed, or instrument as aforesaid, shall at once and ipso facto determine, and all the provisions of such act of parliament, deed, or instrument as to pews or sittings in such church or chapel shall thenceforth be void and of none effect." Sect. 5. "From and after every such surrender to the said And pews, &c. bishop or commissioners, the pews or sittings, pew or sitting, Sews of Un- affected thereby shall, to the extent of the rights or powers cient parish expressed to be surrendered, be subject to the same laws as to churches, all rights and property therein as the pews and sittings of ancient parish churches are now subject to: Provided that if the church or chapel be not consecrated such pews or sittings, pew or sitting, shall belong absolutely to the bishop and his successors or to the said commissioners, as the case may be, until the consecration of the said church or chapel, and from and after the consecration thereof the right of the said bishop or commis- sioners shall cease, and the said pews or sittings shall be subject to the same laws as to all rights and property therein as the jDews and sittings of ancient parish churches." Sect. 6. " The powers and provisions hereinbefore contained Powers as to pews and sittings subject to trusts as aforesaid in any such contSnedto church or chapel as aforesaid shall, mutatis mutandis, be held to apply to and apply to and shall be held to authorize the absolute transfer and authorize conveyance to the said commissioners, by any deed or deeds, transfer to made without consideration and executed by all the parties ecclesiastical thereto as aforesaid, of the freehold of any church or chapel, commis- consecrated or unconsecrated, and of the vaults therein or there- sloners- under, which, under or by virtue of any such act of parliament, deed, or instrument as aforesaid, is or are or shall be vested in any persons or person in their own right or as trustees or trustee of such church or chapel for an estate in perpetuity ; and if such church or chapel be unconsecrated at the time of such transfer and conveyance, such freehold so transferred and conveyed shall remain in the said commissioners until the consecration of the 1442 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Upon com- plete surren- der, all rights created by act for building church to 35 & 36 Vict, c. 49. Ecclesiastical commis- sioners may- accept a church site under a grant in which it is declared that pews or seats shall not be let. Securing sti- pend to in- cumbent when seats are wholly or partially free. Unions. 8 & 9 Vict, c. 70. Where new church is substituted same church or chapel, and shall then ipso facto become subject to the same laws as to all rights and property therein as the pews and sittings of ancient parish churches." Sect. 7. "In every case in which a complete surrender and determination of the rights, powers, obligations, and trusts affecting the pews or sittings in a church or chapel shall have been carried out as aforesaid, and in every case in which such transfer and conveyance as aforesaid of the freehold of a church or chapel, and the vaults (if any) thereof, shall have been effected, all other rights, powers, obligations, and trusts created, conferred, or enforced as to such church or chapel by the act of parliament, deed, or instrument under which such church or chapel was built, shall upon such complete surrender and deter- mination, or (as the case may be) such transfer and conveyance, absolutely cease and determine ; Provided always, that such cesser and determination shall not diminish or in anywise affeot any right or rights of patronage." Lastly, by 35 & 36 Vict. c. 49, The Church Seats Act, 1872, it is enacted as follows : — Sect. 2. "It shall be lawful for the ecclesiastical commis- sioners, in the exercise and fulfilment of the powers and duties conferred or imposed upon them by the acts administered by them or any or either of the same acts, to accept a church site under a grant or conveyance in which it is declared that the pews or seats in the church erected or to be erected on the same site, or some specified portion of the same pews or seats, shall not be let for any payment of money, and thereupon it shall be unlawful to let the same pews or seats or portion of the same for payment of money." Sect. 3. "In every case in which it is so declared that no portion of the pews or seats shall be let for any payment of money, a sufficient endowment or stipend of not less than one hundred pounds per annum shall be secured to the incumbent by or to the satisfaction of the ecclesiastical commissioners, and in every case in which a portion only of the pews or seats may not be so let, an endowment or stipend of such amount as the said commissioners may determine, regard being had to the proportion of pews or seats which may not be so let, shall be in like manner secured." Where there is an union not merely of benefices, but of parishes, and one church only remains, special provisions are made for transferring old rights to seats in the church which is pulled down to the church which remains (b). It is provided by the Act 8 & 9 Yict. c. 70, s. 1, that . . . . " where a new church has been already built or shall hereafter be built in any parish or district parish, or ancient or parochial chapelry, and where the bishop of the diocese and the patron (b) Vide supra, pp. 405, 414, 415. CHURCHES AND CHURCHYARDS. 1443 and incumbent of such parish, district parish, or ancient or for ancient parochial chapelry shall at any time certify to her Majesty's Pansl1 church, commissioners for building new churches that it will be for the convenience of such parish, district parish, or ancient or paro- chial chapelry that such new church, being duly consecrated, should be substituted for the old or existing church situate therein, it shall be lawful for the said commissioners, by an instrument under their common seal, with the consent of such bishop, patron, and incumbent, under their hands and seals, to declare that such new church, being duly consecrated, shall be substituted for such old or existing church .... and at any Claims of time within six months after the substitution of such new church ]Jf*ts in ^he for the old or existing church the bishop of the diocese may of 0ld church to his own mere motion issue, or, if thereunto required by any he investi- person claiming to hold a pew or seat free of rent in such old proved ^uchf or existing church by faculty or prescription, shall issue, a persons to commission under his hand and seal, directed to the archdeacon have seats in of the archdea conry in which such old or existing church shall ^j^^h^ ^he be situate, and to any two incumbents of parishes situate within same terms such archdeaconry, and to any two laymen nominated by the as in tne old churchwardens of such old or existing church, who are hereby one* required to nominate for such purpose two fit persons not claiming any such pew or seat as aforesaid ; and such commis- sion shall direct the commissioners thereby appointed to inquire into the rights of persons, if any, who claim to hold any such pews or seats as aforesaid ; and the said commissioners, or any three or more of them, of whom the said archdeacon shall be one, shall, as soon as conveniently may be, proceed to examine into such claims, after giving fourteen days previous notice thereof, by affixing a copy of such commission on the church door of such new church ; and such notice, signed by such archdeacon, shall specify the day and time and place on which such examination is to be made ; and after making an examination into such claims the commissioners so appointed, or the majority of them, shall under their hands transmit in writing to the said bishop the names and residences of the persons who have sub- stantiated their claims to such pews or seats, and if the said bishop is satisfied therewith he shall assign, under his hand and seal, to such parties respectively, convenient pews or seats in such new church, and such seats so assigned shall be held and enjoyed by the parties entitled to the same in as free and ample a manner as the pews and seats to which they had or would have been entitled in such old or existing church ; and if any party shall find himself aggrieved by the finding of such com- mission the bishop of the diocese shall have power to afford redress, by allotting to such party seats in the new church, if the justice of the case shall in his judgment require it . . . ." By sect. 4, " where any part of the cathedral church has been Where part of accustomed to be used as a parochial church, " the Church Build- ^e^used^? 1444 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. a parochial church, trans- fer of the rights and endowments belonging to such church may he made to a new church ; and the same pro- visions shall be made as to seats as in the previous section. ing Commissioners, with consent of the Ecclesiastical Commis- sioners, the bishop, the dean and chapter, and also of the patron and incumbent of such church, may transfer the rights and endowments belonging to the incumbent of such church, " to any new church which has been or hereafter may be built, and which is situate in the parish where such part of such cathedral is, or is deemed to be, the parish church ; and in case of such transfer the same provisions hereinbefore contained, touching .... the examination into the claims of parties claiming to hold pews or seats by faculty or prescription in the old parish church, and the assignment of pews or seats to those who have substantiated such claims as hereinbefore mentioned, shall apply to such new church which after such transfer shall become the parish church in lieu of the former parish church so belonging to such cathedral " ♦ Subject to ecclesiastical jurisdiction. When not a highway. Repair of. Sect. 8. — Church-way. The right to a church- way may be claimed and maintained by libel in the spiritual court. This is supposed in the several reports upon this head, by the mention of particular circum- stances, without which prohibitions would not have laid (c) . A church-way may commonly be claimed as a private way ; and upon suggestion that it is a highway, a prohibition will be granted ; so if the suggestion prove true, the right is triable at common law (d). A way to a parish church, or to the common fields of a town, or to a village, which terminates there, may be called a private way, because it belongs not to all the king's subjects, but to the particular inhabitants of such parish, house or village, each of which, as it seems, may have an action for nuisance therein ; whereas nuisances in highways are punishable by indictment, and are not actionable unless they cause a special damage to some particular person (e). Yet an indictment for stopping communem viam pedestr'em ad ecclesiam de Whitfoj was holden good, for it was taken to be a foot- way common to all, and not merely to the parishioners, and that the church was only the terminus ad quern (/). If a way leading to a church be a private way, he who ought to repair may be compelled to repair (c) Ayl. Par. p. 438; Gibs. p. 293 (d) Gibs. p. 293; 2 Roll. Abr. Prohibition (F.), p. 287 ; Ayl. Par. p. 438. (e) 4 Bac. Ab. Highways (A.), p. 215. (/) Thrower's Case, 1 Ventr. p. 208, cited in 2 Raym. p. 1175, CHURCHES AND CHURCHYARDS. 1445 by the ecclesiastical court, and no prohibition will lie ; but otherwise, if it be a highway, though it lead to a church. If it be a highway, that is, common to all his majesty's subjects, the charge of repairing it, of common right, lies on the occupiers of lands within the parish, but may be cast on certain persons by reason of inclosure, tenure, or prescription (g). Prescription for a church-way may be pleaded by any "When and inhabitant in the spiritual court. This was done in 16 Jac. 1 : where it can DG Cl£klIX16Ct t)V but upon suggestion that it had been enjoyed by permission prescription, only, and not as of right, a prohibition was granted : as it was also in a case which Rolle mentions in the same year, when the churchwardens of Bithorne and Bowe sued for a church-way as appertaining to all the parishioners by prescription (It). Which case mentioned by Rolle is thus : if the churchwardens of a church sue for a way to a church that they claim to belong to all the parishioners by prescription, a prohibition shall be granted, for this is temporal (/). In connection with the subject of paths or steps which, though Church way leading to the church itself, are inside the church-yard, reference msl^e church- should be made to the cases of Walter v. Jlountar/uc (k) and yar Batten v. Gech/e (/), treated of in sect. 5 (m) of this chapter, where also will be found a reference to the statute 59 Geo. 3, c. 134, s. 39, enabling the Church Building Commissioners, now the Ecclesiastical Commissioners, to stop or vary entrances into and paths through church-yards (n). In the diocese of Lincoln an inquiry as to church-ways has Visitation long formed a part of the visitation articles, episcopal and in(luiries- archidiaconal. The present form of the bishop's article is — "Are the ancient church- ways maintained free from obstruc- tion?" Sect. 9. — Church Rede. According to the old law, rates for rejDaration of the church Old law. were to be made by the churchwardens, together with the parishioners, duly assembled, after due notice, in the vestry or the church. " . . . quoel unusquisque parochianus tenetur ad reparationcm ecclesiee juxta portionem terra quam possidet intra parocltiam, et secundum numerum animalium " [o). That was according to lands (g) See 4 Bac.Ab. Highways (E.), U) 41 Ch. D. p. 507. pp. 224, 225. (w) Vide supra, pp. 1413, 1414. (h) 1 Gibs. p. 293. (n) Vide supra, p. 1414. (t) 2 Roll. Abr. Prohibition (F.), (o) Lind. pp. 254, 255, note(c); p. 287. and Othobon, Athon. p. 113, (k) 1 Curt. p. 261. note. 1446 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. 31 & 32 Vict, c. 109. Compulsory church rates abolished. Saving of rate; called church rates, but ap- plicable to secular purposes. Provision where money- is due on security of such rates. and stock ; but the rate was a personal, not a real charge, laid upon persons in respect of their lands. It is unnecessary to state the various stages in the history of the subject, by which in our day this doctrine was practically undermined. The Braintree church rate case decided that a majority of the parishioners might refuse a rate : the question whether the recusants were punishable in the Ecclesiastical Court being left open (p). In the year 1868 the 31 & 32 Vict. c. 109, was passed, which rendered a compulsory church rate illegal, but provided in rather an obscure manner for a voluntary church rate, clothed with some of the characteristics of the old law. This statute has been found generally inapplicable, and churches are now for the most part supported by voluntary contributions. The statute, however, is as follows : — Sect. 1. "No suit shall be instituted or proceeding taken in any ecclesiastical or other court, or before any justice or magis- trate, to enforce or compel the payment of any church rate made in any parish or place in England or Wales." Sect. 2. " Where in pursuance of any general or local act any rate may be made and levied which is applicable partly to ecclesiastical purposes and partly to other purposes, such rate shall be made, levied, and applied for such last-mentioned pur- poses only, and so far as it is applicable to such purposes shall be deemed to be a separate rate, and not a church rate, and shall not be affected by this act. " Where in pursuance of any act of parliament a mixed fund, arising partly from rates affected by this act and partly from other sources, is directed to be applied to purposes some of which are ecclesiastical purposes, the portion of such fund which is derived from such other sources shall be henceforth primarily applicable to such of the said purposes as are ecclesiastical." Sect. 3. " In any parish where a sum of money is at the time of the passing of this act due on the security of church rates, or of rates in the nature of church rates, to be made or levied in such parish under the provisions of any act of parliament, or where any money in the name of church rate is ordered to be raised under any such provisions, such rates may still be made and levied, and the payment thereof enforced by process of law, pursuant to such provisions, for the purpose of paying off the money so due, or paying the money so ordered to be raised, and the costs incidental thereto, but not otherwise, until the same shall have been liquidated : Provided, that the accounts of the churchwardens of such parish in reference to the receipt and (p) Burdtr v. VeJey, 12 A. & E. p. 233; 4 Jur. p. 383; 9 L. J. Q. B. 267 ; 10 L. J. Ex. Ch. p. 532. CHURCHES AND CHURCHYARDS. 1447 expenditure of the monies levied under such acts shall be audited annually by the auditor of the poor law union within whose district such parish shall be situate, unless another mode of audit is provided by act of parliament. " Sect. 5. " This act shall not affect any enactment in any Not to affect private or local act of parliament under the authority of which enactments in r, , , i i „ . J local acts, &c. church rates may be made or levied m lieu or, or m considera- where rates tion of the extinguishment or of the appropriation to any other are made for purpose of, any tithes, customary payments, or other property j^ei^ named or charge upon property, which tithes, payments, property, or charge, previously to the passing of such act, had been appro- priated by law to ecclesiastical purposes as defined by this act, or in consideration of the abolition of tithe3 in any place, or upon any contract made, or for good or valuable consideration given, and every such enactment shall continue in force in the same manner as if this act had not passed (7)." Sect. 6. " This act shall not affect vestries, or the making, Act not to assessing, receiving, or otherwise dealing with any church rate, affect vestries, save in so far as relates to the recovery thereof ; but, subject to &c* the provisions hereinbefore contained, whensoever any ecclesi- astical district having within its limits a consecrated church in use for the purposes 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 of such district shall not be entitled to vote for or in reference to a church rate or the expenditure thereof at any vestry meeting of the parish or parishes out of which the said district is formed, nor shall they be assessed to any rate made in relation to the parish church of the said parish or parishes, but such inhabitants may assemble in vestry, and, subject to the provisions of this act, may make and assess a rate in relation to the church of their own district in like manner as if such church were the church of an ancient parish : Provided that nothing in this act contained shall affect any right of burial to which the inhabitants of the district may be entitled in the churchyard of the mother church." Sect. 7. " It shall be lawful for all bodies corporate, trustees, Trustees and guardians, and committees who or whose cestuis que trust are in ?tliers "nder the occupation of any lands, houses, or tenements, to pay, if m.iy pay they think fit, any church rate made in respect of such property, voluntary although the payment of the same may not be enforceable after rate- the passing of this act, and the same shall be allowed to them in any accounts to be rendered by them respectively." Sect. 8. " No person who makes default in paying the amount Regrulationa of a church rate for which he is rated shall be entitled to inquire :1>.t".r il'stons into, or object to, or vote in respect of the expenditure of the pay church monies arising from such church rate ; and if the occupier of rates, any premises shall make default for one month after demand in payment of any church rate for which he is rated, the owner (q) A? to cases within this section, vide infra, p. 1449. 1448 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Church trustees. Definition of ' ' ecclesiastical purposes," 1 ' churcli rate," and " parish." 5 Geo. 4, c. 36. jRippin and Wilson v. Bastin. 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." Sect. 9 refers to church trustees (q). By sect. 10, " ' Ecclesiastical purposes' shall mean the build- ing, rebuilding, enlargement, and repair of any church or chapel, and any purpose to which by common or ecclesiastical law a church rate is applicable, or any of such purposes ; " ' Church rate ' shall mean any rate for ecclesiastical pur- poses as hereinbefore denned ; " ' Parish ' shall mean any parish, ecclesiastical district, chapelry, or place within the limits of which any person has the exclusive cure of souls." As already noticed, sect. 3 continues church rates where money has been borrowed on their security. As to this : Sect. 1 of 5 Geo. 4, c. 36, had enacted, that churchwardens and overseers of a parish may, with the consent of the vestry, of the bishop of the diocese, and of the incumbent, apply to the commissioners empowered to make advances on public works for a loan for " rebuilding, repairing, enlarging, or otherwise extend- ing the accommodation of any church or chapel of such parish," and the commissioners, on being satisfied that the required con- sent has been given, may advance the loan ; which is to be applied "for the purposes mentioned in such application," and rates are to be made for the repayment of the loan. In JRippin and Wilson v. Bastin, the facts were these : — A loan was made under the last-mentioned act for the purpose of re- joairing the church of H. All the formalities required by the act were duly complied with before the loan was granted. A portion of the money was expended in repairing the chancel, and the rest in repairing the other portions of the church. Sub- sequently a rate was made in due form to repay the loan. In a suit against a ratepayer for refusal to pay the rate, the defendant alleged in his answer, that it was the duty of the rector alone to repair the chancel : that the preliminary resolu- tion of the vestry contemplated the application of a portion of the loan to the repair of the chancel ; that a portion of the loan was expended in repairing the chancel ; that the consent of the bishop, and the advance by the commissioners, were given and made respectively on the representation that the loan was wanted for purposes that did not include the repair of the chancel : and that, therefore, the rate was void : — It was ruled by Sir Eobert Phillimore, in the Court of Arches, that the word "church," in the above section, included the chancel, and that, therefore, a portion of the loan might properly be expended in repairing the chancel. It was ruled further, that even if the word " church," did (q) Vide infra, Part VI., Chap. VI. CHURCHES AND CHURCHYARDS. 1449 not now include the chancel, yet, as all the required formalities had heen observed before the loan was granted, an improper expenditure of the loan could not affect the commissioners' right to repayment ; and that the rate, being duly made in form, was valid (r). In Smallbones v. Edney and Lunn (.§), the Privy Council de- Smallboms v. cided, that the impropriator of the great tithes was liable to Edney and contribute to rates raised for the repayment of loans raised Lunn' under the foregoing statute. In Regina v. The Churchwardens of Wigan (t), the House Reg. v. of Lords held that rates under 5 Greo. 4, c. 36, could not be made Churchwardens after twenty years had elapsed from the time when the money °f w%9an- was advanced. It appears, by the case of Rose v. Watson (u), that a church Rose v. rate was still in force, in the year 1894, in the parish of St. Watson. Nicholas, Harwich. The former part of sect. 5 of 31 & 32 Yict. c. 109, covers a 31 & 32 Vict, not infrequent number of cases where, by local act of parlia- c- 109- ment, tithes on houses or customary payments in lieu of tithes or offerings, have been converted into church rates or rates analogous to church rates (x). Such, for instance, is the case in St. Saviour's, Southwark (//), St. Botolph's, Aldgate (s), Halifax in Yorkshire (a), and Falmouth (b). By 56 & 57 Yict. c. xiv, the rector's rate in St. Saviour's, Church rates Southwark, is abolished. in lieu of The latter part of sect. 5 of 31 & 32 Yict. c. 109, was relied tlthes* upon, but in vain, in the recent case of Regina v. Vestry of Manjlebone (/), that the Owner keeps proprietor of a licensed chapel retains his right of property control, in the chapel, and may refuse to admit any person duriDg the celebration of divine service, even the churchwarden of the parish in which the chapel is situate. Sect. 2. — Who may nominate to Chapels. The cure of chapels of ease, in many places, is to be per- How cure formed by those that have the cure of souls in the parish (a). is to^e. And in such case the incumbent of the mother church being 8upp 1 bound to find a chaplain there, may himself serve in the chapel as well as his curate or chaplain (a) . (r) Degge, pt. 1, c. 12. (a) 2 Hagg. Eccl. p. 30. See Bichards y. Fincher, L. R., 4 Adm. & Eccl. p. 255 ; supra, p. 251. (t) 2 Curt. p. 388. Vide supra, p. 244. m) 2 Hagg. Eccl. p. 30. x) Ibid., at p. 50. (y) 9 W. E. p. 35 ; 3 L. T. p. 290. (z) Degge, pt. 1, c. 12. (a) Wats. c. 32. p. 376 ; The Case of the Parson of Ashton, Hob. p. 67. 1460 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Custom as to nomination. Incumbent's right to nominate or veto. Incumbent can forbid stranger from officiating. By agreement (of the bishop, patron, and incumbent) the inhabitants may have a right to elect and nominate a capellane. Otherwise, the ancient custom was, that he was either arbi- trarily appointed by the vicar ; or by him nominated to the rector and convent, whose approbation did admit him ; or was nominated by the inhabitants (as founders and patrons) to the vicar, and by him presented to the ordinary; for custom herein was different : sometimes a capellane was to be presented by the patron of the church to the vicar, and by him to the arch- deacon, who was then obliged to admit him ; at other times the lord of the manor did present a fit person to the appropriators, who, without delay, were to give admission to the person so presented (b). Where there is no custom resting upon a lawful basis, the result of the cases is (as it seems to the Editor), that the incum- bent of the parish has a right to nominate the clerk who is to serve a chapel of ease, but that if it be not a chapel of ease, his only right is of veto, relying on the general law which gives him a right to prohibit other clergy from officiating in his parish (c). In Dixon v. Kershaw (d) , Lord Northington says: "It is undoubted law, that whenever a chapel of ease is evicted, the incumbent of the mother church is entitled to nominate the minister, unless there is a special agreement to the contrary which gives a compensation to the incumbent of the mother church. A mere arbitrary agreement between parson, patron, and ordinary, without such a compensation, will not be sup- ported." Lord Tenterden remarks on this proposition, in Farnicorth v. Bishop of Chester, as follows : "Perhaps that expres- sion requires some qualification ; and where nothing is taken from the income of the incumbent, the consent of the parson, patron, and ordinary, without a compensation, may be suffi- cient"^). " Chapels," says Sir John Nicholl, in Moyseij v. HiUcoat (/), " possess no parochial rights unless acquired by composition with the patron, incumbent, and ordinary." And in Bliss v. Woods (g), the same learned judge adds, "without a provision for the indemnity or compensation of the future incumbent, perhaps in all cases, — certainly if his pecuniary rights and in- terests are to be in any manner affected." It has been already said, that there is no general principle of ecclesiastical law more firmly established than this : that it is not competent to any clergyman to officiate in any church or chapel within the limits of a parish without the consent of the incumbent. (b) Ken. Paroch. Ant. p. 589; see (e) 4 B. & C. p. 568; 7 D. & R, Line v. Harris, 1 Lee, p. 146. p. 72. c) Vide supra, p. 907. (/) 2 Hagg. Eccl. p. 30 at p. 49. d) 2 Amb. p. 528. \g) 3 Hagg. Eccl. p. 511. CHAPELS. 1461 Sir John Nicholl says (h), that the incumbent of a parish has a right to perform divine service in any consecrated building within the parish ; and " I apprehend that by law no persons can procure divine service to be administered without the consent of the incumbent and the licence of the bishop (to which, in some instances, must be added the consent of the patron), — and that the person officiating without such consent is liable to ecclesiastical censures " (i). In McAllister v. Bp. of Rochester (k), it was holden that while the incumbent was entitled to forbid the officiating in his parish by any other clerk, he was not entitled to nominate to any chapel, unless it was a chapel of ease. Sect. 3. — Modern Law as to Chapels to Public Institutions. By 31 & 32 Yict. c. 118, s. 31, it is enacted that, " The chapel 31 & 32 Vict, of every school to which this act applies (/) shall be deemed to c- 118- be a chapel dedicated and allowed by the ecclesiastical law of Chapels to this realm, for the performance of public worship and the admin- pu c sc 00 s' istration of the sacraments according to the liturgy of the Church of England, and to be free from the jurisdiction or control of the incumbent of the parish in which such chapel is situate." By 32 & 33 Yict. c. 56, s. 53, "The chapel of an endowed 32 & 33 Vict, school subject to this act (m), which either has been before or c- 56- after the commencement of this act consecrated according to ^^^to law, or is authorized for the time being by the bishop of the schools9, diocese in which the chapel is situate, by writing under his hand, to be used as a chapel for such school, shall be deemed to be allowed by law for the performance of public worship and the administration of the sacraments according to the liturgy of the Church of England, and shall be free from the jurisdiction and control of the incumbent of the parish in which such chapel is situate." In 1871, the Private Chapels Act, 1871 (34 & 35 Yict. c. 66), 34 & 35 Vict, was passed ; it was entitled " An Act to amend and define the c- 66- Law relating to Private Chapels and to Chapels belonging to Colleges, Schools, Hospitals, Asylums, and other Public Institu- tions " (n). It provided as follows : — Sect. 1. "The bishop of the diocese within which any chapel Bishop may license clergy - (h) Moysey v. Hillcoat, 2 Hagg. (Z) The seven great public schools, Eccl. p. 30. vide infra, Part VIII. , Chap. V. (i) Carr v. Marsh, 2 Phillirn. (m) Vide infra, ibid. p. 198. (n) This title is now misleading, (A*) 5 C. P. D. p. 194. Vide supra, as the act refers only " to chapels p. 907. belonging to colleges," &c. The bill had a wider scope. 1462 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. man of Church of England to certain private chapels ; and revoke such licence. Status of minister, and saving of rights of in- cumbent. Offertory. "belonging to any college, school, hospital, asylum, or public or charitable institution is situated, whether consecrated or uncon- secrated, may license a clergyman of the Church of England to serve such chapel and administer therein the sacrament of the Lord's Supper, and perform such other offices and services of the Church of England as shall be specified in such licence, provided that the bishop shall not include in any such licence, the solemnization of marriage, and may, if he think fit, revoke the same at any time." Sect. 2. " The minister officiating in such chapel shall, with respect to the performance of the offices and services of the church specified in such licence, be subject to no control or interference on the part of the incumbent of the parish or district in which such chapel is situate ; but nothing herein contained shall prejudice or affect the right of such incumbent to the entire cure of souls throughout such parish or district elsewhere than within such institution and the chapel thereof." Sect. 3. " The offertory and alms collected at any chapel subject to the provisions of this act shall be disposed of as the minister thereof shall determine, subject to the direction of the ordinary." Previous mention of. 15 & 16 Vict, c. 85. Conveyance of chapel of closed burial ground . Sect. 4. — Chapels under Burial Acts. Chapels for Cemeteries and Burial Grounds have been men- tioned in connection with the law of Burial (o) , and with the law as to the status of Cemetery Chaplains (p) . "Where a burial ground in the metropolis is closed under 15 & 16 Yict. c. 85, and it is locally situate in a parish other than that to which it belongs, and has a chapel annexed to it, the incumbent and churchwardens of the parish to which it belongs, with consent of the vestry and bishop, may, by sect. 51, convey the chapel to nominees of the incumbent and church- wardens of the parish within which it is situate, with consent of the vestry and bishop thereof, upon such trusts for the last- mentioned parish and subject to such provisions as to the bishop may seem proper. (o) Vide supra, p. 659. (p) Yide supra, pp. 471, 472. ( 1463 ) CHAPTER IV. CHURCHWARDENS. Sect. 1. — General nature of their Office. 2. — Who are exempted or disqualified. 3. — Election. 4. — Admission. 5. — Official Acts of Churchwardens. 6. — Proceedings by and against Churchwardens. Sect. 1. — General nature of their Office (a). In the ancient episcopal synods, the bishops were wont to Origin, summon divers creditable persons out of every parish, to give information of and to attest the disorders of clergy and people. These were called testes synodales, and were in aftertimes a kind of impannelled jury, consisting of two, three, or more persons in every parish, who were upon oath to present all heretics and other irregular persons (b) . And these in process of time became standing officers in several places, esjDecially in great cities, and from hence were called synods men, and by corruption sidesmen ; they are also sometimes called questmen, from the nature of their office, in making inquiry concerning offences. And these sidesmen or questmen, by canons 89 and 90 of 1603, are to be chosen yearly in Easter week, in the same manner as churchwardens (c) . But for the most part this whole office is now devolved upon the churchwardens, together with that other office which their name more properly imports, of taking care of the church and of the goods thereof, which they had of very ancient time. Churchwardens are parochial officers for several purposes, and Nature of are to inspect the morals and behaviour of the parishioners, as ohurohwar- well as to take care of the goods and repairs of the church (d). en 8 0 ce (a) Questmen, sidesmen, or as- (c) Vide infra, pp. 1446, 1470. sistants, are also considered in this (d ) Governors of St. Thomas's chapter, et vide supra, Part IV., Hospital v. Trehorne and Cove, 1 Chap. IX. Lee, p. 129. (6) Ken. Paroch. Ant. p, 649. 1464 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. " .... it is proper " (says Lord Stowell) " to consider what are their duties, and I conceive that originally they were confined to the care of the ecclesiastical property of the parish, over which they exercise a discretionary power for specific purposes. In all other respects it is an office of observation and complaint, but not of control, with respect to divine worship ; so it is laid down in Ayliffe in one of the best dissertations on the duties of Churchwardens, and in the canons of 1571. In these it is ob- served that Churchwardens are appointed to provide the furni- ture of the church, the bread and wine for the holy sacrament, the surplice and the books necessary for the performance of divine worship, and such as are directed by law ; but it is the minister who has the use. If, indeed, he errs in this respect, it is just matter of complaint, which the Churchwardens are bound to attend to, but the law would not oblige them to complain if they had a power in themselves to redress the abuse. In the service, the Churchwardens have nothing to do but to collect the alms at the offertory ; and they may refuse the admission of strange Preachers into the pulpit. For this purpose they are authorized by the canon (e) , but how ? when letters of orders are produced, their authority ceases. Again, if the minister in- troduces any irregularity into the service, they have no autho- rity to interfere, but they may complain to the Ordinary of his conduct. I do not say there may not be cases where they may not be bound to interpose ; in such cases they may repress, and ought to repress, all indecent 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 should be imagined in which even a preacher himself was guilty of an act grossly off ensive either from natural infirmity or from disorderly 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 neces- sity, that supersedes all ordinary rules. In cases which fall short of such a singular pressure, and can await the remedy of a proper legal complaint, that is the only proper mode to be pursued by a Churchwarden — if private and decent applica- tion to the minister himself shall have failed in preventing what he deems the repetition of an irregularity at all. 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 misrepresentation of his own" (/). How far Churchwardens have only the custody of the church under church- the minister ; if he refuses access to the church on fitting occa- have cus- sions, complaint must be made to higher authorities (g) . Church- (e) Can. 50 of 1603. Vide supra, sist. p. 173. p. 787. (sO Lee y. Mathewst 3 Hagg. Eccl. (/) Hutchins v. Denziloe, 1 Con- p. 173. CHURCHWARDENS. 1465 wardens are the guardians or keepers of the church, and repre- tody of the sentatives of the body of the parish (h). church. A parish clerk, having been dismissed from his office by the Power of to rector, though irregularly, and another appointed, the former ferru^ion "of entered the church before divine service had commenced, and divine service, took possession of the clerk's seat : — It was decided, that the churchwardens were justified in removing him from the clerk's desk, and also out of the church, if they had reasonable grounds for believing that he would offer interruption during the cele- bration of divine service (/) . The churchwarden of a parish has, as such, no authority in a No power in private proprietary chapel in the parish, even though clergymen Private be licensed by the ordinary to officiate therein (k) . chapel? &rY Churchwardens are a corporation for the purpose of the How far a custody of the ornaments of the church (/). corporation. A monition to carry into execution a report of the judicial committee, approved by her Majesty in Council, was issued against the church or chapel-wardens, to remove certain orna- ments, and do other acts in the chapel, as therein directed. At the time the monition was served they had ceased to be chapel- wardens. Upon motion by the original promovent, a new monition was directed to be issued, addressed to and monishing the church or chapel-wardens, for the time being, by their official designation only, to do the acts directed by the former monition (m) . The Churchwardens of old civil parishes (n) were by statute Civil duties of (43 Eliz. c. 2) ex officio overseers of the poor, and divers paro- Jj^cllwar" chial duties have been from time to time imposed by statute on them either alone or in conjunction with the overseers, which being wholly of a civil nature are not referred to in this chapter. As regards rural parishes, these functions and duties are now These now taken away. It is provided by the Local Government Act, 1894 abolished in (56 & 57 Vict. C. 73), as follows :- rural parishes. " Sect. 5 (2). As from the appointed day— 7* 67 A lct' " (a) the churchwardens of every rural parish shall cease to be church- overseers, and an additional number of overseers may be ap- wardens in pointed to replace the churchwardens ; and noTon^er18*163 " (b) references in any Act to the churchwardens and over- seers shall, as respects any rural parish, except so far as those references relate to the affairs of the church, be construed as references to the overseers ; and " (c) the legal interest in all property vested either in the overseers or in the churchwardens and overseers of a rural overseers. (h) 1 Black. Com. p. 382. (?') Burton v. Henson and Keshey, 10 M. & W. p. 105. (ft) Bosanquet v. Heath, 9 W. R. p. 35. (0 LiddeU v. Beal, 14 Moo. P. C. C. p. 1. Vide infra, p. 1484. (w) LiddeU v. Beal, 14 Moo. P. C. C. p. 1 (1860). (n) Not in new parishes created under the Church Building Acts. See 8 & 9 Yict. c. 70, s. S. 1466 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. church wardens transferred to parish council. parish, other than property connected with the affairs of the church, or held for an ecclesiastical charity, shall, if there is a parish council, vest in that council, subject to all trusts and lia- bilities affecting the same, and all persons concerned shall make or concur in making such transfers, if any, as are requisite for giving effect to this enactment." Civil duties of " 6. — (1) Upon the parish council of a rural parish coming vestry and jnf-0 0ffice) there shall be transferred to that council : — " (a) The powers, duties, and liabilities of the vestry of the parish except — " (1) as far as relates to the affairs of the church or to ecclesiastical charities ; and " (2) any power, duty, or liability transferred by this Act from the vestry to any other authority. " (b) The powers, duties, and liabilities of the churchwardens of the parish, except as far as they relate to the affairs of the church or to charities, or are powers and duties of overseers, but inclusive of the obligations of the churchwardens with respect to maintaining and repair- ing closed churchyards wherever the expenses of such maintenance aud repair are repayable out of the poor rate under the Burial Act, 1855 (o) : Provided that such obligations shall not in the case of any particular parish be deemed to attach, unless or until the church- wardens subsequently to the passing of this Act shall give a certificate, as in the Burial Act, 1855 provided, in order to obtain the repayment of such expenses out of the poor rate. ' ' (c) The powers, duties, and liabilities of the overseers or of the churchwardens and overseers of the parish with respect to — " (1) Appeals or objections by them in respect of the valuation list, or appeals in respect of the poor rate, or county rate, on the basis of the county rate ; and " (2) The provision of parish books and of a vestry room or parochial office, parish chest, fire engine, fire escape, or matters relating thereto ; and " (3.) The holding or management of parish pro- perty, not being property relating to affairs of the church or held for an ecclesiastical charity, and the holding or management of village greens, or of allot- ments whether for recreation grounds or for gardens or otherwise, for the benefit of the inhabitants or any of them." (o) Yide supra, pp. 664, 1413. CHURCHWARDENS. 1467 Sect. 2. — Who are exempted or disqualified. The same person may hold the offices of churchwarden and Overseers Overseer (o). qualified; Women may be churchwardens. and women. All peers of the realm, by reason of their dignity, are exempted peerS exempt, from the office of churchwarden (p). So are all clergymen, by reason of their order (q) . Clergymen. In like manner all parliament men, by reason of their Members of privilege ()') . Parliament. Sheriffs, according to the decision of Lord Stowell, in Stephen- Sheriffs. son v. Langston (s), are exempt. If an attorney of the King's Bench were made a church- Attorneys, warden of the parish, he had a writ of privilege out of the King's Bench, showing his privilege to be discharged thereof by reason of his attendance in the said court. In 14 Car. 1, Felix Wilson, being an attorney of the King's Bench, was made churchwarden of Hanwell, and he refused, and was sued in the spiritual court to take upon him the office, and a prohibition was granted. So, in like manner, in 15 Car. 1, Mr. Barber being chosen churchwarden of Aldermanbury in London, such writ was granted (t) . In 21 Jac. 1, Stampe, clerk of the King's Bench, was chosen Clerks of churchwarden of Kingston, and had a writ of privilege to the ^ue^'8 spiritual court, requiring them not to compel him to take the enc oath ; which writ being disobeyed, he had a prohibition (u). By 6 & 7 Will. & Mary, c. 4, ss. 1, 2, every person that shall 6 & 7 Will. & use and exercise the art of an apothecary within the city of Mar- c- 4- London and seven miles thereof, being free of the company of Apothecaries, apothecaries, and who shall be duly examined of his skill in the said mystery, and shall be approved for the same, shall, for so long as he shall use and exercise the said art, and no longer, be freed and exempted from all parish offices ; and if he shall be chosen and elected into any such office, or be disquieted or dis- turbed by reason thereof, he shall, on producing a testimonial under the common seal of the said corporation, of such his examination, approbation, and freedom, to the person by whom he shall be so elected or appointed, or by or before whom he shall be summoned, returned, or required to serve or hold any such office, be absolutely discharged from the same, and such nomination, election, return, and appointment shall be void and of none effect. And all persons that shall use and exercise the said art of an apothecary within any other part of the realm, and have been brought up and served in the said art as appren- (o) 29 & 30 Yict. c. 113, s. 12. (p) Gibs. p. 215. (?) Ibid, (r) Ibid. P. VOL. II. (s) 1 Consist, p. 380, note. (<) 2 Roll. Abr. p. 272, Privi- ledge (A). (w) Anon., 1 Eoll. Abr., p. 368. 5c 1468 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. 21 & 22 Vict, c. 90. Medical prac- titioners. 1 Vict. c. 22. Registrars of births, &c. 1 Will. & Mar, c. 18. Dissenters. 31 Geo. 3, c. 32. Roman Catholics. Officers in navy, &c. 45 & 16 Vict, c. 48. Army reserve. 45 & 46 Vict. c. 49. Militia. 53 & 54 Vict. c. 21. Inland revenue officers. 39 & 40 Vict, c. 36. tices for seven years according to the statute of the 5 Eliz. c. 4, shall be freed and exempted from all such offices within the several places where they live, so long as they shall use and exercise the said art, and no longer ; and if any person so quali- fied shall be elected or chosen into any such office, such nomina- tion, election, return, and appointment shall be void, unless he shall voluntarily consent and agree to hold the same. By 21 & 22 Yict. c. 90 (the Medical Act), s. 35, every person registered under the act " shall be exempt, if he shall so desire . . . from serving all corporate, parochial, ward, hundred, and township offices." By 7 Will. 4 and 1 Yict. c. 22, s. 18, registrars of births and deaths or of marriages are exempt from every parochial and cor- porate office. By 1 Will. & Mary, c. 18, commonly called the Act of Tole- ration, ss. 5, 8, if any person dissenting from the Church of England shall be chosen or otherwise appointed to bear the office of churchwarden, or any other parochial office, and such person shall scruple to take upon him such office in regard of the oaths or any other matter or thing required by the law to be taken or done in respect of such office ; he shall and may execute the same by a sufficient deputy by him to be provided, that shall comply with the laws in that behalf : provided, that the said deputy be allowed and approved by such person and in such manner as such officer should by law have been allowed and approved. And every teacher or preacher in holy orders, or pretended holy orders, that is, a minister, preacher or teacher of a congregation, and duly qualified by the said act, shall be exempted from being chosen or appointed to bear the office of churchwarden, or any other parochial office (v) . By 31 Greo. 3, c. 32, s. 8, Eoman Catholic ministers shall be exempted from being chosen or appointed to bear the office of churchwarden. And by sect. 7 of the same act, Eoman Catholics appointed churchwardens may execute such office by deputy. It seems that by Orders in Council of 1663 and 1699 officers in the royal navy and shipyards are prohibited from being chosen churchwardens (x). By 45 & 46 Yict. c. 48, s. 7, " a man belonging to the army reserve shall not be liable to serve the office of constable or any other parochial .... office." By 45 & 46 Yict. c. 49, s. 41, "a person in the militia shall not be compelled to serve as a peace officer or parish officer." By 53 & 54 Yict. c. 21, s. 8, "no commissioner, collector, officer or person employed under the authority of the commis- sioners in relation to inland revenue shall be compelled to serve .... in any corporate or parochial or other public office or employment . . . ." By 39 & 40 Yict. c. 36, s. 9, similar words are used of every {v) Extended by 52 Geo. 3, 155, s. 9. c. (x) Printed, Admiralty Orders in Council, Vol. I., p. 165, ed. 1856. CHURCHWARDENS. 1469 H commissioner, officer, clerk or other person acting in the Excisemen, management or service of the customs." By 7 Will. 4 & 1 Yict. c. 33, s. 12, " no postmaster-general, Post office nor any officer of the post office, shall be compelled to serve .... officials, in any ecclesiastical or corporate or parochial or other public office or employment." No alien born, or alien naturalized, can be a churchwarden (y). Other cases. "If a parish," says Lord Stowell, " had returned a papist, Jew, or a child of ten years of age, or a person convicted of felony, I conceive the ordinary would be bound to reject" (s). In Adey v. Theobald (a), the court refused to compel a Quaker to under- take the office. Deafness is no ground of exemption (b) . When a person first elected churchwarden had, on the payment of a fine, been excused, a person elected in his place, at the same vestry meeting, is bound to serve, unless some exemption is shown (c). No person living out of the parish, although he occupies lands Non-resi- within the parish, may be chosen churchwarden ; because he dents- cannot take notice of absences from church, nor disorders in it, for the due presenting of them (d). But a person maybe a parishioner without inhabiting a house, for he may occupy a farm (e) . A partner in trade, lodging in another parish, is bound to serve in the parish wherein is his house of trade ; and even a non-resident partner in a house of trade has been holden liable to serve the office of church- warden (/). A churchwarden who is ex officio a member of a vestry under Bankrupts, the Metropolis Local Management Act is liable to a penalty if he sits and votes as a vestryman being a bankrupt (g) . It would seem from what has been already stated that Roman Who disquali- Catholics, Jews, minors, aliens, and persons convicted of felony fied- are disqualified from being churchwardens. Sect. 3. — Election. By Can. 90 of 1603, churchwardens, questmen, sidesmen, and Time, assistants shall be chosen in Easter week (h). Canon 90. And by Can. 89, " All churchwardens or questmen, in every By whom Canon 89. (y) Anthony v. Seger, 1 Consist, p. 10. (z) Ibid. («) 1 Curt. p. 447. (b) Cooper v. Attnutt, 3 Phillim. p. 165, Lord Stowell. In that case counsel moved the court to compel Allnutt to take upon himself the office of churchwarden, and the court directed him to take the oath before the proper ordinary. (c) Bimie v. Weller and Elliott, 3 Hagg. Eccl. p. 474. {d) Gibs. p. 215. (e) Brook v. Owen, 3 Phillim. p. 517, in note. (/) Stephenson v. Langton, 1 Con- sist, p. 379. See also Bex v. Poynder, 1 B. & C. p. 178 ; and A. 67. v. Foster, 10 Yes. 335. (g) Leftly v. Mannington, 4 Ex. D. p. 307. (h) Vide supra, p. 737, for this Canon in full. 5c2 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. parish, shall be chosen by the joint consent of the minister and the parishioners (i) 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 con- tinue any longer than one year in that office, except perhaps they be chosen again in like manner . . . •"(/). The books of common law interpret this with a limitation ; namely, if a custom has not been for the parishioners to choose both. In which case when two have been chosen by the parish, on pretence of custom, and one by the incumbent on the foot of this canon, and the ecclesiastical judge has refused to admit the swearing more than one of those who have been chosen by the parish, upon surmise of such custom, mandamuses have been frequently granted by the temporal courts to swear the person so elected by the parish : and also prohibitions have gone, in cases where the spiritual court has attempted to try or overrule the custom, or otherwise to do anything to the prejudice of that title. Upon which occasion it has been said, that churchwardens are lay incorporations and temporal officers ; and that of common right every parish ought to choose their own churchwardens, which right is not to be overthrown but by proof of a contrary custom ; and that although one is sworn, a writ may go to swear another in the same place, to the end both parties may be made capable to try the right (k ) . For, by Coke, Chief Justice : " A convocation hath power to make constitutions for ecclesiastical things or persons. But they ought to be according to the law and custom of the realm. And they cannot make churchwardens that were eligible to be donative, without act of parliament; and the canon is to be intended, where the parson had nomination of a churchwarden before the making of the canon " (/). The curate stands in the place of the parson for nominating one churchwarden (m). In Regina v. Allen, decided in 1872, the Queen's Bench decided that a perpetual curate would be " the minister " within the meaning of canon 89 and the custom in conformity therewith, having power, therefore, to nominate one churchwarden, when he and the parishioners cannot agree upon two persons ; and that where the parishioners dispute the right of the minister to any voice in the appointment of churchwardens, he is not bound (i) As to the meaning of the term "parishioners," the cases of A. G. v. Parker, 3 Atk. p. 577 ; 1 Ves. sen. p. 43 ; Faulkner v. Elger, 4 B. & C. p. 457; 6 D. &R.p. 524; and Etherington v. Wilson, L. R., 20 Eq. p. 606 ; reversed on appeal, 1 Ch. 1). p. 160, should be con- sulted. U) Vide infra, p. 1486, for the latter half of this Canon. (k) Gibs. p. 215; Evelirfs Case, Cro. Car. p. 551 ; Dr. King's Case, 1 Keb. p. 517; Anon., 3 Burr. p. 1420; Butts Case, Noy, pp. 31— 139; Case of the Parishioners of Rol- vendon in Kent, 2 Roll. Abr. p. 287 ; Rex y. Harris, Degge, pt. 1, c. 12. (I) God. p. 163. (m) Hubbard v. Penrice, 2 Stra. p. 1246. CHURCHWARDENS. 1471 serve first to submit names of persons to be chosen churchwardens by agreement before he nominates his own churchwarden (n). The mode of election is first by show of hands, and then by How election polling (0). When two sets of churchwardens are sworn in, the ^^deter" right may be settled in an action. A quo warranto will not be granted, as the office does not concern the rights or prerogatives of the crown (p). The right is now, however, most usually and conveniently tried by mandamus (q) . It has been said that the Ecclesiastical Court has no autho- rity to determine the question of the validity of an election, and that the extent of discretion which it should exercise in swearing in or declining to swear in persons alleged to be chosen church- wardens is difficult to be defined, and that it can be tried only by an action at law(r). See, however, Anthony v. Seger (s), where the validity of the election was thus tried. " The proper and regular mode is for the churchwardens to return two persons to succeed them : but this is not exclusive of other methods, and though customary, is not indispensably necessary, provided the court has satisfactory information of the election in any other way " (/). To a question whether a churchwarden, in London, who had Church- served one year as under- churchwarden, could be compelled to warden not take the office of upper-churchwarden, the late Dr. Harris gave boundto^. the following opinion : more than " The intent of the 89th canon seems to have been to hinder once* the continuance of any person in the office of churchwarden for more than a year, unless under particular circumstances ; and if a majority in vestry should choose the same person a second time, without good reason, and a precedent for so doing, I have no doubt but that the officer so elected would be warranted for refusing to serve, and would be excused and dismissed if prose- cuted in an ecclesiastical court before the ordinary. " But the proviso in the above-mentioned canon (except perhaps they be chosen again in like manner) must, I think, be understood to authorize a second election in special cases, and on a justifiable account ; and in the present instance, as the second election of Mr. Conach for a second year is according to the constant custom of the parish of St. Ethelburg (London), I apprehend that he would be obliged to take the oath, if cited for that purpose into the ecclesiastical court by the present churchwarden, who in strictness of law does not go out of office till the new elected one has been sworn. " 27th April, 1767. George Harris." (n) L. R., 8 Q. B. p. 69. (?) See Be Barlow, 30 L. J., Q. (0) Anthony v. Seger, 1 Consist. B. p. 271 ; Begina v. Allen, L. E., p. 10. Tide infra, Part VI., 8 Q. B. p. G9. Chap. V. (r) Ecclesiastical Courts' Com- (p) Bex v. Dawbeny, 2 Stra. mission, 1832, p. 45. p. 1196; The King v. Shepherd, 4 (s) 1 Consist, p. 11. T. E. p. 381 ; Be Barlow, 30 L. J., It) Anthony v. Seger, 1 Consist. Q. B. p. 271. p. 10. 1472 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Customs in City of London. Customs out of London. Where a select vestry in the city was made up of those who had served the office of churchwarden, or had paid a fine for not serving, it was decided that a repeated re-election of the same person to the office of senior churchwarden, without any neces- sity for so doing, was in violation of the custom, and, conse- quently, void (u) . In 7 Car. 1, a prohibition was granted against the church- warden chosen by the parson of St. Magnus nigh London Bridge, by force of the canon ; upon a surmise, that the parish has a custom to choose both churchwardens (x). And, it was said by Holt, Chief Justice : In London, generally, both the churchwardens are appointed by the parish (?/). In Warner's Case, in 17 Jac. 1, Warner, one of the church- wardens of All-Hallows, in London, prayed a prohibition; for that whereas, by the custom of the said parish, the parishioners used every year to elect one of the parish, who had borne the office of scavenger, sidesman, or constable, to be churchwarden ; and that every year one who had been so elected churchwarden, was to continue a year longer, and to be the upper-churchwarden, and another was to be chosen to him, who is called the under- churchwarden, that such a choice being made in that parish of the said Warner to be churchwarden, the parson notwithstanding that election nominated one Carter to be churchwarden, and procured him to be sworn in the Ecclesiastical Court, and denied the said Warner to be churchwarden according to the election of the parishioners ; and this by colour of the late canon, that the parson should have the election of one of the churchwardens ; and this being against the custom, a prohibition was prayed, and a precedent shown in the common bench, in Easter term of 5 Jac. 1, for the parishioners of Walbrook, in London, where such a prohibition was granted ; for it being a special custom, the canons cannot alter it, especially in London, where the parson and churchwardens are a corporation to purchase and demise their lands ; and if every parson might have election of one churchwarden, without the assent of the parishioners, they might be much prejudiced thereby (s). But although the greatest part of the parishes in London choose both the churchwardens by custom ; yet in all the new erected parishes the canon takes place (unless the act of parlia- ment, in virtue of which any church was erected, shall have specially provided that the parishioners shall choose both) ; in- asmuch as no custom can be pleaded in such new parishes (a) . In Catten v. Berwick, in 5 Geo. 1, a judgment of the Court of Delegates ; the custom was, for the parson to appoint one, and (u) Oihbs v. Flight, 3 C. B. p. 581. (x) Shirley v. Brown, 2 Roll. Abr. p. 287. (y) B. v. Bice, 1 Ld. Raym. p. 138. (z) Cro. Jac. p. 532; Cro. Car. p. 551, and vide Evelinas Case, and Orme v. Pemberton, ibid. p. 589. (a) Gibs. p. 215. CHURCHWARDENS. 1473 the two old churchwardens the other : but it went no further. In this case the two churchwardens could not agree, so the one presents Berwick, and the parishioners at large choose Catten. It was insisted for Berwick, that his case was like that of coparceners, where if they disagree, the ordinary may admit the presentee of which he will, except the eldest alone presents. On the other side it was said, that the cases widely differed ; for in the case of a presentation the ordinary has a power to refuse, but he has not so in the case of churchwardens, for they are a corporation at common law, and more temporal than spiritual officers. And a case was cited to have been adjudged in the King's Bench, where, to a mandamus to swear in a church- warden, the ordinary returned that he was a very unfit person ; but a peremptory mandamus was granted, because the ordinary was not a judge in that case. And the court held, that by this disagreement the custom was laid out of the case ; and then they must resort to the canon : under which, Catten being duly elected, they decreed for him (b) . The King v. Marsh, is a decision which shows that the The King v. custom in the parish of Berkeley in Gloucestershire was to Marsh. have four churchwardens elected by the inhabitants of each tithing (c). In Bremner v. Hull, the parish of Prestwich, in the county of Bremner v. Lancaster, formerly consisted of six several townships or hamlets, -H«& viz., Prestwich, Unsworth, Great and Little Heaton, Tonge- cum-Alkrington, Outwood, and Whitefield, each of which had its own churchwarden, and collected its own church rates, which afterwards formed a common fund for the parish. In 1848 Whitefield was, by order in council, created a separate rectory, and thenceforth ceased to form part of the parish of Prestwich, or to furnish a churchwarden, or to contribute any rates thereto. The evidence of the custom as to the appointment of church- wardens was as follows : — In the township of Prestwich, the outgoing churchwarden, either orally or in writing, presented to the rector the names of two persons (one of whom might be himself), of whom the rector chose one to be churchwarden for the ensuing year ; in each of the other hamlets or townships the selection of the persons submitted to the rector's choice was made at a meeting of the ratepayers of the hamlet or township. As to Prestwich, this course was not always strictly adhered to ; the churchwarden for the time being was sometimes, when cir- (b) 1 Stra. p. 145. In the printed 'In lma inBt negotinm circa jus elec- Catalogues of Processes in the High tionis, admissionis, et jurationis Court of Delegates, No. 808, is the guardiani pro Capella de Burrow- following notice of this case, which bridge pro ann. 1715."' was appealed to that court from (c) 5 A. & E. p. 468. York. " In 17 18, Catton v. Berwick : 1474 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Green t. The Queen. The Vicar of St. Sepulchre v. Church- wardens of St. Sepulchre. Appointment by lord of Where no church- wardens are appointed. Status of church- warden ceasing to reside in parish. Holding office prima facie proof of cumstances rendered it convenient, requested by the rector to continue in office for another year. Upon a special case, in which it was agreed that the court should draw inferences of fact : It was holden, that the custom was valid and sufficiently proved, notwithstanding the occasional deviations ; and that the severance of the hamlet of Whitefield from the rest of the parish of Prestwich, did not affect the validity of the ancient custom (d). Declarations of a deceased rector were received as evidence of the custom (d). In Green v. The Queen (e), the House of Lords, reversing the decision of the Exchequer Chamber and restoring that of the Queen's Bench, decided that a private act of parliament creating the parish of March had destroyed the old custom in the former township or hamlet of March and placed the election of church- wardens in the usual hands, the rector and parishioners. A case is reported as The Vicar of St. Sepulchre v. Church- wardens of St. Sepulchre, Middlesex (/), which shows that this parish, which is partly in the City of London and partly in Middlesex, has five churchwardens, three for the City and two for the county part of the parish. In some places, the lord of the manor prescribes for the ap- pointment of churchwardens : and this shall not be tried in the ecclesiastical court, although it be a prescription of what apper- tains to a spiritual thing (g). In Stutter v. Freston (/>), in 3 Geo. 1, a prohibition was granted to the spiritual court, where it was libelled against the defendant, for not appearing to take upon him the office of churchwarden, though thereunto appointed by the ordinary. And it was holden, that although the parishioners and parson neglect for ever so long to choose churchwardens, yet the ordi- nary has no jurisdiction ; for churchwardens were a corporation at common law, and they are different from questmen, who were the creatures of the Reformation, and came in by the canon law. The canons say, that churchwardens shall be chosen by the parson and parishioners, and if they disagree, then one by the parson and the other by the parishioners; and otherwise they shall not be. It seems that a churchwarden who, during the continuance of his office, ceases to reside in the parish, does not ipso fcieto cease to be churchwarden, although it is a good ground for appointing another in his place (t) . Proof that a party holds the office of churchwarden is prima facie evidence of his having been lawfully appointed, even where {d) L. R., 1 C. P. p. 748. (e) 1 App. Ca. p. 513. (/) 5 P. D. p. 64. (g) God. p. 153. a) 1 Stra. p. 52. (i) Ganvill v. Utting, p. 1081. 9 Jur. CHURCHWARDENS. 1475 the question turns on his title to the possession of land in his being church- capacity of such churchwarden (/»•). warden. It remains to notice the statutory provisions as to the appoint- Church- _ ment of churchwardens in new parishes formed under the Church wardens. jj* Building and New Parishes Acts (7). By 58 Geo. 3, c. 45, 8. 73, " Two fit and proper persons shall 58 Geo. 3, be appointed to act as churchwardens for every church or chapel c- 40 • built or appropriated under the provisions of this act, at the usual period of appointing parish officers in every year, and shall be chosen, one by the incumbent of the church or chapel for the time being, and the other by the inhabitant householders entitled to vote in the election of churchwardens, residing in the district to which the church or chapel shall belong, and of any extra parochial place by such inhabitant householders as would be entitled to vote in the election of churchwardens if such extra parochial place had been a parish ; and the two persons, when so elected churchwardens, shall appear and be admitted and sworn according to law .... and the persons so to be appointed or chosen churchwardens shall continue in their said office until ethers shall be chosen in like manner in their stead . . . It has been holden in the case of Regina v. Barrow that the Reg. v. vestry meeting for the purpose of choosing a churchwarden under this act need not be "convened with the formalities required by 58 Geo. 3, c. 69, s. 1 (m). as the duties and powers of such churchwarden are merely ecclesiastical." By 1 & 2 Will. 4, c. 38, s. 16, " Two fit and proper persons l & 2 W3L i, shall be appointed to act as churchwardens for every church or c- 3S- chapel built or appropriated under the provisions of this act, at the usual period of appointing parish officers in every year, and shall be chosen, one by the incumbent of the church or chapel for the time being, and the other by the renters of pews in such church or chapel ; and the two persons when so elected church- wardens, shall appear, and be admitted and sworn according to law .... and the persons so to be appointed or chosen church- wardens shall continue in their said office until others shall be chosen in like manner in then stead . . . (n). By sect. 25, where parishes are formed under sect. 23 by separating ohapelry districts with ancient chapels of ease from the mother parish, M two fit and proper persons shall be chosen yearly at the usual time of choosing parish officers, out of the inhabitants of such new parish so constituted, being members of the established church, to act as churchwardens of the said parish, one to be chosen by the minister, and one by the persons (A-) GanrnU v. UtUng, 9 Jur. p. 1081. (/) Tide infra, Part IX., Chap. VI. [m) Tide infra, p. 1494. (/<) Upon the construction of these provisions, see the case of Reg. v. Perry, 3 E. & E. p. 640 ; 30 L. J., Q. B. p. 141; yide infra, Part IX., Chap. VL 1476 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. exercising the powers of vestry in the new parish ; and the persons so chosen shall be admitted and sworn, and shall do all things pertaining to the office of churchwardens as to ecclesias- tical matters in the new parish, in like manner as though the same had been of old time a separate and distinct parish . . . 6 & 7 Vict. By 6 & 7 Yict. c. 37, s. 17, " in every case of a district so c' becoming a new parish, two fit and proper persons, being members of the united church of England .... shall, within twenty-one days from the consecration of the church thereof, be chosen churchwardens for such new parish, one being chosen by the perpetual curate thereof, and the other by the inhabitants residing therein and having a similar qualification to that which would entitle inhabitants to vote at the election of churchwardens for the principal parish as aforesaid, or the majority of such inhabitants, and such election shall take place at a meeting to be summoned in such manner in all respects as such perpetual curate shall direct ; and such persons shall continue such churchwardens until the next usual period of appointing parish officers following their appointment ; and at the like time in every year two such persons shall thenceforward be chosen by the perpetual curate for the time being and the inhabitants assembled as aforesaid ; and every person so chosen as aforesaid shall be duly admitted, and shall do all things pertaining to the office of churchwardens as to ecclesiastical matters in the said new parish ; Provided always, that nothing herein contained shall render any such churchwardens liable or competent to perform the duties of overseer of the poor in respect of such their office of churchwardens . . . ." 8 & 9 Vict. By 8 & 9 Yict. c. 70, s. 6 "... In all cases not otherwise c- 70- expressly provided for two fit persons shall be annually appointed churchwardens for the church of every district chapelry or con- solidated chapelry already or hereafter to be formed under the provisions of the hereinbefore recited acts or any of them, or this act, such persons residing within the district chapelry or consolidated chapelry ; and the first appointment of two such persons shall take place . . . with respect to a chapelry district or consolidated chapelry to be hereafter formed as aforesaid within two calendar months after the formation of the same; and the first appointment of such persons, in either of such cases, shall take place at a meeting of the minister of such church and the householders of the district, to be summoned in all respects as such minister shall direct, and every subsequent appointment shall take place at the usual period of appointing j)arish officers, at a meeting to be summoned in all respects as if such district were a parish and such meeting were a parish vestry meeting ; and in each such case one of such persons shall be chosen by the then incumbent or minister serving such church, and the other by the householders, or the majority of such householders, residing in such district chapelry or consolidated CHURCHWARDENS. 1477 chapelry ; and the two persons, when so appointed and elected churchwardens, shall appear and be admitted according to law . . . and the persons so to be appointed and chosen church- wardens shall continue in their said office until others shall be appointed and chosen in like manner in their stead." Sect. 7. " ... In all cases not otherwise expressly provided Appointment for, two fit and proper persons shall be annually appointed ^r^s^or churchwardens for any new church (without a district) already an additional built or hereafter to be built upon a site whereof her Majesty's church, the said commissioners shall have accepted the conveyance, under site whereof the provisions of the hereinbefore recited acts (q) ; and the first cepted by the appointment of such persons shall take place within two calendar commis- months . . . after the consecration of a church to be so here- S10ners- after built ; and the next appointment of such persons, in either of such cases, shall take place at the next usual period of appoint- ing parish officers ; and in each such case one of such persons shall be chosen by the minister of such church, and the other by the renters of pews therein, or b}^ the majority thereof, at any meet- ing to be summoned, in all respects as the minister of such church, or (if there shall be no minister) as the churchwardens going out of office, shall direct, and the two persons, when so appointed and elected churchwardens, shall appear and be admitted accord- ing to law . . . and the persons so to be appointed and chosen churchwardens shall continue in their said office until others shall be appointed and admitted in like manner in their stead : pro- vided always, that if there are no rented pews in such church the minister of such church shall appoint both churchwardens : provided also, that if such new church is made the church of a distinct and separate parish, district parish, district chapelry, or consolidated chapelry, the several provisions of the herein- before recited acts or this act touching the appointment and election of churchwardens for the same, and their powers and duties in each such case, shall thenceforth respectively apply to such church." It will be observed that the qualification expressed in 58 Qualification Geo. 3, c. 45 ; 1 & 2 Will. 4, c. 38 ; and 8 & 9 Vict. c. 70, is ois^ach' that of the persons being " fit and proper." In 6 & 7 Vict, ^der above c. 37, there is the further explicit qualification that they shall acts, be members of the Church of England. The editor, however, cannot conceive that for so purely an ecclesiastical office any one but a member of the church would be "fit and proper." It has been decided in the case of Reg. v. Stevens (r), that Inhabitants though a district of an old parish appropriated to a new church of new district under 5.8 Geo. 3, c. 45, 6 & 7 Vict. c. 37, and 19 & 20 Vict. c. 104, toTote for becomes a separate parish for all ecclesiastical purposes, yet, as churchwar- it remains part of the old parish as to poor and other parochial den.s ,of old * A x * parish. (?) All the previous Church (r) 3 B. & S. p. 333; 32 L. J., Bunding and New Parishes Acts. Q. B. p. 90. 1478 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. 6 & 7 Vict, c. 37. 8 & 9 Vict, c. 70. Duty of churchwar- dens to be s^orn. Donative. Constitution of Boniface. Old law. Contentions as to form of oath. rates, the inhabitants of the district have a right to vote in vestry in the election of churchwardens for the old parish. The contrary seems to have been previously holden in the case of Varty v. Nunn (s). It is provided by 6 & 7 Yict. c. 37, s. 17, and 8 & 9 Yict. c. 70, s. 8, that Churchwardens under those acts shall not be Overseers of the poor. Any person elected to be churchwarden, and refusing to take the oath according to law, may be excommunicated for such refusal ; and no prohibition will lie (t). In Castle v. Richardson (a), in 3 Greo. 1, there was a libel in the ecclesiastical court, for not taking upon him the office of chapel- warden. The defendant pleads, that it is a donative ; and thereupon moved for a prohibition. And upon debate, the same was denied ; the whole court being of opinion, that though there was a difference as to the incumbent, yet as to the parish officers there was none ; for they are the officers of the parish, and not of the patron of the donative. The constitution of Boniface is, " We do decree, that laymen, when inquiry shall be made by the prelates and judges eccle- siastical for correcting the sins and excesses of such as are within their jurisdiction, shall be compelled (if need be), by sentence of excommunication, to take an oath to speak the truth" (x). That ordinaries were empowered by the laws of the church, to require an oath of the testes synodales, appears, not only from this constitution, but also from the body of the canon law. And the same practice of administering an oath appears in the ecclesiastical records of our own church ; where it is often entered, that the presenters were charged upon their consciences, to discover whatever they knew to want amendment in things and persons ; and in process of time, articles of inquiry were delivered to them, upon which to ground their presentments (y). But as contests grew between the two jurisdictions, ecclesias- tical and temporal, this was charged upon the ordinaries and other ecclesiastical judges as an incroachment, that they inserted divers things in their articles of visitation, which were not of spiritual cognizance ; and that by requiring an oath from the churchwardens to present according to those articles, they did in consequence require them to take an oath, which by law they could not and ought not to perform. Upon this foundation, prohibitions were applied for and obtained, for removing those matters from the spiritual to the temporal courts. Until at (s) 5 Jur. p. 1138. (*) Gibs. p. 216. (u) 2 Stra. p. 715. See the in- stances cited where the ordinary has compelled churchwardens to take upon them the office. Cooper V. Allnutt, 3 Phillim. p. 165 ; An- thony v. Seger, 1 Consist, p. 10 ; Adey v. Theobald, 1 Curt. 447 ; and see Stephenson v. Langston, 1 Con- sist, p. 379. (sc) Lind. p. 109. \y) Gibs. p. 960. CHURCHWARDENS. 1479 length, the contests of this kind multiplying, and causing great and frequent troubles, both to the spiritual and temporal courts ; an oath of a more general form was agreed on by the civilians and common lawyers, by which the churchwardens bound them- selves, instead of presenting such things as were contained in the book of articles, to present such things as to their knowledge were presentable by the laws ecclesiastical of this realm (z). Which oath of the churchwardens was this : " You shall sircar, truly and faithfully to execute the office of a Churchwar- churchwarden within your parish, and according to the best of your declaration01, skill and knoiclcdge present such things and persons, as to your knowledge are presentable by the laws ecclesiastical of this realm: So help you God, and the contents of this book" (a). And the sidesman's oath, agreed upon in like manner by the Sidesman's civilians and common lawyers, was as follows : oa^ or decla- ration. " You shall swear, that you will be assistant to the churchwardens, in the execution of their office, so far as by laic you are bound : So help you God" (b). The old oath of the churchwardens being thus modelled, was Form of oath allowed and confirmed two several times in the Court of King's connrmed- Bench; once in the 25th, and again in the 29th of King Charles II. : before both which judgments, it had been expressly declared in the same court, that though some things might be inserted in the articles of visitation, which were not properly of ecclesiastical cognizance ; yet if the oath was conceived and tendered in those general terms, the churchwardens could not legally refuse it : inasmuch as the articles were offered only by way of direction and charge ; and by the tenor of the oath, the ecclesiastical laws, and not the articles, were now become the legal rule and measure of their duty (c) . And now by 5 & 6 Will. 4, c. 62, s. 9, a declaration that he 5 & 6 Will. 4, will faithfully and diligently perform the duties of his office is c- 62- substituted for the oath in the case both of the churchwardens ^?^*1e3^1 and the sidesmen, and no churchwarden or sidesman shall be compelled to take any oath on quitting office. ♦ Sect. 4. — Admission. If the party elected offer himself and the ecclesiastical judge refuse to tender the oath to him ; a mandamus from the tem- poral court will be granted (7/). (z) Gibs. p. 960. (a) Gibs. p. 216. (Z>) Ibid. (c) Gibs. p. 961 ; Rex v. Pratt, 3 Keb. p. 206 ; Anon., 1 Ventr. p. 127. ( 'on a mandamus to the official and commissary of the parish of Hornchurch and liberty of Havering-atte-Bower in the county of Essex, to swear and admit into the office of churchwarden James Meakins, the man- damus reciting that he had been duly nominated, elected, and chosen into the place and office of churchwarden of the said parish. The official returned, that Heakins was not duly elected into the place and office of churchwarden. The court held the return to be good. Bayley, J., referred to Rex v. White Qj), Rex v. liar- wood (q) , Rex v. Ward (r) , and Reg. v. Twitty (s) , and said that these authorities show that the return in the present case is good. (I) Vide supra, p. 1470. R. p. 403. (m) 3 Bur. p. 1420 ; 1 Black. W. {p) 2 Ld. Raym. p. 1379. p. 429. {q) Ibid. p. 1405. (n) Anthony v. Seger, 1 Consist. (r) 2 Stra. p. 893. p. 10. (s) 2 Salk. p. 433. (o) 8 B. & C. p. 681 ; 3 Man. & CHURCHWARDENS. 1483 Littledale, J., said: "The commissary has a right to say by the return, that he is not bound to do the thing which he is required to do by the mandamus. Here he does say so, by showing that the party was not duly elected." Parke, J., said : " The commissary may deny any material allegation in the writ. He cannot exercise any judicial autho- rity, but he may inquire whether the party has been duly elected, otherwise he would be bound to admit any person who presents himself for admission, even if he knew the fact to be that such person was never elected. The party who obtains the mandamus states the foundation of his right in the writ. The commissary may deny it. In this case he has done it, by showing that the party who seeks to be admitted was not duly elected. The return, therefore, is sufficient" (t). In practice (as the editor knows) the ordinary does decide many disputed elections, though it may be asserted that his decision is not conclusive. Where there is & prima facie case of an improper election, the Where im- High Court of Justice will award a mandamus to elect a {^J^616160" churchwarden (u) ; but apparently not now without a previous rule to show cause (x). ♦ Sect. 5. — Official Acts of Churchwardens. It has been already stated that upon the vacancy of a benefice On vacancy the sequestration of the revenues is usually committed by the of benefice- Diocesan Court to the churchwardens [xj). The authority of the churchwardens to keep order in church To keep order, and to remove offenders, or give them into custody, has already been stated in the chapter on Liturgy and Ritual, section as to attendance on, and behaviour at, public worship (s). Their power and duty in allotting seats to the parishioners, To seat which is perhaps a branch of the same authority, has also been parishioners, mentioned in the chapter on Churches and Churchyards, section as to church seats (a) . For these purposes they can, as has been already stated, seat certain classes of the congregation in particular places of the church iff) ; but they cannot exclude persons altogether from the church, because they anticipate that there will not be room ( " (sa^s Lord Penman) " that the ratepayers in vestry are to elect, and that if a poll be demanded, it should be kept open for all qualified persons" (x). It should be here remarked, that where a statute directs an election by poll, the poll may be taken from the holding up of the electors' hands. But if the tellers appointed to take the numbers differ, and a poll is demanded and refused, the court will grant a mandamus to enter an adjournment of the election meeting, and to proceed to complete the election (y) . A person not present at the show of hands may vote at a poll subse- quently taken (z) ; nor is it any impeachment of the validity of the proceedings at an election that the chairman ordered a poll without first taking a show of hands; of course under 58 Greo. 3, c. 69, a show of hands would be no criterion of the number of votes (a). But where a vestry had by show of hands passed a resolution directing an illegal application of some charitable funds, and a poll had been demanded of the persons presiding at the vestry and not granted, the court refused a rule for a mandamus to compel such persons to grant a poll, observing that it ought not to grant a mandamus for the purpose of putting it to the vote whether a breach of trust should be com- mitted (b). Adjournment. In Stoughton v. Reynolds (c), in 9 Greo. 2, it was adjudged, Stoughton v. that the right of adjourning the vestry is not in the minister or Reynold?. anv other person as chairman, nor in the churchwardens, but in the whole assembly, where all are upon an equal footing, and the same must be decided (as other matters there) by a majority of votes. The whole law upon this subject is exhausted in the judg- ment of Sir Herbert Jenner in the Court of Arches, in the case Baker and of Baker and Downing v. Wood(d). The notice was as follows : Wood"9 Y' " Noti-ee is hereby given, that a meeting of the inhabitants in vestry of, and for this parish will be holden in the vestry of (u) Wats. c. 39, p. 397 ; 21 Yin. (z) Campbell v. Maund, 5 A. &E. Abr. Vestry (A), p. 548 ; Clutton v. p. 865 ; 1 Nev. & P. p. 558. Cherry, 2 Phillim. p. 380. (a) Reg. v. Rector of Birming- (x) Reg. v. Rector of St. Mary, ham, 7 A. & E. p. 254 ; Reg. v. Lambeth, 8 A. & E. p. 361 ; 3 Nev. Rector of St. Mary, Lambeth, 8 A. & P. p. 416 ; Veley v. Burder, 12 & E. p. 356. A. & E. p. 265. (b) Rex v. Churchwardens of St. (y) Rex v. Vestrymen and Vestry Saviour's, South wark, 1 A. & E. Clerks of the Parish of St. Luke's, p. 380 ; 3 Nev. & M. p. 878. Middlesex, 2 Nev. & M. p. 464. (c) 2 Stra. p. 1045. d) 1 Curt. p. 507. VESTRIES. 1499 St. Thomas Church, at 11 o'clock in the forenoon of Thursday, the 25th of September instant, for the purpose of expunging an irregular and improper entry made in the vestry order book at a meeting held on the 7th day of August last, and for the purpose of granting the churchwardens a levy of tenpence in the pound. If a poll be demanded, the meeting will be imme- diately adjourned to the town hall, and the poll will commence forthwith, and be kept open till 4 o'clock in the afternoon of the said 25th of September ; and the polling will be continued at the town hall aforesaid from the hours of 10 in the forenoon of Friday, the 2Gth of September, to the hour of 4 in the afternoon of the same day ; and again at the same place from the hour of 10 in the forenoon till the hour of 12 at noon, on Saturday, the 27th day of September, when the poll will finally close." The decision was, that an adjournment by the chairman in accordance with the notice, but without first taking the opinion of the vestry, from the vestry room to the town hall, for the purpose of the poll, was a legal adjournment. The question of the requisite time for the duration of the poll was also much discussed in the course of his judgment. As 785 persons were the greatest number proved to have voted on any occasion, the judge, regretting that a longer period had not been allowed, held that eleven hours was a sufficient time if due diligence had been used for taking the poll (e). The law laid down in this case is confirmed and extended by General power the decision of the Queen's Bench in Reg. v. JfOyly (/). It is J* fee^ent there said that the president of the vestry has authority to regulate the whole of the proceedings ; to decide on what they shall be, so as to insure the voters of the parish a reasonable time to vote ; to adjourn the vestry for the purpose of a poll, if he thinks fit, and to do all necessary acts on his own responsi- bility, being amenable for the propriety of his conduct to a court of justice. But it has been ruled that the chairman of a vestry meeting holden for the purpose of taking a poll for the election of a churchwarden, has no power to close the poll on account of disturbance (g). Those who summon a vestry may fix the hour of meeting; How hour of and a vestry cannot at one meeting fix the hours at which meeting fixed, future vestries shall be holden (Ji). Where, upon the election of a churchwarden, the chairman of Election, the vestry meeting had rejected votes which were alleged to be "Votes refused, admissible, but it did not appear that the rejection had caused (e) Rex v. Commissary of the (g) Reg. v. Graham, 9 W. E. Bishop of Winchester, 7 East, p. 573. p. 738. See Bex v. Archdeacon of Chester, 1 (A) Reg. v. Vicar of Tottenham, 4 A. & E. p. 342. Q. 13. D. p. 367 ; affirmed on appeal, (/) 12 A. & E. p. 139; 4 Per. & nomine Reg. v. Wilson, W. N. D. p. 52. (1880), p. SO. P. VOL. II. 5 E 1500 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. any difference in the result, the court refused to grant a mandamus ordering a fresh election, though the persons, whose votes had been rejected, were parties to the application (i). Close of poll. In a case as to the election of a churchwarden, decided in the court of the Archdeacon of Middlesex : after a show of hands a poll was demanded, which by mutual agreement was com- menced immediately. The chairman agreed with one of the candidates that the poll should close at seven o'clock, which was accordingly done, and thereby some qualified electors were pre- vented from recording their votes, and the election was holden Ballot. to be void (k) . In the same court it was decided that to take the vote by ballot on a poll was illegal (/). Poll in In another case, at a vestry two candidates were nominated writing. £or ^e office of parishioners' churchwarden. The chairman refused to take a show of hands, but proceeded to take a poll in writing of all the members of the vestry present, writing down the number of votes to which each was entitled, and then declared one of the candidates elected. On motion a mandamus was refused, it being holden that, though the chairman's action was irregular, no one was shown to have been excluded from voting by it (m). Sect. 4. — Select Vestries. Origin of. Select vestries seem to have grown from the practice of choosing a certain number of persons yearly to manage the concerns of the parish for that year ; which by degrees came to be a fixed method, and the parishioners lost not only their right to concur in the public management as oft as they would attend, but also (in most places, if not in all) the right of electing the managers. And such a custom, of the government of parishes by a select number, has been adjudged a good custom, in that the churchwardens accounting to them was adjudged a good account (n) . In some parishes, these select vestries having been thought oppressive and injurious, great struggles were made to set aside and demolish them (0) . Batt v. Wat- One of the earliest cases as to select vestries is Batt v. Watkin- kinson. son [n 3 "W"ill. 3, where a prohibition prayed to the spiritual (i) Ex parte Maivby, 3 E. & B. p. 718 (1854). (k) Westerton v. Davidson, 1 Spinks, p. 385 (1854). (I) Story v. Colk, 6 N. C. App. p. xxxiii ; Faulkner v. Elger, 4 B. & C. p. 449. But see Shaw v. Thompson, 3 Ch. D. p. 233. (ra) Reg. v. Incumbent of Ooole, 4 L. T. p. 322. {n) Gibs. p. 219. (0) Steer, Parish Law, c. xi, p. 207, citing Shaw, Parish Law, c. 17. (p) 2 Lutw. p. 1027. VESTRIES. 1501 court at York, on the ground that the parish of Masham (Massum) in Yorkshire was an ancient parish, and that time out of mind there were twenty-four of the chief parishioners, who all along had been called the four and twenty ; and that during time immemorial, as often as any one of the said four and twenty parishioners happened to die, the rest surviving of the four and twenty did choose, and during all the same time used to choose, one other fit and able parishioner of the same parish, to be one of the four and twenty in the room of him so deceased ; and that within the said parish there is, and during time imme- morial there always hath been a custom, that the said four and twenty for the time being have been used and accustomed, as often as there was occasion, to make rates, and to assess reason- able sums of money upon the parishioners and inhabitants in the said parish for the time being for the repairs of the church ; and that the churchwardens of the said parish, during all the time aforesaid, have used to receive all duties and dues for burials in the body or aisles of the said church ; and if any of the inhabitants refuse to pay the said rates or dues for burials Us aforesaid, then the churchwardens, by warrant from the twenty-four for the time being, were used to distrain the goods and chattels of the said parishioners in the said parish ; and that the said twenty-four, with the consent of the vicar or curate, have used to repair the body and aisles of the said church ; and that the churchwardens for the time being, during all the time aforesaid, have always used to give up their accounts to the said four and twenty, who allowed or disallowed the said accounts as they saw expedient ; and that on the allowance of such account, the churchwardens have always been discharged from giving any other account in any other place ; that the plaintiffs were churchwardens for the year 1680 ; and after that year was ended, they gave in their accounts to the four and twenty ; and that though all pleas concerning prescriptions and customs ought to be determined by the common law, yet the defendant hath drawn and cited them into the spiritual court to give in and pass their said accounts there ; and although the said plaintiffs have pleaded all the matters aforesaid in the said spiritual court, yet the said defendant hath refused to admit or to receive the said plea. Upon great debate of this case at several times, the court was of opinion, that the custom was good and reasonable, and a prohibition was granted. So that prescription and constant immemorial usage seems to Such vestries be the basis and only support of such a select vestry (q) . custom °U A select vestry cannot be constituted by a faculty from the bishop (>•). But a custom in a parish has been holden not to be destroyed, because in 1662 the parish had accepted a faculty (q) Steer, Parish Law, c. xi, (r) Berry v. Banner, 1 Peake, Ca. p. 207, citing Shaw, Parish Law, p. 212. c. 17. 5e2 1502 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. corroborative of its power, though the faculty was not binding in law and the vestry had power at any time to depart from its instructions. A custom that there shall be a select vestry of an indefinite number of persons continued by election of new members made by itself, and not by the parishioners, is valid in law (s) ; but it would appear that it must be part of such custom that there should always be a reasonable number, and that the reasonableness of that number must be decided with reference to long- established usage and to the population of the parish, and such custom must have existed from time immemorial in a parish (t). Where by an ancient custom a select vestry was to consist of the rector, churchwarden, and those who had served the office of upper churchwarden, and other parishioners to be elected by the vestrymen, and the practice had been in modern times to elect as vestrymen only those parishioners who had been fined for not serving the office of upper churchwardens, it was holden that they were good vestrymen (u). 10 Anne, In the act 10 Anne, c. 20, s. 20, for building fifty new c- 20- churches, it is provided that the commissioners shall appoint a convenient number of sufficient inhabitants to be vestrymen ; and from time to time, upon the death, removal, or other voidance of any such vestryman, the rest or majority of them may choose another. Under local In the several local acts for building particular churches, acts- sometimes the minister, churchwardens, overseers of the poor, and others who have served, or paid fines for being excused from serving those offices ; sometimes the minister, churchwardens, overseers of the poor, and all who pay to the poor rate ; some- times only all who pay such a sum to the poor rate ; sometimes all who rent houses of so much a year ; — are appointed to be vestrymen within such parishes, and no other persons, l & 2 "Will. 4, Vestries may be constituted by Sir J. Hobhouse's Act, 1 & 2 c- 60- Will. 4, c. 60, the distinguishing feature of which, it will be seen on reference to it, is a provision for the auditing and keeping of parochial accounts by a select body of vestrymen elected from the ratepayers. It will be observed also that it is applicable only to parishes forming part of a city or town, or containing more than 800 ratepayers, and that it in no way affects the ecclesiastical jurisdiction. Vestries in Vestries in the metropolis are constituted under the Metropolis t oliiTetr0" Local Management Acts. 18 & 19 Vict s* ^ °^ ^e ^rs^ °^ ^hese acts, 18 & 19 Vict. c. 120, all c 120. ' duties, powers and authorities as to the concerns of any parish (except such duties and powers as relate, inter alia, to the (s) Golding v. Fenn, 7 B. & C. (t) Oolding v. Fenn, 7 B. & C. p. 765 ; 1 M. & R. p. 647, apparently p. 765 ; 1 M. & R. p. 647. overruling to some extent Berry v. (u) Rex v. Brain, 3 B, & Ad, Banner, 1 Peake, Oa. p. 212. p. 614. VESTRIES. 1503 affairs of the church) are to be vested in the vestries formed under that act. By the second act, 19 & 20 Vict. c. 112, s. 1, " Where at the 19 & 20 Vict, time of the passing of the said act the power of making church c- 112- rates, or rates of the nature of church rates, in anv parish was Church ™tes vested in an open vestry, or in any meeting in the nature of an 0pen vestry- open vestry meeting, or in any meeting of the parishioners, before passing inhabitants or ratepayers generally, or of such of the parishioners, jg^i^Vict inhabitants or ratepayers as were rated at or above any specified c. 120, to be ' amount or value (whether such meeting or vestry were holden so made, for the parish at large or for any liberty or district therein), such power shall not be deemed to have become vested in the vestry constituted in such parish under the said act, but shall be exercised as if the said act had not been passed." Sect. 2. " Nothing in the said act or this act shall affect, Or Nothing" in be deemed to have affected, any power of electing or appointing this act> otid. churchwardens or making church rates, or other power, which ^l^to affect at the time of the passing of the said act was vested in any such ecclesiastical open vestry or meeting as aforesaid, or any elected or other districts, vestry, where such vestry or meeting acts exclusively for any district (by whatever denomination distinguished) created for ecclesiastical purposes only." Sect. 3. "Save as hereinbefore otherwise provided, all the Other powers duties, powers and privileges (including such as relate to the °*v ^j£s a^d affairs of the church) .... which might have been performed declared togS or exercised by any open or elected or other vestry, or any such have been meeting as aforesaid in any parish, under any local act or other- ^g^e^^er wise, at the time of the passing of the said act of the last session, act 18 & 19 r shall be deemed to have become transferred to and vested in the Vict. c. 120. vestry constituted by such last-mentioned act ; . . . Provided that all duties and powers relating to the affairs of the church .... which at the time of the passing of the said act were vested in or might be exercised by any guardians, governors, trustees or commissioners, or any body other than any open or elected or other vestry, or any such meeting as hereinbefore mentioned, shall continue vested in and be exercised by such guardians, governors, trustees or commissioners, or other body as aforesaid." The case of Carter v. Cropley (x), deciding that the right to Carter v. elect their incumbent when previously vested in the inhabitants Ci'°Ple'J- and parishioners paying rates, is not by these acts transferred to the statutory vestries, has been already mentioned (//). (x) 8 De G., M. & G. p. 680; 2 p. 171. Jur., N. S. p. 1200; 3 Jur., N. S. {y) Vide supra, p. 282. FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. CHAPTEE VI. CHURCH TRUSTEES. Church trustees have their origin in the Compulsory Church Bate Abolition Act, 1868 (31 & 32 Yict. c. 109). By the 9th section of this act it is provided as follows : — "A body of trustees may be appointed in any parish for the purpose of accepting, by bequest, donation, contract, or other- wise, 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." " 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 : pro- vided 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 regard shall be had to the direction of the donors of funds contributed for any special ecclesiastical purposes; and, subject as aforesaid," " The trustees may invest in government or real securities 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." CHURCH TRUSTEES. 1505 " The trustees shall, once at the least in every year, lay before the vestry an account of their receij)ts and expenditure during the preceding year, and of the mode in which such receipts have been derived and expenditure incurred, together with a state- ment of the amount (if any) of funds remaining in their hands at the date of such account." It does not appear whether any instance of the application of As to appiica- this section has yet occurred. tion of section. 1506 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. CHAPTER VII. MINOR OFFICERS. Sect. 1. — Parish Clerks. 2. — Sextons. 3. — Organists. 4. — Lay Readers. — * — Sect. 1. — Parish Clerks (a). Clerk in holy Parish clerks in holy orders, under the act 7 & 8 Vict. c. 59, orders. have been already considered (b). Constitution A constitution of Archbishop Boniface provides as follows, of Boniface. "Tye ft0 decree that the offices for holy water be conferred upon poor clerks" (c). For the understanding of which constitution, it is to be ob- served, that parish clerks were heretofore real clerks, of whom every minister had at least one, to assist under him in the celebration of divine offices ; and for his better maintenance, the profits of the office of aqucebajalus (who was an assistant to the minister in carrying the holy water) were annexed unto the office of the parish clerk by this constitution ; so that, in after times, aqucebajalus was only another name for the clerk officiating under the chief minister. How to be All incumbents once had the right of nomination of the appointed. parish clerks, by the common law and custom of the realm (d). And by the aforesaid constitution of Archbishop Boniface, " Because differences do sometimes arise between rectors and vicars and their parishioners, about the conferring of such offices, we do decree, that the same rectors and vicars, whom it more particularly concerneth to know who are fit for such offices, shall endeavour to place such clerks in the aforesaid offices, who, according to their judgment, are skilled and able to serve them agreeably in the divine administration, and who will be obedient to their commands" (e). Canon 91. By Can. 91 of 1603, "No parish clerk upon any vacation shall be chosen within the city of London or elsewhere within («) Called originally " ceditui" (c) Lind. p. 142. Ayl. Par. p. 409. id) Gibs. p. 214. (b) Vide supra, pp. 448, 449. (e) Lind. p. 143. MINOR OFFICERS. 1507 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 church-wardens at such time as hath been accustomed, or by their own collection, according to the most ancient custom of every parish. Since the making of which canon, the right of putting in Customary the parish clerk has often been contested between incumbents rignt.s of and parishioners, and prohibitions prayed, and always obtained, dppom men * to the spiritual court for maintaining the authority of the* canon in favour of the incumbent against the plea of custom in be- Jialf of the parishioners (/). Thus, in Cundit v. Plomer(g), in 8 Jac. 1, the parishioners of the parish of St. Alphage, in Canterbury, prescribed to have the election of their parish clerk, and by the canon the election of the clerk is given to the vicar. It was adjudged in that case, that the prescription should be preferred before the canon, and a prohibition was awarded accordingly. In Jennyn's Case (h), in 21 Jac. 1, Jermyn, rector of the parish of St. Katherine's in Coleman Street, and Hammond, as clerk there, sued in the spiritual court to have the said clerk established there, being placed there by the parson according to the late canon, where the parishioners disturbed him, upon a pretence of a custom to place the clerk there by the election of their vestry. And upon this surmise of a custom, the church- wardens and parishioners prayed a prohibition ; and after divers motions a prohibition was granted ; for they held that it was a good custom, and that the canon cannot take it away. Before the union of parishes in London, effected by 22 Car. 2, in united c. 11, there was a custom in the parish of St. Mildred Poultry parishes, for the parishioners to join with the rector in the election of a parish clerk. By that act the parish of St. Mary Colechurch was united to that of St. Mildred Poultry, the church of the latter parish still remaining ; and it was holden that the right of election after the union continued in the inhabitants jointly with the rector ; and that an appointment by the rector alone, without the concurrence of the majority of such parishioners, was void. It was not decided whether the election should be made by the rector and the inhabitants of both parishes in (f) Gibs. p. 214. Co. p. 70. (g) 2 Hughes Abr. Prohibition, (h) Cro. Jac. p. 670. p. 1551 ; Case of Parish Clerks, 13 1508 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Where incum- bent is sus- pended curate appoints. Aliter, when only seques- trated. Mode of ap- pointment. How to be admitted. joint vestry assembled, or by the rector with the inhabitants of St. Mildred Poultry alone, and whether the presence of the rector at the time of the election was necessary for the validity of the appointment (k). Where a vicar was suspended, for misconduct, by the bishop of the diocese, from performing the duties and receiving the profits of the vicarage, for the space of two years, and, further, until he should exhibit a certificate of good behaviour, and during the suspension the parish clerk died, and the curate appointed plaintiff to be parish clerk during the suspension, and the vicar, on the other hand, appointed defendant as parish clerk, who received fees in that character ; plaintiff having, during the continuance of the suspension, sued the defendant, in respect of these fees, for money had and received : It was ruled — (1) that the curate had the right of appointing the parish clerk ; (2) that the appointment of the plaintiff was good ; but (3) that a general appointment by the curate would be more advisable than one limited to the time of the suspension (/). But when the living is sequestrated only, the incumbent does not lose his right of appointing the parish clerk (m). A pauper was appointed a parish clerk in the following manner : The rector sent for a pauper on a Sunday, and requested him to perform duty on that day, and on coming out of the desk, the rector said to the pauper, "I shall appoint you my regular clerk and sexton, and to follow me in funerals and marriages." It was holden that this was a pro23er appoint- ment of the pauper as parish clerk, and that the canon did not render it necessary to the validity of an appointment of a parish clerk that the appointment should be signified to the parishioners (w). Parish clerks, after having been duly chosen and appointed, are usually licensed by the ordinary (o) ; but this does not seem to be absolutely necessary (p). And when they are licensed, they are sworn to obey the minister (q). And if a parish clerk has been used time out of mind to be chosen by the vestry, and after admitted, and sworn before the archdeacon, and he refuse to swear such parish clerk so elected, but admits another chosen by the parson, a writ may be awarded to him commanding him to swear him (r) . (k) Earthy v. Cook, 9 Bing. p. 728; 3 Moo. & S. p. 230; 5 C. & P. p. 441. p) Pinder v. Barr, 4 E. & B. p. 105. (m) Lawrence v. Edwards, 1891, 1 Ch. p. 144. (n) BexY. Inhabitants of Boohing, 1 Nev. & P. p. 166. See Bex v. Bector of St. Ann's, Soho, 3 Burr. p. 1877, decided on the construction of a local act. (o) Johns, p. 228. (p) Peak v. Bourne, 2 Stra. p. 941, infra, p. 1511. (q) Johns, p. 228. (r) Walpoole's Case, 2 Roll. Abr. p. 234 ; 15 Vin. Abr. Mandamus (H. 3), p. 205 ; 5 Bac. Ab. Man- damus (C), p. 263. MINOR OFFICERS. 1509 In Rex v. Henchman (s), official of the consistory court of the Bishop of London, a mandamus was granted to admit one Robert Trott to the office of parish clerk of Clerkenwell, he being elected by the parish, and it being shown that the official had usually admitted to that office. By the aforesaid constitution of Archbishop Boniface, " If the His salary, parishioners shall maliciously withhold the accustomed alms from the aqucebajalus, they shall be earnestly admonished to render the same ; and if need be, shall be compelled by ecclesiastical censure " (t). Alms.'] — By which word we may understand that such clerks cannot claim anything by way of a certain allowance or endow- ment by reason of their office of aqucebajalus : but their sustenta- tion ought to be collected and levied according to the manner and custom of the country (t). Accustomed Alms.] — For this custom ought to be considered according to the manner anciently observed; which also, inas- much as it concerns the increase of divine worship, ought not to be changed at pleasure : but hereunto the parishioners may be compelled by the bishop (u). And a custom of this kind is good and laudable, that every master of a family (for instance) on every Lord's day, give to the clerk bearing the holy water somewhat according to the exigency of his condition ; and that on Christmas day he have of every house one loaf of bread, and a certain number of eggs at Easter, and in the autumn certain sheaves. Also that may be called a laudable custom, where such clerk every quarter .of the year receives something in certain in money for his sustenance, which ought to be collected and levied in the whole parish. For such laudable custom is to be observed, and to this the parishioners ought to be compelled ; for having paid the same for so long a time, it shall be presumed that at first they voluntarily bound themselves thereunto (x). Admonished.] — Not only by the ministers, but also and more especially by the ordinary of the place (y). By Can. 91, already quoted (s), the clerks are to receive Canon 91. " 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." Ancient Wages.] — In case such customary allowance is denied, Where to be the foregoing constitution, and the practice thereupon, direct sued for. where it is to be sued for, viz. before the ordinary in his ecclesiastical court. That constitution (as we see) calls those wages accustomed alms : and in the register there is a consulta- tion provided in a case of the same nature, for what the writ (s) 5 Bac. Ab. Mandamus (C), (x) Ibid, p. 263. (v) Ibid. (t) Lind. p. 143. (z) Tide supra, p. 1507. (u) Ibid. 1510 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Parker v. Clerke. Pitts v. Evans. Fees. Office cannot be assigned. Does not give vote for Parliament. Compensation where bene- fices united. calls largitio charitativa (as being originally a free gift), which by parity of reason may be fairly extended to the present case (>/). But by the common law, if a parish clerk claim by custom to have a certain quantity of bread at Christmas of every inhabitant of the parish, or the like, and sue for this in the spiritual court, a prohibition lies (c) . In Parker v. Clerke (a) , in 3 Anne, the clerk of a parish libelled against the churchwardens, for so much money due to him by custom every year, and to be levied by them on the respective inhabitants in the said parish ; and after sentence in the spiritual court, the defendants suggested for a prohibition, that there was no such custom as the plaintiff had set forth in his libel. It was objected against granting the prohibition, that it was now too late, because it was after sentence, especially since the custom was not denied ; for if it had been denied, and that court had proceeded, then and not before, it had been proper to move for a prohibition. But by Holt, Chief Justice : It is never too late to move the King's Bench for a prohibition, where the spiritual court had no original jurisdiction, as they had not in this case, because a clerk of a parish is neither a spiritual person, nor is this duty in demand spiritual, for it is founded on a custom, and by consequence triable at law ; and therefore the clerk may have an action on the case against the churchwardens for neglecting to make a rate, and to levy it, or if it had been levied and not paid by them to the plaintiff. In Pitts v. Evans (b), in 12 Gteo. 2, a prohibition was granted to a suit in the spiritual court by the clerk of St. Magnus for 1*. 4d., assessed on the defendant's house at a vestry in 1672, to be paid to the parish clerk. For, by the court, he is a temporal officer, or if not, yet he could not sue there for such a rate ; for if it is due by custom, he may maintain an assumpsit, if not a quantum meruit, or a bill in equity. Besides being paid a salary or stipend, parish clerks are paid by fees, especially on marriages (c) and burials (d). It has been holden that the office of parish clerk cannot be assigned, and that the assignor was therefore still parish clerk and could sue for his fees (e) . A parish clerk receiving more than 40s. a year from burial fees was said not to have thereby acquired a 40s. freehold, so as to entitle him to the parliamentary suffrage (/). On union of benefices in the metropolis compensation may be awarded to parish clerks (g). {y) Gibs. p. 214. (z) Marshy. Brooke, 2 Roll. Abr. Prohibition (F.), p. 286. (a) 3 Salk. p. 87 ; 6 Mod. p. 252. (6) 2 Stra. p. 1108; S. C, 13 Vin. Ab. Fees (EL), p. 155. (c) Vide supra, pp. 632, 634, infra, p. 1515. (d) Vide supra, pp. 678—684, infra, p. 1515. (e) Nichols v. Davis, L. E., 4 C. P. p. 80. (/) Bushell v. Eastes, 8 Jur., N. S. p. 645. (g) Vide supra, p. 410. MINOR OFFICERS. 1611 If necessity arises, the parish clerk ought to be deprived by him How parish that placed him in his office ; and if he is unjustly deprived, a clerk to,b„e "FPmOVPfi TT*OTTl mandamus will lie to the churchwardens to restore him ; for his office, the law looks upon him as an officer for life, and one that has a freehold in his place, and not as a servant, and therefore will not suffer the ecclesiastical court to deprive him, but only to correct him for any misdemeanor by ecclesiastical censures (//). In Townshend v. Thorpe (i), in 13 Geo. 1, the plaintiff declared Townshend v. in prohibition, that lie was indicted for an assault with intent to ThorPe- commit sodomy, notwithstanding which he was proceeded against in the spiritual court for the same offence, and for drunkenness. The defendant pleaded, that the plaintiff was a parish clerk, and that the suit there was not only to punish him for the incontinency, but also to deprive him of his office. Demurrer thereupon. And as it was going to be argued, the court proposed to stay till the indictment was tried ; and it having been tried, and the defen- dant convicted and pilloried, the court without ordering the declaration to be amended, granted a consultation as to the proceeding to deprive, and confirmed the prohibition as to any other punishment. They said, he was an ecclesiastical officer as to everything but his election. In Peak v. Bourne (A-), in 6 Geo. 2, the plaintiff declared in Peak v. prohibition, that he was sued in the spiritual court for executing B°urne- the office of deputy parish clerk, without the licence of the ordinary. On demurrer, three points were made : 1. Whether a parish clerk be a temporal or a spiritual office. 2. Whether he can make a deputy. 3. Whether the licence of the ordinary is requisite. It was argued three several times upon all the points. But the court in giving judgment founded themselves only upon the last ; as to which they held, that a licence was not necessary, and therefore gave judgment for the plaintiff in prohibition. They said the canon did not require it, and indeed it would be a transferring the right of appointment to all intents and purposes to the ordinary. As to the two other points, the court strongly inclined that he was a temporal officer as to the right of his office, and that he might make a deputy. And as to the first, when the court were pressed with their own authority in Toumshend v. Thorpe, they said it was a hasty opinion, into which they were transported by the enormity of the case (/). In Tarrant v. Haxby (m), in 30 & 31 Geo. 2, a motion was Tarrant v. Haxby. (h) Walpoole v. Coldivell, 2 Roll. Burgoyne, 5 B. & C. p. 405 ; 8 D. Abr. p. 286; Gibs. p. 214; God. & R. p. 587, said, " Objection has p. 192 ; Gaudts Case with Dr. since been made to that case, on Newman, 2 Brownl. p. 38. the ground that the ecclesiastical (?) 2 Stra. p. 776; 2 Ld. Eaym. court had no authority to suspend p. 1507. or deprive a parish clerk. Perhaps (k) 2 Stra. p. 942. This case is that objection is well founded. . . also reported in 2 Lee, p. 587, But see Sir G. Lee's remarks in nomine Peak v. Barne. Barton x. Ashton, 1 Lee, p. 353, (I) Lord Tenterden, speaking of infra, p. 1513. Townshend v. Thorpe in Free v. (m) Burr. p. 367. 1512 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. made for a prohibition to the consistory court of York, to stay their proceedings against Tarrant, the parish clerk of St. Osith in York ; which proceedings were there instituted at the instance of Haxby, the deprived parish clerk, for the restora- tion of the said Haxby. It was urged that the office is temporal, and therefore that the spiritual court has no jurisdiction con- cerning his deprivation. This Haxby, they said, was deprived by the parson and the whole parish, for drunkenness during divine service and other misdemeanors : Whereupon the parson appointed Tarrant in his room. Against whom Haxby libelled in the consistory court, where there was a monition, and they were proceeding to restore Haxby. And all this was suggested. Upon which a rule was granted to show cause. And now cause was to have been shown. But the counsel, being satisfied that it was too strong against them, gave it up. And the rule for the prohibition was made absolute. Mandamus to In Rex v. Erasmus Warren (n), in 16 Greo. 3, cause was shown restore. against a mandamus to restore William Readshaw to the office of parish clerk of Hampstead. It was stated, that the clerk was appointed by the minister ; that he had since become bankrupt, and had not obtained his certificate ; that he had been guilty of many omissions in his office ; was actually in prison at the time of his amoval ; and had appointed a deputy who was totally unfit for the office. Against which it was insisted, that the office of parish clerk is a temporal office during life ; that the parson cannot remove him ; and that he has a right to appoint a deputy. Lord Mansfield then said, there was an application of this sort in a cause of Rex v. Proctor, in 15 Greo. 3, where the parson removed a parish clerk appointed by the former in- cumbent. There the right of amotion was in question, and all agreed it must be somewhere, but that case was not decided. Lord Mansfield asked, what remedy is there in Westminster Hall to remove him ? He certainly has his office only during his good behaviour. But though the minister may have a power of removing him on a good and sufficient cause, he can never be the sole judge and remove him at pleasure, without being subject to the control of this court. By Mr. Justice Aston : As long as the clerk behaves himself well, he has a good right and title to continue in his office. Therefore if the clergyman has any just cause for removing him, he should state it to the court. Accordingly, the court enlarged the rule, that affidavits might be made on both sides, of the cause and manner of amotion. And now on this day, upon reading the affidavits, Lord Mans- field said, it was settled in the case of Rex v. Ashton, in 28 Greo. 2, that a parish clerk is a temporal officer, and that the minister must show ground for turning him out. Now in this case, there is no sufficient reason assigned in the affidavits that have been read, upon which the court can exercise their judgment, nor is there any instance produced of any misbehaviour of consequence ; (n) 1 Cowp. p. 370. MINOR OFFICERS. 1513 therefore the rule for a mandamus to restore him must be made absolute. In Reg. v. Smith, a mandamus had issued to a vicar to restore Duty to hear a man to the office of parish clerk. The vicar returned that he before had on several specified occasions misconducted himself by designedly irreverent and ridiculous behaviour in his perform- ance of his duty ; by appearing in church drunk, so as to be incapable of performing it ; and by indecently disturbing the congregation during the administration of the sacrament. The return stated that the alleged acts were done in the view and presence of the defendant, and after repeated reproof, whereupon the defendant removed him from his office of clerk. To this return there was a plea stating that the clerk had not been summoned to answer for his conduct before his removal. And it was ruled, that the return was bad for not showing such summons (o). But a mandamus does not lie to restore one to the office of "Where deputy parish clerk (p). It has been holden, as we have seen, JJJJ^jJJj? that it lies to a minister to restore a parish clerk removed by n ie* him without just cause. And the court will not judge of the justice of the cause of the removal upon the ex parte statement of the minister ; he must state it in his return to the mandamus, and give to the clerk an opportunity of answering it (q). But Sir Gr. Lee said, that where a parish clerk was appointed by the parishioners by custom, he had been holden to be a temporal officer ; but where he was nominated by the parson he was a spiritual officer, and that all proceedings to deprive a clerk in the ecclesiastical court must be plenary and by articles (r). The statute 7 & 8 Yict. c. 59, entitled "An Act for better 7 & 8 Vict, regulating the Office of Lecturers and Parish Clerks," has been c- 59- already mentioned (-s). The following sections relate to the removal of parish clerks : — Sect. 5. "If at any time it shall appear, upon complaint or Power to otherwise, to any archdeacon or other ordinary that any person suspend or l • i_ i j i u- • • j.i rn p i i remove church not m holy orders, holding or exercising the office oi church cierks not in clerk, chapel clerk, or parish clerk in any district, parish, or holy orders place within and subject to his jurisdiction, has been guilty of w^oam»jl>e any wilful neglect of or misbehaviour in his said office, or that nco-iect or by reason of any misconduct he is an unfit and improper person misbehaviour, to hold or exercise the same, it shall be lawful for such arch- deacon 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 (o) Beg. v. Smith, 5 Q. B. p. 614 (1844). See Jackson v. Courtenay, 8 A. & E. p. 8, infra, p. 1516. (p) Anon., Lofft, p. 434. (q) Bex v. Davies, 9 D. & R. p. 234 ; and see Lord Kenyon's re- marks, Bex v. Gash'n, 8 T. R. p. 209. (r) Barton v. Ashton, 1 Lee, p. 353. See the collection of cases of older date in the note to that case. A copy of such articles is in Phillimore's Burn, vol. 3, " Practice." (s) Vide supra, p. 447. 1514 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Power to re- move person ceasing to be employed as mentioned in the act from premises holden by him in right of his employment. the attendance of witnesses, to call before him all such persons as may be competent to give evidence or information respecting any of the matters imputed to or charged against such church clerk, chapel clerk, or parish clerk as aforesaid ; and such arch- deacon or other ordinary shall and may, if he sees fit, examine upon oath, to be by him administered in that behalf, any of the persons so appearing or attending before him respecting any of the matters aforesaid, and shall and may thereupon summarily hear and determine the truth of the matters so imputed to or charged against such church clerk, chapel clerk, or parish clerk as afore- said ; and if upon such investigation it shall appear to the satis- faction of such archdeacon or other ordinary that the matters so imputed to or charged against such church clerk, chapel clerk, or parish clerk are true, it shall be lawful for the said arch- deacon or other ordinary forthwith to suspend or remove such church clerk, chapel clerk, or parish clerk from his said 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 church clerk, chapel clerk, or parish clerk held or exercised his said office, to declare the said 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 the said church clerk, chapel clerk, or parish clerk usually exercised his said office ; and the person or persons who upon the vacancy of such office are entitled to elect or appoint a person to fill the same, shall and may forthwith proceed to elect or appoint some other person to fill the same in the place of the said church clerk, chapel clerk, or parish clerk so removed as aforesaid : Provided always, that the exercise of such office by a sufficient deputy who shall duly and faithfully perform the duties thereof, and in all respects well and properly demean himself, shall not be deemed a wilful neglect of his office on the part of such church clerk, chapel clerk, or parish clerk, so as to render him liable, for such cause alone, to be suspended or removed therefrom." Sect. 6. "In case any person, having ceased to be employed in any of the offices or duties in this act mentioned or referred to, or having been duly suspended or removed from any such office or employment as aforesaid, shall at any time refuse or neglect to give up the possession of any house, building, land, or premises, or any part or parcel thereof, by him held or occupied by virtue or in respect of any such office or employ- ment as aforesaid, it shall be lawful for the bishop of the diocese, upon complaint thereof to him made, to summon such person forthwith personally to appear before him, and to show cause for such refusal or neglect ; and upon the failure of the person so summoned as aforesaid to obey such summons, or, upon his appearance, to show to the said bishop such cause as may be deemed by the said bishop sufficient for such refusal or neglect, the said bishop shall thereupon grant a certificate of the facts aforesaid, under his hand and seal, to the person or MINOR OFFICERS. 1515 persons entitled to the possession of such house, building, land, or premises as aforesaid, who may thereupon go before any neighbouring justice of the peace ; and such justice, upon pro- duction of such certificate, and proof of such wrongful retention of possession as aforesaid, shall and he is hereby required to issue his warrant under his hand and seal, directed to the constables or other peace officers of the district, parish, or place within which such house, building, land, or premises is or are situate, or to the constables or other peace officers of any neighbouring district, parish, or place, requiring them forthwith to expel and remove from the said house, building, land or premises, and from every part and parcel thereof, the person so wrongfully retaining possession thereof, and to deliver the peaceable possession thereof to the person or persons so entitled to the same as aforesaid ; and such constables or other peace officers shall and they are hereby required promptly and effectually, to obey and execute such warrant, according to the exigency thereof, and thereupon it shall be lawful for them also to levy, upon the goods and chattels of the person so by them expelled and removed as aforesaid, the necessary costs and expenses of executing such warrant, the amount whereof, in case the same shall be disputed, shall be forthwith settled and determined by the said justice of the peace by whom the said warrant was so issued as aforesaid, or by any other justice of the peace residing in or near to the said district, parish, or place, whose decision thereupon shall be final, and who is hereby authorized to make such order in that behalf as to him shall seem reasonable." By 10 & 11 Yict. c. 65, s. 34, cemetery companies, with 10 & li Vict, consent of the chaplains of the cemeteries, may appoint clerks, c- 6o* and allow them such stipends as they think proper, and may In cemeteries- remove them at their pleasure (7). The rights of parish clerks and sextons in certain cases to officiate in cemeteries and claim fees for their services, have been mentioned in the chapter on Burial (u). Parish clerks and sextons belonging to churches built under the Church Building and New Parishes Acts are regulated by the enactments following : — By 58 Greo. 3, c. 45, s. 64, the Church Building Commissioners 58 Geo. 3, might assign out of the pew-rents salaries to the clerks of any c* ' churches or chapels built under that act. p^-Tnts^ By 59 Greo. 3, c. 134, s. 10, where any parish shall be divided 59 q.60> 3 under the previous act or that act, " all fees, dues, profits and c. 134. emoluments belonging to the parish clerk or sexton respectively Clerks and of any such parish, whether by prescription, usage, or otherwise, ^^^of parishes may (t) Vide supra, p. 657. L. J., C. P. p. 213; and see the recover fees. (ti) Vide supra, pp. 678—684, and statutes, 10 & 11 Vict. c. 65, s. 57 ; the cases of Gell v. Mayor of Bir- 15 & 16 Vict. c. 85, ss. 32, 37; 17 mingham, 10 L. T. p. 497 ; Burial & 18 Vict. c. 87, s. 10, and 20 & 21 Board of St. Margaret's, Rochester Vict. c. 81, s. 5, there referred to. v. Thompson, 19 W. R. p. 892 ; 40 P. VOL. II. 5 F 1516 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Districts as- signed to chapels do not come under this clause. Appointment of clerk by the minister of the church or chapel. 19 & 20 Vict, c. 104. Clerk to be appointed by incumbent, and removed ■with bishop's consent. Jackson v. Courtcnay. which, shall thereafter arise in any district or division of any parish divided under the provisions of the above-recited acts, shall belong to and be recoverable by the clerks and sextons respectively of each of the divisions respectively of the parish to which they shall be assigned, in like manner in every respect and after the same rate as they were before recoverable by the clerk and sexton respectively of the original parish ; and it shall be lawful for the said commissioners in every such case to ascertain and make compensation, in manner directed by the above-recited act in cases of compensation, by reason of loss of fees, for any loss of fees, dues, profits and emoluments which any clerk or sexton may sustain by reason of any such division." The words " district or division of any parish divided under the provisions of the above-recited act," do not include districts assigned to chapels under sect. 16 of the 59 Geo. 3, c. 134 (x). By sect. 29 of 59 Geo. 3, c. 134, " The clerk in every church and chapel erected, built or acquired, or appropriated, under the provisions of the above-recited act (y) or this act, shall be annually appointed by the minister of the church or chapel." By 19 & 20 Vict. c. 104, s. 9, "The parish clerk and sexton of the church of any parish constituted under the said recited acts (z) 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 miscon- duct." In Jackson v. Courtenap (a), a consecrated chapel built under two local acts had a district assigned to it under 59 Geo. 3, c. 134, s. 16, and 2 & 3 Yict. c. 49, s. 3, by an order in council made in 1854. By 8 & 9 Yict. c. 70, s. 17, the district chapelry became a perpetual curacy. The incumbent having given notice to the parish clerk that he would not require his services after a short date ; it was holden that the appointment was an annual one, and could only be terminated during the year for good cause, and after giving the parish clerk a hearing. Sect. 2. — Sextons. The sexton, segsten, segerstane, sacristan, (sacrista, the keeper of the holy things belonging to the divine worship,) seems to be the same with the osttarim in the Roman Church, and is ap- pointed by the minister or others, and receives his salary accord- ing to the custom of each parish. (x) Roberts v. Aidton, 2 H. & N. p. 432 ; Aulton v. Roberts, 26 L. J., Ex. p. 380. See Ormerod v. Black- burn Burial Board, 21 W. K. p. 539 ; White v. Norwood Burial Board, 16 Q. B. D. p. 58. (y) 58 Geo. 3, c. 45. (z) 6 & 7 Yict. c. 37 ; 7 & 8 Yict. c. 94. ' {a) 8 E. &B. p. 8; 27 L. J., Q. B. p. 37. MINOR OFFICERS. 1517 It has been adjudged that a mandamus lies to restore a sexton ; Mandamus though as to this the court at first doubted, because he was for- rather a servant of the parish than an officer, or one that had a freehold in his place ; but upon a certificate shown from the minister and divers of the parish that the custom was to choose a sexton, and that he held it for his life, and that he had 2d. a year of every house within the parish, they granted a mandamus directed to the churchwardens to restore him (b). In Olive v. Ingram (e), in 12 Greo. 1, in assumpsit for money Women may had and received to the plaintiff's use, a case was made at nisi be sextons, prius for the opinion of the court, that there being a vacancy in the office of sexton of the parish of St. Botolph without Alders- gate, in the city of London, the plaintiff and Sarah Bly were candidates ; and Sarah Bly had 169 indisputable votes, and 40 which were given by women who were housekeepers and paid to the church and poor; that the plaintiff had 174 indisputable votes, and 22 other votes given by such women as aforesaid : that Sarah Bly was declared duly elected ; upon which the plain- tiff brought a mandamus, and was sworn in, and the defendant had received 5s. belonging to the office. In this case two points were raised : 1st, whether a woman was capable of being chosen sexton ; and 2nd, whether women could vote in the election. As to the first, the court seemed to have no difficulty about it, there having been many cases where offices of greater consequence have been held by women, and there being many women sextons at that time in London. In the second year of Queen Anne a woman was appointed governor of Chelmsford workhouse ; Lady Broughton was keeper of the Gatehouse ; Lady Packing- ton was the returning officer for members at Ailesbury. As to the second point, it was shown that women cannot vote for members of parliament or coroners, and yet they have freehold, and contribute to all public charges ; and though they vote in the monied companies, yet that is by virtue of the acts which give the right to all persons possessed of so much stock ; that military tenures never descended to them. But the court not- withstanding held, that this being an office that did not concern the public, or the care and inspection of the morals of the parish- ioners, there was no reason to exclude women who paid rates from the privilege of voting ; they observed, here was no usage of excluding them stated, which perhaps might have altered the case ; and that as this case was stated, the plaintiff did not appear to have been duly elected, and therefore there ought to be judgment against him. In Rex v. The Churchwardens of Thame (d), in 5 Greo. 1, an Mandamus application was made to the Court of King's Bench for a man- ^^ed for damus to restore John Williams to the office of sexton. A 0 ce* return was made that he held it at pleasure. The court (b) 5 Bac. Ab. Mandamus C. pp. (c) 2 Stra. p. 1114. 262, 530. (d) 1 Stra. p. 115. 5 f 2 1518 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. refused the mandamus without a certificate that he was chosen for life. Quo warranto. It has been said, that the common law considers sextons to have a freehold in their office, and has never decided that a writ of quo warranto would not lie in the case of a sexton (•). The next council, the Quini-sextan, is not numbered in the regular order. It was holden at Constantinople a.d. 680, and was the fourth there holden. It is usually called Quini-sextan, as supplying what was wanting in the fifth and sixth councils, and it is referred to by this name in the acts of the next council. It was holden ev rou T^ovXXcv, in Trullo, a particular room, so called from its domed shape, in the imperial palace. A.D. 630, Theodore, Archbishop of Canterbury, presided over an English council at Hadfield (" qui Saxonico vocabulo Hcethfelth nominatur"), at which the orthodoxy of the English church respecting the Monothelite heresy, with especial regard to the Council of Constantinople holden in the same year, was asserted. At this council also, the first five general councils and canons of the Lateran council of 649, a.d. (s), were received. 7. Nice, 2 a.d. 787 Convened under Constantine and Irene ; it related to the use of images in the church. It passed twenty-two canons upon this and other subjects. In the first canon it contained the decrees of the six universal councils. 8. Constantinople, 4 . . . . a.d. 869 Two synods appear to have been convened at Constantinople under Basilius Macedo, when Photius was patriarch of Con- stantinople. He composed what is called the " Nomocanonon," which contained the decrees of these two synods, and the Eastern church appears on this account to consider them as part of her canon law (t) . The general councils, properly so called, end here. It will be (q) " Parce qu'elle represente l'uniformite et 1' acceptation de toutes les Eglises dans celle de Rome, la mere de toutes les au- tres." Durand de Maillane Diet, de Droit Canonique, tit. Concile. (r) The condemnation of Hono- rius for the Monothelite heresy was repeated ' ' annually for a thousand years by every priest and prolate who made faithful use of his bre- viary." Mahai), ubi supra, App. pp. 562, 563. (s) Councils and Ecclesiastical do- cuments, &c, Haddan and Stubbs, vol. 3, p. 141. (t) Beveridge, Prolog, v., ix. 1528 COUNCILS OF THE CHURCH. Later Councils in the West. remembered that Savonarola, Luther and Cranmer appealed to a general council, if and whenever a really free one could be convened ; but long before the period of the Reformation, in 1427, Archbishop Chichele appealed against Pope Martin V. to a future general council (u). Later Councils in the West. — In the canon law are also to be found these seven councils in the West (x). Council of Trent. 9. 10. 11. 12. Lateran, Later an, Lateran, Lateran, 1 . . a.i). 1123 13. Lyons, 1 . . . a.d. 1245 2 . . a.d. 1139 14. Lyons, 2 . . . a.d. 1274 3 . . a.d. 1179 15. Yienne . . . a.d. 1311 . 4 . . a.d. 1215 The extent to which the canon law has prevailed in this country has been considered (y) ; but it may be as well to remark here, that the fourth council of Lateran has been often referred to by the courts as being engrafted into the ecclesiastical laws of this realm {%) . The foregoing councils constitute a part of the corpus juris canonici ; but it should be observed that the councils of Carthage, although not general councils, have furnished canons for the Decretum of Grratian ; and the council of Elvira (a), holden in Spain, a.d. 304, is said to have furnished the first canons for the discipline of the church. The seven councils, of later date, also called " general " by the Homan church, are those "quorum nulla in corpore juris mentio fit" 16. Pisa .... a.d. 1409 17. Constance . . a.d. 1414 18. Basle .... a.d. 1431 The council of Trent, holden and Pius V., and so celebrated in history, was never acknow- ledged by France as a general council (b). That kingdom admitted the catholicity of its doctrines, but denied the validity of its regulations respecting the discipline of the church (c) . In 19. Florence . . . a.d. 1439 20. Lateran, 5 . . a.d. 1512 21. Trent .... a.d. 1545 under Paul III., Julius III. (w) Burnet, Hist. Eeform Re- cords, Book II., Yol. 5, p. 382. See Curteis, Bampton Lectures, note 7, p. 190. (x) There are five councils which, though strictly speaking national, have, from the importance and wisdom of their regulations, been generally received in the Greek and Latin churches. 1. Ancyra (Metropolis of Galatia), a.d. 314. 2. Neocesarea (Metropolis of Pon- tus), a.d. 315. 3. Gangra (Metro- polis of Paphlagonia). 4. Antioch (Metropolis of Syria), a.d. 341. 5. Laodicea (Metropolis of Phrygia), about a.d. 364. (y) Vide supra, pp. 13 — 16. (z) Vide supra, p. 899. (a) The place exists no longer. It was about two or three leagues from Grenada. The old name was Eliberis, or Uliberis. The severity of these canons was such that they were thought by some to be a com- j)ilation from various councils. (b) Henry III. told the pope that as to matters of faith the decrees of the council were unnecessary for France, which was already ortho- dox; and as to matters of discip- line, since the council could not, for various reasons, be considered general, he would cause certain of its decrees to become law by royal ordinances. This was done by the ordinances of Blois and Meiun, and various edicts. See Durand de Maillane, Diet, de Droit Canonique, voce "Trente." (c) A good edition of the canons and decrees of this council was GENERAL COUNCILS. 1529 England it has never been recognized in either respect. " Their Its Hctero- new creed of Pius IV. containeth," says Barrow (speaking of doxies- the creed, which contained in twelve articles a summary of the Council of Trent), "these novelties and heterodoxies. 1. Seven sacraments ; 2. Trent doctrines of justification and original sin ; 3. Propitiatory sacrifice of the mass ; 4. Transubstantiation ; 5. Communicating under one kind ; 6. Purgatory ; 7. Invoca- tion of saints ; 8. Veneration of reliques ; 9. Worship of images; 10. The Eoman church to be the mother and mistress of all churches; 11. Swearing obedience to the pope; 12. Receiving the decrees of all synods and of Trent" (d). 22. Vatican . . . a.d. 1870. Vatican Council of 1870. — The doctrine of papal infallibility Vatican coun- promulgated by this Roman council is, perhaps, the strict logical Cl1 of 187°- conclusion from Ultramontane tenets, as it certainly is at variance with all sound catholic teaching and principle. However, this council appears to have been wanting in some of the essential elements which all canonists require for the validity of a general council. The assemblage in 1867 of prelates from different parts of the Lambeth globe under the presidency of the Metropolitan of Canterbury 8ynod- has been already noticed (e). This synod has also met since. published in 1837 at Leipsic, by (d) See Barrow, Treatise on the Koehler and Tauchnitz. It con- Pope's Supremacy, in fine, Works, tains an accurate and copious Vol. VII., p. 621. index. (e) Vide supra, p. 3. 1530 COUNCILS OF THE CHURCH. CHAPTEE II. CONVOCATION. Sect. 1. — History and Laic before Henry VIII. 2. — From the Time of Henry VIII. to that of Queen Victoria. 3. — Forms of Procedure generally and in Upper House. 4. — Forms of Procedure in Lower House. 5. — General Powers and Privileges. Sect. 1. — History and Laic before Henry VIII. Convocation, Though the word convocation (a) be in itself of a general sig- what. nification, and may indifferently be applied to any assembly which is summoned or called together after an orderly manner ; yet custom has determined its sense to an ecclesiastical use, and made it, if not only, yet principally, to be restrained to the assemblies of the clergy (b). Before the That the bishop of every diocese had here as in all other Conquest. Christian countries power to convene the clergy of his diocese, and in a common synod or council with them to transact such affairs as specially related to the order and government of the churches under his jurisdiction, is not to be questioned. These (a) Mocket, Tractatus de Politia Ecclesiastica Anglicana, cap. 1 1 ; De Angl. Eccles. Synodis Nationalibus et Provincialibus, 1616, published 1705, with the two Tracts of Zouch — see Preface to this collection, and Heylin, Life of Laud, p. 70 ; Wake, The Authority of Christian Princes, &c. ; Kennett, Ecclesiastical Synods ; Gibs., Syn. Angl. ; Joyce, England's Sacred Synods, 1853; Hody, His- tory of English Synods and Con- vocations ; Cardwell, Synodalia ; Lathbury, History of the Convoca- tion of the Church of England; Pearce, The Law relating to Con- vocations of the Clergy, 1848 ; Trevor, Convocations of Canterbury and York ; Warren, Synodalia. A Journal of Convocation (1853), con- tains some valuable historical papers. Since 1853 have been published Journals of Convocation, succeeded by the present Chronicles of Convocation, which begin Feb- ruary 10, 185S. (b) As to the Convocation of Ire- land, see Journal of Convocation for 1856, p. 138; and as to Synodical Action of the Scotch Church, see Synodalia, p. 248; Journal of Con- vocation, 1854, p. 155. CONVOCATION. 1531 assemblies of the clergy were as old almost as the first settlement Diocesan of Christianity amongst us, and, amidst all our revolutions, con- synods- tinued to be holden till the time of King Henry the Eighth. What the bishop of every diocese did within his own district, Provincial the archbishop of each province, after the kingdom was divided councils, into provinces, did within his proper province. They called together first the bishops, afterwards the other prelates, of their provinces ; and by degrees added to these such of their inferior clergy as they thought needful. In these two assemblies of the clergy (the diocesan synods and Synods of the provincial councils) only the spiritual affairs of the church were J^[ct^ ^)^a" wont for a long time to be transacted. So that in this respect, and other therefore, there was no difference between the bishops and countries, clergy of our own and of all other Christian churches. Our metropolitans and their suffragans acted by the same rules here, as they did in all other countries. They held these assemblies by the same power, convened the same persons, and did the same things in them. But, as will be seen, the bishops first, and then some of the Prelates in other prelates (as abbots and priors) were very early brought Parliament- into the great councils of the realm, or parliament ; and there consulted and acted together with the laity. Thus were the greater clergy first brought into our state councils, and made a constant or established part of them. The Convocation of the English Church became in its progress Epochs in the a very remarkable instance of the independence and autonomy Convocation which has always distinguished that church (c) ; as the liberties of the Gallican Church once distinguished it from the general subservience of the other branches of the Western Church to Rome. The most remarkable epochs of the actual and legal history of Convocation are as follows : — 1. The original ecclesiastical synod, formed upon the usual model. (c) The constitution of Arch- bishop Boniface says (Lind. p. 68), 1 ' Item statuimus quod Episcopi in suisSynodis et aliis Convocationibns et singnli Archidiaconi in snis Capi- tulis, et Capellani Ecclesiaruin Parochialium in snis Ecclesiis ter in Anno denuncient," &c. ; Gloss. Syaodis. " Hoe dicuntur conventus sive congregationes senum et Pres- byteroruni, et debent fieri per Episcopos annuathn. Et ad eas ten- entur venire omnes illi qui sub illo Episcopo habent curam animarum" — aliis Convocationibus , quas ex variis causis facere potest Episco- pus, viz. propter subsidiuni chari- tativum exkibenduni. Propter visi- tationern exercendam ; item propter preeclicationem verbi Dei. Et in aliis quse variis de causis possunt occurrere. Capitulis — Nota bene proprietatem terminorum, nam Episcopis tribuit synodos, Archi- diaconis vero Capitnla, &c; Lind. p. 68; see also Lind. p. 298, Gloss, on Synodalibas, " Constitution! - bus quce fiunt in Synodis Episco- porum. Unde si Constitutio Syno- dalis ligat subditos statuentis, ita quod non licet contravenire de- terminatis in Synodo Episcopali ; nmlto fortius hoc erit dicendnm quoad decisa et determinata in Sy- nodo Provinciali," &c. P. VOL. II. 1532 COUNCILS OF THE CHURCH. 2. The summoning of the lower clergy to attend the prelates in this synod. 3. The prcemunientes clause of Edward the First, summoning proctors of the clergy to parliament (c) . 4. The division of the clerus into two houses or chamhers. 5. The Act of Submission and legislation of Henry the Eighth. By it, inter alia, Convocation was forbidden to meet without the summons of the crown. 6. The arrangement between Lord Chancellor Clarendon and Archbishop Sheldon as to the subsidies of the clergy. 7. The accession of William and Mary, and their legislation with respect to the church. 8. The recourse of the government in 1717 to immediate pro- rogation, in order to prevent the Lower House of Convocation from censuring the sermons of Hoadley, Bishop of Bangor, and the refusal of this and subsequent governments during the reign of the Greorges and William the Fourth to allow Convo- cation to discuss any subject whatever. 9. This clumsy and unworthy resource having been found to foster the evil which it was intended to prevent, like all attempts in this free country to stifle debate and discussion, whether in the civil or ecclesiastical part of the constitution, has been par- tially, and it may be hoped will be totally abandoned during the reign of her present majesty (d). These are the principal divisions of the subject which the ecclesiastical historian, and to some extent the ecclesiastical lawyer, must bear in mind while considering the subject of Convocation. The Fire of London, in 1666, consumed the " Schedules of Continuation," and probably other records of Convocation. Atterbury's At the beginning of the 18th century political questions attempts. mingled largely with the discussion of questions properly be- longing to Convocation. Atterbury endeavoured to establish the entire independence of the Lower House, which numbered many adherents of the house of Stuart, upon the analogy of the House of Commons. It is not to be regretted that the eloquence and ingenuity of this accomplished man proved unequal to the fulfilment of this task. For the analogy was certainly false, and had it prevailed, the consequences must have been destruc- tive of the synodical character of Convocation and of the dis- cipline of the church. His chief opponents were Wake, Kennett and Hody; the errors of the two former being, I incline to think, a depreciation of the synodical character of Convocation, when the crown ordered the archbishops to summon it, and too stringent a con- (c) Vide infra, p. 1533. Upper House, November, 1853, (d) See a very able paper entitled setting forth the necessity of sy- " The Humble Eepresentation of nodical action to the life of the the Clergy of the Lower House church. of Convocation," presented to the CONVOCATION. 1533 struction of the Act of Submission; but, speaking generally, their opinion of the law of Convocation was sound. The work, however, of Bishop Gibson on the subject of Convocation is facile princeps; and his conclusions thereon are for the most part adopted in this work (e). In the provincial synods summoned by the archbishops Subsidies of their own authority, the clergy taxed themselves, and gave ™^tionC°n" subsidies to the crown, a practice which — though the legislation of Henry VIII. required the authority of parliament to confirm the grant of the subsidy — continued till the reign of Charles the Second ; and therefore the synodical assembly dealt with questions of secular finance as well as with those of a purely spiritual character. Edward the First (1283) endeavoured to raise these subsidies by calling the clergy to parliament; the attempt failed (/) . In 1294, he made another attempt to summon a national synod b}^ writs directed to each bishop. " Thus " (Mr. Joyce observes) " was a national synod summoned, not provincially by the metropolitans, but by accumulated diocesan authority." The attempt seems to have been unsuccessful ; it was at all events not repeated. Edward II. (1314) issued an order to the metropolitans to summon provincial synods in the presence of royal commissioners, for the purpose of voting sub- sidies, but the experiment excited much dissatisfaction. I pass by for the moment the further attempt in 1295. In the first year of Edward III., as Mr. Joyce says, " an arrangement between the royal and archiepiscopal authority of summoning provincial synods was agreed upon, which prevails down to this day." The prerogative of the crown was so exerted as to be consistent, as will be seen, with canonical obedience. It is necessary to return for an instant to the reign of Attempt to Edward I. in 1295. That monarch seems to have devised a ^f^mSt scheme for bringing the clergy, not to a provincial synod, but to n ' parliament. He directed a writ to each bishop to attend in his place in parliament, premonishing him by a clause, known as the prcemunientes clause, to bring with him to parliament the prior of his cathedral, the archdeacons, a proctor for the chapter of the cathedral, and two proctors for the diocesan clergy. This Pramuniehtes writ is issued at the present day, but never obeyed. It has been clause, the cause of much historical error as to the origin and duties of convocation, partly because it naturally happened that the proctors for the clergy in parliament were also chosen to repre- sent the clergy in synod or convocation. These parliamentary proctors " are (Lord Coke says (g) ) procuratores cleri, and many times have appeared in parliament as spiritual assistants to con- (e) Gibson, Syn. Angl. I have (/) Joyce, England's Sacred generally adopted the language Synods, ch. ix., a work containing as well as the opinion of Bishop much information. Gibson, though with occasional (y) 4 Inst. p. 4. alterations. 5 g2 1534 COUNCILS OF THE CHURCH. sider, consult, and consent, id supra (//), but never had voices there, because they were no lords of parliament." Kennett's The double aspect, so to speak, of convocation is fairly repre- account. sented by Kennett, who says, "The truth is, as our Convocations were intended for the king's Temporal Assistance, and the civil rights of the clergy, they were properly summoned with or near the Parliament, and so far made a part of it. And as they are still summoned with every Parliament, it is upon the old sup- posal, that they have some concern there, to aid the king, and maintain their own civil rights. But as our Convocations were proper ecclesiastical councils, to debate and define the matters of faith and spiritual discipline, they bore no relation to a Parlia- ment, but were rather inconsistent with it, because the Archbishop was not inclined (and, if he were so, was sometimes expressly prohibited) to call his Suffragans and Clergy to a synod, when the king had occasion for their attendance in Parliament. 80 still, our Ecclesiastical Synods to be summoned by the king's writ to the Archbishop are not confined to Parliament time ; they may be then held, but they may too at other seasons, if the exigence of affairs shall so require" (/). Hody's The learned Hody says, "Upon comparing all things together, I take it prcemunientes, to have been continued in the writs after it became a constant custom for the clergy to meet in a separate body by virtue of the archbishop's mandate, that hereby our kings might assert their right of calling the clergy (if they please) to parliament : which the clergy opposed as an invasion and inroad upon their liberties " (k). In truth, however, the exact date and origin of the Lower House of Convocation is a question now of no practical moment. I agree with a recent (/) writer, who says : " It is enough that our two Convocations are legally and constitutionally both the provincial synods of the church and the representative chambers of the clergy. As such they have been summoned to meet at least ever since the Reformation ; and when King William attempted to supersede them after the Revolution, he was arrested by the addresses of both houses of parliament requiring him to issue his writs for a convocation of the clergy ' according to the ancient practice and usage of this kingdom in time of Parliament' " (m). (A) Referring to the office of (I) Warren, Synodalia, p. 439. judges in the House of Peers. (ra) See Cardwell, Conferences, (?) Kennett, Eccles. Synods, pt. 1, p. 410 ; Cardwell, Synodalia, Pre- p. 88 ; see too p. 273 of that. face, p. xxi. (k) Hody, Hist, of Conv. p. 431. CONVOCATION. 1535 Sect. 2. — From the Time of Henry VIII. to that of Queen Victoria. The archbishops continued to summon provincial synods The Act of according to the exigencies of the church until the Act of 25 Hen81?0' Submission, 25 Hen. 8, c. 19, was made ; by which it is enacted c> 19. ' ' as follows : " Where the King's humble and obedient subjects the clergy of this realm of England, have not only acknow- ledged, according to the truth, that the Convocation of the same clergy is, always hath been, and ought to be assembled only by the king's writ, but also submitting themselves to the King's Majesty, have promised in vcrbo sacerdotii that they will never from henceforth presume to attempt, alledge, claim, or put in ure, enact, promulge, or execute any new canons, constitutions, ordinances, provincial or other, or by whatsoever name they shall be called, in the Convocation, unless the king's most royal assent and licence may to them be had, to make, promulge, and execute the same, and that his Majesty do give his most royal assent and authority in that behalf." .... It is therefore enacted, according to the said submission, " that they nor any of them shall presume to attempt, alleclge, claim, or put in ure, any constitutions or ordinances provincial, or synodal, or any other canons, nor shall enact, promulge, or execute any such canons, constitutions or ordinances provincial, by whatsoever name or names they may be called, in their Convocations in time coming which always shall be assembled by authority of the king's writ, unless the same clergy may have the king's most royal assent and licence, to make, promulge, and execute such canons, constitutions, and ordinances, provincial or synodal ; upon pain of every one of the said clergy doing contrary to this act, and being thereof convict, to suffer imprisonment, and make fine at the king's will." Accordingly, in 8 Jac. 1, it was resolved upon this statute by Judges' reso- the two chief justices and divers other justices, at a committee lotions in before the lords in parliament : 1. That a convocation cannot ac' ' assemble without the assent of the king ; 2. That after their assembly they cannot confer to constitute any canons without licence of the king ; 3. When they upon conference conclude any canons, yet they cannot execute any of their canons without the royal assent ; 4. That they cannot execute any after the royal assent, but with these four limitations, (1) that they be not against the prerogative of the king, nor (2) against the common law, nor (3) against any statute law, nor (4) against any custom of the realm. All which appears by the said statute. And this (Coke says) was but an affirmance of what was before the said statute ; for it was holden before, that if a canon be against the law of the land the bishop ought to obey the com- mandment of the king, according to the law of the land (n). (n) The Case of Convocations, 12 Co. p. 72. 1536 COUNCILS OF THE CHURCH. Convocation, how sum- moned in Philip and Mary's reign. Ling-ard's view. Collier's account. Cardinal Pole held a convocation in the year 1557, the latter end of Queen Mary's reign ; and the title of it was Convocatio sive Sacra Synodus convocata auctoritate brevis Eegis Phillippi et Marire, &c. " Now it is not to he imagined," Gibson observes, "that either the queen or the cardinal (so remarkably tender of the privileges and immunities of their church) would have given way to a convocation upon that foot, had it been the opinion of those times that the authority of the royal writ destroyed that authoritative summons which the archbishops before the Eefor- mation had always exercised. They knew the kings of England had often directed their writs to the archbishop before the Act of Submission was thought of, and were as constantly obeyed ; and the writ being an immediate direction to the archbishop, and not to any particular member of convocation, they were so far from considering that a summons upon the authority of such writ destroyed his grace's authoritative summons, that we see they use the term even while the act was repealed, and they were by consequence under no obligation to use it" (n). Lingard, in speaking of Henry the Eighth's reign, observes : " The ecclesiastical constitutions which had so long formed part of the law of the land now depended on his breath, and were executed only by his sufferance. The convocation, indeed, con- tinued to be summoned : but its legislative authority was no more. Its principal business was to grant money : yet even these grants now owed their force not to the consent of the grantors, but to the approbation of the other two houses and the assent of the crown." He adds, in a note, " Journals 156, 2(8, 277. The first instance which I find was in 1540 " (o). Collier observes that, "... the clergy had always the privilege of taxing their own body. Xeither from Magna Charta until the thirty- seventh of Henry VIII. is there any parliamentary confirmation of subsidies given by the clergy. For what reason this custom was afterwards altered is not easy to account for. It is possible it might be for the benefit of the crown, and for the better securing the payment of the money granted : For since the Eeformation, the jurisdiction of the church was much sunk, and her censures less regarded. Now the convocation could proceed no further than spiritual penalties. They had no authority over the secular magistrate, neither could they com- mand the justices of the peace to levy their subsidies by distress : And therefore that the crown might not be disappointed of the (n) Gibson, Syn. Angl. p. 298. (o) Lingard, History of England, vol. iv. ch. v. p. 478. The Journals of the Lords begin 1 Hen. 8, 1509 ; the Journals of the Commons begin 1 Edw. 6, Nov. 8, 1547 ; the Eolls of Parliament from 6 Edw. 1 to 19 Hen. 7, a.d. 1278—1503. See title in Index, "Convocation," with references. See Journals of the House of Lords, vol. 1, p. 156, Anno 1540, 32 Hen. 8, Item lecta est Billa SubsidiiCleri; ibid. 218, Anno 1542, Hodie allate sunt a Domo Com- muni septem Bille concluse, &c, videlicet. . . The Act for the Subsidy of the Temporalty, Item, the Sub- sidy of the Clergy; ibid. p. 277, Anno 1545, 37 Hen. 8, Item, 1« vice lecta est Billa subsidii concessa a Clero Domino Eegi. CONVOCATION. 1537 money granted by the convocation, their subsidies from the thirty-seventh of Henry VIII. downwards were generally con- firmed by act of parliament. But that the clergy's granting the king a benevolence without such confirmation, exceeded their power, is more than is proved. Had the convocation pretended to tax the laity, the objection had been good. But to contest their authority for raising money upon their own body, is to cross upon custom and known privilege : Neither could the clergy without doors reckon this a grievance, for they had already given their consent for this purpose in their pro- curatorial letters ; for in this instrument, signed and sealed by the electors for convocation, they engage themselves to allow and abide by the proceedings of their clerks and proctors. Besides, there was a precedent in Queen Elizabeth's reign in defence of this practice. For in the year 1585, the convoca- tion granted a subsidy or benevolence, and levied the money by synodical authority, without any confirmation from the par- liament ; neither was this at all complained of " (p). In the second year of James the First, the House of Lords (q) As to confer- received a message from the Convocation House for a conference Hous^oT6611 on ecclesiastical matters ; the House of Lords declared itself Lords and willing to have conference with some select number of the Convocation, bishops, but so as they might confer with them as lords of par- liament, and not in such condition and quality as they are of convocation. It appears that in 1553, the House of Commons resolved, Member of " that any person having a voice in the Convocation House in°i™ibiVto cannot be a member of this house." House of In the 18 Jac. I. there was a motion that the House of Lords Commons, should not sit on Wednesdays and Fridays, as the bishops met References in • /• i-i j J x Parliament to m convocation on those days. Convocation. In 16 Car. I. there was a motion for the adjournment of the ^sto adjourn- Lords in consequence of the meeting of the Convocation House ; ment of House it was refused, and the high court of parliament declared not of Lords over to be subordinate to any other court. The House of Lords, meetings!.011 however, had a report made to them relative to the days when the Convocation House usually sat. In 1702, the Lower House of Convocation sent a message of Messages thanks to the House of Commons for the regard shown to their H^useof^ privileges ; and the House of Commons resolved, that it will Couvocation upon all occasions assert the just rights and privileges of the to House of Lower House of Convocation. Commons. In 1703, the Lower House of Convocation sent a message of thanks to the House of Commons for the attention given by the house to the interests of the clergy in respect of her majesty's bounty. (p) Collier, Ecclesiastical His- ferenccs to Parliament, see Index tory (vol. ii.), part ii. bk. ix. pp. to Journals of the Lords, titles 795, 798. " Convocation" and "Adjournment {q) For this and the following re- of this House." 1538 COUNCILS OF THE CHURCH. Convocations inl661— 1663. Speaker Onslow on their cessa- tion. Effect of abandonment of taxing- in convocation. In 1710, the Lower House sent a message of thanks to the House of Commons for the regard shown by that house to the established church, in promoting the scheme for building new churches in London and Westminster ; and the House of Com- mons resolved, that it will pay all regard to the said House of Convocation in matters ecclesiastical (r) . In 1661, the Convocation prepared the Act of Uniformity, under the direction of Sheldon, Archbishop of Canterbury, and Morley, Bishop of Worcester (s) . In 1663 convocation gave four subsidies to the crown, and this was the last time the clergy imposed a tax upon themselves, the agreement already referred to being effected soon afterwards (t). Speaker Onslow makes the following note to a passage in Burnet, containing the history of this transaction (u). "It was first settled by a verbal agreement between archbishop Sheldon and the lord chancellor Clarendon, and tacitly given in to by the clergy in general, as a great ease to them in taxations. The first public act of any kind relating to it, was an act of par- liament in 166-3, by which the clergy were, in common with the laity, charged with the tax given in that act, and were dis- charged from payment of the subsidies they had granted before in convocation ; but in this act of parliament in 1665, there is an express saving of the right of the clergy to tax themselves in convocation, if they think fit ; but that has never been done since, nor attempted, as I know of, and the clergy have been constantly from that time charged, with the laity, in all public aids to the crown, by the House of Commons. In consequence of this (but from what period I cannot say), without the inter- vention of any particular law for it, except what I shall men- tion presently, the clergy (who are not lords of parliament) have assumed, and without any objection enjoyed, the privilege of voting in the election of members of the House of Commons, in virtue of their ecclesiastical freeholds. This having constantly been practised from the time it first began, there are two acts of parliament which suppose it now a right, These acts are, the 10th of Anne, c. 23 (.r), and 18th of Geo. 2, c. 18. And here it is best the whole of this matter should remain, without further question or consequence of any kind ; as it now stands, both the church and the state have a benefit from it. . . . Gribson, Bishop of London, said to me that this was the greatest alteration in the constitution ever made without an express law." The effect of this abandonment of the power of taxing the clergy has operated in the peculiar religious circumstances of this country unfavourably to the meeting of convocation. (r) For all these references, see General Index of the House of Commons Journals, A.D. 1547 — A.n. 1714, title " Convocation." (a) See 8vo. edit, of Burnet's History of his own Times, vol. i. pp. 302—316. (t) Ibid. vol. i. pp. 340, 341. (u) Ibid. vol. iv. p. 508; and see Warn, vol. ii. pp. 611, 612. (x) Chap. 31 in The Statutes Ee- vised. CONVOCATION. 1539 Collier, the church historian, foresaw this effect. " And being," he observed, " in no condition to give subsidies and present the crown, 'tis well if their convocation meetings are not some- times discontinued, if they do not sink in their significancy, lie by for want of a royal licence, and grow less regarded when their grievances are offered " (y). It may well be questioned whether this discontinuance has not worked mischief to the state as well as the church. Pro- bably if convocation had been allowed to sit to make the reforms, both in its own constitution and generally in the administration of spiritual matters, which time had rendered necessary, the apathy and erastianism which at one time ate into the very life of our church, the spiritual neglect of our large cities at home in England, and of our colonies abroad, and the fruit of these things, the schism created by the fol- lowers of Weslejr, would not have occurred, and the state would have escaped the evil of those religious divisions which have largely influenced, hampered and perplexed the legislation of her parliaments and the policy of her statesmen. The long parliament of Charles the Second was dissolved in Convocation 1678. Convocation was summoned with the new parliament in jjdeJa^srljj 1680. It was dissolved in 1681. It met again in 1685, but and William' during the troubled and eventful reign of James the Second was III. not allowed to act, for that king feared the censure with which it would have visited his policy. In 1689, the lords besought William " to issue forth writs as soon as conveniently may be for calling a convocation of the clergy to be advised with in ecclesiastical matters." On November 21 (s), 1689, convocation met, and imme- diately showed a strong disinclination to permit what was then being attempted, the alteration of the liturgy. A royal commission empowered the convocation to treat of alterations, and form canons and constitutions relative to rites and cere- monies and the ecclesiastical courts (a) : but on the 21th of January next, the king dissolved (b) convocation, without allow- ing them to proceed to business. Tillotson, on the deprivation of Sancroft, became Arch- bishop of Canterbury. During his primacy convocation did no business (c). He died in 1694, and was succeeded by Tenison. In 1697 appeared the once celebrated " Letter to a Convocation Man" (V) ; and in 1700, after ten years of enforced silence, con- vocation met again (e), for the transaction of business. Then (/) Atterbury reprinted " The Rights, Powers, and Privileges of an (?/) Collier, Ecclesiastical His- (b) Ibid. p. 332. tory, part ii. bk. ix. (vol. ii.) p. 893 ; (c) Birch, Life of Tillotson. Lathbury, History of Convocation, (d) Lathbury, History of Convo- p. 309, ed. 1853. cation, p. 343. (2) Lathbury, History of Convo- (e) Ibid. p. 346. cation, p. 325. (/) Ibid. p. 345. («) Ibid. p. 329. 1540 COUNCILS OF THE CHUECH. Under Queen Anne. Under George I. Prorogation of convoca- tion. English Convocation, stated and vindicated," correcting various errors in it. A question arose as to the various censures of Toland's book, " Christianity not Mysterious "(#) , and Bishop Burnet's work on the Articles. The Lower House was at this time guilty of various irregu- larities. The controversies carried on by Wake, Hody, Gibson, Atter- bury, have been already mentioned (//). In 1701, convocation was again assembled, and the disputes between the Upper and Lower House disfigure this period. After King William's death, and during Queen Anne's reign, convocation sat frequently, with licence to transact business. It censured Whiston's book (/), eight judges against four think- ing that convocation had jurisdiction in cases of heresy. The queen's government allowed convocation to proceed. It ex- tracted and censured as heretical various passages in this work. This judgment was sent to her majesty, but, whether intention- ally or not, was never confirmed by her. In 1713, convocation had royal letters of business, and con- sidered various subjects, — penance, excommunication, forms for the visitation of prisoners, Dr. Clarke's book on the Scripture Doctrine of the Trinity, &c. At the beginning of George the First's reign, 1715, con- vocation had letters of business, and considered, among other things, a form of consecrating churches and communion plate. In 1716-17, Hoadley published a work and preached a sermon which gave rise to the once celebrated Bangorian controversy. The action of the Lower House of Convocation affronted the government, wTho determined and effected their determination to punish the church by the suppression of convocation. In 1717, convocation was prorogued, and till the reign of her present majesty was never allowed to transact business — though in 1741-2 it was allowed to meet for a short time, and began to take some matters into consideration. It has been temperately and truly said by the last historian of convocation, "It is evident that no argument can fairly be derived from Hoadley's case against the revival of convocation : for the controversy, like all the rest from the year 1689, arose out of the circumstances of the country. Yet the opponents of convocation constantly refer to the contests which took place, without caring to ascertain their cause, and then draw their inferences against sy nodical action. In all these matters the views of the Lower House were generally received by the great body of the clergy : and the reason is obvious, namely, that being less dependent on the crown than the bishops, it was supposed to speak with more certainty the sentiments of the church" (*). (y) Lathbury, History of Convo- cation, p. 348. (A) Vide supra, p. 1532. (i) Tide supra, p. 845. (k) Lathbury, History of Convo- cation, pp. 463, 464. CONVOCATION. 1541 " Shall the presbyterian kirk of Scotland have its general assembly, and the church of England be denied its convocation ? " said Dr. Johnson, with characteristic indignation (/), in 1763. This manifest injustice continued till our days. A feeling Re-assembl- which had existed for some time that parliament, in a great y^ati0n°n" measure composed of members wholly unconnected wdth and even necessarily hostile to the church of England, could not, to say the least, properly claim the sole legislation on matters relating to her doctrine and discipline, conspired with a general sense of wrong done to the church to procure, about 1810, a relaxation of the practice of immediately proroguing convoca- tion after it had made (what Mr. Burke calls) " some polite ecclesiastical compliments to the king" (wi). Since this period, convocation has discussed a great variety of subjects affecting the interests of the church, and has issued valuable reports made by committees sitting during the pro- rogations. It is true that convocation has not as yet been allowed to Legislation legislate by itself, except on the alteration of the subscription canons (w), and the hours of marriage (o), and the canon about sponsors in baptism (p) ; and even upon this last subject the legislation, owing to the course taken by the province of York, has been imperfect : but it has sanctioned the new Lectionary, subsequently adopted by parliament, and advised (as will be seen hereafter) the crown as to the adoption of a part of the last Report of the Ritual Commissioners. In 1867, a committee of convocation made an elaborate report Report as to of a proposed reform of convocation. lse?™ °f' ™ In 1872, the crown gave to the two convocations (1) General, LettCTS of and (2) Special Letters of Business. By the latter these convo- business in cations were empowered to consider the recommendations in a 1872. Report of the Ritual Commissioners. The convocations expressed their approval of some of the recommendations, and drew up a scheme of shortened services. This scheme wras afterwards sanctioned by the statute 35 & 36 Vict. c. 35 (q). Letters of business had been given to the convocations for considering the Prayer Book framed in 1662, and sanctioned by (?) See his biographer's account, Boswell, Life of Johnson, vol. i. p. 476, ed. 1831. (m) "We know," writes Mr. Burke, ' ' that the convocation of the clergy had formerly been called, and sat with nearly as much regularity to business as parliament itself. It is now called for form only. It sits for the pur- pose of making some polite ecclesi- astical compliments to the king ; and when that grace is said, retires, and is heard of no more. It is, however, a part of the constitution, and may be called out into act and energy whenever there is occasion, and whenever those who conjure up that spirit will choose to abide the consequences." — Letter to the Sheriffs of Bristol. Burke, Works, vol. 3, p. 320, ed. 1852. (») Vide supra, pp. 103, 249, 351, 352. (o) Vide supra, pp. 599, 607, 630. (p) Tide supra, p. 487. (q) Tide supra, p. 756. COUNCILS OF THE CHURCH. the Act of Uniformity, 14 Car. 2, c. 4 ; and the reference to the convocations, and their approval of the Prayer Book then to be sanctioned, is in the following manner recited in the preamble to that act (r) . "And whereas her majesty was pleased to authorize the Con- vocations of Canterbury and York to consider the said Report of the said Commissioners and to report to her majesty thereon, and the said convocations have accordingly made their first reports to her majesty." In 1888, the canons as to marriage above referred to were passed by convocation. Sect. 3. — Forms of Procedure genera/!// and in Upper House. With respect to the form of opening Convocation and the proceedings, especially of the Upper House, the authority of Gibson may be relied upon(.s). On the day (he observes, speaking of the practice in his time (t) ) prefixed in the archbishop's mandate for the Convocation's meet- ing, all the members cited thereby are obliged to be ready at St. Paul's for the coming of his grace. Thus it is, and ever has been, according to Archbishop Parker's account of the established form of opening a convocation : Sciendum est, quod omnes qui authoritate rererendissimi citantur ad comparendum coram eo in domo capitulari ecclesice cathedralisD.Pauli London. die tenentur preefixo tempore interesse atque in eadem ecclesia cathedrali preestolari adventum dicti revcrendissimi. His grace waited on at his landing by all the advocates and proctors of his court (u), is by them and his own retinue con- ducted to the church of St. Paul's ; at the door whereof the bishops and clergy meet and receive him, and all walk in pro- cession to the choir. Prayers and sermon ended, he with the bishops and clergy go into the chapter-house, where the Lord Bishop of London, dean of the province, exhibits a certificate that the mandate has been duly executed : Rcverendissimo ac cceteris suis coepiscopis in suis sedibus ordine conscdentibus, ac rcliquo clero circumstante, reverendus dominus episcopus London, mandatum sibi a dicto reverendissimo ad con- vocation em Jtujusmodi summonend. directum, una cum debito cer- tiflcatorio super executione ejusdem introducere, ac debita cum reverent ia eidem rcverendissimo pat ri preesentarc et tradere tenetur. (r) Vide supra, p. 747. (s) See Gibson, Syn. Angl. c. 2, p. 23; Warren, Synodalia, p. 11. (t) The first edition of his Syno- dus Anglicana was published in 1702. (u) The presence of the civilians, advocates in Doctors' Commons, was, according to Bishop Andrews' MS. note in his prayer-book (now, I think, in the British Museum), analogous to the presence of the judges in the House of Lords. They were there to advise, not to vote. This attendance of civilians has ceased since the abolition of the college of advocates. CONVOCATION. 1543 This certificate under the episcopal seal, and directed to the archbishop, first acknowledging the receipt of his grace's mandate, recites it ; and then signifies, how by virtue and authority thereof, the bishops of his province, and by them the deans, &c, have been regularly summoned : That he owns him- self duly cited by the authority of the same mandate : That he has intimated to them his grace's resolution not to hold any excused but upon good reasons to be then and there alleged : That he has also enjoined every bishop to bring with him a certificate of the execution of the foresaid mandate in his own diocese : and then, adding how he has executed it, particularly in the diocese of London, he subjoins a catalogue of the members therein. In like manner every bishop makes his return immediately to the archbishop in a formal instrument under his episcopal seal, certifying the summons of his dean, archdeacons and clergy, in virtue of his grace's letters manda- tory transmitted by the Lord Bishop of London, and adding their several names and surnames. By the archbishop's order the Bishop of London's certificate is publicly read, and one or more officers of his court appointed by him to receive in his name the certificates of the other bishops, and all the letters of proxy. Then a written schedule is put into his grace's hand, by which he pronounces all members cited, and not appearing, contumacious ; reserving the punish- ment of their contumacy to another time. Reservando poenam eorum contumacies in aliquem diem com- petentem pro beneplacito ipsius reverendissimi (u) . In 1853, Convocation had to consider the difficult and delicate Colonial question whether the bishops who had colonial sees, were not by bishops, their patents— then supposed to have a much greater force than has since been ascribed to them — entitled to be summoned to Convocation, that is, to the Upper House. After a learned report (Feb. 16, 1853) from the vicar general, the Upper House decided against their claim (x) . Suffragan bishops, appointed about eighteen years after this Suffragan report, being also archdeacons, have taken their seats in the bishops. Lower House. The special prayer said by Convocation at the commencement of each of their sessions is as follows : — " 0 ratio pro prcesente Convocatione, she Synodo. " Domine Deus, Pater Luminum, & Fons omnis Sapientioe ; Special Nos ad scabellum pedum tuorum provoluti, humiles tui & Prayer- (m) Gibson, Syn. Angl. c. 2, pp. p. 52. See the Archbishop of Can- 23, 24. Bp. Cheney of Gloucester terbury's comments on this case in was excommunicated for contu- Read v. Bp. of Lincoln, 14 P. D. at macy in not appearing at Con- p. 115. vocation, when summoned there- (sc) Warren, Synodalia, p. 307. to : Strype's Life of Parker, vol. ii. 1544 COUNCILS OF THE CHURCH. Prorogation. Consensus fratram. Blackstone's statement. Archbishops Tenison and Marsh as to consensus fratrum. indigni famuli, Te rogamus, Tit qui in Nomine tuo, sub auspiciis Clementissimse Reginoe Yictorise, Ho convenimus, Gratia tua cselitus adjuti, ea omnia investigare, meditari, tractare, & discernere valeamus, quae honorem tuum & gloriam promoveant, & in Ecclesia cedant profectum. Concede igitur ut Spiritus tuus, qui Concilio olim Apostolico, huic nostro etiam nunc insideat, ducatque nos in omnem veritatem, quae est secundum Pietatem : TJt qui, ad amussim sanctaa Reformations nostrse, err ores, corrupt elas, & super stitiones olim hie grassantes, Tyrannidemque Papalem, merito & serio repudiavimus, Fidem Apostolicam & vere Catholicam firmiter & constanter teneamus omnes, Tibique rite puro cultu intrepidi serviamus, per Jesum Christum Dominum & Servatorem nostrum. Amen" (y). The question whether the archbishop can of his own authority prorogue Convocation, or whether it must be, according to many precedents, cum consensu fratrum, with the consent of his brother prelates, has been much discussed. It appears to me that this consensus is necessary ; but probably, by the use of ordinary care and courtesy, the necessity for a formal decision on this matter will not again arise (z). Blackstone says, Book I. ch. 7, p. 269, that " with us the con- vocation is the miniature of a parliament, wherein the archbishop presides with regal state : the upper house of bishops represents the House of Lords; and the lower house, composed of represen- tatives of the dioceses at large, and of each particular chapter therein, resembles the House of Commons, with its knights of the shire and burgesses." But this is a very loose and inaccurate statement. The manuscript correspondence between Marsh, Archbishop of Dublin, and Tenison, Archbishop of Canterbury, is adverse to the absolute power of the archbishop. Marsh, Archbishop of Dublin, wrote to the Archbishop of Canterbury in 1703, when the Irish Convocation was revived, for information ; and he asks, " Whether, if any one bishop (or two, or a major part of the bishops present) should offer any matter in ye Upper House of Convocation to be debated, or put to the vote, ye matter may be debated or put to the vote, although the president doth not or will not propose it. Whether the president be bound to propose all such matters so offered as aforesaid ? or whether he hath a discretional power therein ? (y) Forma Precuni in utraque Donio Convocationis (1847), pp. 13, 14. (z) Elaborate opinions were given by Sir F. Thesiger and Sir Eobert Phillimore, the author of this work to this effect, and of Sir W. Page Wood to the contrary, in 1853. See a reference to them : Warren, Synodalia, pp. 409-416, and opinions themselves printed in a pamphlet published in 1853 by Eivingtons, entitled "Convocation — Eeasons, &c." See preface to ed. 1854 of Gibson, Syn. Angl., p. xli. ; and Atterbury, Eights, Powers, and Privileges of an English Convoca- tion, pp. 13 — 15. CONVOCATION. 1545 " Both which questions may be comprehended in this one, viz., "What power ye president in convocation hath in proposing matters to be debated on, and in voting whether he hath only one single voice or two ? or a negative ? " Marsh proceeds, " I have one other request to your grace, which is, y* y11 will please to order me a copy of yc writ for proroguing a convocation, because we can find no form of such a writ here." Appended to this MS., which is in the handwriting of Marsh, is the reply of Tenison, unaddressed. It appears to be the draft of the letter which was sent to Ireland. It is in Tenison's own hand, and is as follows : — " The way to prove the right in ye president to propose or not propose matters to yc consideration of yc House must be by repeated instances of his refusal to propose what has been offered by the members ; and such refusals are not to be met with. Without doubt everything which the bishops debate is regularly proposed to them by the president, who easily discovers the inclinations of the majority, or may put it to the vote, whether this or that shall be proposed, in case the bishops seem to differ in their opinions. In this and all other votes previous to the final determination of business, the president has the casting vote upon an equality ; but to suppose it wholly in his breast what shall be proposed or not proposed, debated or not debated, would be too great a power, greater than the king himself has in parliament. " After any business in convocation is completed, I think the consent of the president to be absolutely necessary ; and yc president is perfectly safe in proposing what ye majority desires, when he is sure it cannot finally be passed into an act, nor be published as such, in case he dislike it " (a). There is no doubt that Convocation is now dissolved by the Convocation death of the sovereign. fea?hoi by The Convocation of Philip and Mary's reign is said in extracts sovereign, out of the Upper House books to be soluta per mortem regince Ma rice ; as we find afterwards (anno 1624) that the Convocation was dissolved by the death of King J ames the First. "On the contrary (Gibson observes), before the Reformation, (a) Lathbury, History of the Convocation of the Chnrch of England, p. 466 ; he cites from Gibson, MSS. vol. i., Nos. 97, 98; and Lathbury adds, "In a postscript to this letter, Marsh alludes to the great storm which had caused so much mischief in England, remarking that in Ireland it was only an ordinary high wind. In the same volume is another letter from Marsh to Tenison in the same year, in which he alludes to the Irish convocation. He hopes the queen will not refuse her writ during the parliament, ' thereby to restore the right of the church before our parliament be dissolved. For we fear, if we do not recover this old right in her majestie's reign, our church may never be able to obtain it ; and if the present opportunity of this parliament be let slip, it being uncertain when we shall have another we may be debarred that way also '." Gibson, MSS. vol. i., No. 99. COUNCILS OF THE CHURCH. anno 1412, we find that Archbishop Arundel summoned a con- vocation in obedience to the king's writ ; and yet it was continued for some time after the death of Henry the Fourth. Again, anno 1460, Archbishop Bouchier issued his summons in a like obedience to the royal writ ; but the same convocation, not expiring with the death of Henry the Sixth, continued in the reign of Edward the Fourth. " The difference in this matter, before and since the Reforma- tion, naturally arises from the foregoing construction of the Submission Act. Before that was made the archbishop had a right to hold convocations independent of the prince, and was by consequence under no obligation to discontinue them upon the death or demise of the prince ; he was bound to obey the royal writ as oft as it was sent him, by exerting the summoning authority according to the tenor thereof ; but he was not abso- lutely confined to wait for and receive such writ, in order to summon or hold ; nor was a convocation, holden by the arch- bishop independent of the king, an illegal asssembly by the laws then in being. " But by the Statute of Submission, interpreted in its most genuine meaning, an absolute restraint is placed upon the archbishop from holding his convocation, unless authorized to do so by the royal writ. By this means, any such meeting of the bishops and clergy, holden by the archbishop without such writ, is become an illegal assembly. Now the force of the writ, directed to the archbishop to take off the restraint laid upon him by the statute, must cease and expire with the prince, in whose name and under whose seal it was issued : and when that happens, the archbishop is by law reduced to the same inability to hold a convocation, as he was under before the reception of such writ " (b). Therefore, in 1701, when some of the clergy contended that the Convocation was not dissolved by the death of King "William, the contrary was determined by the government, acting upon proper legal advice (c). On the other hand, the dissolution of parliament does not necessarily entail the dissolution of convocation. It was deter- mined by high authority in the reign of Charles the First, " That the Convocation called by the king's writ is to continue till it be dissolved by the king's writ, notwithstanding the dis- solution of the parliament " (cf). The following is an extract from the minutes of the Canter- bury Convocation Upper House of Tuesday, 28th February, 1888, and gives the formal mode of making and promulging new canons (e) : — " His Grrace the President informed his right reverend (b) Gibson, Syn. Angl. pp. 295, tory, part ii. (vol. ii.) bk. viii. p. 296. 687 ; bk. ix. p. 792 ; Warn. vol. ii. (c) Lathbury, History of an Eng- p. 529. lisn Convocation, p. 373. (e) The editor is indebted to Sir (d) Collier, Ecclesiastical His- John Hassard, Principal Eegistrar CONVOCATION. 1547 brethren the prelates present that he had given directions to Canons as to have the new canons amending the 62nd and 102nd canons of ^sofmar the year of onr Lord 1603, as agreed to by both houses in the ° last sessions of convocation, engrossed and prepared for the signatures of the members of convocation, and the same had been engrossed on parchment, and were now ready for pub- lication. " The president directed the prolocutor to be informed that the Upper House were prepared to make and promulge the aforesaid canons, and his Grace summoned the prolocutor with the whole of the Lower House to attend the Upper House in the board room (/) aforesaid. " The prolocutor and the clergy of the Lower House having come up, and appeared before the president, his Grace then informed both houses of convocation that the new canons, amending the 62nd and 102nd canons were ready to be signed, promulged, and executed ; and the president being then seated in the tribunal, or seat of judgment, the right reverend the prelates seated on the right side of his Grace, and the prolocutor and clergy of the Lower House standing on the left side. " The president then and there to wit in the said board room read, promulged, and published the said new canons amending the 62nd and 102nd canons, both in English and in Latin ; his Grace and the prolocutor holding the parchment on which the said new canons were engrossed severally with their right hands, whilst his Grace read the same in the presence of the aforesaid right reverend the prelates and the clergy of the Lower House, and having so read, promulged, and published the said new canons severally and respectively, his Grace then and there signed the same respectively, and the right reverend the prelates also signed the same, as did the prolocutor and the clergy of the Lower House, in the presence of his Grace the president. " The said new canons are as follows : — [The text of the new canons is then set out]." — ♦ — Sect. 4. — Forms of Procedure in Lower House. Stipendiary curates, deacons and the laity are ineligible as Election of members by the present constitution of convocation ; and only Pr°ctors. parsons, vicars, and perpetual curates are capable of giving their votes in choosing proctors for the diocesan clergy (g). If any member of the convocation, who is a proctor, dies, the archbishop issues his mandate to the bishop of that diocese to elect another, and this by virtue of the power inherent in him of the Province of Canterbury, for House of Convocation occasionally these minutes. holds its sittings. (/) The board room of Queen (g) Johns, p. 162. Anne's Bounty, where the Upper P. VOL. II. 1548 COUNCILS OF THE CHURCH. to summon his suffragan bishops : who being to obey him in all things lawful and honest, and the clergy their bishop, in the like manner, they by that command make an election to supply the place of one of their proctors (g). In the province of Canterbury there are only two proctors returned for each diocese. In those dioceses where there are several archdeaconries, two are nominated by the clergy of each archdeaconry, and out of these, two are chosen to serve as proctors for the whole diocese. But in the province of York two proctors are sent to convocation for .every archdeaconry ; otherwise the number would be so small as scarce to deserve the name of a provincial synod. By this means it comes to pass that the parochial clergy have as great an interest in convocation there, as the cathedral clergy (h). Controverted According to Gibson (7), there is no doubt as to the right of elections. the metropolitan, at the head of his suffragan bishops, to receive petitions touching controverted elections, or to proceed to an examination and final decision of them in the Upper House, or to enjoin members of the Lower House to examine and deter- mine such elections ; the only question has been as to concurrent power on the part of the Lower House, for which there appears to be some colour, though not strong, of precedent ; and it is to be observed, that the prolocutor has exercised the power of examining witnesses upon oath. Election of While (Gibson (k) observes) the archbishops, bishops and prolocutor. clergy were used to debate in a body, the clergy, upon any emergency that required separate consultation, were directed to retire for that end. The result of their debates was to be reported above ; and that made it necessary to fix upon some one of the members to represent the opinions or resolutions of the rest : the whole body being all the while present, and he only distinguished by speaking in their name. From thence he had the style of prolocutor and organum cleri : and from his relating to the president and bishops the effect of their debates, that of referendarius. In the year 1415, Nov. 18, a convocation was holden at St. Paul's under Archbishop Chicheley, and one Henry Ware is mentioned as prolocutor. This is said to be the first time that the name of prolocutor occurs in the registry (/). In the year 1425 the great canonist, Lindwood, was formally elected prolocutor. The prolocutor has sometimes been recommended by the arch- bishop ; and the Lower House has always had the antecedent order or leave of his Grace before proceeding to election, and this both in the beginning and during the sitting of convocation (g) Gilbert, Treatise on the Court (&) Gibs. Syn. Angl. p. 63 ; of Exchequer, pp. 58, 59. Warren, Synodalia, p. 16, Forma (A) Johns, p. 162; The State of the eligendi et prsesentandi Prolocu- Church and Clergy, Wake, p. 34. torem. (/) Gibs. Syn. Angl. App. p. 261 ; (I) Hody, History of Convoca- Warren, Synodalia, p. 27. tion, 3rd Part, p. 256. CONVOCATION. 1549 upon a vacancy occurring. The prolocutor is presented to the archbishop and bishops for confirmation. The precedents are in favour of the necessity of leave being obtained from the Upper House before the prolocutor can appoint a deputy. All mes- sages from the Lower to the Upper House are regularly carried up by the prolocutor. The form of electing the prolocutor in 1864 appears by the minutes of convocation to have been as follows : — Session LXIL (m) — Tuesday, April 19, 1864. Upper House. Form of The house met at twelve o'clock. His Grace the Archbishop inform0' presided. Prayers were read. 1864. Election of Prolocutor. The Dean of Westminster and a large number of the members of the Lower House being in attendance, The president, addressing them, said — " Officio Prolocutoris vacante per resignationem viri admodum Peverendi Decani Bristoliensis, monemus vos, Fratres e clero inferiore, ut vosmet recipientes in cameram Hierosolymatanam ecclesiee collegiatoe Divi Petri Westmonasteriensis Decanatui contiguam, eligatis e numero vestro virum aliquem, pietate, doctrina, gravitate morum ac prudentia conspicuum, electum vero hoc loco nobis presen- tatis, ut legitime approbatus, ad Prolocutoris seu Peferendarii vestri munus admit tatur." The members of the Lower House then retired to the Jeru- salem Chamber to elect the prolocutor. On their return to the Upper House, Canon Wordsworth, who was chosen by the Lower House, presented the newly-elected prolocutor to the archbishop and the bishops — [His speech is given at length in the original Latin in the Chronicle of Con- vocation, vol. ii. p. 1445]. The president replied in the following terms : — " Appro- bamus, Fratres e clero inferiore, virum Yenerabilem Edvardum Bickersteth, Sanctae Theologize Professorem, rite et legitime e vobis electum in officium Prolocutoris vestri vacans per resign- ationem viri admodum Eeverendi Decani Bristoliensis ; et ilium, auctoritate nostra, ad Prolocutoris sive Peferendarii vestri munus admit timus." The prolocutor replied — [His Latin speech is also given in the Chronicle of Convocation]. The prolocutor and the other members of the Lower House Business in then retired. Lower House- From the earliest account (n) of proceedings in convocation, it appears to have been usual for the clergy to lay before the archbishop, or the president and bishops, the grievances under which they laboured, and to pray redress. These were styled (m) Chronicles of Convocation, (n) Gibs. Syn. Angl. p. 147. Vol. 2, pp. 1445—1447. 5h2 1550 COUNCILS OF THE CHURCH. gravamina or articuli cleri, and related chiefly to matters of juris- diction and their civil property, viz., the encroachments of lay officers, exactions, and irregularities of ecclesiastical courts, fre- quently called injuries. Sometimes the redress of them was made a condition of the subsidy granted — sometimes their petitions were addressed to the crown, sometimes to the archbishops and bishops, sometimes to the king singly, sometimes to the king in council, sometimes to the king in parliament. When the matter to be reformed related to the common good of the church, they were addressed and presented in the names of bishops and clergy and synodi- cally settled ; these are called in the registers reformanda in con- vocations. When the matter was special, the clergy presented their grievances to the Upper House for their approbation and the conveyance of them to the crown or parliament ; yet the form ran in their own name only — these are properly gravamina and articuli clsri. The Upper House has often directed the time and form at which such presentments shall be proposed and offered. The reformanda, whether in convocations, in parliamento, or per re gem, inasmuch as they concerned the general weal of the whole church, were frequently moved and proposed by the archbishop at the opening of the convocation among the causes of his summons. The bishops and clergy were to proceed jointly to a reformation of abuses specified in a schedule. " While " (I am, as before, citing Gibson) " the archbishop and bishops are supposed to be consulting in the Upper House, whether any regulations in the church, or in their particular diocese, be necessary at any time ; the clergy in the Lower House, who are supposed to be eye-witnesses of many things that do not ordinarily reach the notice of their diocesan, have a right, either jointly or separately, to lay before their lordships an account of any disorderly persons or practices they know : and this either viva voce, by the prolocutor, or in schedules put into the prolocutor's hands, in order to be severally laid before the archbishop and bishops, and to be compared and jointly con- sidered with those of the same kind exhibited by their lordships. These reformanda, in many cases, could require no more than the strict exercise of the ordinary jurisdiction in every diocese, and were therefore answered by a solemn recommendation of them to the care of the bishops respectively. But if the abuses called for a new law, and the reformation of them required the assistance of the prince or the parliament, these schedules were reduced into articles, and upon them, as containing the general sense and request of the synod, such solicitations were set afoot as were judged necessary to bring about the reformation desired. " The applications upon the reformanda in parliamento were usually left to the care of the archbishop, bishops, and the par- liamentary prelates " (p). (o) Gibs. Syn. Angl. Chap, xii., pp. 161, 162. CONVOCATION. 1551 In convocation, those who are absent are allowed to vote by Proxies, proxy ; and the bishops, when they could have holden lesser dignities in commendam, constituted any person that was member of the Lower House to vote there as their proxy, for such deaneries or archdeaconries as they held in commendam (p). After any matter in convocation has been duly considered, Whatasyno- read and agreed to by the bishops and clergy severally, the pro- dical act 1S* locutor and the inferior clergy are sent for to the Upper House, and there it is passed into a sy nodical act (q). The several sorts of business in convocation, however dif- ferently passed in some respects, agree in this, that the inferior clergy are sent for to the Upper House, and there the whole con- vocation, the metropolitan, bishops and presbyters, in a body, give their final consent (r). The method of passing canons and constitutions before the statute 25 Hen. 8, c. 19, was the same that has ever been prac- tised in sy nodical meetiDgs, viz., by the authority of the synod, and with the sanction of the metropolitan ; and these two give them their full force and effect. But now they are framed in order to be laid before the crown, as agreed on by the archbishop, bishops and clergy ; and none to be " of any force, effect or validity in law, but only such and so many of them as he, by his letters patent under the great seal of England, shall allow, approve, and confirm." This is the language of the royal licence, the necessity whereof, in order to make, promulge and execute canons, &c, is an abridgment of the ecclesiastical power in these respects, and therefore the ancient sanction, which always signified a final authority, could not be continued in any matters which were not to be promulged or executed without the allowance, approbation and confirmation of the king by his letters patent under the great seal of England. But all synodical acts to which the royal licence is not neces- sary receive their final authority from the sanction of the metropolitan ; i.e., they still pass, in the ancient canonical way, whatever (I continue to cite Gibson) some late writers, too much bent upon the diminution of ecclesiastical power, may suggest to the contrary. And even in canons and all other matters passing by sub- scription the metropolitan's ancient authority remains thus far entire, that without his concurrence the agreement of all the rest is not the act of convocation, nor can be presented as such to the prince for his royal confirmation. (p) Johns, p. 142. (q) Gibs. Syn. Angl. pp. 176, 182, 183. (r) Bp. Goodman of Gloucester was threatened -with deprivation for refusing- to sign canons to which he had previously agreed, and when he did at last sign was actu- ally suspended for the scandal which his previous refusal had caused : Gibs. Syn. Angl. App. pp. 191, 196. See the Abp. of Canterbury's com- ments on this in Read v. Bp. of Lincoln, 14 P. D. at p. 115. 1552 COUNCILS OF THE CHURCH. Continuatio. When the business of the day is over, the archbishop consults with his suffragans about a convenient day to which they may, to use the proper phrase, " continue " for the further prosecution of the business before them. A schedule of con- tinuation is delivered by the registrar to his Grace, who per- sonally or by deputy publicly reads and signs it. This reading and signing is formally attested by a public notary — whereby the Lower House is legally assured that it is his Grace's act, and are apprized of what they are to do in consequence thereof. The use of schedules is of earlier date than the division of the two houses, and therefore than the Reformation ; but there appears to be no record of a separate schedule of continuation while the two houses debated together (s). Probably such schedules came into use when it began to be less usual for the lower clergy to stay with the bishops in the upper house throughout the debates, and so to be present at the continuation. While the custom was to enter this continuation at large in the register, the convocation was either continued in a body as it still is in the province of York, or notice was given to the lower clergy by the prolocutor or some authorized person. In course of time, as business increased and the separation of the two houses became more decided, the notary ceased to transcribe the continuation at length, but merely referred to the original schedule deposited in the same office with the acts of both houses. The continuation was of the whole convocation, not of the Upper House. This it was the duty of the prolocutor to convey (intimare) to the Lower House. This power of con- tinuation belonged to the archbishop cam consensu fratrum when the two houses were united, and was preserved to him when they separated (t). The usual language was ude et cum- consensu fratrum suorum continucwit et prorogavit hujusmodi convocationem sive sacram synodum provincidkm." Prorogate. But the prorogation is, strictly speaking, distinct from the continuation. As the archbishop, upon receiving the royal writ for calling a convocation, is bound by law to exert his summoning authority, so he is bound to prorogue and dissolve in the proper canonical form when the pleasure of the crown is signified to this effect. This is a deference which, Gibson says, has ever been paid to Christian princes. The royal order is executed by a formal declaration out of a schedule, mentioning the royal writ, but running solely in the archbishop's name, and pronounced by him in the presence of the bishops and clergy (u) . Riffht of " The clergy in convocation " (Gibson observes) " have a petition. right not only to the redress of their own particular grievances, or to interpose for the reformation of any disorders they may (s) Gibs. Syn. Angl. App. p. 224. (w) Gibs. Syn. Angl. p. 186. (t) Vide supra, p. 1844. CONVOCATION. 1553 observe in the church, but also to offer to the archbishop and bishops all such measures as may in their opinion tend to the honour and interest of religion " (a?). Atterbury sa}rs yet even subjects themselves may petition and make known whatever grievances or requests they have to offer without encroachments on any of their superiors. And that the liberty of such addresses and representations is still left to the convocation (to the Lower House only or to both jointly), I have fully showed : the Statute of Submission, even under the most rigorous interpretation of it, being scarce pre- tended to abridge their privileges in this respect" (//). This position seems to be right in itself, and upon the whole not at variance with the precedents. The records show petitions : — 1. For making new canons ; 2. For the revival of old canons ; 3. For the abolition or suspension of particular laws ; 4. For the appointment of new and the enforcement of old ' festivals ; 5. For the intercession of the archbishop with the crowm to restrain lay officers from oppressing the church, or to enforce ecclesiastical laws ; 6. For the more strict execution of ecclesiastical discipline ; and for various other matters. No particular time was necessarily fixed for presenting peti- tions to the Upper House, whether viva voce or in script is — or indeed to any other authority. In 1853, certain standing orders were adopted by the Lower Standing House of Convocation (s). orders- In 1854, a committee of the Lower House under the super- Privileges, intendence of a very eminent prolocutor, Dr. Peacock, sat upon the general question of the privileges of their own house — the fruit of their labours was the following very valuable report, in which most of the subjects discussed in this chapter were touched upon. " The committee of privileges of the Lower House of Con- Report of vocation, appointed at its last session, met on the 11th of March, cop^tteeof the 9th of May, the 6th and the 20th of June, and on the 19th i854 of J uly, in the Jerusalem Chamber, the use of which was kindly allowed for that purpose by the dean and chapter of West- minster; and they report as follows (a) : — " That they have had under their consideration various points connected with the constitution, the privileges, and the practice of the Lower House of Convocation, about which doubts have been expressed and disputes have arisen, not only in ancient times, but even at our recent sessions, and which cannot remain (x) Ibid. ch. xiii. p. 164; Journal p. 139. of Convocation, 1856, p. 121, Letter (z) Warren, Synodalia, pp. 123, of Mr. Fraser. 124. # (y) The Eights, Powers and Pri- (a) See Warren, SjTLodalia, 1854, vileges of an English Convocation, pp. 24—33. 1554 COUNCILS OF THE CHURCH. unsettled without producing very serious inconveniences, or even endangering the harmonious co-operation of the two Houses of Convocation with each other. " That the subjects to which they have chiefly directed their attention are, the powers of this house in complaints connected with the election of its members and the exercise of their rights ; the duties and powers of the prolocutor in conducting the busi- ness of this house, in continuing or closing its debates, in acting as the organ of communication between the two houses and in the nomination of committees, whether by the authority of this house or at the command of the president ; the mode of dealing with gravamina and reformanda ; the business which it is com- petent for this house to enter upon; the general constitution and appointment of committees of the two houses, and the treatment of business committed to them ; the forms of pro- ceeding in the appointment and confirmation of the prolocutor and the nomination of a substitute ; and the reception and treatment of petitions addressed to this house. They are noticed generally in the order in which they were considered by your committee. " In the opinions they have expressed, and the recommenda- tions they have made, they have not proposed to amend the constitution of Convocation, even in points where they may have considered it capable of amendment, but have been guided by a reference to ancient precedents, whenever these could be found of so clear and unambiguous a character as to authorize a definite conclusion ; in other cases, where the precedents are doubtful or apparently at variance wTith each other, they have come to such conclusions as seem to be most conformable to the general constitution of Convocation. As to adjudi- " (1) Has this house the right of adjudicating in disputed eSnT elections of proctors ? "It is the opinion of this committee that the Lower House has no right to adjudicate in disputed elections of proctors. " In the case of Dey against Knewstubbs, noticed at length in the acts of the Lower House for the 9th and 11th of November, 1586, where the prolocutor appoints and administers an oath to commissioners to inquire into the facts connected with the election, and adjudicates upon their report, it is pro- bable that he acted by a commission from the president : for in the very same session in which he makes his adjudication, the decision of the president in another disputed election, that of West against Thorowgood, is made known through his registrar to the prolocutor, and by him communicated to the house. " On the 14th of November, 1640, when it was no longer safe for the Upper House to meet in consequence of the public disturbances, the archbishop sent for the prolocutor and six of his brethren, and directed him and the rest of the clergy to inquire into a disputed election, that of Thorowgood against CONVOCATION. 1555 Porter : the bishops met no more ; but the prolocutor and the Lower House, being thus authorized by the president, pro- ceeded to adjudicate ; the prolocutor, in accordance with the majority, pronounced for the election of Thorowgood. " Representations, however, respecting disputed elections, or any irregularities connected with them, when made by any member in the form of petition or otherwise, may be taken into consideration by the Lower House, and treated like any other gravamina which are brought under their notice. " It appears that in the Convocations of the early part of the last century committees of elections were appointed, as well as committees of privileges and of gravamina. If the object of these committees had been inquiry merely, their functions might properly have been discharged by the committees of gravamina. It is therefore probable that their appointment originated in the claim of a right to adjudicate upon disputed elections. There are obvious reasons, however, which would make us hesitate to follow any precedent of that period, unless it was supported by other authorities. " (2) What limitations are imposed upon the appointment or As to proxies, use of proxies ? " It is the opinion of this committee that those members of the Lower House, who are so in virtue of their office, can appoint proxies : and that the president is the sole judge of the validity of such appointments. " In the Convocation of 1689, ' it was debated what proxies each man might have from those that were absent, and it was agreed that one man might have four : ' in the Convocation of 1701, this number was further limited to three, but was extended to five by the standing orders of 1722, which orders were adopted by this house at the first session of this Convocation. Though it is the opinion of your committee that this house possesses no power of limiting the number of proxies which one of its mem- bers may hold, there are many reasons to be urged in favour of a further limitation of this privilege, as the accumulation of many votes in the hands of one member might be productive of some inconveniences. " In the Convocation of 1689, ' it was agreed that proctors for the clergy who had not appeared might appoint proxies, prece- dents having been found for the same : ' and in the Convocation of 1701 such proxies were admitted. The table of fees signed and established by Archbishop Whitgift. which is still in force, assigns a fee to the registrar to be paid by every dean or arch- deacon who appears by proxy ; and it may be inferred that a corresponding fee would have been assigned to be paid by every proctor of a chapter or of the clergy, who appointed a proxy, if such appointments had been authorized. It is stated by Atter- bury in his Rights, Powers, and Privileges of our English Convocation, that proctors of the clergy and of chapters were sometimes authorized by the instruments of their appointment COUNCILS OF THE CHURCH. to name substitutes, not proxies, to appear for them : thus in the 1st of Edward VI., the proctor for the clergy of Hereford named two such substitutes, and in the last year of the same king, the procuratorium of the dean and chapter of St. Paul's had a clause in it to the same effect : in an ancient memoran- dum relating to a Convocation held at Carlisle, in the reign of Edward I., which Atterbury has quoted in his Appendix, it is stated that Joh. de Walter ie, Clericus, Procurator Cleri Archidiac. 8urr. habcns potestatem alium proeuratorem substituendi, substituit loco sui Joh. de Bra//, Clericum. It is probable that these were the precedents referred to by the Convocation in 1689. " (3) The mode of dealing with schedules of gravamina and reform a )ida. " When schedules of gravamina or reformanda are presented to the house, they may be referred, upon a motion duly made and carried, to a committee of gravamina and reformanda, by which they may be recommended as proper subjects to be made articuli cleri, and, when approved by the house, to be presented as such to the Upper House, through the prolocutor : but other gravamina or reformanda, more particularly if they be of a local and special, rather than of a general, character, may be trans- mitted to the Upper House through the prolocutor, in the name of the member who presents them. It has been the uniform practice to require that all representations, of whatever kind, which are presented to the Upper House, should be in writing. "It has been usual to appoint a committee of gravamina and reformanda at the beginning of every Convocation, which com- mittee has continued to act as such, until discharged by tha authority of this House. " It is provided by the 11th of the standing orders of 1722, ' that any members may come and propose anything to any committees of this house, but none to have liberty of suffrage except such as are deputed of the committee, unless when it is otherwise ordered by this house.' From a discussion which arose respecting this standing order at our last session, it seemed to be the general feeling of this house, though no motion to that effect was made, that no new propositions should be allowed to be submitted to the committee of gravamina, unless they had immediate reference to the subjects under its consideration : and it is our opinion that the preceding standing order should be so modified, as to exclude from the cognizance of your committees all matters not specifically referred to them by the vote of this house. " (4) Has the Lower House the right of declining to enter upon the consideration of business submitted to it by the Upper House, or to appoint committees when required by the president to do so ? " It appears to be most conformable to ancient precedents that the Lower House should not decline to enter upon the consider- ation of business committed to it by the Upper House, or to CONVOCATION. 1557 appoint committees either for special business or to meet com- mittees of the Upper House, when required by the president to do so. " There are two well-known precedents in which the Lower House refused to appoint committees of their members to meet committees of the Upper House — the one in 1689 and the other in 1701 — and these refusals formed a principal topic in the controversies which prevailed at the beginning of the last century respecting the relations of the two houses to each other. " Heylin, in his MS. Extracts, as quoted by Atterbury, gives another instance of such refusal in 1542. The correction of the Romish service-books was committed by the Upper House to the bishops of Sarum and Ely, taking to each of them a certain number of the Lower House such as should be appointed : and it is stated that the Lower House excused themselves from making any such appointment, and left the two bishops to proceed with the business by themselves. "Burnet in his History relates that in the Convocation of 1712, the bishops, having agreed upon a declaration respecting lay baptism, sent it down to the Lower House, ' but they would not,' says he, ' so much as take it into consideration, but laid it aside : thinking that it would encourage those who struck at the priesthood.' The detailed reasons, however, assigned by the Lower House for the course which they adopted, were in reality equivalent to a rejection of the proposition, which was quite within their province : this case therefore does not amount to a precedent in favour of the right of refusing to take the business proposed to them into consideration. " Whatever force may be attributed to these precedents, as establishing the abstract right of the Lower House to refuse to appoint committees when required by the president to do so, or to enter upon the consideration of business committed to it — they do not appear to be sufficient to justify such refusals. " (5) Has the Lower House the right of entering upon the Must business consideration of business not previously committed to it by the Je committed tt tt o V Upper to Upper House ? _ _ Lower House? "It is the opinion of your committee that, in conformity with ancient precedent and the constitution of convocation, more especially as limited by the Act of Submission, the Lower House has no right to enter upon the consideration of any business, with a view to a synodal act, unless previously com- mitted to it by the Upper House : but it may suggest the consideration of any business to the Upper House by way of petition or address. " It is very difficult to define the precise boundaries which separate the questions which are, from those which are not, forbidden by the statute 25 Henry 8, c. 19, to be considered in convocation without the royal licence. It is stated by Atterbury, 1 that in all the convocations since the 1st James 1, none of them 1558 COUNCILS OF THE CHURCH. As to com- mittees of Lower House not required by president. took out licences but when they were to make canons.' His opponent Wake concurs in this statement, and adds, ' I do humbly insist upon it, that no restraint has been laid upon the clergy in convocation, but only in the point of attempting or enacting, or to express all in one word, of making canons, constitutions, orders, and ordinances provincial. In all other matters I account them still at liberty, not only to treat but to resolve too, as they did before ; but in all such cases" where the clergy are restrained, by the Act of Submission, from enacting, promulging, and executing without the king's licence, in the same they are also restrained from attempting, that is, from treating and conferring in order to enact.' As a natural inference from this opinion, which has been very generally held to be a correct interpretation of the statute, we should consider the house to be restrained from passing any resolution, which, if enacted, would become a canon : but the case would be different if such resolution took the form of an address or petition to the Upper House, with a view to obtain the royal licence to proceed to the consideration of such business. " This principle is well illustrated by one of the proceedings of the Lower House of Convocation in 1709, which was the drawing up of a declaration that episcopacy was of divine and apostolical right, with an invitation to the Upper House to concur with them in pronouncing it a settled maxim of the church. ' But the bishops,' says Burnet, ' saw through their designs, and sent them for answer, that they acquiesced in the declaration already made on that in the preface to the Book of Ordinations, and that they did not think it safe either for them or for the clergy to go farther in that matter without a royal licence.' Such a proposition, even if legitimate, ought to have proceeded from the Upper and not from the Lower House, and the declaration, if agreed to, would have amounted to such an attempt to make a canon or constitution as is forbidden by the Act of Submission. " (6) What are the objects for which committees may be appointed by the Lower House when it is not required to do so by the president, and in what manner are such committees appointed ? u It appears to be consistent with ancient precedents for the Lower House to appoint committees for its own purposes, and to give such instructions to them as it may think necessary. Of this kind are committees of privileges to consider all ques- tions concerning the rights and privileges of the Lower House, and committees of gravamina and reformanda to consider com- plaints and representations made by members of the house, or in petitions transmitted through them. " The appointment of such committees has usually been pro- posed and agreed to by the house at the beginning of each con- vocation, or whenever the occasion for making them occurred ; after which the members to serve upon them have been nomi- CONVOCATION. 1559 nated by the prolocutor, and submitted to the house for its approval. "As the deliberations of such committees are entirely con- fined to the regulation of the affairs of the Lower House, or to the preparation of business which it has in hand, and in no respect affect the relations of the Lower to the Upper House, it does not appear to be necessary or required by general precedent to signify the appointment of such committees to the president, or to request his approval of the names of those who are appointed to serve upon them. " (7) For what objects may the president require the appoint- For what ment of committees of the Lower House, and in what manner ^j^c^apresi" are such committees appointed ? requirTcom- " With respect to the right of the president to direct the mittees of Lower House, through its prolocutor, to name committees of Lower House, its members for various specified purposes, the examination of the ancient documents would appear to lead to the following conclusions. " The president, through the prolocutor, may direct the Lower House, as a body to consider any subject committed to it, or to appoint a committee of its members for that purpose. Sometimes the number of members of such committee was pre- scribed ; at other times it was left to the discretion of the house. The names of the persons so selected were sometimes com- municated to the president, ut decuit, (as it was said,) that is, from a sense of propriety : and there can be little doubt, from a general consideration of the tenor of the precedents, that if a return of such names had been required in any case, it would have been held to be the duty of the Lower House to comply with the order. "Again, the president has been accustomed to direct the Lower House to appoint a certain number of its members to meet a certain number of those of the Upper House, and to return the names so appointed to the president for his ap- proval. " To such committees was entrusted, either a special inquiry, or the transaction of a special business, and, when the appoint- ment was unconditional, it may reasonably be concluded that the members of the two houses possessed equal powers, and acted in every respect as one body. In other cases, they would appear to have been appointed to confer with a certain number of members of the Upper House, when it may be inferred that they were merely consulted by the latter, who were authorized to report, if they thought proper so to do, independently of them. Committees of the Lower House were also sometimes appointed to meet committees of the Upper House, when sum- moned, in which case it may be inferred that they met for deliberation in common, without the members of either house being pledged to adopt the opinion of the majority. " The examination of the precedents would show many other ♦ 1560 COUNCILS OF THE CHURCH. As to debates after schedule of proroga- tion. How prolo- cutor is ap- pointed. forms in which the president could command the services of members of the Lower House ; all clearly indicating that the Lower House, though possessing important prescriptive privi- leges of its own — in the appointment of committees for its own purposes, in its power of petition and representation, and more especially in that of a final negative upon all business com- mitted to it — was considered as acting in general subordination to the orders of the president. " Whilst we fully recognize the existence of precedents which lead to a contrary conclusion, we are of opinion that it is desirable that all the members of committees of the two houses, when they meet together — unless for the purpose of conference merely — should meet upon equal terms, and that the result of their joint deliberations should in all cases be reported to convocation. " It would appear, as far as regards the Lower House, that the usual course of proceeding in the appointment of such com- mittees has been as follows. The president directs the pro- locutor to nominate the members of such committees, and to submit the names of the persons so nominated to him. The prolocutor then proceeds at once to make his nomination, with- out requesting the leave of the Lower House to do so : but the names so selected are submitted to the house for its approval. " By this course of proceeding the Lower House is in no respect committed to the expression of any approval or dis- approval of the object for which such joint committee is appointed, but simply accepts or rejects the names submitted to it by the prolocutor. " (8) Is it consistent with ancient precedents that the Lower House should continue its debates, after the schedule of pro- rogation has been read ? " We are of opinion that the Lower House has no power of continuing its debates after the schedule of prorogation has been read to the house, or the fact of its having been read in the Upper House has been announced by the prolocutor; but it appears to be not inconsistent with precedents for the prolocutor to exercise a discretion in deferring the announcement of the prorogation, until the consideration of the business before the house is concluded, unless it is declared by the president that the prorogation is immediate. " (9) The form of appointing, presenting, and confirming the prolocutor. " The forma eligendi et prcescntandi prolocutorem drawn up by Archbishop Parker in 1562, is sufficiently full and precise, and appears to have been invariably followed. This form, as well as the forma site descriptio convocationis cekbrandcp, drawn up at the same time, are stated to have been designed not merely as a rule for himself in holding the first convocation, but also as a standing pattern for his successors. " If a prolocutor dies or vacates his office, a new prolocutor is CONVOCATION. 1561 elected, presented, and confirmed, according to the accustomed forms. " (10) The mode of appointing a deputy prolocutor, when Deputy the prolocutor is unable to attend from illness or other causes. prolocutor. " The prolocutor, with the sanction of the house, may name a deputy or dejmties to act in his absence, but such nomination must be approved by the president. "(11) Has the Lower House the right to receive petitions, Petitions to and if so, in what form should they be addressed, or in what Lower House, manner transmitted, to it ? " The convocation of this province, when the two houses are separated, is deemed to be held in the place where the Upper House assembles, and petitions therefore addressed to convoca- tion generally should be transmitted to the Upper House. " Petitions, however, addressed to the Lower House may be received in the same manner as other representations coming from the members who present them, and either referred to the committee of gravamina and reformanda, or be otherwise dealt with as may be determined. It is obviously the duty of the proctors of the chapters and clergy to present the gravamina and reformanda of those whom they represent to the consideration of the house. " In conclusion, your committee beg to state that they have Nothing said ventured to express no opinion respecting the rights and customs &s to consensus of the Upper House, except in their relation to those of the (m' Lower House ; and when they have spoken of the acts of the president, they have equally abstained from expressing any opinion whether they may or may not require the concurrence of his brother prelates. " George Peacock, Chairman." Sect. 5. — General Powers and Privileges. By Can. 139 of 1603, "Whosoever shall hereafter affirm, That Canon 139. 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." By Can. 140. " "Whosoever shall affirm, That no manner of Canon 140. person, either of the clergy or laity, not being themselves particu- larly assembled in the said sacred synod, are to be subject to the decrees thereof in causes ecclesiastical (made and ratified hy 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." By Can. 141. "Whosoever shall hereafter affirm, That the sacred Canon 141. synod assembled as aforesaid was a company of such persons as 1562 COUNCILS OF THE CHURCH. 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 aforesaid, ought to be despised and con- temned, the same being ratified, confirmed, and enjoined by the said regal power, supremacy and authority: let them be excom- municated, and not restored until they repent and publicly revoke that their wicked error." bind the* t0 Lord Coke says, a convocation may make constitutions by temporary. which those of the spirituality shall be bound, for this, that they all, either by representation or in person, are present, but not the temporalty (b). And in Matthew v. Burdett, in 1 Anne, it was said, that, in the primitive church, the laity were present at all synods. When the empire became Christian, no canon was made without the emperor's consent. The emperor's consent included that of the people : he having in himself the whole legislative power, which our kings have not. Therefore if the king and clergy make a canon, it binds the clergy in re ecclesiasticd, but it does not bind laymen ; they are not represented in convocation, their consent being neither asked nor given (c). And in Cox's Case, in 1700, it was said by "Wright, Lord Keeper, that the canons of a convocation do not bind the laity without an act of parliament (d). And, finally, in the case of Croft v. Middleton, in 10 Greo. 2, it was determined by the Court of King's Bench, that such canons do not proprio vigor e bind the laity (e) . Nor to contra- The convocation can do nothing against the law of the land, land °f -^or 110 Par^ °^ ^ne ^aw' ^e ^ common law or statute law, can be abrogated or altered without act of parliament (/) . 24 Hen. 8, The provisions of 24 Hen. 8, c. 12, which in all causes testa- c' 12' mentary, matrimonial, or of tithes, depending in the ecclesiastical Upper House, courts, which shall touch the king, give to the party grieved an appeal to the Upper House of Convocation, have been already discussed (g) . Trial of There prevailed at one time considerable doubt whether the heresy. convocation might or might not try a clerk for heresy. It may be said that, even without considering the effect of the Clergy Discipline Act, 3 & 4 Yict. c. 86, s. 23, this doubt is now prac- tically resolved, and that convocation has no such power (h) . (h) The Case of Convocations, 12 Co. p. 73. (c) 2 Salk. p. 412. {d) 1 P. Wms. p. 32. (e) 2 Stra. p. 1056 ; 2 Atk. p. 650 ; vide supra, p. 828. (/) The Case of Convocations, 12 Co. p. 73. (g) Vide supra, p. 972. (A) See Ex parte Bp. of Exeter, 10 C. B. p. 102, nomine, In the matter of Gorham v. Bp. of Exeter, 5 Ex. p. 630 ; Gorham v. Bp. of Exeter, 15 Q. B. 52; 14 Jur. pp. 443, 480, 522, 876; 19 L. J. Q. B. p. 279; C. P. p. 200; Ex. p. 376. Lord Hale says, that before the time of Richard II., that is, before any acts of parliament were made about heretics, "it is without question that, in a convocation of the clergy or provincial synod, they might and CONVOCATION. 1563 The question whether a bishop must not be tried by the arch- Trial of bishop in and with the Upper House of his convocation, was bl"noP- raised in the case of Read v. The Bishop of Lincoln (/). The power of convocation to condemn an heretical work Condemnation appears to be as well established. In 1864 convocation con- ^^^g^ demned a work entitled Essays and Reviews. The following 111 account is taken from a record of the proceedings in Convo- cation on that occasion : — " The President. — If none other of my right reverend brethren are inclined to speak, I will in a very few words state my reasons for the course which I have felt it my duty to adopt throughout these proceedings. In the first place, I hold that this synod has the power, and that it is its province and function, to con- demn erroneous books. If ever I entertained any doubt on that subject, that doubt has been cleared up by the opinion of Sir Hugh Cairns and Mr. Bolt. This was the case sent to those eminent gentlemen : — " ' The Committee of the Upper House of Convocation of the province of Canterbury is now sitting, and to enable them to make a report they desire the opinion of Sir Hugh Cairns and Mr. Eolt upon the following question : — " ' Is the convocation of the province of Canterbury, when legally assembled under the queen's writ, estopped by the statute of 25th Henry VIII. c. 19, or by any other statute, from proceeding to pronounce synodical condemnation upon a book, not intending to proceed against the author, without receiving the special royal licence for the purpose ? ' " The opinion is this : — '"We are of opinion that the convocation of the province of Canterbury is not estopped by the 25th Henry VIII. c. 19, or by any other statute, from expressing by resolution or otherwise their* condemnation or disap- probation of a book, although no special royal licence is given for the purpose. Exception was taken early in the last century to the proposal of convocation to pass synodal censure on a sermon preached by Bishop Hoadley ; but it was not alleged that they were disabled by statute from so doing. Lincoln's Inn, John Eolt. 16th June, 1S64. H. M. Caikxs.' "All doubt having been cleared away upon that point, it evidently being the privilege and province of this synod to condemn books, the question in my mind simply is, whether frequently did here in England pro- synodical manner, doth still retain ceed to the sentencing of heretics." or not retain that authority, he will 1 Hale, P. C. 390. Mr. Hawkins not presume to say, until the judges says, "It is certain that the convoca- shall be clear and final in their tion may declare what opinions are opinions, and that point shall have heretical; but it hath been ques- received a judicial determination." tioned of late, whether they have (Gibs. p. 353.) power at this day to convene and (<') 14 P. D.p. 88; Eoscoe, Eeport convict the heretic." (1 Hawk. P. C. of Bp. of Lincoln's case, vide supra, p. 354.) And Bp. Gibson says, "How pp. 73, 74. The cases of Bps. Cheney far the convocation of each province, and Goodman, supra, pp. 73, 1543, which had once an undoubted right 1551, should also be noticed, to convict and punish heretics in a P. VOL. II. 5 I 1564 COUNCILS OF THE CHURCH. the occasion has arisen for such a course of proceeding. Now, I do most distinctly state — and I never felt a stronger convic- tion in my life — that the occasion has arisen — that if ever there was a book which deserved such condemnation, it is the book entitled Essays and Reviews " . . . . " The Bishop of Oxford. — It is now my duty to move the following resolution : — " That the Upper House of Convocation, having received and adopted the report of the committee of the whole house ap- pointed by them to examine the volume entitled Essays and Reviews, invite the Lower House to concur with them in the following judgment : — ' That this synod, having appointed com- mittees of the Upper and Lower Houses to examine and report upon the volume entitled Essays and Reviews, and the said com- mittees having severally reported thereon, doth hereby syno- dically condemn the said volume, as containing teaching contrary to the doctrine received by the United Church of England and Ireland in common with the whole Catholic Church of Christ '"(*). Privilege of After the clergy had furnished a tenth to Henry the Sixth (7), convocS.t0 ihey obtained the statute of 8 Hen. 6, c. 1, which enacted, 8 Hen. 6 c l " Because the prelates and clergy of the realm called to the convocation, and their servants and familiars that come with them to such convocation, oftentimes be arrested, molested, and inquieted ; our lord the king, willing to provide for the security and quietness of the said prelates and clergy, at the supplication of the same prelates and clergy, and by the consent of the great men and commons of the realm, hath ordained and established, that all the clergy hereafter to be called to the convocation by the king's writ, and their servants and familiars, shall for ever hereafter fully use and enjoy such liberty or defence in coming, tarrying, and returning, as the great men and commonalty of the realm, called or to be called to the king's parliament, do enjoy, and were wont to enjoy, or in time to come ought to enjoy." And in the journals of the House of Lords, we find several applications to their lordships for redress in cases where this liberty of the convocation clergy has been invaded, which their lordships have formerly granted. (k) Chronicle of Convocation, vol. (I) Collier, Ecclesiastical History, 2, pp. 1681, 1682. Part iii. p. 351. ( 1565 ) PART VIII. THE CHURCH IN HER RELATION TO CHARITIES AND TO EDUCATION. CHAPTER I INTRODUCTORY. The sphere of the church's activity (a) and life is not confined Origin of the to the performance of purely religious offices ; and it was at an Jkurch^cf ^ early date extended to institutions of a charitable but secular charities, character. The jurisdiction of the church was founded on the maxim, that it was pro salute animce of the founder or the testator that the church should administer the charity or the bequest. It is very remarkable that the ecclesiastical courts in England, till a very recent period, retained jurisdiction over testaments and the administration of personal property (b) . The great office of chancellor was always holden by eccle- siastics before the reign of Henry the Eighth, and during part of his reign ; and the proceedings of the Court of Chancery were founded upon the basis of the civil and canon law (b). Remnants of the authority of the church in charitable and Existing in- educational trusts still remain. stances of Gifts or bequests for the furtherance of religious objects are, juri^^tion. according to English law, charitable, and liable to the provisions of the laws regulating charities. The Archbishop of Canterbury still has the power of con- ferring medical as well as other degrees (c) . The education of the people is, and probably always will be, much guided by the teaching of the clergy under the inspection of the diocesan. The effect of modern legislation, however, has been to sever Severing of the necessary connection between the church and education, connection in modern times. («) Walter, Lehrbuch, Yon der (c) It is usual for the recipient besonderen Kirchlichen Anstalten, of such a degree to \rear the hood § 337, u. s. w. of that degree in the university of (6) Yide supra, pp. 827, 930. which the archbishop is a member. 5 i 2 1566 THE CHURCH IN HER RELATION TO CHARITIES, ETC. The Toleration Acts have taken away the penalties which might at one time have been inflicted on teachers who did not profess obedience to the chnrch. The canons that require licence from the ordinary for every teacher were not binding on the laity, and have become almost obsolete as to the clergy. Finally, in regard to the four great classes of teaching institutions, namely, the universities, the public schools, the middle class schools, and the primary schools, the University Commission Acts, and the University Tests Act, 1871 ; the Public Schools Act, 1868 ; the Endowed Schools Act, 1869, and the Welsh Intermediate Education Act, 1889, and the Elementary Education Act, 1870 (c), respectively, have either caused or recognized with a legislative sanction an increased separation between the church and education in this country. Subject of Such instances of ecclesiastical influence as still remain, which part' show themselves not in the mode of teaching so much as in the nature and government of the teaching institutions, will be treated of in the following pages. (c) 34 & 35 Vict. c. 26 ; 31 & 32 52 & 53 Vict. c. 40 ; 33 & 34 Vict. Vict. c. 118 ; 32 & 33 Vict. c. 56 ; c. 75. ( 1567 ) CHAPTER H. CHARITABLE TRUSTS. Sect. 1. — Generally . 2. — Law of Mortmain. — ♦> — Sect. 1. — Generally. The connection of the church with charities, which was at one Instances of time productive of most . important results in the application of ^n^tion general principles to both, still remains and operates in some ^urch^nd material circumstances. These may thus be classified : — charities. (A.) The established church itself is a charity, and all religious uses are charitable ones, and as such are subject to the general law of charities. (B.) The authorities of the church have certain jurisdiction over charities. (C.) The church has, in some cases, recognized the status conferred on its members by their position in a charitable cor- poration. (D.) Questions relating to charities have frequently been decided according to the principles of civil or ecclesiastical law. (E.) By the law of the land the church has certain peculiar privileges in relation to charities. (A.) The scope and meaning of the word "charity" as a What are legal term has been clearly laid down by judicial authority. chanties. Charity may, " in its wildest sense, denote all the good affec- tions men ought to bear towards each other ; in its most restricted and common sense, relief of the poor." But in neither of these senses is it employed in a court of equity. There " its signi- fication is derived chiefly from the Statute of Elizabeth. Those purposes are considered charitable, which that statute enume- rates, or which by analogies are deemed within its spirit and intendment ;...." (a). This statute of Elizabeth (43 Eliz. c. 4) provided for the 43 Eliz. c. 4. issuing of certain commissions to inquire into and reform abuses and neglects of charities. Its active portion was long obsolete ; (a) Sir William Grant in Morice v. Bp. of Durham, 9 Yes. p. 405 (a.d. 1804). 1568 THE CHURCH IN HER RELATION TO CHARITIES, ETC. but the preamble was constantly referred to as a declaration of the legal sense of the word " charity," and has been since re- 51 & 52 Vict, enacted by 51 & 52 Vict. c. 42, s. 13, sub-s. 2, in the following c. 42. words : — " Whereas by the preamble to the Act of the forty-third year of Elizabeth, chapter four (being one of the enactments hereby repealed) , it is recited as follows : — TsElTz " ' Whereas landes tenement £ rentes annuities pfittes heredita- recited.' ' ' nientes, goodes chattels money and stockes of money, have bene heretofore given limitted appointed and assigned, as well by the Queenes moste excellent Majestie and her moste noble pro- genitors, as by sondrie other well disposed psons, some for releife of aged impotent and poore people, some for main- tenance of sicke and maymed souldiers and marriners, schooles of learninge, free schooles and schollers in univsities, some for repaire of bridges portes havens causwaies churches seabankes and highewaies, some for educacon and ^fermente of orphans, some for or towardes reliefe stocke or maintenance for howses of correccon, some for mariages of poore maides, some for suppor- tacon ayde and helpe of younge tradesmen, handiecraftesmen and psons decayed, and others for releife or redemption of prisoners or captives, and for aide or ease of any poore in- habitant f concninge paymente of fifteenes, settinge out of souldiers and other taxes ; whiche landes tenements rents annuities pfitts hereditaments goodes chattells money and stockes of money nevtheles have not byn imployed accordinge to the charitable intente of the givers and founders thereof, by reason of fraudes breaches of truste and negligence in those that shoulde pay dely ver and imploy the same : ' and whereas in divers enactments and documents reference is made to charities within the meaning, purview, and interpretation of the said Act : " Be it therefore enacted that reference to such charities shall be construed as references to charities within the meaning, pur- view, and interpretation of the said preamble." Gifts in favour The term charity, as construed by the statute of Elizabeth, religious1 ur- ^as> ^ ^as ^een sa^' keen a^wa7s h°lden to extend to the poses, how far church and to religious purposes. Specifically, bequests for the charities. use or ornament of a parish church, for stipends to curates, singers and organists in churches, to societies for the spread and advancement of religion, either in England or abroad (b), have all been holden to be charitable legacies (c) . It should be noticed that while gifts for the repair of the church or ornaments in it are charitable, a gift for the repair (b) The Society for the Propaga- tion of the Gospel is within the law as to charities: Chester v. Chester , L. R. 12 Eq. p. 444. (c) See cases cited in Tudor's Law of Charitable Trusts, ed. 3, Part I., c. 1, pp. 6 — 11 ; Tyssen, Law of Charitable Bequests, Chap. X. ; and A.-G. v. Bp. of Chester, 1 Bro. C. C. p. 444 ; Hoare v. Osborne, L. E., 1 Eq. p. 585; Fisk v. A.-G., L. E., 4 Eq. p. 521 ; In re Mag aire, L. E., 9 Eq. p. 632. CHARITABLE TRUSTS. 1569 of a grave in the churchyard and not in the church, is not charitable (d). The peculiar jDiinciples of law which govern charities may be classified as follows : — (1.) Gifts to charities are especially favoured by the law, and Privileges of every attempt is made to effectuate the charitable intention of chanties- the donor (e) . This takes place in several ways : The courts supply any formal defects in the gift or assurance, or in the trustees who are to be the channels of the gift (/). The courts seize on any intention of a charitable gift, however vague and uncertain the gift may be, and appropriate it to charitable purposes of some kind or other— those charitable purposes to be afterwards worked out by the court or the trustees (g) . Charities are exempted from the general rules of the law agaiust perpetuities; and, where it is for the benefit of the charity, it will rather be construed as perpetual than otherwise (h). One who has endowed a charity with lands is not allowed to defeat his gift by an attempted sale to a purchaser for value under 27 Eliz. c. 4 (*). (2.) Charities are under the especial control of the High Court Control of of Justice, which frames schemes for their administration, directs by the funds, where the object of the founder has failed, to be chancery, bestowed on the nearest resembling charity on what is called the " cy-prte " principle, has peculiar modes of procedure open to charities, as by information, by petition under Sir S. Bomilly's Act (52 Geo. 3, c. 101), or by summary proceedings in cham- bers under the Charitable Trusts Act, 1853 (16 & 17 Vict, c. 137, ss. 28—31). (3.) Charities are under the especial control of visitors or In other ways, governors, of commissions formerly issued under the statute of Elizabeth, and, by a series of acts from 1853 onwards, of a per- manent charity commission, with large administrative and judicial powers. (4.) Charities are subject to the doctrines of mortmain, all Mortmain, charities being subject to 9 Greo. 2, c. 36, while it was in force, and charitable corporations to the Statutes of Mortmain. This subject will be further dealt with at greater length (/»•). (B.) The authorities of the church have certain jurisdiction Jurisdiction over charities. of church over. (d) Hoare v. Osborne, L. R., 1 Eq. p. 377. p. 585 ; Re Righifs Trusts, 36 L. J., (g) Moggridge v. Thackwett, 7 Yes. Ch. p. 147. p. 36 ; Tudor, ed. 3, Part I., c. 3, ( subject to the carrying over, and to the provision for saving or making compensation hereinbefore contained, provide for the following objects ; that is to say, (a.) For the application of the property scheduled as eccle- siastical charity property, or any part of the income thereof, to the maintenance of the fabric and the services of the church, or to such other of the eccle- ciastical purposes to which the same is now applied as are, in the opinion of the Commissioners, still beneficial to the inhabitants of each of the said parishes, or to any class thereof; and, subject thereto, to such other ecclesistical purposes within the parish to which such property and endowments belong as the Commissioners may think most conducive to the spiritual benefit of the inhabitants of the said parish : " (b.) [This sub-section relates to funds and purposes not eccle- siastical, and is therefore omitted.] be 'inserted *ii ^eC^' " ^n every scheme relating to the property or endow- schemes relat- men^ belonging to or now applicable in the parishes enumerated ing to parishes in the second schedule to this act, the Commissioners shall, Schedu5e°" subject to the carrying over and to the provision for saving or making compensation hereinbefore contained, provide for the following objects ; that is to say, (a.) For the application of the property, or any part of the income thereof, scheduled as ecclesiastical charity pro- perty, to the maintenance of the fabric and the services of the church, if any, in each parish possessed of eccle- siastical charity property applicable to such purposes or to such other of the ecclesiastical purposes to which the same is now applied as are, in the opinion of the Commissioners, still beneficial, and to the maintenance of the fabric and monuments of any churches within the City of London of architectural or historical interest which may not already possess sufficient funds available for that purpose ; and, subject thereto, for payment to the Ecclesiastical Commissioners of the surplus income of the said ecclesiastical property, to be by them applied to the maintenance of the fabric of churches, or to the better endowment of existing benefices, or to giving theological instruction to persons preparing for holy orders, or generally to extending the benefit of clerical or spiritual ministrations in accordance with the doctrines or by the ministers of CHARITABLE TRUSTS* 1575 the Church of England as by law established in the more populous districts of the metropolis : " (b.) and (c.) [These sub-sections relate to funds and purposes not ecclesiastical, and are therefore omitted.] The act contains a series of clauses as to procedure upon the Procedure schemes being framed by the Charity Commissioners, which upon schemes- may be objected to by petition to the Privy Council, and must be finally laid before Parliament. The first schedule contains the names of five parishes, those Schedules, of St. Andrew. Holborn; St. Botolph, Aldgate ; St. Botolph, Bishopsgate ; St. Bride, Fleet Street ; St. Giles, Cripplegate. The second schedule has a long list of, presumably, all the other parishes in the City. By sect. 21, "No scheme shall be so framed as to affect, or Saving for shall affect any endowment or part of an endowment (as the fe^h^fiftv case may be^ originally given to charitable uses less than fifty Vears old. Years before the commencement of this act, unless the governing body of such endowment assent to the scheme." By sect. 50, " In all schemes framed under this act affecting Schemes for general charity property which is not exj)ressly limited, by the general deed of foundation, to spiritual purposes of any religious de- £erty toPcon- nomination. no preference shall be shown to any person on tain'no account of membership of any church, nor shall conformity to preference for any church be made the condition of enjoying any benefits, nor denomiifadon shall it be made a condition in appointing a master or mistress to any school founded or reformed under this act, that he or she shall be a member of any church, nor shall endowments under this act be attached to any institution, admission to which, or to the governing body of which, is limited to the members of any denomination." By virtue of 56 & 57 Viet. c. 73 (the Local Grovernment 56 & 57 Vict. Act, 1894), ss. 5 and 6, " The legal interest in all property c> ' vested either in the overseers or in the churchwardens and ^^al overseers of a rural parish" ... in property " connected with the affairs of the church, or held for an ecclesiastical charity," does not vest in the parish council ; and for all such affairs, the powers, duties, and liabilities of the vestry remain (e). Sect. 2. — Mortma in. The legal personality of capacity of inheriting (/), is (e) Tide supra, pp. 1465, 1466. (/) Fifty years after the civil establishment of the church by Constantine, Yalentinian the elder enacted the prototype of mortmain laws restraining, among other regu- the church, and its consequent Capacity of a principle incorporated into the church to inherit. lations, the prodigahty of bequest by women to the church : and twenty years afterwards Theodosius the Great issued a similar edict. See a luminous chapter by Gian- none on this subject ^Giannone, Is- 1576 THE CHURCH IN HER RELATION TO CHARITIES, ETC. Limitations of that capa- city. 51 & 52 Vict, c. 42. jurisprudence of all Christian countries under all forms of eccle- siastical government (g). Till quite recently the restrictions under which this capacity of inheritance was placed in this country were of two kinds : (a) By the Statutes of Mortmain, restricting the purchase of land by corporations of all kinds (h), ecclesiastical or civil, without a licence from the Crown ; (b) By 9 Geo. 2, c. 36, prohibiting the devise of lands for the benefit of charities, corporate or incorporate. These Statutes of Mortmain which have been repealed by the Mortmain and Charitable Uses Act, 1888 (51 & 52 Yict. c. 42), are thus summarized in the Schedule to that Act. Session and Chapter. 7 Edw. 1 13 Edw. 1. c. 32 .. 18 Ed, 3. st. 3. c. 3 15 Ric. 2. c. 5 23 Hen. 8. c. 10 Title. Statutf de Viris Religiosis. Remedy in case of mortmain under judgements by collusion. Prosecutions against religious persons for pur- chasing lands in mortmain. St. 7 Edw. 1. de Eeligiosis. Converting land to a churchyard declared to be within that statute. Mortmain where any is seised of lands to the use of spiritual persons. Mortmain to purchase lands in gilds, frater- nities, offices, commonalties, or to their use. An Acte for feoffments and assurance of landes and tenements made to the use of any parisshe Churche, Chapell, or suche like. 7 & 8 Will. 3, c. 37. Statutory exemptions in favour of church. The effect of these statutes was to forbid the alienation of land to corporations, and to prevent corporations, religious, charitable, or otherwise, from holding land except with the licences of the Crown and of the chief lord. By 7 & 8 Will. 3, c. 37, the Crown was given power to give licence to alien in mortmain and to take and hold in mortmain. This Act has also been repealed by 51 & 52 Yict. c. 42. The church was, however, exempted from the Mortmain Acts toria Civile di Napoli, 1. 2, c. 8, s. 4 ; p. 113 of Ogilvie's translation), in which he mentions that Charle- magne in Germany, Edward I. , Ed- ward II., and Henry Y. in England, and St. Louis ("cosa molto nota- bile") were among the Christian monarchs most hostile to property left in ecclesiastical mortmain. (g) X. iii. 13, c. 2. Sarpi (Works, Voi. 4), Delle Materie Benenciare, 1763, cc. 16, 36, pp. 91, 92, and 137 [translated by Chr. Hayes, pp. 52, 160] ; Bohmer, Inst. ; Jus Paro- chiale ad fundamenta genuina re- vocatum, sect. 5, c. 3, §§ 3, 4, 5. Yide supra, pp. 1121, 1122. (h) By the civil law a corpora- tion was incapable of taking lands, unless by special privilege from the emperor ; " collegium si nullo speciali privilegio subnixum sit, hoereditatem capere non posse, dubium non est." Cod. lib. vi., tit. xxiv., lex 8. CHARITABLE TRUSTS. 1577 in many respects by later statutes. They may be enumerated as follows (/) : 17 Car. 2, c. 3 ; 29 Car. 2, c. 8 ; 1 & 2 Will. 4, c. 45, and 13 & 14 Yict. c. 94, s. 23, enabling owners of tithes to grant them or part thereof for augmenting the benefice of the parish in respect of which they arise. 2 & 3 Ann. c. 20, ss. 4, 5, enabling gifts to the governors of Queen Anne's Bounty. 42 Geo. 3, c. 116, s. 50, enabling bequests by will for the redemption of land tax on all charities. 43 Greo. 3, c. 108, enabling persons by deed enrolled or by will executed three months before their death, to give land not exceeding five acres, or goods and chattels not exceeding in value 500/., for building churches, providing mansion houses, or augmenting glebes in certain cases. 51 Geo. 3, c. 115, enabling lords of the manor to grant five acres of the waste for the same purposes. 58 Geo, 3, c. 45, ss. 33, 36, 52, enabling conveyances of lands not in mortmain to be made to the Church Building Commis- sioners as sites for churches, &o. 3 Geo. 4, c. 72 ; 5 Geo. 4, c. 107 ; 1 & 2 Yict. c. 107 ; 3 & 4 Yict. c. 60, and 7 & 8 Yict. c. 65, extending this last provision. The statutes authorizing the exchange of glebe lands, and in certain cases the purchase of lands for residence houses, 17 Geo. 3, c. 53 ; 55 Geo. 3, c. 147 ; 1 & 2 Yict. c. 23, and 28 & 29 Yict. c. 69 (k). 6 & 7 Yict. c. 27, ss. 12, 22, enabling ministers or incumbents created under that act to receive and take lands and goods. 14 & 15 Yict. c. 97, s. 8, enabling grants to create a repair fund for churches built under the Church Building Acts. 29 & 30 Yict. c. Ill, s. 9, enabling the Ecclesiastical Commis- sioners to take and hold lands "which they may consider suitable and convenient for annexation to any benefice with cure of souls.'' 36 & 37 Yict. c. 50, enabling sites to be granted for churches and residence houses. And 41 & 42 Yict. c. 68, s. 2, enabling gifts of real property to be made to the Ecclesiastical Commissioners for the endow- ment funds of the new bishoprics to which that act refers (/). By 18 & 19 Yict. c. 124 (The Charitable Trusts Amendment 18 & 19 Vict. Act, 1855), s. 35, any incorporated charity might with the con- c- 124- sent of the Charity Commissioners " Invest money arising from ^^oTmone any sale of land belonging to the charity, or received by way of inland money equality of exchange or partition, in the purchase of land, and may hold such land or any land acquired by way of exchange or partition, for the benefit of such charity, without any licence in mortmain." By 33 & 34 Yict. c. 34, s. 1, corporations and trustees in the 33 & 34 Vict. c. 34. (i) Vide infra, Part IX., Chaps. (k) Vide supra, pp. 1125—1196, IV., V. 1307—1318. {I) Vide supra, pp. 28, 30. 1578 THE CHURCH IN HER RELATION TO CHARITIES, ETC. 33 & 34 Vict. United Kingdom holding moneys in trust for any public or c- 3*- charitable purpose might " invest such moneys on any real on^morto-a* e securuT authorized by or consistent with the trusts on which on mor Dage. monevs are held, without being deemed thereby to have acquired or become possessed of any land within the meaning of the laws relating to mortmain, or of any prohibition or restraint against the holding of land by such corporations or trustees contained in any charter or act of parliament." Sect. 2, provides for a sale of the premises instead of a fore- closure being decreed in any suit relating thereto. 9 Geo. 2, c.36. The act 9 Geo. 2, c. 36, did not strike at the granting of land to corporations, or at the holding of land by corporations, but at the gift of land or of money to be laid out in land, by will or shortly before death. By sect. 1 of that act, no lands, or stock, or money to be laid out in lands was to be given for charitable uses, unless by deed indented, executed before two witnesses twelve months before death of donor, and inrolled in Chancery ; or unless in the case of stock there had been a transfer six months before death ; and in every case unless the transfer were to take effect for the charitable use intended immediately in possession. By sect. 2, this condition of execution of the transfer twelve months or six months before the death was not to apply to bond fide sales. Sect. 3 made all gifts, otherwise than according to the act, void. Sections 4 and 5 made exceptions in favour of the universities and colleges. Exemptions By 43 Greo. 3, c. 107 (m), this act was not to extend to lands, sta^te113 laSt tequeatliecL to the governors of Queen Anne's Bounty. Several charities not particularly connected with the church have by special acts obtained exemption from the restrictions of this statute (n). Many of the acts, moreover, which have been already cited (o) , and which have been passed since 9 Greo. 2, c. 36, exempt the charities to which they apply from the operation of this act, as well as from the operation of the older statutes of mortmain. Purchasers for Purchasers for valuable consideration, who had not complied value- with all the formalities of 9 Greo. 2, c. 36, were protected by 9 Greo. 4, c. 85, and 24 Yict. c. 9 (p). The latter statute was extended to purchases completed before May 17, 1866, by 27 Yict. c. 13, and to leases, by 26 & 27 Yict. c. 106, and still further by 29 & 30 Yict. c. 57. 31 & 32 Vict. By 31 & 32 Yict. c. 44, sites for buildings for religious, c. 44. (to) See also 45 Geo. 3, c. 84, s. 3. (n) See Tudor, Law of Charitable Trusts, ed. 3, pp. 426—433; Tyssen, Law of Charitable Bequests, chaps. 27 and 28. (o) 42 Geo. 3, c. 116, s. 50 ; 43 Geo. 3, c. 108; 51 Geo. 3, c. 115 ; 1 & 2 Will. 4, c. 45 ; 3 & 4 Vict, c. 60; 6 & 7 Vict. c. 37; 13 & 14 Vict. c. 94; 14 & 15 Vict. c. 97; 36 & 37 Vict. c. 50. (p) See also as to sites for schools for the poor, 4 & 5 Vict. c. 38, s. 16. CHARITABLE TRUSTS. 1579 educational and other charitable purposes might be granted for valuable consideration, and were not to be avoided by the death of the grantor within six months. The act of 34 & 35 Yict. c. 13, introduced a new system, that 34 & 35 Vict, of enrolment in the books of the charity commissioners twelve c- l3, months before death; by which method lands to a certain amount might be given for public parks, schools or museums, notwithstanding the act 9 Geo. 2, c. 36. The act of 9 Geo. 2, c. 36, received a most extensive inter- Construction pretation from the courts. The decisions on this subject may °f3GGeo'2' be divided into two classes : — (a) What might not be bequeathed ; (b) For what purposes chattels in themselves lawfully be- queathable might not be bequeathed. (a) Under the first head, everything savouring of realty, What may sometimes called impure personalty, has been holden to be n°* ^Jj" within the intention of the statute, and to be incapable therefore quea e° ' of being bequeathed upon charitable trusts. This rule was holden to comprise, among other things, bequests of growing crops, leaseholds, mortgages of all kinds, money secured by a vendor's lien, legacies charged on land, judgment debts secured on real estate, money secured by mortgage of turnpike and harbour tolls, and money to arise from the sale of real estate (q) . The decisions varied as to money secured on mortgage of municipal corporation property, including and principally con- sisting of rates ; but the later cases tended to treat such money as pure personalty (r) . Where a bequest was made to a charity out of a mixed fund, consisting partly of pure personalty and partly of personalty savouring of realty, the assets were not marshalled so as to make the charitable bequest come out of the pure personalty, but the charity had its bequest out of both funds rateably, and lost all that portion of the bequest which would come out of the impure personalty (-S-). (bj As to the second head : money or other lawful objects of For what pur- bequest to charities could not be bequeathed to them to be laid out ^esn^^ste in land, or for buildings which would require land for their sites, made, or for paying off incumbrances on land holden by charities (t). Money might, however, be bequeathed for erecting or repair- ing buildings on land already in mortmain (it), or for building a charitable institution, if lands were given by some other person (q) Tudor, Law of Charitable Trusts, ed. 3, pp. 400—109 ; Tyssen, Law of Charitable Bequests, Chap. 26. (r) Wignall v. Pari', Be Parker, 1 Ch. 1891, p. 682, is the last case. (s) Tudor, Law of Charitable Trusts, ed. 3, p. 58; Tvssen, Law of Charitable Bequests," Chap. 36; P. vol. il. Be Somers Cocks, Wegg Prosser v. Wegg Prosser, 2 Ch. 1895, p. 449, is perhaps the latest case. {t) Tudor, Law of Charitable Trusts, ed. 3, pp. 409— 412; Tyssen, Law of Charitable Bequests, Chap. 24. (u) Tudor. Law of Charitable Trusts, ed. 3, p. 411. 5 K 1580 THE CHURCH IN HER RELATION TO CHARITIES, ETC. Where be- quest upheld. 51 & 52 Vict, c. 42. Forfeiture on unlawful assurance or acquisition in mortmain. for the site of it (v) ; but money might not be given to trustees of a charity on condition of their finding lands on which an institution might be built (x) . Where a bequest could be applied in a legal or in an illegal way, the bequest will be upholden on the supposition that it will be applied for the lawful purposes (//). And the court has gone so far as to hold that a bequest of residue to trustees, to be applied by them " in aid of erecting or of endowing an additional church at A.," is good, and that the trustees are for this purpose entitled to take the whole of the residuary pure personalty and 500/. out of the impure personalty under 43 Greo. 3, c. 108 (s). Thus much has been said upon the statute of 9 Geo. 2, c. 36 ; partly because cases still arise in the administration of estates where the testator has died before the recent legislation, presently to be noticed, and where therefore the old law has still to be applied. The law of mortmain in its stricter sense and as applied by 9 Greo. 2, c. 36, has, in recent years, been first codified and then amended. First came The Mortmain and Charitable Uses Act, 1888 (51 & 52 Vict. c. 42), which repealed 9 Greo. 2, c. 36, and enacted as follows (a) : — Part I. Mortmain. Sect. 1. — " (1.) Land (b) shall not be assured to or for the benefit of, or acquired by or on behalf of, any corporation in mortmain, otherwise than under the authority of a licence from Her Majesty the Queen, or of a statute for the time being in force, and if any land is so assured otherwise than as aforesaid, the land shall be forfeited to Her Majesty from the date of the assurance, and Her Majesty may enter on and hold the land accordingly : (2.) Provided as follows : (i.) If the land is held directly of a mesne lord under Her Majesty, that mesne lord may enter on and hold the land at any time within twelve months from the date of the assurance : (ii.) If the land is held of more than one mesne lord in grada- tion under Her Majesty, the superior of those mesne lords may enter on and hold the land at any time (?;) Philpot v. St. George's Hospital, 6 H. L. p. 338. (x) A.-G. v. Davies, 9 Ves. p. 535. (//) Tudor, Law of Charitable Trusts, ed. 3, pp. 28, 413, 414. (z) Sinnett v. Herbert, L. R., 7 Ch. App. p. 232, reversing 12 Eq. p. 201; Champneys v. Davy, 27 W. R. p. 390; Re Hendry, Watson v. Blake- rce#,56L.T.p.908; W.N. 1887, p.93. («) By s. 11, the Act does not extend to Scotland or Ireland. (b) Land, as it will be seen, had a very extended definition given to it by s. 10 ; but this definition was much modified by 54 & 55 Vict, c. 73, s. 3. CHARITABLE TRUSTS. 1581 rents and within six months after the time at which the right of the inferior lord to enter on the land expires : (iii.) If a mesne lord is at the time when his right of entry accrues under this Act a lunatic or otherwise under incapacity, his right of entry may be exercised by his guardian or the committee of his estate, or by such person as Her Majesty's High Court of Justice may appoint in that behalf : (iv.) If the right of entry under this Act is exercised by or on behalf of a mesne lord, the land shall be forfeited to that lord from the date of the assurance instead of to Her Majesty." Sect. 2. "It shall be lawful for Her Majesty the Queen, if Power to Her and when and in such form as she thinks fit, to grant to any Maiesj7 to . . , . . • i • 1 -i • grant licences person or corporation a licence to assure m mortmain land m in mortmain, perpetuity or otherwise, and to grant to any corporation a licence to acquire land in mortmain and to hold the land in perpetuity or otherwise." Sect. 3. "No entry or holding by or forfeiture to Her Saving for Majesty under this Part of this Act, shall merge or extinguish, or otherwise affect, any rent or service which may be due in respect of any land to Her Majesty or any other lord thereof." By Sect. 12. " Nothing in this Act shall affect the opera- tion or validity of any charter licence or custom in force at the passing of this Act enabling land to be assured or held in mort- main." Part II. Charitable Uses. Sect. 4. — " (1.) Subject to the savings and exceptions con- Conditions tained in this Act, every assurance of land (c) to or for the under whlch ■i n, £ i -.l i i ~\ p ^ assurances benefit or any charitable uses, and every assurance oi personal may be made estate to be laid out in the purchase of land to or for the benefit to charitable of any charitable uses, shall be made in accordance with the use8, requirements of this Act, and unless so made shall be void. (2.) The assurance must be made to take effect in possession for the charitable uses to or for the benefit of which it is made immediately from the making thereof. (3.) The assurance must, except as provided by this section, be without any power of revocation, reservation, condition, or provision for the benefit of the assuror or of any person claiming under him. (4.) Provided that the assurance, or any instrument forming- part of the same transaction, may contain all or any of the following provisions, so, however, that they reserve the same (c) "Land," as it will be seen, finition was much modified by 54 had a very extensive definition & 55 Vict. c. 73, s. ,3. given to it by s. 10; but this de- 5k2 1582 THE CHURCH IN HER RELATION -TO CHARITIES, ETC. benefits to persons claiming under the assuror as to the assuror himself, namely, (i.) The grant or reservation of a peppercorn or other nominal rent ; (ii.) The grant or reservation of mines or minerals ; (iii.) The grant or reservation of any easement ; (iv.) Covenants or provisions as to the erection, repair, posi- tion, or description of buildings, the formation or repair of streets or roads, drainage or nuisances, and covenants or provisions of the like nature for the use and enjoyment as well of the land comprised in the assurance as of any other adjacent or neighbouring land ; (v.) A right of entry on non-payment of any such rent or on breach of any such covenant or provision ; (vi.) Any stipulations of the like nature for the benefit of the assuror or of any person claiming under him. (5.) If the assurance is made in good faith on a sale for full and valuable consideration, that consideration may consist wholly or partly of a rent, rent-charge, or other annual pay- ment reserved or made payable to the vendor, or any other person, with or without a right of re-entry for non-payment thereof. (6.) If the assurance is of land, not being land of copyhold or customary tenure, or is of personal estate, not being stock in the public funds, it must be made by deed executed in the pre- sence of at least two witnesses. (7.) If the assurance is of land, or of personal estate, not being stock in the public funds, then, unless it is made in good faith for full and valuable consideration, it must be made at least twelve months before the death of the assuror, including in those twelve months the days of the making of the assurance and of the death. (8.) If the assurance is of stock in the public funds, then, unless it is made in good faith for full and valuable considera- tion, it must be made by transfer thereof in the public books kept for the transfer of stock at least six months before the death of the assuror, including in those six months the days of the transfer and of the death. (9.) If the assurance is of land, or of personal estate other than stock in the public funds, it must, within six months after the execution thereof, be enrolled in the Central Office of the Supreme Court of Judicature, unless in the case of an assurance of land to or for the benefit of charitable uses those uses are declared by a separate instrument, in which case that separate instrument must be so enrolled within six months after the making of the assurance of the land " (el). (d) This section, so far as it ap- plies to wills, is inconsistent with, and is repealed by 54 & 55 Vict. c. 73, s. 5 : Hume v. Forbes, 1 Ch. 1895, p. 422 (infra, p. 1586). CHARITABLE TRUSTS. 1583 Sect. o. — (1.) " AVliere an instrument, the enrolment whereof Power to is required under this Part of this Act for the validation of an ™^^{ assurance, is not duly enrolled within the requisite time, Her within requi- Majesty's High Court of Justice, or the officer having control site time, over the enrolment of deeds in the Central Office, may, on application in such manner and on payment of such fee as may be prescribed by rules of the Supreme Court, and on being satisfied that the omission to enrol the instrument in proper time has arisen from ignorance or inadvertence, or through the destruction or loss of the instrument by time or accident, and that the assurance was of a nature to be validated under this section, order or cause the instrument to be enrolled. (2.) Thereupon, if the assurance to be validated was made in good faith and for full and valuable consideration, and was made to take effect in possession immediately from the making thereof without any power of revocation, reservation, condition, or provision, except such as is authorized by this Act, and if at the time of the application possession or enjoyment was held under the assurance, then enrolment in pursuance of this section shall have the same effect as if it had been made within the requisite time : (3.) Provided that if at the time of the application any pro- ceeding for setting aside the assurance, or for asserting any right founded on the invalidity of the assurance, is pending, or any decree or judgment founded on such invalidity has been then obtained, the enrolment under this section shall not give any validity to the assurance. (4.) Where the instrument omitted to be enrolled in proper time has been destroyed or lost by time or accident and the trusts thereof sufficiently appear by a copy or abstract thereof or some subsequent instrument, such copy, abstract, or subse- quent instrument may be enrolled under this section in like manner and with the like effect as if it were the instrument so destroyed or lost. (5.) An application under this section may be made by any trustee, governor, director, or manager of, or other person entitled to act in the management of or otherwise interested in, any charity or charitable trust intended to be benefited by the uses declared by the instrument to be enrolled." Part III. Exemptions. Sect. 6. " (1.) Parts One and Two of this Act shall not Assurances apply to an assurance by deed of land of any quantity or to an *°rr£ ^J^1^. assurance by will of land of the quantity hereinafter mentioned tary school, or for the purposes only of a public park, a schoolhouse for an public elementary school, a public museum, or an assurance by will of museum- personal estate to be applied in or towards the purchase of land for all or any of the same purposes only : 1584 THE CHURCH IN 11EK RELATION TO CHARITIES, ETC. Assurances for certain universities, colleges, and societies. (2.) Provided that a will containing such an assurance, and a deed containing such an assurance and made otherwise than in good faith for full and valuable consideration, must be executed not less than twelve months before the death of the assuror, or be a reproduction in substance of a devise made in a previous will in force at the time of such reproduction, and which was executed not less than twelve months before the death of the assuror, and must be enrolled in the books of the Charity Commissioners within six months after the death of the testator, or in case of a deed the execution of the deed. (3.) The quantity of land which may be assured by will under this section shall be any quantity not exceeding twenty acres for any one public park, and not exceeding two acres for any one public museum, and not exceeding one acre for any one school house." The section proceeds to define the objects above mentioned. The definition of " elementary school " and " school house " are as follows : — " Elementary school " means a school or department of a school at which elementary education is the principal part of the education there given, and does not include any school or department of a school at which the ordinary payments in respect of the instruction from each scholar exceed ninepence a week ; "School house" includes the teacher's dwelling-house, the playground (if any), and the offices and premises belong- ing to or required for a school. Sect. 7. " Part Two of this Act shall not apply to the following assurances : (i.) An assurance of land, or personal estate, to be laid out in the purchase of land, to or in trust for any of the Universities of Oxford, Cambridge, London, Durham, and the Victoria University, or any of the colleges or houses of learning within any of those universities, or to or in trust for any of the Colleges of Eton, Win- chester, and Westminster, for the better support and maintenance of the scholars only upon the foundations of those last-mentioned colleges, or to or in trust for the warden, council, and scholars of Keble College : (ii.) An assurance, otherwise than by will, to trustees on behalf of any society or body of persons associated together for religious purposes or for the promotion of education, art, literature, science, or other like pur- poses, of land not exceeding two acres for the erection thereon of a building for such purposes, or any of them, or whereon a building used or intended to be used for such purposes, or any of them, has been erected, so that the assurance be made in good faith for full and valuable consideration : Provided that the trustees of the instrument con- CHAK1TA13LE TKUSTS. 1585 taining any assurance to which this section applies, or declaring the trusts thereof, may, if they think fit, at any time cause the instrument to be enrolled in the Central Office of the Supreme Court of Judicature." Sect. 8. " Where by any statute now in force any provision Substitution of the enactments hereby repealed is excluded either wholly or °^ SSTfor nS partially from application, or is applied with modification, in corresponding every such case the corresponding provision of this act shall be repealed en- excluded or applied in like extent and manner." actments. Part IV. Supplemental. Sect. 9. " Any assurance of land which is by this act required Adaptation to be made by deed may be made by a registered disposition ^J^^ under the provisions of the Land Transfer Act, 1875, or of any lJndre °iatra- act amending the same, and any assurance so made shall be tion. exempt from the provisions of this act as to execution in the presence of witnesses, and as to enrolment in the Central Office of the Supreme Court." Sect. 10. "In this act, unless the context otherwise requires, — Definitions, (i.) ' Assurance ' includes a gift, conveyance, appointment, lease, transfer, settlement, mortgage, charge, incum- brance, devise, bequest, and every other assurance by deed, will, or other instrument ; and ' assure ' and ' assuror ' have meanings corresponding with assur- ance. (ii.) ' Will ' includes codicil. (iii). 'Land' includes tenements and hereditaments, cor- poreal and incorporeal, of whatsoever tenure, and any estate and interest in land, (iv. ) 1 Full and valuable consideration ' includes such a con- sideration, either actually paid upon or before the making of the assurance or reserved, or made payable to the vendor or any other person by way of rent, rent- charge, or other annual payment in perpetuity, or for a term of years or other period, with or without a right of re-entry for non-payment thereof, or partly paid and partly reserved as aforesaid." The Act just given was intended to codify and not to alter Effect of Act. the previous law. Its definition of land apparently re-intro- duced the old decisions upon the Statute of 9 Geo. 2, c. 36, as to personalty savouring of realty (d). But the next Act on the same subject, The Mortmain and 54 & 55 Vict. Charitable Uses Act, 1891 (54 & 55 Yict. c. 73), made a great °- ?3- change. The word land was restricted to its usual legal mean- (d) See Tyssen, Law of Charitable Bequests, pp. 561, 562, and supra, 1586 THE CHUKCIi IN HEK RELATION TO CHARITIES, ETC. Definition of "land." Meaning of " assurance." Land assured by will for a charitable purpose to be sold. Land after expiration of time limited for sale to be sold by order of Charity Commis- Personal estate by will directed to be laid out in land not to be so laid out. Power to retain land in certain cases. ing ; and the revolution of public feeling since 9 Geo. 2, c. 36, has had the effect of causing a repeal of the provisions of that act. Land may now be left by will to a charity, but being left it must be sold (e) . The following are the more material sec- tions of the act of 1891 : — Sect. 3. " ' Land ' in the Mortmain and Charitable Uses Act, 1888, and in this Act, shall include tenements and heredita- ments, corporeal or incorporeal, of any tenure, but not money secured on land or other personal estate arising from or connected with land ; and the definition of land contained in the Mortmain and Charitable Uses Act, 1888, is hereby repealed." Sect. 4. — " In this Act the word ' assurance ' shall have the same meaning as in the Mortmain and Charitable Uses Act, 1888." Sect. 5. " Land may be assured by will to or for the benefit of any charitable use, but, except as hereinafter provided, such land shall, notwithstanding anything in the will contained to the contrary, be sold within one year from the death of the testator, or such extended period as may be determined by the High Court, or any judge thereof sitting at chambers, or by the Charity Commissioners" (/). Sect. 6. "So soon as the time limited for the sale of any lands under any such assurance shall have expired without com- pletion of the sale of the land, the land unsold shall vest forth- with in the official trustee of charity lands, and the Charity Commissioners shall take all necessary steps for the sale or com- pletion of the sale of such land to be effected with all reasonable speed by the administering trustees for the time being thereof, and for this purpose the said Commissioners may make any order under their seal directing such trustees to proceed with the sale or completion of the sale of the said land or removing such trustees and appointing others, and may provide by any such order for the payment of the proceeds of sale to the official trustees of charitable funds in trust for the charity, and for the payment of the cost and expenses incurred by the said administer- ing trustees in or connected with such sale, and every such order shall be enforceable by the same means and be subject to the Fame provisions as are applicable under the Charitable Trusts Act, 1853, and the Acts amending the same, respectively, to any orders of the said Commissioners made thereunder." Sect. 7. " Any personal estate by will directed to be laid out in the purchase of land to or for the benefit of any charitable uses shall, except as hereinafter provided, be held to or for the benefit of the charitable uses as though there had been no such direction to lay it out in the purchase of land." Sect. 8. " It shall be lawful for the High Court, or any judge thereof sitting at chambers, or for the Charity Commissioners, (e) And accordingly it has been holden since the passing of this act that the gift by will of a reversionary interest in land to a charity is valid. Forbes v. Hume, 1 Ch. 1895, p. 422. (/) See Hume v. Forbes, 1 Oh. 1895, p. 422 ; and supra, p. 1582, note. CHARITABLE TKUSTS. 1587 if satisfied that land assured by will to or for the benefit of any charitable use, or proposed to be purchased out of personal estate by will directed to be laid out in the purchase of land, is required for actual occupation for the purposes of the charity and not as an investment, by order to sanction the retention or acquisition, as the case may be, of such land." Sect. 9. " This Act shall only apply to the will of a testator Application dying after the passing of this Act." of act- Sect. 10. " Nothing in this Act contained shall limit or affect Saving-, the exemptions contained in Part Three of the Mortmain and Charitable Uses Act, ]888, or apply to any land or personal estate to be laid out in the purchase of land acquired under any assurance to which such exemptions or any of them apply, or shall exclude or impair any jurisdiction or authority which might otherwise be exercised by a court or judge of competent juris- diction or by the Charity Commissioners." Yide supra, p. 1583. 1588 THE CHURCH IN HER RELATION TO CHARITIES, ETC. CHAPTER III. HOSPITALS. Division of corporations. Colleges and hospitals. Ecclesiastical hospitals. 3 & 4 Vict, c. 113. Inquiry into hospitals which were promotions It is laid down in the books that corporations are of two kinds — ecclesiastical and lay. Ecclesiastical corporations are those of which not only the members are spiritual persons, but of which the object of the institution is also spiritual (a). Lay corpora- tions are again divided into civil and eleemosynary. The uni- versities are civil corporations ; so is the College of Physicians (b). Eleemosynary corporations are of two general descriptions — colleges and hospitals. " Now there is no manner of difference between a college and an hospital, except only in degree ; an hospital is for those that are poor, and mean, and low, and sickly, a college is for another sort of indigent persons ; but it hath another intent — to study in, and breed up persons in the world, that have not otherwise to live, but still it is as much within the reasons of hospitals. And if in an hospital the master and the poor are incorporated, it is a college having a common seal to act by, although it hath not the name of a college, (which always supposeth a corporation,) because it is of an inferior degree ; and in the one case and in the other there must be a visitor, either the founder and his heirs, or one appointed by him ; and both are eleemosynary" (c). There are, however, some hospitals which are spiritual cor- porations ; and these are either visitable by the ordinary, or, where they were formerly exempt from visitation by him and subject to the pope alone, visitable now by commission from the king under the great seal by force of 25 Hen. 8, c. 21, s. 14. It seems, however, that these hospitals are very few in number. In the case of The Attorney-General v. St. Cross Hospital (d), it was holden, that a hospital for the poor without cure of souls is a lay foundation, although the master is required to be in holy orders. By 3 & 4 Yict. c. 113, s. 65, " so soon as conveniently may be the Ecclesiastical Commissioners for England shall inquire and report to her majesty in council, respecting the state of all such hospitals as were returned as promotions spiritual in the reign (a) Kyd, p. 22 ; 3 Stephen, Comm. ed. 2, p. 5 ; Tudor, Law of Charitable Trusts, ed. 3, p. 68. (b) Kyd, pp. 28, 29; Tudor, Law of Charitable Trusts, ed. 3, p. 68 ; 3 Stephen, Comm. pp. 5, 6, 27. (c) Per Holt, C. J., in Philips v. Bury, 2 T. R. p. 353. (d) 17 Beav. p. 435. See also S.C., 8 De G., M. & G. p. 38. HOSPITALS. 1589 of King Henry the Eighth ; and in those eases in which it may spiritual in the appear, upon such inquiry, that the endowments of such hospitals jgs^ oft^n° are capable, after satisfying the objects of the founder's bounty, Eighth. 6 of affording a better provision for the cure of souls in the parishes with which they are connected, the said commissioners may in their report make such suggestions as they may deem advisable for effecting such provision." By 3 Jac. 1, c. 13, papists are deprived of the right of collat- When con- ing or nominating to any free school, hospital or donative (•). But in the case of Rex v. St. Lukes Hospital, it was deter- mined, that the said hospital was not chargeable to the parish rates ; and that in general no hospital is so, with respect to the site thereof, except those parts of it which are inhabited by the officers belonging to the hospital, as the chaplain, phy- sician, and the like in Chelsea Hospital. And these apartments are to be rated as single tenements, of which the said officers are the occupiers. The reason why the apartments in this hos- (m) Ex parte Kirkby Ravensworth Hospital, 15 Ves. p. 305 ; et vide supra, pp. 1567, 1568. 43 Eliz. c. 4, is repealed by 51 & 52 Vict, c. 42. (//) 2 Roll. Abr. p. 231, pi. 12. fo) 10 Co. 13, 30, 31. hp) On the subject of elections, vide supra, pp. 159, 163. (o) Vide supra, p. 860, for other sections of this act in full. (>•) Anon., 2 Salk. p. 527. 1592 THE CHURCH IN HER RELATION TO CHARITIES, ETC. pital, of the sick or mad persons, are not to be rated, is, that there are no persons who can be said to be the occupiers of them, and it is upon the occupiers of houses that the rate is to be levied. For it would be absurd to call the poor objects so with respect to this purpose ; and the lessees of the hospital in trust for the charitable purposes to which it is applied cannot with any propriety be considered as the occupiers of it ; nor, lastly, can the servants of the hospital, who attend there for their livelihood ; and no other persons, said Lord Mansfield, Chief Justice, can with any shadow of reason be considered as the occupiers of it (s). 38 Geo. 3, c. 5. By 38 Geo. 3, c. 5, an act for raising the land tax, it is Land tax. provided, by sects. 25 — 29, that the same shall not extend to charge any college or hall in the Universities of Cambridge or Oxford, or the Colleges of Windsor, Eton, "Winton, or West- minster, or the corporation of the governors of the charity for the relief of the poor widows and children of clergymen, or the college of Bromley, or any hospital, for or in respect to the site of such hospital, or any of the buildings within the walls and limits thereof ; or to charge any of the houses or lands, which on or before March 25, 1693, did belong to Christ's Hospital, St. Bartholomew, Bridewell, St. Thomas, Bethlehem hospitals in London and Southwark ; or to charge any other hospitals or alms-houses, for or in respect only of any rents or revenues, which on or before March 25, 1693, were payable to the said hospitals or alms-houses being to be received and disbursed for the immediate use and relief of the poor of the said hospitals and alms-houses only (t) . Provided that no tenants that hold any lands or houses, by lease or other grant from any of the said hospitals or alms- houses, do claim any exemption ; but that all the houses and lands which they so hold, shall be rated for so much as they are yearly worth, over and above the rents reserved and payable to the said hospitals or alms-houses, to be received and disbursed for the immediate support and relief of the poor of the said hospitals and alms-houses. Provided, that nothing herein shall be construed to extend to discharge any tenant of any of the houses or lands belonging to the said corporations, or hospitals or alms-houses, who by their leases or other contracts are obliged to pay all rates, taxes and impositions whatsoever; but that they shall be rated, and pay all such rates, taxes and impositions. And if any question shall be made, how far any lands or tene- ments belonging to any hospital or alms-house, not exempted by name, ought to be assessed and charged, the same shall be determined by the commissioners upon the appeal day. And (s) 2 Burr. p. 1053. See Bex v. Trustees of Tewkesbury , 13 East, Inhabitants of St. Bartholomew 's- p. 155. the-Less, 4 Burr. p. 2435; Bex v. (t) Vide supra, p. 1364; and Cox Munday, 1 East, p. 584 ; Bex v. v. Babbits, 3 App. Ca. p. 473. Watson, 5 East, p. 480; Bex v. HOSPITALS. 1593 there is, further, a general clause in the statute, that all such lands, revenues, or rents belonging to any hospital or alms- house, or settled to any charitable or pious use, as were assessed in the fourth year of William and Mary, shall be liable to be charged : and that no other lands, tenements, or hereditaments, revenues or rents whatsoever, then belonging to any hospital or alms-house, or settled to any charitable or pious uses, as aforesaid, shall be charged. The hospital of St. Katherine was founded or refounded by The hospital charter of Queen Eleanor, dowager of Henry III., confirmed ^herine^" by charters of Edward II. and Edward III., which reserved the appointment of a master to the queen and all succeeding queens of England (it). As to dealings with their estates, hospitals founded under the 39 Eliz. c.5. provisions of 39 Eliz. c. 5, are, by sect. 2 of that act, prevented Dealings with from making any grants or leases exceeding the number of estates- twenty-one years, and that in possession, and then only when the accustomed yearly rent, according to that reserved for the last twenty years, be reserved : and, by sect. 6, there is a general restraint against alienation. Hospitals, moreover, come within the restraining provisions of the several acts of Elizabeth— 13 Eliz. c. 10 ; 14 Eliz. c. 11 ; 18 Eliz. c. 11 (.r). Since the passing of these acts, it is very doubtful whether a corporate hospital can alienate lands for more than twenty-one years or three lives — even with the consent of the Charity Com- missioners. The point was raised, but not decided, in The Governors of St. Thomas Hospital v. The Charing Cross Railway Company (y). " Ecclesiastical hospitals " and " the masters thereof " are specially exempted from the provisions of 5 & 6 Yict. c. 108, 14 & 15 Yict. c. 104, 17 & 18 Yict. c. 116, 21 & 22 Yict. c. 57, and 28 & 29 Yict. c. 57, the modern acts relating to leases and sales of ecclesiastical property (s). (u) See Chief Justice Hale's re- marks on this institution, Atkins v. Mountague, 1 Gas. Ch. p. 214 ; Dug- dale, Mon. Angli. vol. vi. pp. 694 — 696; and A.-G. v. Sir James Butler, Skin. p. 644 ; and see the statutes 51 Geo. 3, c. 67 ; 6 Geo. 4, c. cv., ss. 70 — 75, 148, 152, and Ex parte Hospital of St. Katherine, 17 Ch. D. 878. See also Royal Com- mission of Inquiry as to the Royal Hospital of St. Katherine's, Regent's Park, 1868, Pari. Papers, C. 321, sess. 1871. (x) Vide supra, pp. 1285, 1296, 1298 ; et vide 14 Eliz. c. 11, s. 3. (y) 1 J. & H. p. 400. (z) Vide supra, pp. 1323, 1328, 1337—1346. 1594 THE CHURCH IN HER RELATION TO CHARITIES, ETC. CHAPTEE IV. COLLEGES AND UNIVERSITIES. Position of this subject in Dr. Burn's work. Changes in relation to church. University commissions. In the last edition of Dr. Burn's Ecclesiastical Law, con- siderable space was devoted to the Universities of Oxford and Cambridge and the colleges therein, on account of their inti- mate connection with the church. Since that time great changes have been made in the law, and much has been done to divest the universities, more parti- cularly, but also the colleges to a certain extent, of the dis- tinctive ecclesiastical features which they formerly possessed. Again, while the colleges still retain much of their ecclesiastical origin or position, their influence on the university has been largely diminished ; individuals and societies have been allowed to enter into relations with the university apart from the colleges, and the universities are no longer mere aggregations of colleges and halls. Many of these changes have been directly effected by express parliamentary legislation ; some have been brought about by the ordinances of the commissioners appointed by statute ; many more by the action of the universities themselves, with the new powers and under the new influences conferred or in- spired by parliamentary legislation. The commission for enlarging " the powers of making and altering statutes and regulations now possessed by the Uni- versity of Oxford and the colleges thereof," and for making and enabling to be made "further provision for the government and for the extension of the said university, and for the abrogation of oaths now taken therein, and otherwise for maintaining and improving the discipline and studies of the good government of the said University of Oxford and the colleges thereof," was created by 17 & 18 Yict. c. 81. Its powers were confirmed and extended by 19 & 20 Yict. c. 31, 20 & 21 Vict. c. 25, and 23 & 24 Yict. c. 23. The acts for the Cambridge commission were 19 & 20 Yict. c. 88 and 22 & 23 Yict. c. 34. The college of St. Mary of Winchester, at Winchester, is included under the Oxford Act ; and that of King Henry the Sixth at Eton, under the Cam- bridge Act. These colleges have, however, since been dealt COLLEGES AND UNIVERSITIES. 1595 with further as schools under the Public Schools -Act, 1868 (31 & 32 V. c. 118) (a).m Further commissions, one for either university, were estab- lished by the Universities of Oxford and Cambridge Act, 1877 (40 & 41 Vict. c. 48). One result of this legislation has been to create a large and Effect on increasing class of persons, whose main or only status is an colle&es- university one, quite apart from the colleges, and to reduce the colleges to somewhat of their old position as societies in, but not constituent parts of the university. As regards the ecclesiastical aspect of the universities, the Ecclesiastical principal direct change£\nade by the early University Commis- effect- sion Acts was the abolition of the oaths and subscriptions, most of them of a religious nature, formerly required at matricula- tion and on taking the degree of bachelor in any faculty except that of divinity (b). This provision has since been extended by the Universities Tests Act, 1871 (34 & 35 Vict. c. 26) ; and the result is that the universities and all the degrees except divinity degrees are now open to persons who are not members of the church. By the last-mentioned act, reciting as follows : — 34 & 35 Vict. " Whereas it is expedient that the benefits of the universities c- 26- of Oxford, Cambridge, and Durham, and of the colleges and halls now subsisting therein, as places of religion and learning, should be rendered freely accessible to the nation : And whereas, by means of divers restrictions, tests, and dis- abilities, many of her majesty's subjects are debarred from the full enjoyment of the same : And whereas it is expedient that such restrictions, tests, and disabilities should be removed, under proper safeguards for the maintenance of religious instruction and worship in the said universities and the colleges and halls now subsisting within the same : " It is enacted as follows : — Sect. 3. " No person shall be required, upon taking or to Persons tak- en able him to take any degree (other than a degree in divinity) academical within the Universities of Oxford, Cambridge, and Durham, or degrees or any of them, or upon exercising or to enable him to exercise holding lay any of the rights and privileges which may heretofore have o^u^ate been or may hereafter be exercised by graduates in the said offices not to universities or any of them, or in any college (c) subsisting at be required to the time of the passing of this act in any of the said universities, formSar/'of' or upon taking or holding or to enable him to take or hold any faith, &o. office (cl) in any of the said universities or any such college as («) Tide infra, Part VIII., Chap. Y. (b) 17 & 18 Vict. c. 81, ss. 43, 44 ; 19 & 20 Vict. c. 88, ss. 45, 46. (c) "College," by sect. 2, includes P. VOL. IT. Christ Church and any hall not being a private hall under 17 & L8 Vict. c. 81, or a hostel under 19 & 20 Vict. c. 88. (d) By sect. 2, "Office" includes 5 L 1596 THE CHURCH IN HER RELATION TO CHARITIES, ETC. aforesaid, or upon teaching or to enable him to teach within any of the said universities or any such college as aforesaid, or upon opening or to enable him to open a private hall or hostel in any of the said universities for the reception of students, to subscribe any article or formulary of faith, or to make any declaration or take any oath respecting his religious belief or profession, or to conform to any religious observance, or to attend or abstain from attending any form of public worship, or to belong to any specified church, sect, or denomination ; nor shall any person be compelled, in any of the said universities or any such college as aforesaid, to attend the public worship of any church, sect, or denomination to which he does not belong : Provided that — (1.) Nothing in this section shall render a layman or a person not a member of the Church of England eligible to any office or capable of exercising any right or privi- lege in any of the said universities or colleges, which office, right, or privilege, under the authority of any act of parliament or any statute or ordinance of such university or college in force at the time of the passing of this act, is restricted to persons in holy orders, or shall remove any obligation to enter into holy orders which is by such authority attached to any such office. (2.) Nothing in this section shall open any office (not being an office mentioned in this section) to any person who is not a member of the Church of England, where such office is at the passing of this act confined to members of the said church by reason of any such degree as aforesaid, being a qualification for holding that office." As to Hert- This act applies to colleges in existence before it was passed, ford College. and doeg not apply to Hertforrl College, Oxford (e). As to the foundation of this college, see 37 & 38 Yict. c. 55. Act not to Sect. 4. " Nothing in this act shall interfere with or affect, la wf uliy est?- any father or otherwise than is hereby expressly enacted, the Wished system system of religious instruction, worship, and discipline which of religious n0w is or which may hereafter be lawfully established in the worshrpand sa^ universities respectively, or in the colleges thereof or any of discipline. them, or the statutes and ordinances of the said universities and colleges respectively relating to such instruction, worship, and discipline." Religious Sect. 5. " The governing body of every college subsisting at ms true el on the time of the passing of this act in any of the said univer- every professorship other than pro- venues of any of the said uni- fessorships of divinity, every assis- versities, or of any college within taut or deputy professorship, public the said universities, or which is readership, prelectorship, lecture- held or enjoyed by any member as ship, headship of a college or hall, such of any of the said universities, fellowship, studentship, tutorship, or of any college within any of the scholarship, and exhibition, and said universities." also "any office or emolument not (e) Reg. v. Hertford College, 3 Q. in this section specified, the income B. D. p. 693, reversing the decision of the which is payable out of the re- of the Court below, 2 Q. B. D. p. 591 . COLLEGES AND UNIVERSITIES. 1597 sities shall provide sufficient religious instruction for all members thereof in statu pupit/arihelongmg to the Established Church" (/). Sect. 6. " The Morning and Evening Prayer according to the Morning and Order of the Book of Common Prayer shall continue to be used ^"er^o be daily as heretofore in the chapel of every college subsisting at used as here- the time of the passing of this act in any of the said universities ; tofore, but an but notwithstanding anything contained in" 14 Car. 2, c. 4, " or ^ridg^®^ in this act, it shall be lawful for the visitor of any such college, oTweek days on the request of the governing body thereof, to authorise from on request of time to time, in writing, the use on week days only of any governing abridgment or adaptation of the said morning and evening prayer in the chapel of such College instead of the Order set forth in the Book of Common Prayer " (g). Sect. 7. " No person shall be required to attend any college Attendance or university lecture to which he, if he be of full age, or, if he at lectures, be not of full age, his parent or guardian, shall object upon religious grounds." As to the colleges, the only direct change in the nature of Effect of secularizing these institutions made by the early University Com- J11^16™ legis" mission Acts was in giving them power, with certain sanctions, to ^oll^es separate ecclesiastical benefices which had become united to the headship, or to any particular membership in the college, and to sell the advowsons and apply the proceeds of the sale for the benefit of the officer who would otherwise have holden the benefice (//), so that such officer need now no longer be an ecclesiastical person ; and also in enabling them, with the sanction of the visitor, to apply funds holden in trust for the purchase of advowsons, " to other purposes for the advancement of religion, learning and education within the college " (/). Indirectly, the commissioners, both on the first and on the second commission, in the exercise of the powers given them by parliament, made ordinances throwing open a vast number of fellowships and other emoluments, formerly holden by clerical persons only, to laymen ; and, by consequence, largely diminished the ecclesiastical element till then dominant in the governing bodies of the different colleges. Then came the Universities Tests Act, 1871, opening head- ships and fellowships to persons not members of the church. The colleges, however, still remain for very many purposes ecclesiastical, as is shown in sections 4, 5 and 6 of that act. The only ecclesiastical elements that seem to be left in the Ecclesiastical universities are the divinity degrees and certain professorships elements m of divinity ; the public prayers, sermons and religious ceremonies, and the examinations in certain matters of religion at present (/) Yide 40 & 41 Vict, c. 48, (h) 3 & 4 Vict. c. 113, s. 09; 19 s. 59, infra, p. 1598. & 20 Vict. c. 31, s. 4, repealed by (g) This provision is not affected 38 & 39 Vict. c. 66, with savings ; by the Act of Uniformity Amend- 19 & 20 Vict. c. 88, s. 28 ; 23 & 24 ment Act (35 & 36 Vict. c. 35). Vict. c. 59, s. 7. Vide supra, p. 757. (i) 20 & 21 Vict. c. 25, s. 3. 5 l 2 the univer- sities. 1598 THE CHURCH IN HER RELATION TO CHARITIES, ETC. 40 & 41 Vict, c. 48. Provision for education, religion, &c. Objects of statutes for university. Operation of Tests Act as regards new theological offices. Provision for religious in- struction and "worship in pursuance of Tests Act. University of Durham. maintained by either university; certain positions and privileges accorded by the Church to graduates of the universities ; and the right of presenting to livings whereof the advowsons are in the hands of papists (k). By 40 & 41 Vict. c. 48, s. 57, nothing in that act is to inter- fere with the Universities Tests Act, 1871 (7). Other sections of 40 & 41 Vict. c. 48 contain the following provisions : — Sect. 15. " The commissioners, in making a statute for the university or a college or hall, shall have regard to the interests of education, religion, learning, and research, and in the case of a statute for a college or hall shall have regard in the first instance to the maintenance of the college or hall for those purposes." Sect. 16. "With a view to the advancement of art, science, and other branches of learning, the commissioners, in statutes made by them for the university, may from time to time make provision for the following purposes, or any of them : . . . . (14.) For regulating presentations to benefices in the gift of the university : (15.) For regulating the application of the purchase-money for any advowson sold by the university." Sect. 58. " Where the commissioners, by any statute made by them, erect or endow an office declared by them in the statute to require in the incumbent thereof the possession of theological learning which (notwithstanding anything in this act) they are hereby empowered to do, provided the office be not a headship or fellowship of a college, then the Universities Tests Act, 1871, shall, with reference to that office, be read and have effect as if the statute had been made before, and was in operation at the passing of the Universities Tests Act, 1871." Sect. 59. " The commissioners, in statutes made by them, shall make provision, as far as may appear to them requisite, for the due fulfilment of the requisitions of sections five and six of the Universities Tests Act, 1871 (m) (relating to religious in- struction and to morning and evening prayer in colleges) ; but, except for that purpose, they shall not, by a statute made by them, endow wholly or in part an office of an ecclesiastical or theological character by means of any portion of the revenues or property of the university, or a college not forming, when the statute comes into operation, the endowment, or part of the endowment, of an office of that character, and in any statute made by them, shall not make directly, or indirectly through the consolidation or combination of any office or emolument, with any other office or emolument, whether in the university or in a college or hall, the entering into holy orders or the taking of any test a condition of the holding of any office or emolument existing at the passing of this act to which that condition is not at the passing of this act attached." The University of Durham was originally founded in 1832 out of lands belonging to the dean and chapter of Durham. It (k) Vide supra, pp. 303—309. (/) 34 & 35 Vict. c. 26. (m) Vide supra, pp. 1596, 1597. COLLEGES AND UNIVERSITIES. 1599 was and still is subject to the jurisdiction of the bishop as visitor, and the dean and chapter as governors, and had once a specially ecclesiastical character (n). By 24 & 2o Yict. c. 82, "An act for making provision for the 24 & 25 Vict good government and extension of the University of Durham," c- 82- commissioners were, appointed with full powers for making ordinances of all kinds in relation to the university and its colleges, so long as such ordinances were not inconsistent with an Act, 2 & 3 Will. c. xix., and the charter granted to the university on the 1st of June, 1837; "but the admission of persons other than those belonging to the Established Church to the emoluments of the university shall not be deemed incon- sistent with the said act or charter" (sect. 7). Durham is expressly made subject to the Universities Tests Act, 1871 (o). The other universities in England are purely secular. Other univer In this chapter colleges (p) will be generally treated of, such 8ltief* mention only being made of the universities of Oxford and chapter °f Cambridge as seems required by their present ecclesiastical position and their relation to the colleges (q) . 00 See 2 & 3 Will. 4, c. xix; 3 & 4 Vict. c. 113, ss. 37, 44 ; 4 & 5 Vict. c. 39, s. 13. (o) Vide supra, p. 1595. (/>) The only college of recent foundation is Keble College, in the University of Oxford, incorporated by Eoyal Charter in 1870. Vide supra, p. 1584. (q) The following works may be consulted upon the subject oi this chapter : — For Universities in General. Meiner, Geschichte der hohen Schulen. 4 vols. Svo. Gottin- gen, 1802. Conringius, De Antiquitatibus Aca- demicis. Gottingen, 1739. Itterus, De Honoribus sive Gradibus Academicis, 1698. Mendo, De Jure Academico. Pol. Lugd. 1668. Savigny, Geschichte des Komischen Eechts im Mittelalter. Vol. iii. , p. 412, &c. Thomassinus Vetus et Nova Ecclesire Disciplina, tit. Universitates — Scholar — Studia. Lindwood, Glosses upon the Con- stitutions " De Magistris," cap. "Quia; " and " De Hcereticis," cap. " Einaliter," &c. For English Universities. The King's Visitatorial Power as- serted. By Nathl. Johnston. Lond. 1688. 4to. Brief Historical Notices of the In- terference of the Crown, &c. By G. E. Corrie. Camb. 1839. Svo. Die Englischen Universitaten. Von V. A. Huber. Cassel, 1839. Abridged translation. Edited by Erancis W. Newman, London, 1843. Origin of Universities. By H. Maiden. Lond. 1835. Oxford. Anthony A. Wood, History and An- tiquities of University of Oxford. Edited by John Gutch, with Sup- plement. 3 vols. 4to. By the same Author, History and Antiquities of Colleges and'Halls in University of Oxford. 1 vol. Ayliffe, State of the University of Oxford. (This contains much of the law about Universities and Colleges.) Ingram, Memorials of Oxford. Oxf. 1837. 3 vols. Svo. (A very accurate and beautiful book.) The Account of Pythagoras' School. (By J. Kilner.) Fol. Privately printed. The Life of W. Waynflete, founder of Magdalen College. By B. Chandler. Lond. 1811. 1 vol. Svo. The Life of William of Wykeham, founder of New College. By B. Lowth, Bishop of Oxford. Oxf. 1777. 1 vol. Svo. Lives of the Founders of B. N. College. By E. Churton. Oxf. 1800. 1 vol. Svo. 1600 THE CHURCH IN HER RELATION TO CHARITIES, ETC. Origin of Oxford and Cambridge. Faculties. Clerical education. According to the generally received opinion the first authentic records of the universities of Oxford and Cambridge belong to the twelfth century : they seem in their origin to have been voluntary associations (o) of the clergy, for the purpose of pro- moting the study of whatever arts and sciences were then known to Western Europe. Limited in the first place, probably, to one or two branches of knowledge, they gradually came to include distinct Faculties (p) of arts, medicine, law and theology, — the latter being justly considered the ultimate object of the human intellect. By a similar process, the voluntary acknowledgment of merit passed into formal recognitions of it by Degrees ; while the Church, within whose bosom, and from the concourse of whose members the institutions had sprung up, silently incor- porated them into her system, subjected them to her discipline, and gave authority and universal reception to their honorary distinctions (q) . By these means clerical education, which long before this period had been confined to cathedral and monastic schools, received a new direction ; monasteries made provision by which their younger Life of II. Chichele, founder of All Souls' College. By O. L. Spencer. Lond. 178:3. 1 vol. 8vo. Vita H. Chichel;©. Ab. Arth. Duck. Oxon. 1617. 1 vol. 4to. Wharton, Life of Sir T. Pope. Smith, Annals of University Col- lege. Newcastle, 1728. In 8vo. Cambridge. Fuller, History of the University. Dyer, History of the University of Cambridge. Lond. 1814. 2 vols. 8vo. Privileges of the University of Cambridge. Loncl. 1824. 2 vols. 8vo. Masters, History of C. C. College. By John Lamb. Camb. & Lond. 1831. 1 vol. 4to. A Collection of Letters, Statutes, &c from the MS. Library of Corp. Christ. Coll. Edited by John Lamb. Lond. 1838. 1 vol. 8vo. Hist. Coll. Jesu Cantab, a J. Sher- manno. By J. O. Halliwell. Lond. 1840. 8vo. Scotch Un iversities. Eeports of Eoyal Commissioners, (Very valuable.) 1832—1837, et seq. Bown, History of the University of Edinburgh. Edinb. 1817. 2 vols. 8vo. Foreign Universities. Historia Univ. Parisiensis, &c. Auth. C. E. Bulseus. Paris, 1665, et seq. 6 vols. fol. (A most important work.) Academia Parisiensis illustrata. Auctore Joan. Lannoio. Paris, 1683. 2 vols. 4to. Storia dell' Universita di Eoma, &c. Philippo M. Benazzi. Eoma, 1803. 4 vols. 4to. Die Preussischen Universitaten. Yon I. Y. W. Koch. Berlin, 1839. 8vo. For others, see the list in Meiner, Geschichte der hohen Schulen, at the end of first and second vols. (o) A mother cathedral church with its officers and dependent churches, and a mother abbey with its dependent religious houses, was called " universitas." Calvinus, in his Lexicon Juridicum (citing the canon law), says, " Collegium, corpus, universitas, conventus idem stepe significant." (p) Bulceus in his Hist. Univ. Parisiensis, t. i. p. 251, defines " Eacultas" " Corpus et sodalitium plurium magistrorum certse alicui discipline) addictorum." (q) The catholicity of the degrees of any university are said to have been the results of the confirmation of them by the Pope. See Maiden's Origin of Lrniversities, p. 21. COLLEGES AND UNIVERSITIES. 1601 members might prosecute their studies to greater advantage under the more famous teachers in the universities ; prelates and other benefactors gave stipends for assistance of the secular students ; and while the former class were supported and super- intended within seminaries dependent upon the mother house, the latter associated together in small bodies, and were domiciled during their studies in " Hostelries " or " Halls," under the superintendence of particular teachers. It was soon found, however, that uncertainty in the means of support, and the want of domestic discipline, exposed those of the students, who were not under the protection of the monastic system, to distress on the one hand, and irregularity of conduct on the other; and hence the origin of the present colleges (r). Of those institutions, in their complete and formal character Walter de Merton's col- (r) The word ''Collegium," like " Universitas," is in itself merely a corporate title ; and thus in our earlier law books, " College and Common Seal" are not unfrequently used to denote incorporation. 1 ' Ho- spitium," or "Hostelry," was a term applied to the burgher's houses in which students lodged; Lind. p. 285. "Aula" meant a locality wholly in possession of the students, or, as Lindwood (ib.) calls it, " Habita- culuni Scholarium; " and this might be occupied either by an unincorpo- rated body, as was the case in what are called "Halls" at Oxford, or by a " Collegium," or incorpo- rated company. In the latter case, the body was designated either from its place of abode (as various colleges are at Cambridge), or (as is more common at Oxford) by its title as a corporation. This circum- stance is well illustrated in the foundation deed "Aulas Annuncia- tionis Beatse Marias in Cantab.," which runs "et volumus quod dic- tum collegium vocetur Collegium Annunciationis B. M., et donius quam inhabitabit dictum collegium nominetur Aula Annunciationis B. M. in Cantab." Gough's MSS. Camb. 23, in Bib. Bodl. Aula, however, is not the most ancient name for the residence of collegiate bodies in the universities; " Domus Scholarium de Merton," and " Peterhouse," being earlier. The influence of the corporate character has also had much to do with the titles of individual members. The term " Socius," or fellow, being relative to the collec- tive existence, whereas "Scholaris" is the general word in the older statutes. The distinction, (although by no meaus strictly observed) between "Collegium" and "Universitas," as a corporate title, is said to con- sist in the "vita communis," or living together in one house, with a common table, &c, being an in- cident of the former. Endowment, too, is sometimes mentioned as a feature (although not a distinctive one) of a college. In another sense, besides that of mere incorporation (in which it is often applied alike to regular and secular bodies, as in Bede, Hist. 1. iii., c. 5 ; Leland, De Bebus Britan- nicis Collectanea, ii. p. 60 ; Mon. Angl. vol. iii. p. 39, &c), the word collegium seems to have dis- tinguished the societies of the secular from those of the monastic clergy (see Tanner's Preface to Notitia Monastica, p. xv) ; and it is in this general sense that it is used in 37 Hen. 8, c. 4, and others of the Dissolution Acts. In this sense "Collegium," and "Ecclesia Colle- giata," are often used indifferently; and, in fact, several of the colleges in Oxford and Cambridge are, properly speaking, " Collegiate Churches," i.e., these colleges are annexed to parochial or other churches. There is a valuable gloss upon the use of these, and other similar words, in Lindwood, p. 14, verb, " Capitulis Buralibus." 1602 THE CHURCH IN HER RELATION TO CHARITIES, ETC. Colleges before and since the Re- formation. Relation of colleges to universities. (whatever merely eleemosynary provisions might before have been made), there seems every reason to believe that Walter de Merton, who was several times chancellor of England, and Bishop of Rochester, was the first founder. But even he, in his first establishment of the body which for six hundred years has perpetuated his name, did not bring it into that mature form which he afterwards gave it. In the year 1264, he organized a body of students, to whom he assigned revenues for their sup- port, and a capitular house for their occasional meeting, and for the residence of certain of their officers ; but this mansion was not even in the neighbourhood of any university, and his inten- tion was, that his band of scholars should wander about in search of knowledge wherever it might best be obtained : — " Oxon. vel alibi ubi studium vigere contigerit." Within ten years after, however, he, by two successive bodies of statutes, organized and settled it within the University of Oxford, reputed to be in those days, after Paris, " the second school of the church." He did not, however, prefer the place of his college to its purpose, but still contemplated and allowed for the possibility of its being removed elsewhere. And this allow- ance of removal from Oxford is still a portion of his statutes. By the rules of his institution, careful provision was made for divine worship, for internal discipline, and for the management of its property. He contemplated it as the means of supporting a pious and industrious body of students, from their first in- struction in grammar, up to the time of their becoming fitted for the highest offices of the church, unless they should prefer a life spent in contemplation and learning within its walls. For the acquisition of classical knowledge, he provided within the college itself ; and for instruction in the higher branches, he relied upon the academical institution within which he had placed it. This college, which may be rather called a private means for profitably using the university than a constituent portion of it, was the model upon which the earlier colleges, both at Oxford and Cambridge (such as Peterhouse and Oriel), were formed. Those of later date, but before the Reformation (such as New College, Magdalen, and the like), were based upon the same principles, but included more largely the liturgical character of other ecclesiastical foundations, and in their scholastic provisions were more expressly connected with the university system in which they were placed. Those subsequent to the Reformation, again, are in their constitution more strictly academical, and more expressly related to the universities ; but all, from the first to the last, are in themselves substantive institutions, having their separate corporate rights, their distinct revenues, and a system of internal discipline, over which the universities have no control. It is evident, then, that according to the original idea of such colleges as are treated of in this chapter, they have no more necessary relation to the universities in which they stand, than COLLEGES AND UNIVERSITIES. 1603 that which arises from the inmates of the former being students and graduates in the latter. A more intricate state of things grew up in the course of time ; — the universities consisting, with the exception of those members of it who had collegiate or monastic protection, of an unendowed, and, in many respects, ill-organized body of teachers and hearers, were subject to diminution, sometimes almost to extinction, from the frequent ravages of disease, or the distresse/consequent upon the civil and ecclesiastical disorders, till at length the old " hostelries " or " halls " became deserted, and (with some exceptions at Oxford) disappeared ; and while the monastic seminaries were swept away, together with their present foundations, the colleges becoming more numerous, and even those which were originally designed only for persons on their foundations having for the most part admitted independent members, gradually absorbed the great body of students, and became by those means co- extensive with the universities themselves. It was natural that under these circumstances the heads of the colleges should acquire corresponding academical authority, and that the new statutes of the universities should be framed with a view to the existing state of things. And thus the systems both at Oxford and Cambridge assumed till the legislation of this reign an appearance calculated to make even well informed men confuse the two classes of institutions, and to account the colleges merely as constituent parts of the universities. Yery important distinctions, however, always existed between them. The laws which govern the corporate existence, the property, Important and the privileges, incidental to these two classes of institutions, distinctions are in many points (particularly in that of visitation) distinct : e ween em' and it is perfectly conceivable, either that the colleges should be swept away and the universities continue, or that the universities should be suppressed, and the colleges remain as independent seminaries. To state exactly wherein the connection now sub- sists, would occupy a space inconsistent with the limits of this work. The object of the writer will, have been attained, if these brief notices should prove sufficient to obviate a common mis- apprehension, and to guide others in a more detailed inquiry. Before the Reformation, colleges in this country were con- Colleges sidered, as is evident from the earlier statutes of Elizabeth (s), before the and some of the cases in the Year Book (t), as corporations of Spirit^itlon an ecclesiastical character ; and even since that period, they corporations, appear to be of a mixed lay and spiritual nature : for instance, the archbishops of Canterbury have successfully claimed a qualified right of visitation over them (u), and canons 16, 17, (s) 13 Eliz. c. 10 ; 43 Eliz. c. 4. master of an hospital, and a writ of (t) See 8 Ass. 29, 30 (Edw. 3), assise was refused by the judges. — where convent, hospital and col- "L'ordinaire de lieu lui visit et pur lege, are treated of as being in the defaut qu'il trouva en luy il luy same category. In that case the depriva." ordinary, as visitor, deprived the (?/) Vide infra, pp. 1605 — 1609. 1604 THE CHUBCH IN HER RELATION TO CHARITIES, ETC. and 58 (x) of 1603 directly relate to their dress and discipline. But, since the epoch of the Reformation, the doctrine of the common law is, that, generally, colleges in the university are But since lay lay corporations (y) , although the members of the college may corporations. be aR spiritual. Christ Church, But the dean and chapter of Christ Church in Oxford is a Oxford. spiritual, and not a lay body {%). It has, however, been dealt with as a college under modern acts (a) . 3 & 4 Vict. By sect. 5 of 3 & 4 Yict. c. 113, the first vacant canonry in c 113. Christ Church is to be annexed to the Lady Margaret's pro- fessorship of divinity in the university, in lieu of the canonry in Worcester cathedral, now annexed thereunto ; and by section 6 of the same statute, two canonries are to be annexed to two new professorships intended to be founded by her majesty in the University of Oxford : namely, those of Pastoral Theology and Ecclesiastical History. Section 7 provides that, otherwise than as above specified, the act shall not apply to Christ Church (b). Christ Church has also been generally excluded from all the other acts relating to cathedrals. The rectory of Ewelme was separated from the Regius Pro- 34 & 35 Vict, fessorship of Divinity and Canonry of Christ Church by 34 & 35 c. 23. , Yict. c. 23. Visitor. Besides the authority within the college themselves, in all charitable foundations some one must be Visitor (c). If no one be appointed by the founder of the charity, he himself during his life is visitor, and after his death the office devolves upon his heirs (d). Should they become extinct, the crown becomes visitor (e), as the sovereign is mero jure of all nyyal foundations, and also of those in which the crown and a subject are joint- founders (/), that is to say, contemporaneously joint-founders ; for where the crown engrafts a charitable gift on an original foundation by a subject, both fall under the cognizance of the primary visitor (g). (x) Vide supra, p. 720. Beav. p. 435. (y) The legal doctrine, that col- (z) Fisher's Case, Bunb. p. 209. leges are lay corporations, depends (a) A special act regulating the mainly upon the Dr. Patrick's Case. constitution of the governing body Sir T. Baym. p. 101, and I. and other matters relating to Christ Keb, p. 289. It is clear that Church has since been passed, 30 & in regard to colleges founded be- 31 Vict. c. 76. fore the Bef'ormation, this deci- (b) Vide supra, p. 176. sion rests, to say the least, upon (c) Com. Dig. tit. Visitor, and see very uncertain grounds ; but it Tudor, Law of Charitable Trusts, would require a full examination 3rd ed. pp. 77 — 88. of the arguments to point this (d) Com. Dig. tit. Visitor, out in a satisfactory manner ; and (e) See Be Catherine Hall, 2 B. it will therefore be enough here to & Myl. p. 590; A.-G. v. Earl of direct attention to the question, Clarendon, 17 Ves. p. 498; Ex parte which is still of importance in Wrangham, 2 Ves. jun. p. 623. points bearing upon the legal in- (/) Com. Dig. tit. Visitor, cidents of the colleges. See also {g) Com. Dig. tit. Visitor, and Matthews v. Burdett, 2 Salk. p. 671 ; A.-G. v. Master, &c. of Clare Hall A.-G. v. St. Cross Hospital, 17 and Talbot, 3 Atk. p. 663, at p, 675. COLLEGES AND UNIVERSITIES. 1605 Where the crown is visitor, the functions of the office are exercised by the lord chancellor or by special commissioners (h). It will be seen that on the principle that a man cannot visit himself, a beneficial interest in the charity disqualifies a person for the office of visitor (?). It is not proposed to discuss heje the office and power of a Difference visitor. The Ecclesiastical process' of visitation has been treated ^stical and.6" of in a separate chapter (k), and the special powers of a visitor charity over deans, chapters, and cathedrals in those subjects (/). The visitor. Editor would, however, wish in this summary to bring out one point which was perhaps not so saliently stated, though it was referred to, in the former edition. The visitor of a charity re- presents the founder, who could make his own terms and deprive his own creatures of the benefits he had given. Cujus est dare ejus est disponere. So such a visitor, provided he complies with the simple dictates of natural justice, as, for example, hearing the parties before condemning them, and does not act for any possible personal advantage, decides absolutely and without appeal. He can be compelled by mandamus to act, that is to hear and deter- mine, and his sentence would be treated by the Courts as a nullity if he acted outside the limits of his powers. But within those limits he is supreme (m). But the ordinary ecclesiastical visitor is an ecclesiastical judge, having perhaps special powers, able to decide with fewer formalities, but as liable to appeal as he could be if sitting in his ordinary forum. Thus in the Exeter Eeredos case(^), an appeal was made from the bishop sitting as visitor to the Court of Arches, and from the Court of Arches to the Privy Council ; and in the case of The Bishop of Kildare v. The Archbishop of Dublin, an appeal was brought from the Archbishop of Dublin to the Delegates (o). Whether in cathedrals of the New Foundation the visitor sits as representing the crown as founder, and therefore without appeal, or whether he sits as an ecclesiastical judge, subject to appeal in the usual order of the hierarchy, may have some clay to be determined (p). There is much store of learning as to visitation of colleges and of other charitable foundations. But it is not proposed to further treat of the subject in this work. In the thirteenth year of King Henry the Fourth happened The arch- the famous cause between the Archbishop of Canterbury and the bishop's gene* chancellor and proctors of the University of Oxford (q) ; which was visiStkm of (/<) ^4.-67. v. Crook, 1 Keen, v. Bury, Lcl. Eaym. p. 5; 4 Mod. p. 124. In re Christ Church, L.E., p. 106; Skin. p. 447; 2 T. E. 1 Ch. p. 526. p. 346. (i) Bex v. Bp. of Chester, 2 Str. (n) Boijdx. Phillpotts,~L.'R., 4 Adm. p. 797 ; Beg. v. Dean, &c. ofBochester, & Eccl. p. 297 ; L. E. 6 P. C. p. 435. 17 Q. B. p. 1. (o) Eothery, Eeturn, No. 117. the Univer- sities. (k) Yide supra, pp. 1045 — 1063. (p) See Home v. Heslop, Eothery, {!) Vide supra, pp. 166—172. Eeturn, No. 110. \m) The leading case is Philips (* 45 &46 Oxford (/) ; and by 45 & 46 Vict.' c. 81, the benefice of Somerham £ ^ has been separated from the Regius Professorship of Divinity at c. 48. Cambridge, and power was given by sect. 25 of 40 & 41 Vict, c. 48, to separate a canonry in Rochester Cathedral from the Provostship of Oriel College, and by sect. 26 of the same act to sever a canonry in Ely Cathedral from the Regius Professor- ship of Greek at Cambridge. By 20 & 21 Vict. c. 25, s. 3, " It shall be lawful for any college 20 & 21 Vict, within the university (m) from time to time, with consent of °- 25- the visitor, to appropriate and apply any property, or the income ^•owe^ttootj1 r of any property, held by or in trust for the college, for the ug^money 61 purpose that the same, or the income thereof, may be applied in hoiden for purchasing advowsons for the benefit of the college, to the ^^sona augmentation of the endowment of livings in the patronage of a vowsons* the college to such an amount as may be by law allowed, or towards the building of fit and suitable parsonage houses on any livings in the patronage of the college, or to the foundation or augmentation of scholarships or exhibitions or to other purposes for the advancement of religious learning and education within the college ; and in exercise of this power the college may annex to any living in the patronage of the college (by way of augmentation of the endowment of such living) any tithe rent- [j) Vide supra, pp. 1681, 1683, (I) Vide supra, p. 1604. 1684. (m) Of Oxford. (k) 8 & 9 Vict. c. 18. 5 M 2 THE CHURCH IN HER RELATION TO CHARITIES, ETC. charge which may be vested in the college, or any portion thereof, in consideration of the appropriation to other purposes of the college of a part of the trust property or income not exceeding the amount which the visitor shall adjudge to be an adequate consideration for the tithe rent-charge to be annexed ; Provided that this power shall not extend to property or income applicable to the purchase of advowsons for the benefit of scholars or exhibitioners on any particular foundation within a college." By sect. 12 of 3 & 4 Vict. c. 113, two canonries in the cathedral church of Ely are to be annexed to the regius pro- fessorships of Hebrew and Greek ; and by sect. 15, it is enacted that provisions respecting the suspension of canonries shall not extend to any canonry in the chapter of Ely which may be annexed to any professorship. But so far as the regius professorship of Greek is concerned, sect. 26 of 40 & 41 Vict, c 48 gave the university commissioners power to separate it, as above stated (w), from the canonry of Ely annexed to it. By 1 Eliz. c. 4, s. 7, for the restitution of first fruits and tenths to the crown, it is provided that all grants, immunities, and liberties given to the universities of Cambridge and Oxford, or to any college or hall in either of them, and to the colleges of Eton and Winchester, by King Henry the Eighth or any other of the queen's progenitors or predecessors, or by act of parliament, touching the release or discharge of first fruits and tenths, shall be always and remain in their full strength and virtue (o). The provisions in 42 Geo. 3, c. 116, ss. 17, 78, for redemption and sale of the land-tax by colleges and other patrons of livings have been already mentioned (p). (n) Yide supra, p. 1613. (©) Yide supra, p. 1360. (p) Yide supra, pp. 1366, 1368. ( 1615 ) CHAPTER V. SCHOOLS. Sect. 1. — Origin and kinds of Schools. 2. — Ecclesimtical Jurisdiction over Grammar Schools. 3. — Recent Legislation. Sect. 1. — Origin and kinds of Schools (a). It has been observed in the last Chapter that the earliest origin Origin of of universities is to be traced to the schools which grew up under 8cnools- the shelter of the church. The general establishment of uni- versities throughout Europe overshadowed these humbler semi- naries of religious and useful learning, and wrere occasionally designated by their name. We find after the tenth century the appellations of " schola " and " stadium generale " applied by contemporary waiters to the universities which were yet in their infancy. But during the earlier centuries of the Christian era, the schools of the church were, in this country particularly, but indeed in all with very few and special exceptions, the sole source of education. The school which obtained the earliest celebrity was that of Alexandria, which numbered among its disciples St. Athanasius, and among its preceptors Origen. Thomassinus says, that in this school " literce humaniores" were taught as well as the Scriptures. Theodoret bestowrs great praise on a similar institution at Edessa. During the sixth, seventh and eighth centuries, from the time of Clovis to Charle- magne, there appear to have been four distinct kinds of schools more or less prevalent, not only in Europe, but in such parts of Asia and Africa as had witnessed the establishment of the church. 1. Schools in the parochial districts. 2. Schools in bishops' houses. 3. Schools in monasteries. 4. The school of the archdeacon, which seems to have been peculiar to Africa. In these schools were educated not merely those who were destined to discharge clerical functions, but all those who were to be employed in any civil offices of the state. Charlemagne (b), (a) Thomass. Yetus et Nova cc. 90—100 ; vol. iv. pp. oGG— 630. Ecclesise Disciplina, pt. ii. 1. 1, (b) See also the Canon on this 1616 THE CHURCH IN HER RELATION TO CHARITIES, ETC. Anglican schools. Schools after the 12th century. whose palace was a seminary of all the learning which the age afforded, sent a circular letter to his bishops ordaining the general institution of schools throughout their dioceses, in order that the clergy being imbued (c) with the language of classical literature might the better be able to study the Holy Scriptures. The capitularies of Louis the Debonnaire (a.d. 823) contain directions that what were subsequently called the four faculties — namely, Theology, Law, Medicine and the Arts — should be taught in these schools, and about this time the Decretals of Gratian began to form a regular branch of study in the schools of monasteries and cathedrals. During the sixth, seventh and eighth centuries, the schools of Rome appear (d) to have served as a model for the rest of Europe, and especially for these islands. Thomassinus cites with approbation the remark of Bede, that the discipline and studies of our schools were borrowed immediately from those of Ireland or France (e), of which the Eoman school was the acknowledged archetype. The most flourishing epoch of the Anglican schools was, according to Bede, during the seventh century, while under the superin- tendence of Theodore, Archbishop of Canterbury (/). Bede enumerates Astronomy, Poetry and Arithmetic, among the elements of ecclesiastical instruction as administered in the age in which he lived, and of whose good effects he himself was the most remarkable example (/). The history of schools from the close of the eighth to that of the twefth century is involved in considerable obscurity, but it would appear from the language of the Later an Councils, enjoining the appointment of schoolmasters to be licensed by the bishop, in all monasteries and cathedrals, that they had fallen into considerable neglect. From the close of the twelfth century the universities became a sort of higher school for those who had derived the rudiments of instruction from the cloister (g). The chief provisions of the Councils of Lateran (h) have been incorporated in the ecclesiastical law of England, and any body consulting the Concilia of Spelman (t) will see that the practice subject by Eugenius the Second, soon after the time of Charlemagne. Dist. xxxvii., c. 12; and another ancient Canon, X. v. 5. 2, c. 2. (c) " Quarum subsidio freti" is the expression cited by Thomass. pt. ii. lib. 1, c. 96, s. 8. (d) Thomass. pt. ii. lib. i. c. 95, s. 3. (e) See Thomass. ut supra; and Bede, Hist. lib. hi. c. 27, s. 240. (/) Thomass. pt. ii. lib. i. c. 95, s. 12. (g) Thomass. pt. ii. lib. i. c. 95, s. 7. (h) In the third Council of La- teran (a.d. 1139), holden under Alexander the Third, the following Constitution was made and after- wards inserted in the body of the canon law. X. v. 5. 1. " Quoniam Ecclesia Dei sicut pia mater pro- videre tenetur, ne pauperibus, qui parentum opibu s j uvar i non possunt, legendi et proficiendi opportunitas subtrahatur per unamquamque Cathedralem Ecclesiam magistro qui clericos ejusdem et scholares pauperes gratis doceat competens aliquod beneficium prcebeatur." This constitution was enlarged and confirmed by the fourth Lateran Council under Innocent the Third (a.d. 1215). (?') Spelman, Concilia, vol. i. p.595; vol. ii. pp. 42, 126. SCHOOLS. 1617 of the church in this country was always in accordance with the spirit of the orders respecting schools contained in these Councils. The injunctions issued by Queen Elizabeth at the beginning of her reign, and the canons of 1571 and 1603, as will be seen in the course of this chapter, were to the same effect. It was doubtless with reference to these considerations, that Of ecclesiasti- Lord Keeper Wright said, "I always was and still am of opinion i^E^Sknd106 that keeping of schools is by the old law of England of eccle- siastical cognizance";/). So Bishop Gibson observes, "the truth is, in our records before the Reformation schools are often spoken of as ecclesiastical places, and the possession of them in ecclesiastical terms. So, when archbishops or bishops were patrons, the grant of them is styled collation " (m). In England, the names free school, endowed school and Different grammar school, are often used without discrimination. But J^^- they have distinct significations. England. A free school, to speak strictly, is any school in which ele- pree spools, mentary instruction is gratuitously afforded, or very nearly so, to the children of a particular locality, whether the funds be supplied by private subscriptions, as in many of our parochial schools, or, as in some corporate towns, from the property of the corporation. Endowed schools are those of which the whole or principal Endowed expenses are defrayed out of endowments bequeathed by the &c 00 munificence of their founder. Grammar schools are also endowed schools, but to which the Grammar constitution of their founder has annexed the condition that schools- classical instruction shall form either the whole or a large portion of the education which they impart. These schools are no insignificant characteristic of the genius of this country. It is said that Spain is the only other kingdom in Europe which affords any similar instance of the existence of a large and wealthy class of national institutions, governed entirely by the original laws of their respective founders, with the exception of a few cases in which they have been modified by the tribunals of parliament or of courts of justice. After the Reformation the fortunes of the endowed grammar schools underwent con- siderable vicissitudes, for this event abolishing the use of Latin in the services of the church, rendered the knowledge of that language an attainment of less necessity and an object of less desire than it had hitherto been. The grammar schools situated in populous and wealthy towns, or those which afterwards became so, retained their importance ; and many also were pre- served by their connection with the universities, and the great advantages which they offered in the shape of fellowships, scholarships and exhibitions to those whom they educated. Those schools to which their founders had not annexed the con- dition of instruction in the dead languages have remained for (?) Vide infra, p. 1620. (to) Gibs. p. 1100, note. 1618 THE CHUKCH IN HER RELATION TO CHARITIES, ETC. Foundation of grammar schools in England. Relation to colleges. 3 & 4 Vict, c. 60, and 4 & 5 Vict, c. 38. Empowering grants of sites. 15 & 16 Vict, c. 49. Sites of colleges for sons of trades- men and theo- logical colleges. the most part as charity or gratuitous schools of elementary education. The greater part of the schools now existing in this country have indeed been founded during the sixteenth and seventeenth centuries, when the liberal charity of individuals in some measure supplied the grievous deficiency of education occasioned by the spoliation of cathedrals and monasteries, and the confiscation of ecclesiastical property. Some, however, of the schools which most flourished in England, and have obtained the general appellation of public schools, are of considerable antiquity ; some, like Eton and Westminster, being the fruit of royal, and some, like Winchester and the Charter House, of private munificence. Some of these schools are colleges, or parts of colleges, as Eton, Westminster, Winchester, Dulwich; some are hospitals, as Christ's Hospital, Sutton's Hospital (the Charter House), Emmanuel Hospital. Winchester was included under the Oxford University Commission Acts and Eton under the Cam- bridge ones (»). Provisions as to the Westminster studentships at Christ Church, Oxford, are made by 30 & 31 Vict. c. 76, and as to the scholarships of the same school at Trinity College, Cambridge, by 19 & 20 Yict. c. 88, s. 36, and a subsequent order in council. 3 & 4 Yict. c. 60, s. 19, as extended by 4 & 5 Yict. c. 38, s. 19, empowers the church building commissioners to apply land in any parish granted to them for any of the purposes of the Church Building Acts, " for the purpose of any parochial or charitable school." Several acts have been passed to enable bodies corporate and persons under disability to convey land for sites of schools for the education of poor children (o) . By 15 & 16 Yict. c. 49, reciting these acts, it is enacted that, " All the provisions contained in the said recited acts or any of them in relation to the conveyance and endowment of sites for such schools as are contemplated by the provisions of the said acts respectively, shall aj^ply to and be construed to be applicable to the cases of such schools as hereinafter specified ; (that is to say) schools or colleges for the religious or educational training of the sons of yeoman or tradesmen or others, or for the theological training of candidates for holy orders, which are erected or maintained in part by charitable aid, and which in part are self-supporting, in the same or like manner as if such schools or colleges as last aforesaid had been expressly specified in the said act, 4 & 5 Yict. c. 38, and the said subsequent acts, and the same or the like powers had been thereby given for or in relation to the conveyance and endowments of sites for such schools or colleges, and for the residences of schoolmasters, or [n) Vide supra, p. 1594. 4 & 5 Vict. c. 38 (repealing 6 & 7 Will. 4, c. 70); 7 & 8 Vict. c. 37 ; 12 & 13 Vict. c. 49; 14 & 15 Vict. c. 24. SCHOOLS. 1619 otherwise in connection therewith, as are by the said acts given for or in reference to the conveyance and endowment of sites for schools falling within the provisions of those acts : Provided always, that no ecclesiastical corporation, sole or aggregate, shall be authorized to grant any site under this act, except for schools or colleges which shall be conducted upon the principles of and be in union with the Church of England and Ireland as by law established ; and that no ecclesiastical corporation, aggregate or sole, shall grant by way of gift, and without a valuable consideration, for any of the purposes of this act, any greater quantity of land in the whole than two acres; and that no other person or persons or corporation not coming within the class or description of persons empowered by the second section of the said act of the fourth and fifth years of the reign of her present Majesty to convey land for sites as therein mentioned, shall grant, by way of sale for a valuable consideration for any of the pur- poses of this act, any greater quantity of land in the whole than two acres, or shall grant any land whatever for any of the purposes of this act by way of gift and without a valuable con- sideration, anything in the said recited acts or hereinbefore contained to the contrary notwithstanding." By the old law a grammar school was holden to be so strictly Law as to intended for the purpose of teaching the learned languages, that fducatl0n it would be an alteration of the object of the charity to divert schools, part of the funds to teaching modern languages or sciences. This rule was afterwards somewhat relaxed. But a great change was effected by 3 & 4 Yict. c. 77, which 3 & 4 Vict, enabled the Courts of Equity to make schemes extending or c- 77- altering in such schools the course of education, altering the terms of admission, and the appointment of the masters. By sect. 24, however, certain foundations are exempted from Exemptions the operation of this act, viz., "the Universities of Oxford or from this act. Cambridge, or any college or hall within the same, or the Uni- versity of London, or any colleges connected therewith, or the University of Durham, or the college of Saint David's or Saint Bees or the grammar schools of Westminster, Eton, Winchester, Harrow, Charter House, Rugby, Merchant Taylors, Saint Paul's, Christ's Hospital, Birmingham, Manchester, or Macclesfield, or Louth,or such schools as form part of any cathedral or collegiate church." Sect. 2. — Ecclesiastical Jurisdiction over Grammar ScJiooh. Queen Elizabeth, in an injunction set forth in the first year of Queen Miza- her reign, ordains that " no man shall take upon him to teach, J^'8 mjunc" but such as shall be allowed by the ordinary, and found meet as well for his learning and dexterity in teaching, as for sober and 1620 THE CHURCH IN HER RELATION TO CHARITIES, ETC. Coz's Case. honest conversation, and also for right understanding of God's triie religion " (p). Canon 77. By Canon 77 of 1603. 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 conversation, 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 (q). Cory v. Pepper. And in Cory v. Pepper, in 30 Car. 2, a consultation was granted in the Court of King's Bench, against one who taught without licence in contempt of the canons; and (says the reporter) the reason given by the court was, that the canons of 1603 are good by the statute 25 Hen. 8, c. 19, so long as they do not impugn the common law, or the prerogative royal (r). The argument in Cox's Case seems to contain the substance of what has been alleged on both sides in this matter, and con- cludes in favour of the ecclesiastical jurisdiction. The case occurred in the year 1700, in the Court of Chancery. Cox was libelled against in the spiritual court at Exeter, for teaching school without licence from the bishop ; and on motion before the lord chancellor, an order was made that cause should be shown why a prohibition should not go, and that in the meantime all things should stay. On showing cause, it was moved to discharge the said order, alleging, that before the Eeformation this was certainly of ecclesiastical jurisdiction. Lord Keeper Wright said : " Both courts may have a con- current jurisdiction ; and a crime may be punishable both in the one and in the other. The canons of a convocation do not bind the laity without an act of parliament ; but I always was, and still am of opinion, that keeping of school is by the old laws of England of ecclesiastical cognizance : and therefore let the order for a prohibition be discharged." Whereupon it was moved, that this libel was for teaching school generally, without showing what kind of school ; and the Court Christian could not have jurisdiction of writing schools, reading schools, dancing schools, or such like. To which the lord keeper assented, and thereupon granted a prohibition as to the teaching of all schools, except grammar schools, which he thought to be of ecclesiastical cognizance (*) . This power of the ordinary was confirmed and strengthened by the following sections of the 3 & 4 Vict. c. 77 : — Sect. 7. " Provided always that, although under the provisions hereinbefore contained the teaching of Greek or Latin in any grammar school may be dispensed with, every such school and the masters thereof, shall be still considered as grammar schools 3 & 4 Vict, c. 77. Schools to be grammar schools, though Greek (p) Gibs. p. 1099, note. (q) This refers to the Three Arti- cles in Canon 36. Vide supra, p. 103. (r) 2 Lev. p. 222 ; Gibs, (s) 1 P. Wms. p. 29. 1100. SCHOOLS. 1621 and grammar schoolmasters, and shall continue subject to the and Latin dis- jurisdiction of the ordinary as heretofore ; and that no person ^s^J^s' shall be authorized to exercise the office of schoolmaster or under- subject to the master therein without having such licence, or without having ordinary, made such oath, declaration, or subscription as may be required by law of the schoolmasters or under-masters respectively of other grammar schools." Sect. 15. "In all cases in which no authority to be exercised Where no by way of visitation in respect of the discipline of any grammar powers of yM- i -i • it' i >i i 11 1 tation, court school is now vested in any known person or persons, it shall be might give lawful for the bishop of the diocese wherein the same is locally them to situated to apply to the Court of Chancery, stating the same ; DlsnoP- and the said court shall have power, if it so think fit, to order that the said bishop shall be at liberty to visit and regulate the said school in respect of the discipline thereof, but not further or otherwise." Sect. 24. " Provided always, that neither this act nor any- Saving of thing therein contained shall be any way prejudicial or hurtful ri^s of to the jurisdiction or power of the ordinary, but that he may lawfully execute and perform the same as heretofore he might according to the statutes, common law, and canons of this realm, and also as far as he may be further empowered by this act." Among the Visitation Articles preserved in Strype's Memorials Visitation of Archbishops' Visitations, the following is of constant occur- articles, rence : — " Item. Whether your grammar school be well ordered ; ■ whether the number of children thereof be furnished ; how many wanted, and by whose default ? Whether they be diligently and godly brought up in the fear of Grod and whole- some doctrine ; whether any of them have been received for money or rewards, and by whom 2 Whether the statute founda- tions, and other ordinances touching the said grammar school, the schoolmaster, or the scholars thereof, or any other having or doing therein, be kept ? By whom it is not observed, or by whose fault ? And the like in all points you shall require and present of your choristers and their master" (t). In the last edition of Dr. Burn's Ecclesiastical Law a form of Articles for certificate for obtaining a licence to teach, and one of articles teaching with- . P 7 i • in j i out licence. against a person tor teaching a grammar school, were inserted. Now, however, by 32 & 33 Vict. c. 56, s. 20, the endowed f 5^33Yict' schools commissioners are to provide in every scheme for a school coming under that act for the abolition of the power of the ordinary as to licensing. It was holden in Rex v. The Bishop of Lichfield and Coventry («), Bex v. Tlxe that the ordinary might refuse to grant a licence ; and in Rex ffe^y^ {t) Strype, Life of Parker, vol. iii. caveat entered with the Begistrar ™om*rfm (App.) p. 156. of the Bishop against the licence. (u) 2 Stra. p. 1021. This case See Rusluvorth v. Mason, 2 Com. came before the Ecclesiastical Court p. 448. in the first instance by virtue of a 1622 THE CHURCH IN HER RELATION TO CHARITIES, ETC. Canon 137. Whether the ordinary may proceed to deprivation. Canon Inhibitions to schoolmasters. 1 & 2 Vict, c. 106. Beneficed clergymen may keep schools. Canon 79. v. The Archbishop of York (u), that lie might examine a school- master applying for a licence as to his morality, religion, and learning. By Can. 137 of 1603, every schoolmaster shall, at the bishop's first visitation, or at the next visitation after his admission, exhibit his licence, to be by the said bishop either allowed, or (if there be jnst cause) disallowed and rejected (r). In Bales v. Kendall (x), it was holden, that where the patron- age is not in the ordinary, but in feoffees or other patrons, the ordinary cannot put a man out ; and a prohibition was granted, the suggestion for which was, that he came in by election, and that it was his freehold. By Can. 78 of 1603, " 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 Constitution 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." " In the records of the see of Canterbury " (says Bishop Gibson) " I find two inhibitions to schoolmasters not to teach school in prmjudieium Uberee scholce, — one in the time of Arch- bishop Bancroft, and the other in the time of Archbishop Laud" (y). 1 & 2 Vict. c. 106, which inflicts penalties on beneficed clergymen who engage in trade or buy to sell again for profit and trade, provides by sect. 30, " that nothing herein-before con- tained shall subject to any penalty or forfeiture any spiritual person for keeping a school or seminary, or acting as a school- master or tutor or instructor, or being in any manner concerned or engaged in giving instruction or education for profit or reward, or for buying or selling or doing any other thing in relation to the management of any such school, seminary, or employment." By Can. 79 of 1603, " 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 person shall be upon holy and festival days, within the parish where they teach, they shall bring their scholars to the church (z) where such sermon shall be made, and u) 6 T. R. p. 490. \v) Vide supra, p. 1053, for this Canon in full. (cc) 2 Keb. p. 544. But see on this case Gibs. p. 1100. (y) Gibs. p. 1101, and see ibid. App. sect. xx. p. 1571, a collection of instruments relating to schools. (z) See Belcham v. Barnardiston, 1 P. Wms. p. 32, note. SCHOOLS. 1623 there see them quietly and soberly behave themselves ; aud 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 Scriptures as shall be most expedient to induce them to all godliness ; and they shall teach the grammar set forth by King Henry VIII. and continued in the times of King Edward VI. and Queen Elizabeth of noble memory, and none other. And if any schoolmaster, being licensed, and having subscribed as is aforesaid, shall offend in any of the premises, or either speak, write or teach against any thing whereunto he hath formerly subscribed (if upon admonition by the ordinary he do not amend and reform himself) let him be suspended from teaching school any longer " ( within one month next B(^^'e after his election, or collation and admission into the same govern- Thirty-Nine ment or headship, shall openly and publicly in the church, chapel Article*^ and or other public place, of the same college or hall, and in the pre- Common °f sence of the fellows and scholars of the same, or the greater Prayer, part of them then resident subscribe unto the nine and thirty articles of religion mentioned in the statute" of 13 Eliz. c. 12, and unto the Book of Common Prayer, " and declare his un- feigned assent and consent unto and approbation of the said articles and of the same book, and to the use of all the prayers, rites and ceremonies forms and orders in the said book pre- scribed and contained," according to this form following : — "I, A. B., do declare my unfeigned assent and consent to all and everything contained and prescribed in and by the booh intituled, The Booh of Common Prayer and Administration of the Sacra- ments and other Bites 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 and Manner of making, ordaining and consecrating of Bishops, Priests and Deacons.^ " And all such governors or heads of the said colleges and halls, or any of them, as shall be in holy orders, shall once at least in every quarter of the year (not having a lawful impediment), openly and publicly read the morning prayer and service in and by the said book appointed to be read in the church, chapel or other public place of the same college or hall upon pain to lose and be suspended of and from all the benefits and profits be- longing to the same government or headship, by the space of six months, by the visitor or visitors of the same college or hall. And if any governor or head of any college or hall, suspended for not subscribing unto the said articles and book, or for not (a) See Gibs. p. 374. 1624 THE CHURCH IN HER RELATION TO CHARITIES, ETC. How far act still in force. 10 Geo. 4, c. 7 As to Roman Catholics. Position of Dissenters in grammar schools. Admission of children of dissenters. reading of the morning prayer and service as aforesaid, shall not at or "before the end of six months next after such suspen- sion subscribe unto the said articles and book, and declare his consent thereunto as aforesaid, or read the morning prayer and service as aforesaid, then such government or headship shall be ipso facto void." This act has been repealed as to the universities and the colleges therein (a), but not as to the colleges of West- minster, Winchester and Eton, as to which it still remains in force. It is provided by 10 Greo. 4, c. 7 (commonly called the Roman Catholic Relief Act), s. 16, as follows : — .... Nothing in this act contained shall be construed to enable any persons, otherwise than as they are now by law enabled, " to hold, enjoy or exercise .... any office or place, whatever, and by whatever name the same may be called, of, in or belonging to the colleges of Eton, Westminster or Win- chester, or any college .... or school within this realm." The question was often discussed before the Court of Chancery how far disenters might claim to enjoy the educational privi- leges afforded by grammar schools. This question generally took one of two shapes ; (a) Whether regulations for the govern- ment of the school shall be made which shall allow children to share in the general teaching while they are exempted from the religious teaching and religious services (which must, in the absence of special provision to the contrary, be those of the church) (b) ; (b) Whether dissenters may be appointed trustees of the school. (a) On the first point the decisions seem to have varied a good deal ; Lord Romilly having generally leaned to the admission of dissenters (c), and the late Lord Chancellor Hatherley, when vice-chancellor, in a contrary direction (d). In some cases the subject has been left to the discretion of the head-master or of the visitor (c). In the case of Be Ilminster Grammar School (/), while it was distinctly laid down that all the religious teaching given must be that of the Church of England, a long-standing exemption of dissenters from attendance on that teaching was sanctioned. In the case of The Attorney-General v. The Market Bostcorth (a) Tide supra, p. 1595. (b) In re Chelmsford Grammar School, 1K.& J. p. 543; S. C, 24 L. J., Ch. p. 742 ; Be Stafford Chari- ties, 25 Beav. p. 28; 27 L. J., Ch. p.381. (c) A.-G. v. Calvert, 23 Beav. p. 248; S. C..26L. J., Ch. p. 682; Be Stafford Charities, 25 Beav. p. 28 ; 8. C., 27 L. J., Ch. p. 381 ; A.-G. v. Clifton, 32 Beav. p. 596; S. C, 9 Jur., N. S. p. 93. See also A.-G. v. Bp. of Worcester, 9 Hare, p. 328 at p. 367. (d) In re Chelmsford Grammar School, 1K.&J. p. 543 ; S. C, 24 L. J., Ch. p. 742. (e) In re Warwick Grammar School, 1 Phillips, p. 564; A.-G. v. Governors of Sherborne Grammar School, 18 Beav. p. 256 ; S. C, 24 L. J., Ch. p. 74. (/) 2 De G. & J. p. 545. See next page. SCHOOLS. 1625 School ((/) , leave was given to promote a bill in parliament for the regulation of the school, in order thereby to provide for the admission of dissenters to the benefits of the school ; and it seems to have been considered, in that case at all events, that without legislation this object could not have been accomplished. By 23 Viet. c. 11, s. 1, " It shall be lawful for the trustees or 23 Vict. c. 11. governors of every endowed school from time to time to make, Power to and they shall be bound to make, such orders as, whilst they j^doweV* shall not interfere with the religious teaching of the other scholars schools to as now fixed by statute or other legal requirement, and shall make orders not authorize any religious teaching other than that previously ^'J^ admis- afforded in the school, shall nevertheless provide for admit- children of de- ting to the benefits of the school the children of parents not uominations in communion with the church, sect, or denomination according herem stated, to the doctrines or formularies of which religious instruction is to be afforded under the endowment of the said school : Pro- vided that in the will or wills, deed or deeds, or other instru- ment or instruments regulating such endowment, nothing be contained expressly requiring the children educated under such endowment to learn or to be instructed according to the doctrines or formularies of such church, sect, or denomination." By sect. 2, this act is not to extend to schools exempted from Exceptions. 3 & 4 Vict. c. 77, nor to any school established or to be esta- blished by, or in union with, or to be in union with the National Society for Promoting the Education of the Poor in the Prin- ciples of the Established Church (//). (b) On the second point the law was clearly laid down by the Dissenters House of Lords and the Court of Appeal in Chancery, in the trustees, case of Be Ilminster School {%) already mentioned, that where the school is one in connection with the church, even though dis- senters' children are admitted to some of the teaching of the school, the trustees must be members of the church. All this law, however, has been considerably modified by the Modification legislation, which will be found mentioned in the next section. hY recent legislation. Sect. 3. — Recent Legislation. It has been thought necessary to enter so far into the question of schools, and especially grammar schools, on account of the connection which they still have with ecclesiastical law ; but in the last few years a course of legislation has been inaugurated, and in many respects completed, by the Public Schools Act, the Endowed Schools Acts, and the Elementary Education Act, which leaves remaining very little of ecclesiastical jurisdiction over schools. ( / \ dence houses. treasurer 01 Queen Anne s Bounty [m). (k) Sects. 1—8. Vide infra, (I) Vide supra, pp. 1137, 1138. Part IX., Chap. III. [m) Vide supra, p. 1316. 1656 CHUPX'H EXTENSION. 2 & 3 Vict, c. 49. Powers in cases of sale. Queen Anne'; Bounty how far represen- tative of the Church. Under Copy- hold Acts. Under Dilapi- dation Acts. Under Extra- ordinary Tithe Act. By 2 & 3 Yict. c. 49, s. 14, the money so paid is to be invested, the dividends thereon being accumulated, till it is required ; and in case there be any surplus over what is re- quired such surplus is to be applied by the governors for the benefit of the benefice. By sect. 17, the power of sale given by the 1 & 2 Yict. c. 23, is extended to dwelling-houses other than the house of residence, shops, warehouses and other buildings. Out of the powers so given other powers have gradually grown ; and Queen Anne's Bounty has been made to a certain extent the representative of the Church of England in respect of the property holden by the various ecclesiastical corporations aggre- gate and sole ; a position which since the establishment of the Ecclesiastical Commissioners it has had to share with that body (n). By 21 & 22 Yict. c. 94, s. 17, now repealed, the governors of the Bounty might receive and apply, and, under the substituted Act of 1894 (57 & 58 Yict. c. 46), they may now receive and apply compensation moneys in respect of the enfranchisement of copyholds on any benefice (o) . By 34 & 35 Yict. c. 43, The Ecclesiastical Dilapidations Act, 1871, and the amending act 35 & 36 Yict. c. 96, very consider- able powers and duties are conferred upon the governors of the Bounty. By the first act they may lend money for the execu- tion of the works required (ss. 17, 18) ; they are to receive money from sequestrators where benefices are under sequestra- tion and employ it in making repairs (ss. 20, 21, 23, 45). They are to receive from the incoming incumbent all the money recovered by him for dilapidations from his predecessor, and they may advance money on the faith of such expected receipt (ss. 37, 38, 39, 40, 43, 44, 46). The buildings in every benefice are to be insured against fire to the satisfaction of the governors, and the money received on such insurance is to be paid over to them (ss. 54, 56). They are to invest all moneys paid over to them ; and they may retain such a percentage of the moneys paid over to them, as the lords of the treasury may think proper, for office expenses (s. 65) (p). By 35 & 36 Yict. c. 96, the governors of the Bounty have powers for the alteration of the length of mortgage terms, and of the conditions of repayment of advances made under the acts, 17 Geo. 3, c. 53; 21 Greo. 3, c. 66 ; 7 Greo. 4, c. 66; 1 & 2 Yict. c. 23, and 28 & 29 Yict. c. 69. Further, these powers have been extended and amended by 44 & 45 Yict. c. 25 ; 49 & 50 Yict. c. 34 ; and 50 & 51 Yict. c. 8, which have been already given in full (q) . By 49 & 50 Yict. c. 54 (the Extraordinary Tithe Act, 1886), s. 12, when it appears to the governors that the income of any benefice in mortgage to them has been diminished by the opera- te) Tide infra, Part IX., Chap. (p) Vide supra, pp. 1262—1280. TTT. (gr) Vide supra, pp. 1139, 1140, (o) Vide supra, pp. 1346, 1347. 1267. QUEEN ANNE'S BOUNTY. 1657 tion of that act, modifications may be made in the conditions of the mortgage or the time fixed for repayment (r). The powers and duties of the governors in cases where the Under Agri- Agricultural Holdings (England) Act is put in force with ^^ac\Hold' respect to an incumbent's glebe under the now repealed Act of 1875 (38 & 39 Yict. c. 92), or the existing Act of 1883 (46 & 47 Yict. c. 61), have been already mentioned (s). (r) Yide supra, p. 1140, where (s) Vide supra, p. 1330. the section is set out in full. 1658 CHURCH EXTENSION. CHAPTEE III. THE ECCLESIASTICAL COMMISSIONERS. To execute reports of commis- sioners. Origin of commission. Acorporation. The Ecclesiastical Commissioners for England are a corpora- tion, with, perpetual succession and a common seal, and with power to take, purchase, and hold real estate, notwithstanding the law of mortmain. The corporation is established by 6 & 7 Will. 4, c. 77, and 3 & 4 Yict. c. 113. These acts, however, have been amended by several subsequent statutes (a) . The professed object of the original acts was to carry into effect the reports of certain commissioners, previously appointed by the crown. The later acts have, however, diverged into many matters not comprehended in the original intentions of the commissions. It may, however, still be well to explain the general nature of the recommendations of these preliminary commissions. On the 4th February, 1835, King William the Fourth issued a commission of inquiry into the state of the Established Church in England and Wales, directed to the heads of the church and of the government, and certain other commissioners, containing the following instructions : — " To consider the state of the several dioceses in England and Wales, with reference to the amount of their revenues and the more equal distribution of episcopal duties, and the prevention of the necessity of attaching by commendam to bishoprics bene- fices with cure of souls ; to consider also the state of the several cathedral and collegiate churches in England and Wales, with a view to the suggestion of such measures as may render them more conducive to the efficiency of the Established Church; and to devise the best mode of providing for the cure of souls, with special reference to the residence of the clergy on their respec- tive benefices." Reports. The first report under this commission was made on the 17th March, 1835. A new commission was issued on the 6th June, following, with a change only in those commissioners who were members of the government ; and three further reports were made, dated 4th March, 20th May, and 24th June, 1836. The (a) Short titles have been given to many of these Acts by 36 & 37 Yict. c. 64. THE ECCLESIASTICAL COMMISSIONERS. M59 draft of a fifth report was also prepared, but not having been signed before the commission expired by reason of the demise of the crown, that draft was made a parliamentary paper by the secretary of state in the following session. The first and third of these reports related chiefly to the first Episcopal or episcopal branch of the inquiry ; and the general purpose of recommenda- their recommendations was to make such a new distribution of 1 ' the duties and revenues of the bishops, as should diminish the motive for translations, and entirely prevent the necessity for commendams. The second and fourth reports, and the draft of the fifth Cathedral and report, comprehended the two other branches of the inquiry, viz., Paroahial r * x x *j 7 7 x*oc orn.ixion.cI.fi - the cathedral and parochial branches ; and the general object of tions. the recommendations contained in these reports was, by means of an appropriation of part of the corporate revenues of the cathedral and collegiate churches, and of the whole endow- ments of the non-residentiary prebends, dignities, and offices, to establish a Fund, out of which better provision might be made for the Cure of Souls in parishes where such assistance was most required. The first act (6 & 7 Will. 4, c. 77), whereby the corporation 6 & 7 Will. 4, was established, passed in August, 1836. Under that act the c- 77- number of the commissioners was thirteen ; namely, the two Constitution archbishops, the Bishop of London, and five of the chief officers tion?11>0ra" of state for the time being, all ex officio ; and two other bishops and three other lay commissioners by name (b), removable at the pleasure of the crown, and their vacancies to be supplied from time to time under the royal sign manual, by bishops or laymen, as the case might be (c). By the second act (3 & 4 Yict. c. 113) the constitution of the 3 & 4 Viet, corporation was materially changed: all the members of the c- 113- episcopal bench, the deans of Canterbury, St. Paul's, and West- minster, the two chief justices, the master of the rolls, the chief baron, and the judges of the Prerogative and Admiralty Courts (d), for the time being, were appointed commissioners ex officio : power was given to the crown to appoint four, and to the Archbishop of Canterbury to appoint two lay commissioners, in addition to the three already appointed (c), and from time to time to fill up vacancies (/), and the power of removal by the crown was repealed (g). By 13 & 14 Yict. c. 94, the following further provisions were 13 & 14 Vict, made :— c- 9i- The crown was empowered to appoint two laymen by the Church title of first and second church estates commissioners, and the ^frjfe^001"' Archbishop of Canterbury was also empowered to appoint a church estates commissioner. (b) 6 & 7 Will. 4, c. 77, s. 1. (e) 3 & 4 Vict. c. 113, s. 78. (c) Ibid. s. 2. (/) Ibid. s. 79. (d) There is now no Prerogative (g) Ibid. s. 81. Court. P. VOL. IT. 5 P CHURCH EXTENSION. These commissioners are to hold office during the pleasure of their respective appointors, and are to be as such, ecclesiastical commissioners. Any ecclesiastical commissioner, not being such by virtue of some office, may be appointed a church estates commissioner ; and again may cease to be a church estates commissioner with- out thereby ceasing to be an ecclesiastical commissioner (g). The first church estates commissioner is to have a salary not exceeding 1,200/. a year, and the commissioner appointed by the Archbishop of Canterbury one not exceeding 1,000/. a year (A). .... There is a special provision that the first commissioner may sit in the House of Commons (i). The other commissioners require no such provision to enable them to sit. Every lay commissioner and every church estates commis- sioner is required to be (/), and to subscribe a declaration that he is (/i), a member of the Church of England. Five commissioners are to be a quorum for the transaction of business, provided two of them are church estates commis- sioners (/) ; but no proceeding can be ratified under the common seal, without the presence of two episcopal commissioners ; and any proceeding must be postponed, if they, being the only episcopal commissioners present, object (m). The Archbishop of Canterbury is to be chairman when present ; when he is not present a chairman is to be chosen by the commissioners assem- bled^?). The chairman is to have a second or casting vote, in case of equality (0). Meetings may be adjourned; but at an adjourned meeting no proceeding can be ratified under the com- mon seal, unless the intention to consider it finally was notified together with the summons for the original meeting (p). The commissioners may summon and examine witnesses, administer an oath or declaration, and require the production of books, papers, and writings, touching any matter of which they have cognizance (q). Under the 6 & 7 Will. 4, c. 77, the commissioners are to appoint a treasurer, secretary, and other officers ; and the lords of the treasury are to assign salaries (r). By the 3 & 4 Vict. c. 113, the first two appointments were united, and were to form one office, and the commissioners were empowered from time to time to appoint to the office under their common seal (s) . (g) Sect. 1. (h) Sect. 2. (i) Sect. 3. (/) 6 & 7 Will. 4, c. 77, s. 1 ; 3& 4 Vict. c. 113, s. 78. (k) 6 & 7 Will. 4, c. 77, s. 3; 3& 4 Vict. c. 113, s. 80 ; 13 & 14 Vict, c. 94 s. 4. ' (I) 13 & 14 Vict. c. 94, s. 10. (m) 6 & 7 Will. 4, c. 77, ss. 4, 5. (n) 13 & 14 Vict. c. 94, s. 13. (0) Ibid. s. 6. (p) 4 & 5 Vict. c. 39, s. 1. (q) 6 & 7 Will. 4, c. 77, s. 9 ; 3 & 4 Vict. c. 113, s. 90; 4 & 5 Vict, c. 39, s. 30. (r) 6 & 7 Will. 4, c. 77, s. 7. («) 3 & 4 Vict. c. 113, s. 91. THE ECCLESIASTICAL COMMISSIONERS. 1661 By 13 & 14 Yict. c. 94, the first church estates commissioner 13 & 14 Vict, and the church estates commissioner appointed by the archbishop c# 94- are to be joint treasurers, but are not, as such, to have any salary, and the secretary is to be appointed as heretofore (/) . And all lands and hereditaments formerly vested or to be vested in the secretary and treasurer are to be vested in the first church estates commissioner (u). By 29 & 30 Yict. c. Ill, the three church estates commis- 29 & 30 Vict, sioners are to be joint treasurers, and the receipt of any two of c- 11L them, or one of them, countersigned by the accountant or assistant accountant, is to be a good discharge {x) . Sect. 14 of 13 & 14 Yict. c. 94, provides for an audit of the Audit, accounts of the ecclesiastical commissioners. By this last act the church estates commissioners are to form The estates a committee of the ecclesiastical commission, to be called " the committee- estates committee ; " to this committee the ecclesiastical commis- sioners may add annually two of their number, one to be a lay- man not sitting as a commissioner in right of any office (//). At the meetings of this committee the first church estates commis- sioner shall preside, if present ; if he is not present the other church estates commissioners shall preside at alternate meetings. By 22 & 23 Yict. c. 46, any two church estates commissioners 22 & 23 Vict, may do all acts required by law to be done by the church estates c- 46- commissioners; and by 29 & 30 Yict. c. Ill, s. 2, any two 29 & 30 Vict, members of the estates committee, being church estates commis- c- m- sioners, may do all acts required by law to be done by the estates committee. The ecclesiastical commissioners may make special references for the consideration of the estates committee ; and they may even authorize this committee or the church estates commis- sioners, or any two of them, to do any act within the powers of the whole commission, except affixing the common seal to any scheme which they are not otherwise authorized to seal " with- out reporting to or requiring further instructions from" the ecclesiastical commissioners (s) . The ecclesiastical commissioners may from time to time make general rules for the estates committee, regulating the transac- tion of business and declaring the general principles which shall guide the decision of the committee. These rules are to be laid before parliament (a). By 13 & 14 Yict. c. 94, s. 8, " It shall be the duty of such 13 & 14 Vict, estates committee, or any three of them, of whom two or more c- 94 • shall be church estates commissioners, to consider all matters in COm^ittee to any way relating or incident to the sale, purchase, exchange, manage all letting, or management, by or on behalf of the ecclesiastical property of the commis- sioners. (t) Sect. 5. (?/) Sect. 7. (u) Sect. 6. (2) 13 & 14 Vict. c. 94, s. 11. (x) Sect. 3. (a) Ibid. s. 12. 5p2 1 662 CHURCH EXTENSION. 28 & 29 Vict, c. C8. Powers given to the commis- sioners. Schemes of commis- sioners. Orders of Queen in council. commissioners, of any lands, tithes, or hereditaments, and to devise such measures touching the same as shall appear to such committee to be most expedient, and such estates committee, or any three of them, of whom two or more shall be church estates commissioners, shall have full power and authority, subject to such general rules as are hereinafter mentioned, and as shall have been made by the ecclesiastical commissioners, to do and execute any act, including the affixing of the common seal to any scheme or other instrument, within the power of the ecclesiastical commissioners, in respect of the sale, purchase, exchange, letting or management of any lands, tithes, or here- ditaments : Provided always, that no such act shall be done or executed by the ecclesiastical commissioners otherwise than by the estates committee, nor by such committee unless with the concurrence of two at least of the church estates commis- sioners." By 28 & 29 Yict. c. 68, the ecclesiastical commissioners are empowered to give superannuation allowances to their clerks and servants. The authority which was established to carry into effect the changes intended by the acts 6 & 7 Will. 4, c. 77, and 3 & 4 Vict. c. 113, was the joint authority of the commissioners and of the Queen in council. But by later acts many powers are given to the commissioners alone, as for instance under the Ecclesiastical Leasing Acts (b), and in the cases where aid is given to supply the spiritual want of populous places (c), and in the instances mentioned at the end of the chapter. TVhere an Order in Council is required, the commissioners are to prepare, and lay before her Majesty in council, such schemes as shall appear best adapted for carrying the various acts into full effect ; proposing such modifications or variations as to matters of detail and regulation as shall not be substantially repugnant to any provisions of the acts; notice of every scheme is to be given to any corporation aggregate or sole affected thereb}T; and the objections, if any, are to be laid before her Majesty in council, together with the scheme (<7). The Queen in council may ratify any scheme by order, specify- ing the time for its taking effect. Every order is to be registered in each diocese whereof the bishop, or within which any cathedral or collegiate church, dignitary, chapter, member of chapter, officer, incumbent, or any other person or body corporate, may be in any respect affected thereby (r), or in cases under 29 & 30 Yict. c. Ill, in the diocesan registries specified in the order (/) ; and (b) Vide supra, pp. 1323—1330. Yict. c. 39, s. 30. (c) Vide infra, p. 1674. (e) 3 & 4 Vict. c. 113, s. 84 ; 4 & (d) 6 & 7 Will. 4, c. 77, s. 10 ; 5 Vict. c. 39, s. 30. 3 & 4 Vict. c. 113, s. 83; 4 & 5 (/) 29 & 30 Vict. c. Ill, s. 10. TH E ECCLESIAST 1 CA L COM MISSION EES . 1663 upon being gazetted, it is to be of the same force and effect as if When ga- enaoted (g). ^ttedtobe Copies of all orders in council are to be laid before parliament To he laid in January in every year, or if parliament be not then sitting, before par- within one week after the next meeting (A). liament. The commissioners are to make an annual report to one of the Annual secretaries of state, before the 1st of March, of their proceedings rePort- up to the previous 1st of November, and are to annex to this report copies of all schemes sanctioned by orders in council and an abstract of accounts. This report is to be laid before parlia- ment (/). In cases under 29 & 30 Vict. c. Ill, where no order in council is required, copies of all instruments under the seal of the commissioners are to be annexed to the report (k). Pro- ceedings under 14 & 10 Vict. c. 104, and 17 & 18 Vict. c. 11G (/), are similarly to be reported. In the first act (m), which relates to the first or episcorial Episcopal branch of the subject, certain propositions appended to the arrange- third report of the church inquiry commissioners are recited in the preamble as expedient to be carried into effect, and the authority mentioned was established for that purpose. This preamble has been already set forth in full in the chapter on Bishops ; where also are to be found the subsequent exten- sions and modifications of the schemes there recited (a). This preamble not only relates to the alteration of episcopal incomes and the boundaries of dioceses, but has provisions as to the University of Durham, first fruits, tenure of benefices in commendam, houses of residence, the jurisdiction of the eccle- siastical courts, and the foundation of new archdeaconries (o). The commissioners had power to propose in any of their Peculiars, schemes that all parishes, subject to any other jurisdiction than that of the bishop of the diocese in which they are locally situate, be transferred to the jurisdiction of that bishop (p). Schemes might be framed for this purpose only (q). By 13 & 14 Vict. c. 94, s. 17, fixed, instead of fluctuating, in- 13 & 14 Vict, comes might be secured by the commissioners to all archbishops c- 94* and bishops appointed since January 1, 1848. This provision yJjJJIJj^ of was repealed as to all bishops succeeding to their sees after the passing of "23 & 24 Yict. c. 124 ; and it is enacted by that last 23 & 24 Vict, act as follows : — c" Sect. 2. " Upon the first avoidance of the see of any arch- The lands of bishop or bishop in England after the passing of this act, all the ^J1^^ lands, hereditaments, and emoluments of or belonging to such * *" (q) 3 & 4 Vict. c. 113, s. 86; 4 & b Vict. c. 39, s. 30. (/*) 6 & 7 Will. 4. c. 77. s. 1,5; 3 & 4 Vict. c. 113, s. 87 ; 4 & b Vict, c. 39, s. 30; et vide supra, p. 27, note (//). (t) 13 & 14 Vict. c. 94, s. 26. (A-) Sect. 6. (?) Vide supra, pp. 1337—1346. (m) 6 & 7 Will. 4, c. 77. ()() Vide supra, pp. 24 — 27. (o) Tide infra, p. 1671. [p) 6 & 7 Will. 4, c. 77, s. 10. (j) 13 & 14 Vict. c. 94, s. 24. 1664 CHUKCH EXTENSION. commis- sioners on the next avoid- ance. Lands suffi- cient to afford the statutory- income to he secured to each see. Like arrange- ment may be made before next avoid- ance, on re- quest of the bishop. Arrange- ments to be revised on avoidance. see (except all rights of patronage or presentation and the resi- dences of the archbishop or bishop, and such lands necessary for the enjoyment of such residences as shall be attached thereto by any scheme sanctioned by order in council) shall become vested absolutely in the ecclesiastical commissioners for England, for the purposes and subject to the provisions applicable to other hereditaments vested in the said commissioners." Sect. 3. " After the lands of a see have become vested in the commissioners as aforesaid, an arrangement shall be made as soon as conveniently may be, and with all reasonable dispatch, for assigning to the archbishop or bishop of such see and his successors, as an endowment for the see, such of the lands and hereditaments then vested in the ecclesiastical commissioners for England as in the judgment of the estates committee of the said ecclesiastical commissioners, and subject to the approbation of such archbishop or bishop, may be deemed convenient to be held as such endowment, and will secure as nearly as may be, after deducting costs of management, a net annual income equal to that named for the archbishop or bishop of the see by any act of parliament or order in council then in force, and no more ; and in the meantime, until such endowment is so assigned, the ecclesiastical commissioners shall pay to the arch- bishop or bishop of the see the annual income named for him as aforesaid, at the time at which the same would have been payable if this act had not been passed." Sect. 4. "In case any archbishop or bishop who may have succeeded on an avoidance happening before the passing of this act, and having an income named as aforesaid, signify his willingness to accept an endowment for his see in lands and hereditaments, in lieu of his income, it shall be lawful to make the like arrangement for that purpose as might have been made if the lands of the see had become vested in the commissioners as aforesaid, and upon such arrangement being made all the lands, hereditaments, and emoluments of or belonging to the see, except such as may be assigned under such arrangement, and such rights of patronage or presentation, and residences as aforesaid, shall become vested absolutely in the said ecclesiastical commissioners." Sect. 5. "On the avoidance from time to time of any see, after the assignment of an endowment for the same, the estates committee of the ecclesiastical commissioners may, if they shall think fit, revise the arrangement in force in relation to such endowment, and for that purpose inquire into the state and productiveness of such endowment, and if such endowment, in the judgment of the committee, will secure a net annual income exceeding that named for the archbishop or bishop as aforesaid, or will not secure the full amount of such annual income, such committee may report thereon to the said ecclesiastical com- missioners, and the said commissioners shall, if they think fit, THE ECCLESIASTICAL COMMISSIONERS. 1665 roake an arrangement by vesting part of the lands and here- ditaments constituting such endowment in the ecclesiastical commissioners, or by assigning lands and hereditaments by way of addition to such endowment, or by means of annual or other payments to or by the ecclesiastical commissioners, as the case may require, which may secure, in the judgment of the said committee, to the archbishop or bishop who may succeed upon that avoidance, the net annual income so named, or as near thereto as circumstances will allow : provided always, that if a difference of opinion as to the value or sufficiency of the estates which such committee may propose to leave or to assign to any see shall arise between the archbishop or bishop thereof and the said committee, such difference shall be settled by arbitration before such arrangement as is last mentioned shall be made." Sect. 6. "When the arrangement is completed under this act Endowments for the endowment of a see the lands and hereditaments thereby *° thefixed1 assigned shall be the endowment of the see, and shall be tak 6fr income. in lieu of the income intended to be secured thereby." Sect. 7. " All arrangements for the purposes of this act shall Arrange- be made by the authority and in the manner by and in which ments how to arrangements for carrying into effect the recommendations recited in " 6 & 7 Will. 4, c. 77, " may now be made." By sect. 8, the lands so assigned as an endowment shall only Leases, be let from year to year or under provisions similar to those contained in 5 & 6 Vict. c. 27, for incumbents' leases (r) ; except that with the approval of the estates committee the archbishop or bishop may grant mining or building leases ; but then the committee may, if they think fit, require a portion of the rent to be reserved to the ecclesiastical commissioners. Sect. 9 of this act, and sects. 12, .13 of 29 & 30 Yict. c. Ill, 29 & 30 Vict, provide for dilapidations on the estate so assigned (s). 0m By 38 & 39 Yict. c. 92 (the old Agricultural Holdings Act, now repealed), s. 48, and by 46 & 47 Yict. c. 61 (the Agricul- 46 & 47 Vict, tural Holdings (England) Act, 1883), s. 38, where a bishop, being c' 61 * a landlord, proposes to exercise the powers of that act, he must obtain the consent in writing of the Estates Committee of the Ecclesiastical Commissioners (t). By sect. 10 of 23 & 24 Yict. c. 124, " It shall be lawful for 23 & 24 Vict, the estates committee, upon the application of any archbishop c- 124> or bishop, to undertake or authorize any works of permanent ^g^10^for improvement which such committee may think advisable, on mentof lands, any lands assigned by way of endowment to such archbishop or bishop, and the ecclesiastical commissioners may advance out of the common fund the money which may be required for the purpose of such works, and the money so advanced shall be repaid with such interest, and at such times, and until repaid shall be charged on such of the said lands as may be agreed (r) Vide supra, pp. 1321—1323. (t) Vide supra, p. 1330. (s) Vide supra, pp. 1269, 1270. 1666 CHURCH EXTENSION. upon by the said committee and the said archbishop or bishop, and his or their tenants interested in such improvements." Estates com- Sect. 11. " The estates committee shall, when required by any mittee where archbishop or bishop to whom lands may have been assigned as rGQ Hired to • manage the an endowment under this act, undertake the management of lands as- such lands, and receive the rents and profits thereof during the signed. incumbency of the archbishop or bishop ; and in every such case as aforesaid the estates committee, during their manage- ment, may grant all such leases as might have been granted by such archbishop or bishop if the lands had continued under his or their management, and may, with the approval of such arch- bishop or bishop, grant such other leases as might have been granted by him or them, with the approval of the estates com- mittee ; and the commissioners shall, during the time such lands are under the management of the said estates committee, pay to such archbishop or bishop the annual income to secure which the lands may have been assigned." Powers of Under the Bishopric of St. Albans Act, 1875 (38 & 39 Yict. PnXrTc\Tfoi- c- 34), the Bishopric of Truro Act, 1876 (39 & 40 Yict. c. 54), the new bishop- Bishopric Act, 1878 (41 & 42 Yict. c. 68), and the Bishopric of rics. Bristol Act, 1884 (47 & 48 Yict. c. 66) («), the ecclesiastical commissioners receive the funds for forming the endowments of these sees, and intervene in bringing the several acts into opera- tion. They had also power under 38 & 39 Yict. c. 34, s. 11, to sell Danbury Palace for the purpose of raising funds for the bishopric of St. Albans. 3 & 4 Vict. The act 3 & 4 Yict. c. 113, which passed in August, 1840, c; 113- although it purports to carry into effect the fourth report of the parochMa^ commissioners of inquiry, in fact comprehends, with alterations rangements. and modifications, the proposals of the second and fourth reports, and of the draft fifth report, and deals with the two remaining branches of the subject, viz., the cathedral and paro- chial branches ; except so far as the latter had been already dis- posed of by 1 & 2 Yict. c. 106. This act has been largely extended and amended by 4 & 5 Yict. c. 39, and 31 & 32 Yict. c. 114. A special act, 6 & 7 Yict. c. 77, was passed for "Wales. The provisions of these acts relating to deans and canons have already been set forth in the chapter on deans and chapters and cathedrals (x). It is only necessary to add, that the provisions in sect. 29 of 3 & 4 Yict. c. 113 (//), for the annexation of cer- tain parishes to canonries at Westminster, have been extended by 4 & 5 Yict. c. 39, s. 8, and 29 & 30 Yict. c. Ill, s. 17, to afford endowments out of the surplus revenues of these canonries for several parishes in the city of Westminster, with a special proviso securing free seats in the churches of these parishes ; and that by 24 & 25 Yict. c. 116, the emoluments of the seventh and (u) Yide supra, pp. 28, 30, 189. (y) Vide supra, p. 181. (x) Yide supra, pp. 173 — 188. THE ECCLESIASTICAL COMMISSIONERS. 1667 eighth canonries at Windsor are to be retained by the dean and chapter, and to be appropriated, one for the benefit of the military knights, and one in augmentation of the livings of certain Windsor clergy (s). By a series of acts commencing soon after the issuing of the Temporary first commission of inquiry in 1835 (a), the appointment to all ^gension sinecure rectories in public patronage, to non-residentiary cathe- dral preferments, and to all canonries above a specified number, had been suspended from session to session, the proceeds being received and holden in trust by the treasurer of Queen Anne's Bounty. All monies so received were directed to be paid over to the commissioners (b). The main object, for which the commissioners are entrusted Main object with all these revenues, is defined to be that of making better of souls provision for the cure of souls in parishes where such assistance is most required. All monies are, in the first instance, directed to be carried over to a common fund ; discretion is given as to the mode of making the provision, either by means of money payments out of this fund, or by actual conveyance of lands, tithes, or other hereditaments ; provided that due consideration shall be had of the wants and circumstances of the places in which the lands and hereditaments or tithes vested in the com- missioners are situate or arise, and in which the lands, heredita- ments and tithes belonging to any ecclesiastical corporation which has to pay a portion of its income over to the commis- sioners are situate or arise {c). By 6 & 7 Yict. c. 37, the governors of Queen Anne's Bounty 6 & 7 Vict. Board were empowered to lend to the commissioners for these c- 37- purposes a sum of 600, 000/. three per cent, stock, which is to be J^JJoj^jJ^ paid off by the commissioners in twelve instalments, the first to Anne's be paid at the end of thirty years from the granting of the loan. Bounty. The bounty board were also empowered to lend further sums of stock on the same terms id). With reference to this part of the subject, certain resolutions Mode of dis- were originally made by the commissioners regulating the dis- trioution- tribution of the funds coming to their hands, which will be found in a later page (e). By 23 & 24 Yict. c. 124, the commissioners were empowered 23 & 2i Vict, to give preference to places where contributions from other c- 124 1 sources will be made in aid of the grant (/), and to mining districts (g). Numerous orders in council have been issued, ratifying Augmenta- tion of living's. (z) Vide supra, p. 177. (d) 6 & 7 Vict. c. 37, ss. 1 — 8. (a) 5 & 6 Will. 4, c. 30 ; G & 7 Vide supra, p. 1655, and see 29 & 30 Will. 4, c. 67 ; 1 Vict. c. 71 ; 1 & 2 Vict. c. Ill, s. 11, and 38 & 39 Vict. Vict. c. 108 ; 2 & 3 Vict. c. 55. c. 71. {b) 3 & 4 Vict. c. 113, s. 60 ; 6 & (e) Vide infra, p. 1672. 7 Vict. c. 77. ( f) Sect. 14. (c) Ibid. s. 67; 23 & 24 Vict. \g) Sect. 15. c. 124, ss. 12, 13. 1068 CHURCH EXTENSION. 29 & 30 Vict, c. 111. 3 & 4 Vict, c. 113. Separate estates of deans, &c. vested in com- missioners. The like as to certain prebends. 27 & 28 Vict, c. 70. Estates of minor cathe- dral corpora- tions. 29 & 30 Vict, c. 111. Power to com- missioners to make allow- ances to minor canons, organ- ists, school- masters, &c. schemes of the commissioners, by which churches have been endowed or augmented. By 29 & 30 Yict. c. Ill, ss. 5 and 9, no order in council is any longer necessary for these purposes, publication in the Gazette being sufficient ; the commissioners have power to take lands for annexation to benefices without licence in mortmain ; and the instrument conveying such lands may, if it be declared that it shall so operate, vest the lands in the incumbent of the bene- fice at once : such instruments are to be free from stamp duty. By 3 & 4 Yict. c. 113, s. 50, the estate which the holder of any deanery or canonry had in any hereditaments usually holden with such deanery or canonry (except any right of patronage), or in any hereditaments, the rents and profits whereof have been usually taken by such holder separately, and in addition to the corporate revenues of the chapter, are vested in the ecclesiastical commissioners. It has been holden, that the separate estate of a dean in a chapter does not include a rectory previously by statute annexed to the deanery, and such a rectory is not, by force of this enactment, severed from the deanery and vested in the commissioners (h). By sect. 51 of this same act, the estates of non-residentiary prebends, with certain exceptions (and the estates of these excepted prebends, with consent of their patron, on an annual income being paid to the prebendary (?')), and the estates of certain deaneries therein mentioned, are to be vested in the com- missioners. By 27 & 28 Yict. c. 70, any corporation of vicars choral, priest vicars, senior vicars, custos and vicars, warden and vicars or minor canons, may, with the consent of their visitor, transfer their lands and hereditaments to the commissioners under a scheme sanctioned by an order in council, in consideration of an annual or other money payment. By 29 & 30 Yict. c. Ill, s. 18, " When the ecclesiastical commissioners are or may be in receipt of any income arising from estates that belong, or have belonged, to any dean or chapter, or any major or minor corporation of any cathedral or collegiate church, they shall be at liberty (whether an order of her Majesty in council has or has not been passed in relation to such income, and notwithstanding any limitation contained in any act of parliament as to the stipends and allowances of any of the persons hereinafter mentioned), out of such income, to make such provision as to them may seem needful for securing adequate stipends and allowances to the minor canons, school- masters, organists, vicars choral, lay clerks, officers, choristers, bedesmen, servants and other members of the cathedral or colle- (/<) Vide supra, p. 182, and the 36 & 37 Vict. c. 64, and 48 & 49 case of lieg. v. Champneys, L. E., 6 Vict. c. 31. C. P. p. 384; 19 W. E. p. 386, (i) 13 & 14 Vict. c. 94, s. 20; mentioned supra,p. 175, and the acts vide supra, p. 183. THE ECCLESIASTICAL COMMISSIONERS. 1669 giate church, and for securing adequate sums of money for the maintenance of any existing college or school (/»■), in connection with the cathedral or collegiate church." By sect. 4, " If, after the commissioners have effected the Power to endowment of any archbishopriek or bishoprick, or of any changes" chapter, with lands or hereditaments, it shall appear to them between eccle- that it would be beneficial to such archbishopriek or bishoprick, siastl?al cor- or to such chapter, that any part or parts of such lands or here- Poratlons- ditaments should be exchanged for any lands or hereditaments belonging to any other archbishop or bishop, or chapter, or to the commissioners, it shall be lawful to effect such exchange, with the consent in writing of every archbishop or bishop, or chapter thereby affected, and by the authority of a scheme passed by the commissioners, and an order of her Majesty rati- fying the same : Provided always, that no such exchange shall be made unless the commissioners shall be satisfied of the reason- able equality in value of the lands and hereditaments so to be exchanged, and shall, in such last-mentioned scheme, make a statement to that effect." None of these acts appear to authorize the transference by a As to transfer dean and chapter, or other ecclesiastical corporation, except those J^ns^nd0* specially mentioned in 27 & 28 Yict. c. 70, of their lands and chapters, hereditaments to the commissioners, in return for an. annual or other money payment, as had been authorized in the case of the special corporations by 27 & 28 Yict. c. 70, thereby, in fact, bringing about a similar arrangement to that provided for bishops by 23 & 24 Yict. c. 124. Nevertheless, several schemes were made, sanctioned by orders in council, and acted upon, at various times from the year 18o2, dealing with eighteen cathedral corporations on this footing. The irregularity having been discovered, the arrangements in these cases were, in 1808, validated retrospectively by 31 31 Vict. c. 19. Yict. c. 19. And now, by 31 & 32 Yict. c. 114, s. 3, "The ecclesiastical 31 & 32 Vict, commissioners for England (in this act referred to as the com- c* 114* missioners) may, with the consent in writing of any dean and of scheme, chapter in England under their common seal, and of the visitor of such dean and chapter, from time to time lay before her Majesty in council schemes for effecting with respect to the consenting dean and chapter all or any of the following things, namely, (1.) Eor transferring to the commissioners the whole or some specified part of the property of the dean and chapter (except the cathedral or collegiate church and the buildings belonging thereto, and any ecclesiastical, educational or other like patronage), for such considera- tion, whether consisting of a money payment or other (k) See 32 & 33 Vict. c. 56, s. 27 ; vide supra, pp. 1628, 1630. 1670 CHURCH EXTENSION. property, or partly one and partly the other, and generally on such terms, as the commissioners think fair and reasonable, including the extinguishment of any right of the commissioners to receive any part of the income or property of the dean and chapter, or of any member thereof : (2.) For transferring lands to the dean and chapter in lieu of any annual sum payable to them by the commissioners either under this act or otherwise : (3.) For making such incidental provisions as may be neces- sary for carrying into effect any of the above-mentioned objects." Capital sum Sect. 4. " The commissioners on a transfer under this act may for fabric. se^ apart as part of the consideration a capital sum to be ex- pended to the satisfaction of the commissioners in substantial repairs, restoration, and improvements of the cathedral or collegiate church and the buildings belonging thereto." Order in coun- By sect. 5, sections 84 to 89 (both inclusive) of 3 & 4 Vict. schemftobf c' 113> " whicn relate to the making, publishing and registering made. of an order in council for ratifying a scheme, and to the laying the same before parliament, shall apply to any scheme made under this act." Order to effect Sect. 6. "After the date of the publication of an order in o^conve"1111" counc^ ratifying any scheme made in pursuance of this act, and ance!°mey without any further conveyance or act in the law, the property expressed to be thereby transferred shall (so far as the same can be vested by this act) vest in the transferees and their successors, and (so far as the same cannot be so vested) shall be deemed to be held in trust for the transferees and their successors; and the transferees and their successors shall, as far as may be, take the same for the same estate and interest and subject to the same liabilities for and subject to which it was held at the said date by the dean and chapter or the commissioners, as the case may be." Application Sect. 8. All property transferred to the commissioners by of transferred an or(jer in council under this act shall be held by them in the proper y. SSLme manner, and for the same purposes, and subject to the same provisions as the property of which the rents and profits are to be carried over to their common fund, and the income thereof shall be applied accordingly ; and all property trans- ferred to a dean and chapter by an order in council under this act shall be held upon the trusts and for the purposes directed by the order, and subject thereto shall form part of the endow- ment of such dean and chapter; and any annual sum paid to a dean and chapter in pursuance of an order in council under this act shall be applied in the manner in which it would be applic- able if it were the income of property transferred to the dean and chapter." By sect. 9, similar provisions are made as to the letting of THE ECCLESIASTICAL COMMISSIONERS. 1671 lands assigned by way of endowments to deans and chapters as had been made with respect to lands assigned to bishops (/). Sect. 10. "In all cases where an agreement has been or shall Settlement of be entered into, or a treaty has been or shall be commenced, or ^mlma* be is or shall be pending, between a dean and chapter and any of referred to 6 their lessees, for any sale and purchase under" 14 & 15 Vict, arbitration, c. 104, 17 & 18 Vict. c. 11(5, or 23 & 24 Vict. c. 124 (m), "and the capitular estate is transferred to the commissioners under the provisions of this act, it shall be competent to the church estates commissioners to approve and confirm as heretofore such agreement, and to continue and bring to a conclusion and approve such treaty : Provided always, that in the event of the church estates commissioners declining to approve such agree- ment or treaty, the ecclesiastical commissioners shall be bound to purchase the lessee's interest, if required by the lessee, with all the benefits, as to arbitration and otherwise, to which lessees are entitled under the above-mentioned acts or any of them ; and in every case the costs of such arbitration and award shall be in the discretion of the said arbitrators or umpire, as the case may be." Sect. 13. " The provisions of this act with respect to the Application property of deans and chapters shall apply in the case of the °f act *° r r v x XL./ deaneries property of any deanery, canomy, prebend, archdeaconry, or canonries, &c. office in any cathedral or collegiate church in England, in the like manner, mutatis mutandis, as they apply to the property of a dean and chapter." By sect. 7, a special provision is made for saving all trusts Trusts, imposed on the property in the hands of the deans and chapters when the property is transferred. It had been already holden by the Master of the Polls, in the case of The Attorney-General v. The Dean and Canons of Windsor, that the commissioners claiming as successors to a dean and chapter under 3 & 4 Vict, c. 113, took their property subject to all trusts (»). Under the Truro Chapter Act (41 & 42 Vict. c. 44), and the Newcastle Chapter Act (47 & 48 Vict. c. 33), the ecclesiastical commissioners hold the endowment funds of those foundations (o). As to archdeacons (p), the powers given to the ecclesiastical Archdeacons, commissioners have been already given at length (q). Special enactments have been made to vest the estates of the arch- deaconries of Rochester (r) and Colchester (s) in the commissioners. By the Parish of Manchester Division Act, 18-50 (t), certain Parochial ar- special powers are given to the commissioners with reference rangemente. to the cathedral arrangements, and to the providing for spiritual destitution within the parish and city of Manchester ; and by 28 & 29 Vict. c. 117, and 29 & 30 Vict. c. 86, the endowments (1) Vide supra, p. 166 5. (?n) Tide supra, pp. 1337 — 1346. (n) 24 Beav. p. 679 ; 4 Jur. N. S. p. 818. Vide supra, p. 182. (o) Tide supra, pp. 189, 190. (p) Vide supra, p. 1663. (?) Tide supra, pp. 204—207. (r) 24 & 25 Vict. c. 131. (s) 29 & 30 Yict, c. Ill, ss. 15, 16. it) 13 & 14 Yict, c. 41. See A.-G. v. Dean of Manchester, IS Ch. D. p. 596. CHURCH EXTENSION. of the vicarage of Rochdale are vested in the commissioners, and many provisions are made for the spiritual benefit of the population of Rochdale. A special act also, 21 & 22 Vict. c. 58, has been passed for the rectories of Stanhope and Wolsingham (s), and one, 13 & 14 Yict. c. 76, for abolishing the royal peculiar St. Burian. Both these acts were promoted by the commissioners. The acts 23 & 24 Yict. c. 69, and 51 & 52 Yict, c. 11, by which the commissioners have obtained certain special powers as to the fabrics of Manchester Cathedral and Westminster Abbey respectively, have already been referred to (t). By 29 & 30 Yict. c. Ill, ss. 7, 8, the library and the Lollards and Morton Towers of Lambeth Palace are to be vested in and maintained by the commissioners. The powers of the commissioners to annex sinecures to bene- fices («), to suppress other sinecure rectories (a), and to enable the sale of advowsons annexed to the headships of colleges (//), have been already mentioned. They may, also, with consent of the patron, apportion differently the incomes of two benefices in the same patronage (s). With respect to the estates vested in the commissioners, they are to have all the same rights and powers as the original holders possessed, or a successor would have had (a) ; and they are to be deemed to be owners or joint-owners, as the case may be, for the purposes of the Tithe Commutation Acts, of all tithes vested or liable to be vested in them (b). The following resolutions have been passed by the Ecclesias- tical Commissioners (c). The ecclesiastical commissioners for England, having care- fully considered how provision may best be made for the cure of souls out of the limited amount of monies at their disposal, in conformity with the intent and meaning of the acts 3 & 4 Yict. c. 113, and 4 & 5 Yict. c. 39, have resolved to recom- mend to her majesty in council : That grants should be made, either in augmentation of the incomes of, or towards providing fit houses of residence for, the incumbents of certain benefices and churches, with cure of souls, that is to say, being either parish churches or churches or chapels with districts legally belonging or assigned thereto ; in certain classes ; subject to such limitations, as are hereinafter mentioned, or as may from time to time be determined on ; and subject also to their right to decline recommending a grant, in any case in which from special circumstances they shall be of opinion that such grant is not expedient. That the first class should consist of grants, made uncon- (s) See also 31 & 32 Yict. c. 114, s. 15, as to the same rectories. (t) Vide supra, p. 188. (u) "Vide supra, p. 415. (x) Vide supra, pp. 383, 384. (y) Vide supra, pp. 1611—1613. z) 3 & 4 Vict. c. 113, s. 74. a) Ibid. s. 57 ; 4 & 5 Vict. c. 39, s. 6. See Ecclesiastical Commis- sioners for England v. Roive, 5 App. Ca. p. 736 ; Ecclesiastical Commis- sioners for England v. Treemer, 1 Ch. 1893, p. 166. Vide supra, p. 1124. (6) 4 & 5 Vict. c. 39, s. 29. (c) Vide supra, p. 1667. THE ECCLESIASTICAL COMMISSIONERS. 1673 ditionally, to benefices or churches with cure of souls as afore- said, being in public patronage, namely, in the patronage of her majesty, either in right of the crown or of the duchy of Lancaster, of the Duke of Cornwall, of any archbishop or bishop, of any dean and chapter, dean, archdeacon, prebendary, or other dignitary or officer in any cathedral or collegiate church, or of any rector, vicar, or perpetual curate, as such ; and that this class should at present be limited to benefices and churches having a population of 2,000 at the least, and an average annual net income below 150/. ; and to the raising of such income, as nearly as may be, to that amount. That the second class should consist of grants made to benefices or churches with cure of souls as aforesaid, whether in public patronage as aforesaid ; or in private patronage, namely, any patronage whatsoever other than as aforesaid ; upon con- dition of such grants being met by benefactions from other sources, either paid to the commissioners, on account of the same benefices or churches, or secured in perpetuity to the incumbents thereof ; and that this class should at present be limited to benefices and churches haviug a like amount of population, and an average annual net income below 200/. That the third class should consist of grants made to benefices or churches with cure of souls as aforesaid, in consideration of their being situate within the places in which any of the tithes vested in the commissioners now arise, or the tithes, in lieu of which any of the lands or other hereditaments vested in them were allotted or assigned, have heretofore arisen ; such grants not exceeding the actual value of the tithes or of the lands or other hereditaments in respect of which the same shall be made. The ecclesiastical commissioners have some other powers Additional given them by various statutes which are not so easily to be powers of By 6 & 7 Will. 4, c. 77, s. 26, they were given powers Advowsana respecting the sale of livings in the patronage of municipal in hands of corporations, which powers have been re-enacted in 45 & 46 municiPal cor" Vict. c. 50 (d). m poratlons- By 5 & 6 Vict. c. 26, s. 13, their consent is necessary to 5 & 6 Vict, enable any incumbent, whose living has been augmented by c' 26' them, to raise money for improving the parsonage-house of his ^Silence* benefice (e). They, submitting a scheme to the Queen in council, are to be "the authority" under the same act for carrying into execution the provisions as to episcopal and canonical houses therein contained (./*). Their duties and powers as to making and sanctioning leases Leases, by ecclesiastical corporations () Yide infra, Part IX., Chaps. V., VI. (?) 19 & 20 Vict. c. 55, s. 2 ; 29 & 30 Vict. c. Ill, s. 19. THE ECCLESIASTICAL COMMISSIONERS. 1675 properly treated of in later chapters (r). They may accept sites for churches, and they may in certain cases put in force compul- sory powers, under provisions similar to those contained in the Lands Clauses Consolidation Act (a), for the purpose of acquir- ing sites for churches. It has been holden that where these powers are exercised for Liability of the purpose of procuring a title from persons under a disability QQ^^|glstlcaI to convey, and the money is paid into the High Court of Justice, sioners for the church building commissioners, or now the ecclesiastical costs of pay- commissioners as representing them, will have to pay the costs men* out of of a petition for payment of the money out of court to the money. person entitled to receive it, thereby following the ordinary rule under the Lands Clauses Consolidation Act and other analogous acts (t). The ecclesiastical commissioners approve of arrangements for Ecclesiastical the redemption of annuities in favour of spiritual persons charged 9ommis" , jt l l o sioners and on the Consolidated Fund, and receive the money (a). So they redemption of are made recipients of the Sunk Island Church Fund (>). charges on They may be grantees of land under the Places of Worship crown Sites Act (36 & 37 Vict. o. 50) (,,). ^ _ G~sof In The Ecclesiastical Commissioners v. Wodehouse (z) it was de- sites, cided that the commissioners can maintain an action for an When parties injunction to restrain the working of mines under a glebe, other- *° ^church wise than under a lease which they have sanctioned. But they property, are not representatives of all church property, so as to be neces- sary or even proper parties to an action to enforce the sale of glebe (a). Nor are they liable, as owners of the site of a church and When not churchyard conveyed under the Church Building Acts, to be ^ rated under the Metropolis Local Management Acts (b). owners. (r) Vide infra, Part IX., Chaps. V., YL (s) 8 & 9 Yict. c. 18. [t) Ex parte Vicar of Margate, 12 L. T. p. 792. (it) 36 & 37 Yict. c. 57, ss. 2, 3, 9 ; 45 & 46 Yict. c. 72, s. 23. (x) 57 & 58 Yict. c. 43, s. 13. (//) Vide infra, p. 1701. (2) 1 Ch. 1895, p. 552. Yide supra, p. 1258. (a) Scottish Widows Fund v. Craig, 20 Ch. D. p. 208. (b) Board of Works for Plumstead District v. Ecclesiastical Commis- sioners, 2 a B. 1891, p. 361. Vide supra, p. 1384; infra, p. 1707. P. VOL. IT. 5 Q 1676 CHURCH EXTENSION. CHAPTER IV. THE AUGMENTATION OF BENEFICES. 17 Car. 2, c. 3. Impropriators may annex tithes. 29 Car. 2,c. 8. Ecclesiastical corporations may reserve benefits for vicars upon By 17 Car. 2, c. 3, ss. 7, 8, the owners or impropriators of tithes may annex the same to the parsonage or vicarage of the parish church or chapel where they arise, without licence in mortmain ; and where the settled maintenance of any parsonage or vicarage is under 100/. per annum the parson or vicar may take and hold lands and other hereditaments conveyed to him with- out licence in mortmain (a). This act was repealed by 1 & 2 Vict. c. 106, s. 15, but restored again by 6 & 7 Yict. c. 37, s. 25. By 29 s Car. 2, c. 8, s. 1, reciting that divers archbishops, bishops, deans and chapters and other ecclesiastical persons .... have, upon renewing their leases of tithes, made reservations beyond the ancient rent for the augmentation of the endow- ment of the vicars or curates, it is enacted, that " every augmentation of what nature soever granted, reserved, or agreed to be made payable or intended to be granted, reserved, or made payable since the said first day of June (b), in the twelfth year of his said majesty's reign, or which shall at any time hereafter be granted, reserved, or made payable to any vicar or curate, or reserved by way of increase of rent to the lessors, but intended to be for the benefit of such vicar or curate, by any archbishop, bishop, dean, provost, dean and chapter, archdeacon, prebendary, or other ecclesiastical corporation, person or persons whatsoever so making the said reservation out of any rectory impropriate or portion of tithes " belonging to them or any of them respectively, " shall be deemed and adjudged to continue and be and shall for ever after continue and remain as well during the continuance of the estate or term upon which the said augmentations were granted reserved or agreed to be made payable as afterwards in whose hands soever the said rectories or portions of tithes shall be or come, which rectories or portion of tithes shall be chargeable therewith whether the same be reserved again or not, and the said vicars and curates respectively are hereby adjudged to be in the actual possession thereof for the use of themselves and their successors and the same shall for ever hereafter be taken received and enjoyed by the said vicars and curates and their successors, as well during the continuance of the term or estate upon which the said (a) Vide supra, p. 1577. {!>) That is, June 1, 1660. THE AUGMENTATION OF BENEFICES. 1677 augmentations were granted, reserved or agreed to be made pay- able as afterwards, and the said vicars and curates shall have remedy for the same, either by distress upon the rectories im- propriate, or portions of tithes charged therewith, or by action of debt against that person who ought to have paid the same, his executors or administrators, any disability in the person or persons, bodies politic or corporate so granting, or any disa- bility or incapacity in the vicars or curates, to whom or for whose use or benefit the same are granted or intended to be granted, the Statute of Mortmain, or any other law, custom, or other matter or thing whatsoever, to the contrary notwith- standing." Sects. 3, 4, and 5 provide for the registration of these aug- mentations. By 2 & 3 Anne, c. 20, s. 1, it was provided, as has been 2 & 3 Anne, already said (r), that the Queen might by letters patent erect a c- 20- corporation and grant thereto the first fruits and tenths, to be applied by the corporation for the augmentation of the main- tenance of poor parsons. By sect. 4, " And for the encouragement of such well disposed Lands and persons as shall, by her Majesty's royal example, be moved to ™yhe contribute to so pious and charitable a purpose, and that such Qneen Anne's their charity may be rightly applied be it enacted . . . that all and Bounty by every person and persons having in his or their own right any Q^jjj111,0116^ estate or interest in possession, reversion, or contingency of or in any land, tenements or hereditaments or any property of or in any goods or chattels shall have full power, licence and authority, at his, her, and their will and pleasure, by deed enrolled ... or by his her or their last will, or testament in writing, duly executed according to law to give and grant to and vest in the said corporation and their successors all such his, her, or their estate interest or property in such lands tenements and here- ditaments goods and chattels or any part or parts thereof for and towards the augmentation of the maintenance of such ministers as aforesaid officiating in such church or chapel where the liturgy and rites of the said church are or shall be so used or observed as aforesaid and having no settled competent provision belonging to the same and to be for that purpose applied accord- ing to the will of the said benefactor in and by such deed enrolled or by such will or testament executed as aforesaid expressed and in default of such direction, limitation or ap- pointment in such manner as by her Majesty's letters patent shall be directed and appointed as aforesaid. By sect. 5, "And such corporation and their successors shall have full capacity and ability to purchase receive take hold and enjoy for the purposes aforesaid as well from such persons as shall be so charitably disposed to give the same as from all other persons as shall be willing to sell or alien to the said corporation any (c) Vide supra, p. 1641. 5 q 2 1678 CHURCH EXTENSION. Except by- persons under legal dis- ability. 43 Geo. 3, c. 107. 42 Geo. 3, c. 116. Land tax. 43 Geo. 3, c. 108. Gifts of land not more tban five acres, and goods not more than 500/. may be made for building churches and providing manses and glebes. Excessive gift to be reduced. manors, lands, tenements, goods or chattels, without any licence or writ of ad quod damnum ; the statute of mortmain, or any other statute or law, to the contrary notwithstanding. By sect. 6, " . . . . this act or anything therein contained shall not extend to enable any person or persons, being within age, or of non-sane memory, or women covert, without their husbands, to make any such gift, grant or alienation any thing in this act to the contrary in anywise notwithstanding." By 43 Geo. 3, c. 107, s. 1, the benefactions made under 2 & 3 Anne, c. 20, are exempted from the provisions of 9 Geo. 2, c. 36 (d). By 42 Geo. 3, c. 116, s. 50, money might be left to redeem the land tax on charities, notwithstanding the mortmain laws (e) . By 43 Geo. 3, c. 108, s. 1, it is enacted, "that all and every person and persons (/) having in his or their own right any estate or interest in possession, reversion, or contingency, of or in any lands or tenements, or of any property of or in any goods or chattels, shall have full power, licence, and authority, at his and their will and pleasure, by deed enrolled ... or by his, her, or their last will or testament in writing, duly executed according to law, such deed, or such will or testament, being duly executed three calendar months at least before the death of such grantor or testator, including the days of the execution and death, to give and grant to and vest in any person or persons, or body politic or corporate, and their heirs and successors respec- tively, all such his, her, or their estate, interest, or property in such lands or tenements, not exceeding five acres, or goods and chattels, or any part or parts thereof, not exceeding in value five hundred pounds, for or towards the erecting, rebuilding, repair- ing, purchasing, or providing any church or chapel where the liturgy and rites of the said united church are or shall be used or observed, or any mansion house for the residence of any minister of the said united church officiating, or to officiate in any such church or chapel, or of any outbuildings, offices, churchyard (g), or glebe, for the same respectively, and to be for those purposes applied, according to the will of the said benefactor, in and by such deed enrolled, or by such will or testament executed as aforesaid expressed, the consent and approbation of the ordinary being first obtained, and in default of such direction, limitation, or appointment in such manner as shall be directed and appointed by the patron and ordinary, with the consent and approbation of the parson, vicar, or other incumbent (h). By sect. 2, only one such gift shall be made by one person, and where it exceeds five acres or five hundred pounds the chan- (d) Vide supra, p. 1578. (e) Vide supra, pp. 1365 — 1371. (/) It is said that married women cannot use the privileges given by this act : Be Smith's Estate, Clements V. Ward, 35 Ch. D. p. 589. (g) This does not authorize a gift for the repair of a vault and other objects in a churchyard: ReRiyleijs Trusts, 36 L. J., Ch. p. 147. (A) See O'Brien v. Tijssen, 28 Ch. D. p. 372. THE AUGMENTATION OF BENEFICES. 1G79 cellor may reduce it and allot such specific five acres and such specific goods and chattels as in his judgment shall be most con- venient (i) . By sect. 3, no glebe upwards of fifty acres shall be augmented Restriction, with more than one acre. Sect. 4. " Aud whereas it often happens that small plots of Small plots of land held in mortmain lie convenient to be annexed to some Iaild^ t the purpose of such lease being renewed ; be it therefore further enacted, that in any case in which an augmentation shall have been granted to take effect in possession after the expiration, surrender, or other determination of any lease in the manner authorized by the clause last hereinbefore contained, and a renewal of such lease shall take place before the expiration thereof, it shall be lawful in and by the renewed lease to defer the time from which such augmentation is to take effect in pos- session as aforesaid until any time to be therein specified in that behalf : Provided always, that the time to which the augmenta- tion shall be so deferred shall be some time not exceeding twenty-one years, or (in the case of such houses as by the said act " 14 Eliz. c. 11, " may lawfully be leased for forty years) not exceeding forty years, to be respectively computed from the commencement of the lease during which the augmentation shall have been granted." Sect. 9. "... . where any such augmentation as aforesaid shall Power to ap. have become chargeable, under or by virtue of the said recited portion aug- act or of this act, upon any rectory impropriate, tithes, portion future^eases.11 of tithes, lands, tenements, or other hereditaments, if any lease shall afterwards be granted of any part of the same premises separately from the rest thereof, then and in every such case, and from time to time as often as the same shall happen, it shall be lawful for the person or persons granting such lease to provide and agree that any part of such augmentation shall during such lease be paid out of such part of the hereditaments previously charged therewith as shall be comprised in the said lease, and then and in such case, and thenceforth during the Restriction on lease so to be made as aforesaid, no further or other part of the ^ e o^j? of°f said augmentation shall be charged on the premises comprised apportion1-0 in the said lease than such part of the said augmentation as ment. shall be so agreed to be paid out of the same : Provided always, that in every such case the hereditaments which shall be leased in severalty as aforesaid shall be a competent security for such part of the said augmentation as shall be agreed to be paid out of the same, and the remainder of the hereditaments originally charged with the said augmentation shall be a competent secu- rity for the residue thereof." Sect. 10 repeals so much of 14 Eliz. c. 11, as required an express continuance of the augmentation in new leases. Sect. 11. "It shall be lawful for any archbishop, bishop, Ecclesiastical dean, dean and chapter, archdeacon, prebendary, or other eccle- j£*P|J^^^ siastical corporation or person or persons, or the master and holdrng'im- fellows of any college, or the master or guardian of any propriate rec- 1684 CHURCH EXTENSION. tories or tithes, may- annex the same to any church or chapel within the parish in which the rectory lies or the tithes Power to annex lands h olden by them to any church or chapel under their patron- age. Such annexa- tions to be subject to prior leases and the rents reserved upon the same or some portion thereof to be determined by the deed of annexation. hospital, being, in his or their corporate capacity, the owner or owners of any rectory impropriate, or of any tithes or portion of tithes arising in any particular parish or place, by a deed duly executed, to annex such rectory impropriate, or tithes or portion of tithes as aforesaid, or any lands or tithes, being part or parcel thereof, with the appurtenances, unto any church or chapel within the parish or place in which the rectory impro- priate shall lie, or in which the tithes or portion of tithes shall arise, to the intent and in order that the same may be held and enjoj^ed by the incumbent for the time being of such church or chapel ; and every such deed shall be effectual to all intents and purposes whatsoever, any law or statute to the contrary notwith- standing." Sect. 12. " It shall be lawful for any archbishop, bishop, dean, dean and chapter, archdeacon, prebendary, or other ecclesiastical corporation or person or persons, or the master and fellows of any college, or the master or guardian of any hospital, being, in his or their corporate capacity, the owner or owners of any lands, tenements, or other hereditaments whatso- ever, and also being in his or their corporate capacity the patron or patrons of any church or chapel, by a deed duly executed, to annex such lands, tenements, or other hereditaments, with the appurtenances, unto such church or chapel, to the intent and in order that the same premises may be held and enjoyed by the incumbent for the time being thereof ; and every such deed shall be effectual to all intents and purposes whatsoever, any law or statute to the contrary notwithstanding." Sect. 13. " In any case in which any rectory impropriate, tithes or portion of tithes, lands, tenements, or other heredita- ments, shall be annexed to any church or chapel, pursuant to either of the powders hereinbefore in that behalf contained, the annexation thereof shall be subject and without prejudice to any lease or leases which previously to such annexation may have been made or granted of the same premises or any part thereof ; provided also, that in every such case any rent or rents which may have been reserved in respect of the said premises in and by such lease or leases, or (in case any other hereditaments shall have been also comprised in such lease or leases) some propor- tional part of such rent or rents, such proportional part to be fixed and determined in and by the instrument by which the annexation shall be made, shall during the continuance of the said lease or leases be payable to the incumbent for the time being of the church or chapel to which the premises shall be annexed as aforesaid ; and accordingly such incumbent for the time being shall, during the continuance of such lease or leases, have all the same powers for enforcing payment of the same rent or rents, or of such proportional part thereof as aforesaid, as the person or persons or body politic by whom the annexation shall have been made might have had in that behalf in case the said premises had not been annexed." THE AUGMENTATION OF BENEFICES. 16S5 ib certain cases. Sect. 14. " Where any rectory impropriate, tithes or portion Provisions of of tithes, lands, tenements, or other hereditaments, which shall 39&40Geo.3, • C 4:1 to GX~ be annexed to any church or chapel under either of the powers tend to such hereinbefore in that behalf contained, or any part thereof, shall annexations, have been anciently or accustomably demised with other here- ditaments in one lease, under one rent, or divers rents issuing out of the whole, and after such annexation such other heredita- ments as aforesaid, or any part thereof, shall be demised by a separate lease or leases, all the provisions of" 39 & 40 Greo. 3, c. 41 (u)9 "shall apply and take effect in the same manner as if the premises which shall be so annexed as aforesaid had been retained in the possession or occupation of the person or persons by whom such lease or leases as aforesaid shall be made." Sect. 15. "Such of the powers hereinbefore contained as are Certain restricted to cases in which the corporation or persons by whom J>ow1er^° the same may be exercised shall be the patron of the benefice SOns entitled which it shall be intended or desired to augment, shall apply to to alternate and may be exercised in cases in which such corporation or Presentatl0ns- person shall be entitled only to the alternate right of presenta- tion to such benefice." Sect. 16. " . . . . the power given by the said recited act Benefices ex- shall not at any time hereafter, nor shall any of the powers ^arl^vahie hereinbefore contained, in any case, be exercised so as to aug- 3ooJ.^cl™ ment in value any benefice whatsoever, which at the time of the sive of sur- exercise of the power shall exceed in clear annual value the sum ^Qtc^0f^gS' of three hundred pounds, or so as to raise the clear annual value raiSed and all of any benefice to any greater amount than such sum of three others to be hundred and fifty pounds, or three hundred pounds, not taking lunitecl- account of surplice fees." Sect. 17. " In every case in which it shall be desired, upon Power to de- the exercise of any of the said powers, to ascertain, for the tee^^,^e purposes of this act, the clear yearly value of any benefice, or of ofany here- any rectory impropriate, tithes or portion of tithes, lands, tene- ditaments for ments, or other hereditaments, it shall be lawful for the arch- *f etJ^°ses bishop or bishop of the diocese within which the benefice to be augmented shall be situate, or where the same shall be situate within a peculiar jurisdiction belonging to any archbishop or bishop, then for the archbishop or bishop to whom such peculiar jurisdiction shall belong, to cause such clear yearly value to be determined and ascertained by any two persons whom he shall appoint for that purpose, by writing under his hand (which writing is hereby directed to be afterwards annexed to the instrument by which the power shall be exercised) , and a certifi- cate of such clear yearly value, written or endorsed on the instrument by which the power shall be exercised, and signed by such persons as aforesaid, shall for all the purposes of this act be conclusive evidence of such clear yearly value as afore- said." (u) Vide supra, p. 1301. 1686 CHURCH EXTENSION. By whom the above-men- tioned powers may be exer- cised, and with whose consent. Incumbents not to exercise them. Incumbent may annex tithes, &c. to which he is entitled, arising out of the limits of his benefice, to the church or chapel of the parish where they arise. Power to rectors or vicars to charge their Sect. 18. " . . . . in every case in which the power given by the said recited act, or any of the powers hereinbefore contained (other than and except the aforesaid power of deferring the time at which an augmentation is to take effect in possession), shall be exercised by any bishop, dean, archdeacon, or prebendary, or by the master or guardian of any hospital, the same shall be so exercised, in the case of a bishop, with the consent of the arch- bishop of the province, or in the case of a dean, with the consent of the dean and chapter, or in the case of an archdeacon or prebendary, with the consent of the archbishop or bishop to whose jurisdiction or control they shall be respectively subject, or in the case of the master or guardian of a hospital, with the consent of the patron or patrons, visitor or visitors (if any) of such hospital, such consent as aforesaid to be testified by the said archbishop, dean and chapter, bishop, or patron or patrons, visitor or visitors (as the case may require), executing the in- strument by which the power shall be exercised." Sect. 19. " .... the incumbent of any benefice or living shall not be authorized to exercise any of the powers aforesaid with respect to any hereditaments to which he may be entitled in right of his benefice." Sect. 20. " . . . . where the incumbent of any benefice shall in right of the same be entitled to any tithes or portion of tithes arising in any parish or place not being within the limits of such benefice, it shall be lawful for the incumbent for the time being of such benefice, by a deed duly executed by him, to annex such tithes or portion of tithes as aforesaid, or any part thereof, to any church or chapel within the parish or place in which such tithes or portion of tithes shall arise, to the intent that the same may be enjoyed by the incumbent for the time being of such church or chapel ; and every such deed shall be effectual to all intents and purposes whatsoever, any law or statute to the contrary notwithstanding : Provided always, that every such annexation as aforesaid shall be made with the consent of the archbishop or bishop of the diocese within which the said benefice shall be situate (or if the said benefice shall be situate within a peculiar jurisdiction belonging to any archbishop or bishop, then with the consent of the archbishop or bishop to whom such peculiar jurisdiction shall belong), and also with the consent of the patron or patrons of the said benefice, such consent to be testified by the said archbishop or bishop and the said patron or patrons respectively executing the instrument by which the annexation shall be made " (x)> Sect. 21. "And whereas it is expedient that rectors and vicars should be enabled, under proper restrictions, to charge their rectories and vicarages for the benefit and support of (x) For powers to alter these (49 & 50 Yict. c. 54) applies, vide charges in cases to which the Ex- supra, p. 1188; infra, p. 1698. traordinary Tithe Redemption Act THE AUGMENTATION OF BENEFICES. 1687 chapels of ease situate within such rectories and vicarages, as rectories and also in certain other cases ; Be it therefore further enacted, that the^nefitof it shall be lawful for any rector or vicar for the time being of chapels of any rectory or vicarage, by a deed duly executed by him, to ease, &c. annex to any chapel of ease or parochial chapel, or to any district church or chapel, or any chapel having a district assigned thereto, whether already built or hereafter to be built (such chapel of ease or other chapel or church, with the district or place to which the same belongs, being situate within the limits, or within the original limits, of the said rectory or vicarage), any part or parts of the tithes or other annual revenues be- longing to such rectory or vicarage, or to grant to the incumbent for the time being of any such chapel of ease or other chapel or church, and his successors, any annual sum of money, to be payable by equal quarterly or equal half-yearly payments, and to charge the same on all or any part of such tithes or other revenues as aforesaid, or on any lands or other hereditaments belonging to the said rectory or vicarage ; and in every case in which any such tithes or other revenues shall be annexed to any such church or chapel as aforesaid, the incumbent for the time being thereof shall thenceforth have all the same remedies for recovering and enforcing payment of the premises which shall be so annexed as the rector or vicar for the time being of the rectory or vicarage might have had if such annexation had not been made ; and in every case in which any annual sum of money shall be so granted as aforesaid, the incumbent for the time being entitled thereto shall have all such remedies for recovering and enforcing payment thereof by action of debt against the incumbent for the time being of the said rectory or vicarage, or by distress upon the hereditaments to be charged therewith, or otherwise, as shall in that behalf be specified and given by the deed by which the grant shall be made : Provided always, that every such grant and annexation shall be made with the consent of the archbishop or bishop of the diocese within which the rectory or vicarage shall be situate (or if the rectory or vicarage shall be situate within a peculiar jurisdiction be- longing to any archbishop or bishop, then with the consent of the archbishop or bishop to whom such peculiar jurisdiction shall belong), and also with the consent of the patron or patrons of the said rectory or vicarage, such consent to be testified by the said archbishop or bishop, and the said patron or patrons respec- tively executing the instrument by which the annexation or grant shall be made." In the case of Hughes v. Denton (y), the church of St. Bar- Hughes v. tholomew, Moorfields, was built and endowed within the limits of the parish of St. Giles, Cripplegate. By an order in council in 1850, a particular district was assigned to the church, and authority given to publish banns and solemnize marriages and Denton. (y) 5 C. B., N. S. p. 765 ; 28 L. J., M. C. p. 140. Ifi88 CHURCH EXTENSION. pay the fees to its incumbent. Then it became a separate and distinct parish for ecclesiastical purposes (s). By a local act, 7 Geo. 4, c. liv, the ordinary tithes due in the City of London («), were abolished in the parish of St. Giles, and an' annuity of 1,800/. was secured to the vicar instead. In 1857 the vicar, by a deed under this last section, purported to annex one-sixth of this sum to the incumbency of St. Bartholomew. It was holden (1) that it was possible under the last act to annex a portion of an annuity granted in lieu of tithes; (2) that though St. Bartholomew had become a separate parish, it still remained a church to which a district had been assigned, locally situate within the limits of St. Giles, and therefore capable of augmen- tation out of the funds thereof. Exception to Sect. 22. " And whereas by " 58 Geo. 3, c. 45, " provision was powereCedmg ma c- 8 or this act> sha11 be exercised, the instrument diocese. by which the same shall be so exercised shall within two months be deposited in the registry of the diocese within which the benefice augmented or otherwise benefited shall be locally situate, or where the benefice is within a peculiar jurisdiction belonging to any archbishop or bishop, then in the registry of such peculiar jurisdiction. Office copies By sect. 27, an office copy of any instrument so deposited ment^de" (such office copy being certified by the registrar or his deputy) po^ed in the shall be allowed as evidence thereof in all courts, and every registry to be evidence. (z) Vide infra, Part IX., Chap. and see 17 & 18 Vict. c. 84, s. 6, VI. infra, p. 1691. (a) Vide supra, pp. 1223—1231. (c) Vide supra, p. 1676. (6) Vide supra, pp. 1141, 1142; THE AUGMENTATION OF BENEFICES. 1689 person shall be entitled to require an office copy, and shall be allowed, at usual and proper times, to search for and inspect any Fee. to the instrument so deposited, and the registrar shall be entitled to regls rar' the sum of five shillings for depositing any such instrument, and to the sum of one shilling for allowing any such search or inspection as aforesaid, and to the sum of sixpence (besides stamp duty) for every law folio of seventy-two words in any office copy. By 1 & 2 Yict. c. 107, s. 14, reciting 1 & 2 Will. 4, c. 45, J &*Yict- s. 21, it is further enacted, that "in all cases in which any Extension of contiguous parts of several parishes may have been or shall 1&2W1II. 4 hereafter be united into a separate and distinct district for all c. 45, s. 21. ecclesiastical purposes, and such district shall have been or shall hereafter be duly constituted a consolidated chapelry, it shall be lawful for the rectors or vicars for the time being of the several parishes, parts of which shall have been so united, to have, use and exercise respectively all the same powers and authorities for annexing to any such consolidated chapelry any part or parts of the tithes or other annual revenues belonging to their rectories or vicarages respectively, and for granting to the incumbent for the time being of any such consolidated chapelry and his suc- cessors any annual sum of money, to be payable by equal quarterly or half-yearly payments, and for charging the same on all or any part of such tithes or other revenues as aforesaid, or on any land or other hereditaments belonging to the said rectories or vicarages respectively, as are by the said last-recited act given to rectors and vicars for the augmentation of chapels of ease, and such other chapels and churches as are therein and hereinbefore specified : Provided always, that the exercise of such powers shall be subject to the like consents (to be signified in the same manner) as is required by the said act with regard to the exercise of the powers of the said act for the augmentation of chapels of ease, and the other chapels and churches therein specified ; and in every case in which any such tithes or other revenues shall be annexed by virtue of this act to any consoli- dated chapelry, the incumbent for the time being thereof shall thenceforth have all the same remedies for recovering and enforcing payment of the premises which shall be so annexed as the rectors or vicars for the time being of the said rectories or vicarages respectively might have had if such annexation had not been made ; and in every case in which any annual sum of money shall be granted by virtue of this act to the incumbent of a consolidated chapelry, such incumbent and his successors shall have all such remedies for recovery and enforcing payment thereof by action of debt against the incumbent of the rectory or vicarage by whom any such annual sum shall have been granted, or the incumbent thereof for the time being, or by distress upon the hereditaments to be charged therewith, or otherwise as shall in that behalf be specified and given by the deed by which the grant shall be made." Provisions as to the augmentation of one benefice out of the Where bene- 1690 CHURCH EXTENSION. fices are united . 17 & 18 Vict, c. 84. Powers given by earlier acts may be exer- cised by all incumbents, &c. Incumbent entitled to glebe land may annex the same to church of dis- trict wherein situate. Consents of archbishop or bishop and patron to an- nexation and grant. Section 13 of 1 & 2 Will. 4, c. 45, to ex- tend to an- nexations under this act. f unds of some other benefice, when this latter is to be united to a third, and the two last have revenues more than sufficient for the duties thereof, are contained in 1 & 2 Vict. c. 106, ss. 17, 18, 19 (b) ; and further provisions to the same effect were con- tained in the act 18 & 19 Yict. c. 127, ss. 3 — 7, now expired. The provisions of those acts are further extended by 17 & 18 Yict. c. 84, which enacts as follows : — ►Sect. 1. "The powers which by" 1 & 2 "Will. 4, c. 45, s. 21, and 1 & 2 Yict. c. 107, s. 14, " are given to rectors or vicars of making annexations or grants in aid of churches and chapels may be exercised by the incumbent of any benefice whatsoever within the meaning of the said act " 1 & 2 Will. 4, c. 45, " and may be so exercised although part only of the district chapelry or place to which the church or chapel belongs may be within the limits of such benefice, and whether such church or chapel may be within the limits of such benefice or not." Sect. 2. " Where the incumbent of any benefice shall, in right of the same, be entitled to any glebe land or other land, it shall be lawful for the incumbent for the time being of such benefice, with such consents as hereinafter mentioned, by a deed duly executed by him, to annex such glebe land or other land as aforesaid, or any part thereof, with the appurtenances, to any church or chapel within the parish, district or place in which such glebe land or other land as aforesaid shall be situate, to the intent that the same maybe held and enjoyed by the incumbent for the time being of such church or chapel ; and every such deed shall be effectual to all intents and purposes whatsoever, any law or statute to the contrary notwithstanding." Sect. 3. " Every annexation and grant which shall be made by the incumbent of any benefice in pursuance of any power hereinbefore contained shall be made with the consent of the archbishop or bishop of the diocese within which such benefice shall be situate, and also with the consent of the patron or patrons of such benefice, such consent to be signified by the said archbishop or bishop and the said patron or patrons respectively executing the instrument by which the annexation or grant shall be made." Sect, 4. "In every case in which any land subject to any lease shall be annexed to any church or chapel, in pursuance of the power hereinbefore in that behalf contained, the provisions of " 1 & 2 Will. 4, c. 45, s. 13, "shall apply to such land in the same manner as if such provisions were herein expressly set forth, and in every case in which any rectory impropriate, tithes or portion of tithes, lands, tenements, or other hereditaments, have been or shall be annexed to any church or chapel, in pursuance of any power contained in the said act " 1 & 2 Will. 4, c. 45, " or in this act, and the premises so annexed shall be comprised together with other hereditaments in any lease, the incumbent for the (b) Yide supra, pp. 400—403. THE AUGMENTATION OF BENEFICES. 1691 time being of the said church or chapel shall as to the premises so annexed, and the person, corporation, or body politic by whom such annexation shall have been made, and his or their succes- sors and assigns shall as to the said other hereditaments, have the same rights and remedies for enforcing payment of the pro- portion of rent payable to them respectively, and otherwise have the same rights and remedies under and by virtue of the cove- nants, provisoes and agreements contained in the said lease, as if the said premises so annexed or the said other hereditaments, as the case may be, were the only hereditaments comprised in the said lease." Sect. 5. " Where any rent or annual sum of money granted, Rectories im- reserved, or made payable, or to be granted, reserved, or made ^he^&c'ma payable, under any of the powers of the said hereinbefore men- be released tioned acts or of this act, to the incumbent of any church or from rent- chapel, is or shall be granted, reserved or made payable out of the^ns^fof or charged upon any rectory impropriate, tithes, annual revenues, archbishop, lands, tenements, or other hereditaments, it shall be lawful for &c. the incumbent for the time being of the said church or chapel by a deed duly executed by him, to release any such rectory im- propriate, or any of the said tithes or annual revenues, lands, tenements, or other hereditaments respectively, or any part thereof respectively, from the said rent or annual sum, and the premises so released shall be thenceforth wholly discharged from the said rent or annual sum, and from all remedies for recover- ing and compelling payment thereof, but without in anywise discharging therefrom respectively any rectory impropriate, tithes and revenues, lands, tenements, or hereditaments, thereto- fore charged with the said rent or annual sum, and not by the said deed expressed to be released, or the person or persons, cor- poration or body politic, for the time being liable for the pay- ment of the said rent or annual sum : Provided always, that every such release shall be made with the consent of the arch- bishop or bishop of the diocese within which the said church or chapel shall be situate, and also with the consent of the patron or patrons of the said church or chapel, such consents to be signified by the archbishop or bishop and the said patron or patrons respectively executing the instrument by which the release shall be made : Provided also, that no consent of any archbishop or bishop shall be given to any such release as afore- said unless some rectory impropriate, tithes or other revenues, lands, tenements, or other hereditaments theretofore charged with the said rent or annual sum shall remain unreleased, and be proved to the satisfaction of the said archbishop or bishop to be a competent security for the same, and be expressed to be so proved in the instrument by which such consent shall be signified." Sect. 6. " In every case in which the consent of the patron ^^^JJ be or patrons of the benefice or of any church or chapel is required p^n to con- by any of the hereinbefore mentioned acts or by this act to the sent. P. VOL. II. 5 R 1692 CHURCH EXTENSION. 3 & 4 Vict, c. 113. Sinecures annexed. Patronage exchanged. Income of benefices be- longing to one patron may be apportioned in certain cases. Extended by 17 & 18 Vict, c. 84. Declaration as to 1 & 2 Will. 4, c. 45, and 29 Car. 2, c. 8. 4 & 5 Vict, c. 39. exercise of any of the said powers given by the hereinbefore- mentioned acts or any of them, or by this act, and the person or persons or body to consent as such patron or patrons is not by the said act" 1 & 2 Will. 4, c. 45, " defined, the person or per- sons or body who, if the said benefice or church, or chapel were then vacant, would be entitled to present or nominate or to collate thereto, shall be deemed the patron or patrons whose consent is so required." By sect. 7, this act is to be read as part of 1 & 2 Will. 4, c. 45. By 3 & 4 Yict. c. 113 : Sect. 71. Sinecure preferments may be annexed to benefices with cure of souls (c). By sect. 73, with an especial view to the better care of populous parishes, arrangements may be made for improving the value or making a better provision for the spiritual duties of ill-endowed parishes or districts, by means of exchange of advowsons, or other alterations in the exercise of patronage (d) . Sect. 74. " Arrangements may be made by the like authority for the apportionment of the income of two benefices belonging to the same patron between the incumbents or ministers of such benefices, or the churches or chapels connected therewith : Pro- vided that no such arrangement shall be made with respect to benefices in lay patronage without the consents of the respective patrons, nor in any case so as to prejudice the interests of any existing incumbent, nor without the consent of the bishop of the diocese, nor, in the case of benefices lying in more than one diocese, without the consent of the bishop of each diocese, nor where a bishop is himself one of the patrons, without the consent of the archbishop also." By 17 & 18 Yict. c. 84, s. 8, the provisions of this last section " shall apply to any lands, tithes, tithe rent-charges, or other hereditaments or sources of income of what nature or kind soever belonging to such benefices, and shall apply to any number of benefices belonging to the same patron, including any united benefice ;" and " every church or chapel possessed of any endowment or capable of receiving the same, and also any sinecure rectory, so far as regards the transfer of its endow- ment or any portion thereof to any benefice, shall be deemed a benefice for the purpose of such arrangements or any of them." Sect. 76 of 3 & 4 Yict. c. 113, enacts, that nothing in that act shall prejudice 1 & 2 Will. 4, c. 45, or 29 Car. 2, c. 8, " Provided nevertheless, that after the passing of this act no augmentation made under such provisions, by any bishop or by any chapter whose revenues are affected by this act or the said first-recited act, shall be valid and effectual without the consent of the ecclesiastical commissioners for England." This is extended by 4 & 5 Yict. c. 39, s. 26, " to every dean, (c) Vide supra, p. 384. (d) Vide supra, p. 275. THE AUGMENTATION OF BENEFICES. 1693 canon, prebendary or other dignitary or officer whose revenues Augmenta- are or may be affected by any of the provisions of the said two ^ 4 first recited acts or either of them, or of this act." The section c. 45? may be' continues : " and if for the purpose of more fully carrying into made by all effect the provisions of the said act relative to augmentations it g°[P.oratlons shall appear to the said commissioners and to any bishop or and '^i^in chapter to be expedient that any land belonging to such bishop iana may be or chapter adjacent to or situate within the distance of twenty let or sold for miles from any city or town should be let or sold for purposes that PurPose- of building or other improvement, it shall be lawful for such bishop or chapter, as the case may be, with the consent of the said commissioners under their common seal, to grant any lease or leases of such land for such period or periods and upon such conditions as the said commissioners, having regard to the cir- cumstances of the case, shall deem just and equitable, or, with the like consent, to convey the said land in fee simple for such price as shall appear to the said commissioners to be the full value thereof : provided that the rent in the former case, or the purchase-money in the latter case, after reserving to the bishop or chapter, as the case may be, an annual payment equal to the amount theretofore enjoyed in respect of the land so let or sold, shall be wholly applied to the purposes of the said last-men- tioned act, the consent of the said commissioners being in all cases necessary to the particular application thereof : Provided also, that if it be deemed expedient with a view to the better effecting of such purposes, such rent or purchase-money, or any part thereof, may, with the like consent, be at any time re- invested in the purchase of land." By 2 & 3 Yict. c. 49, s. 2, it is provided, " that in the case 2 & 3 Vict, of any church or chapel which has already been or hereafter c' 49 ' may be augmented by the said governors of the bounty of mentedg" Queen Anne, and for or to which any district chapelry has church or already been or hereafter may be assigned, whether before chapel having SJ~ -\ 1 j it • • j. ,1 • j a district to be or alter such augmentation under the provisions ot the said a perpetual recited acts or some of them, such church or chapel, from and curacy, and after such augmentation, and the assignment of such district J^™^8^1" chapelry, shall be and is hereby declared to be a perpetual cumbentwi"th curacy and benefice, and the minister duly nominated and perpetual suc- licensed thereto, and his successors, shall not be a stipendiary cessl0I1> 'Ac- curate, but shall be and esteemed in law to be a perpetual curate, and a body politic and corporate, with perpetual succes- sion, and may receive and take to himself and his successors all such lands, tenements, tithes, rent-charges, and hereditaments as shall be granted unto or purchased for him or them by the said governors of the bounty of Queen Anne, or otherwise ; and such perpetual curate shall thenceforth have within the district chapelry so assigned as aforesaid sole and exclusive cure of souls, and shall not be in anywise subject to the control or interference of the rector, vicar, or minister of the parish or place from which 5r2 1691 CHURCH EXTENSION. Order in Council for augmentation of benefices. 3 & 4 Vict, c. 60. Licence in mortmain not necessary in cases of en- dowment. Unless the endowment exceeds 3001. a year. Additional endowments may be made at any time. such district chapelry shall have been taken, any law or statute to the contrary notwithstanding " (e). An Order in Council, dated October 21, 1842, confirmed a scheme, recommended by the Ecclesiastical Commissioners, for raising to the sum of 150/. (as nearly as may be) the average annual net income of the several benefices and churches enume- rated and described in the schedule, out of the common fund of the Ecclesiastical Commissioners. There followed a schedule of the benefices augmented, under the following divisions : 1st, name of benefice ; 2nd, quality ; 3rd, diocese ; 4th, county ; 5th, annual payment of each benefice. By 3 & 4 Yict. c. 60, s. 2, " In any case where, under the hereinbefore recited acts (/), or either of them, or of this act, an endowment, grant or conveyance, consisting of or arising out of houses, lands, tithes, advowsons, rent-charges, tenements or other hereditaments, or consisting of money to be laid out in lands or other hereditaments, is authorized to be made, for the purpose of a site for any church or chapel, or churchyard, or parsonage house or glebe, or for the use or benefit of any church or chapel, or of the incumbent or minister thereof, or for the repairs thereof, such endowment, grant, or conveyance, whether made before or after the passing of this act, shall be good and valid, without any licence or writ of ad quod damnum, the statutes of mort- main, or any other statute or law to the contrary notwith- standing." Sect. 3 " nothing herein contained shall authorize an exemption from the provisions of the Mortmain Acts where, in the case of an endowment as aforesaid for the use or benefit of any church or chapel, or of the incumbent or minister thereof, such endowment, whether made at one period or at different periods, shall in any one case exceed in the whole the clear annual value of" 300/. By sect. 4 power is given to the church building commis- sioners, or to the bishop, to cause the clear annual value of the endowment to be determined. Sect. 17. " An additional permanent endowment may be at any time made for the use or benefit of any church or chapel, or of the incumbent or minister thereof, which may have been previously built and endowed under the said last-mentioned acts or either of them ; and such additional endowment may consist of houses, lands, tithes, advowsons, rent-charges, tene- ments or other hereditaments, or of money in the funds, or of money to be laid out in lands, or other hereditaments : Provided always, that nothing herein contained shall be construed to extend to the authorizing any such additional endowment, with- out the same being subject to the provisions of the Mortmain acts, which shall amount, together with the former endowment (e) Vide supra, p. 243. (/) Apparently all the previous Church Building Acts. THE AUGMENTATION OF BENEFICES. 1695 or endowments, in any one case to more than the clear yearly value of " 300/. By G & 7 Vict. c. 37, s. 22, as amended and extended by 6 & " Vict. 7 & 8 Vict. c. 94, s. 7, and 28 Yict. c. 42, s. 7, it is enacted, that vicTc.V! \ " all and every person or persons, or body corporate, having in and 28 Vict, his or their own right any estate or interest in possession, rever- c- 42 • sion, or contingency of or in any lands, tithes, tenements, or other hereditaments, or any personal estate or property whatso- ever, shall have full power, licence and authority, at his and their will and pleasure, by deed enrolled .... in the case of any lands, tithes, tenements, or other hereditaments (but without any deed in the case of any goods or chattels [personal estate or property]), or by his or their testament in writing" [including therein any testamentary paper or testamentary appointment under a power] " duly executed according to law, to give and grant to and vest in the ecclesiastical commissioners and their successors all such his or their estate, interest, or property in such lands, tithes, tenements or other hereditaments" [goods and chattels], "personal estate and property whatsoever, or any part or parts thereof, for and towards the endowment or augmenta- tion of the income of such ministers or perpetual curates as aforesaid, or for or towards providing any church or chapel for the purposes and subject to the provisions of this act " [or for the purposes of purchasing any tithes, or to give any tithes with a view to the annexation of such tithes to a district church], " and to be for such purposes respectively applied, according, to the will of such benefactors respectively, as in and by such deed enrolled, or such testament executed as aforesaid, may be expressed, or in the case of no deed or testament, as may in some other manner be directed, and in default of such ex- pression or direction, then in such manner as shall be directed by the authority hereinbefore mentioned ; and such commis- sioners and their successors shall have full capacity and ability to purchase, receive, take, hold, and enjoy, for the purposes aforesaid, as well from such persons as shall be so charitably disposed to give the same, as from all other persons who shall be willing to sell or alien to the said commissioners any lands, tithes, tenements, or other hereditaments, goods or chattels" [per- sonal estate and property], " without any licence or writ of ad quod damnum . . . . " (g). A bequest of money, contingent upon the object being legally Case under attained at the testator's death or within twenty-one years after, the section, for providing a site for a church at B., in the parish of W., with proper schools, and for endowing the church, is good under this last section, and will pass to the ecclesiastical com- missioners, if within the time a district is constituted under the statute (h). (g) The words within square (h) Baldwin v. Baldwin, 22 Beav. brackets are those of the amending p. 419 ; 26 L. J., Ch. p. 121. act or acts, as the case may be. 1696 CHURCH EXTENSION. 14 & 15 Vict, c. 97. Any ecclesia- stical corpora- tion may- grant land or tithes. 19 & 20 Vict, c. 104. Section 22 of 6 & 7 Vict, c. 37, to apply to ecclesiasti- cal and col- legiate corpo- rations. Lands, tithes, &c. and other endowments to vest in incumbent and his suc- cessors. By 14 & 15 Yict. c. 97, s. 24, the powers and provisions contained in 6 & 7 Yict. c. 37, s. 22, "enabling persons and bodies corporate to give and grant lands, tithes, tenements, or other hereditaments for the purposes of the said act, shall be construed and held to authorize any ecclesiastical corporation, aggregate or sole, to give or grant any land or tithes belonging to such corporation in the manner and for the purposes in the said act mentioned : Provided always, that the power hereby given shall only be exercised with the following consents in writing ; that is to say, in the case of a college, with the consent of a visitor ; in the case of a bishop, with the consent of the archbishop of the province ; in the case of a dean, with the con- sent of the dean and chapter ; in the case of a canon or preben- dary, with the consent of the patron of such canon or prebend respectively ; in the case of the incumbent of a benefice, with the consents of the bishop of the diocese and the patron of such benefice; " and the provisions of 1 & 2 Yict. c. 106 (h), " respect- ing the party or parties to be deemed patron or patrons, and also respecting the manner in which and the party by whom any such consent is to be given, shall be held to apply to the consents hereby required." By 19 & 20 Yict. c. 104, s. 4, the powers and provisions contained in the twenty-second section of 6 & 7 Yict. c. 37, " enabling any person or body corporate to give and grant lands, tithes, tenements, or other hereditaments, goods or chattels, for the purposes of the said act, shall be construed and held to authorize any ecclesiastical or collegiate corporation, aggregate or sole, to give or grant any lands, tithes, tenements, or other hereditaments, goods or chattels, belonging to such corporation, in such manner as is in the said firstly and secondly recited acts mentioned, for the purposes of the said recited acts (i) or of this act : Provided always, that the said powers shall not be exercised by the incumbent of any benefice with cure of souls without the consent of the patron of such benefice." By sect. 23, "All endowments, of whatever form and cha- racter, which shall hereafter be provided for any parish, district, or benefice, and the church or chapel thereof, under the pro- visions of the said firstly and secondly recited acts (i) or of this act, shall be settled and assured by the body or person providing the same, to the satisfaction of the commissioners, by such deed or deeds and in such manner as the commissioners shall from time time direct, unto and to the use of the incumbent for the time being of the church or chapel of such parish, district, or bene- fice, and his successors for ever ; and such deeds shall be valid and effectual in law to all intents and purposes, whether such church or chapel shall be vacant or full of an incumbent, and notwithstanding the statute of mortmain or any other law or statute whatsoever." (h) Vide supra, pp. 1141, 1142. (t) 6 & 7 Vict. c. 37, and 7 & 8 Vict. c. 94. THE AUGMENTATION OF BENEFICES. 1697 By 28 & 29 Yict. c. 42, The District Church Tithes Act, 28 & 29 Vict. 1865, it is enacted as follows : — c- 42- Sect. 2. " For the purposes of this act ' district church ' "What are in- shall include any chapel of ease or parochial chapel, or any tended by district church or chapel or any church or chapel having a Sfchurch'' district assigned thereto, whether already huilt or hereafter to "district,"' be huilt, and the church of any parish formed or to be formed ' ' ^tlies''.' under the new Parishes Acts, 1843, 1844, and 1856, or any underthlsact- of such acts (It) ; and ' district ' shall include any such parish as last aforesaid, or any ancient or consolidated chapelry, or any parish or district formed under any of the Church Building Acts, or any other general or local act ; and ' tithes ' shall in- clude 1 commutation rent-charges, and all moduses, compositions, prescriptive and other payments, or redemption money in lieu of tithes,' or any part or parts thereof respectively, and any land for which such tithes, or other payments in lieu thereof, may have been commuted." Sect. 3. " The rector or vicar for the time being of any Any rector rectory or vicarage may agree with the incumbent of any may annex tit hp^ iTTirno* district church either wholly or in part situate within the limits within the or original limits of the said rectory or vicarage, to annex to district to a such district church the tithes or part of the tithes belonging to ^^ct hi • -. . • • . n . cnurcn. such rectory or vicarage, and arising m respect oi property situate within the district belonging to such district church, in consideration of a sufficient compensation being made to the said rector or vicar and his successors for the loss of the said tithes out of the endowments of the said district church or by some other means." Sect. 4. " No agreement shall be valid on the part of a rector Consents re- or vicar under this act unless it be assented to, firstly, by the ^n1ee^att°0J1tlcl1 archbishop or bishop of the diocese within which his rectory or vicarage is situate, or if it be situate within a peculiar jurisdic- tion belonging to an archbishop or bishop by such last-men- tioned archbishop or bishop, and secondly, by the patron of the rectory or vicarage ; and no agreement shall be valid on the part of the incumbent of a district church, except with the con- sent of the patron of such church, and with the approval of the Ecclesiastical Commissioners for England, where the compensa- tion to be made to the rector or vicar is payable out of funds in the hands of the said Commissioners, and of the Governors of the Bounty of Queen Anne for the augmentation of the mainten- ance of poor clergy, where the compensation to be made is pay- able out of funds in the lands or subject to the control of the said Governors." Sect. 5. " Any agreement under this act between a rector and Agreements vicar on the one part, and an incumbent of a district church on ^tin^ the other, shall be in writing under their respective hands." Sect. 6. " Any assents required by this act may be testified How assents to be testified. (k) Yide infra, Part IX., Chap. VI. 1698 CHURCH EXTENSION. Ecclesiastical commissioners to carry agree- ment into execution. Augmenta- tion on ex- change. By municipal corporations. By parish- ioners. By lord chan- cellor. Alterations in cases of extraordinary tithes. 36 & 37 Vict, c. 50. Power to grant land to be used as sites for places of worship and residences of minister. by the assenting party executing the agreement between the rector or vicar and the incumbent of the district church, and the provisions of the above-mentioned act (*), and of the act " 17 & 18 Vict. c. 84 (k), "as to patrons of benefices, shall apply to the assent of patrons under this act " And by sect. 8 of 28 & 29 Yict. c. 42, modified by 29 & 30 Vict. c. Ill, s. 22, it is provided, that "any agreement made in pursuance of this act shall be carried into effect by the Ecclesiastical Commissioners for England," and any instrument under the corporate seal of the said commissioners made in pursuance of such agreement, "and transferring on the one side the tithes proposed to be transferred to the incumbent of the district church, and on the other securing to the rector or vicar the compensation agreed upon, shall be valid to vest in the said incumbent and his successors such tithes, and to secure to the said rector or vicar such compensation." Former owners of advowsons, who have exchanged them for others under the provisions of 16 & 17 Yict. c. 50, may never- theless, by sect. 5 of that act, have the same powers of augment- ing them as if they had not passed from them (/). By 1 & 2 Vict. c. 31, s. 3 (now repealed), municipal corpora- tions might, and by 45 & 46 Vict. c. 50, they still may, continue to augment priestships, preacherships, &c, in their gift as before (m). Where advowsons are sold by parishioners and others under 19 & 20 Vict. c. 50 (n), or by the lord chancellor under 26 & 27 Vict. c. 120 (o), the proceeds of the sale may be applied in aug- menting the benefice, or in some cases, other benefices in the gift of the lord chancellor. By the Extraordinary Tithe Eedemption Act, 1886 (49 & 50 Vict. c. 54), s. 13, where incumbents in receipt of extraordinary tithes have fixed charges on their benefices in favour of other churches, the ecclesiastical commissioners may make such altera- tions in view of the altered state of things as they deem equitable (p). New powers of granting land for religious purposes have been given by the Places of Worship Sites Act, 1873 (36 & 37 Vict, c. 50), which provides as follows : — Sect. 1. "Any person or persons being seised or entitled in fee simple, fee tail, or for life or lives of or to any manor or lands of freehold tenure, and having the beneficial interest therein, and being in possession for the time being, may grant, convey, or enfranchise by way of gift, sale, or exchange in fee simple, or for any term of years, any quantity not exceeding (i) 1 & 2 Will. 4, c. 45, supra, (n) Vide supra, pp. 282—285. p. 1686. (o) Vide supra, pp. 297—303. (Art Vide supra, p. 1691. (p) Vide supra, p. 1188, where I) Vide supra, p. 274. the section is set out in full, ra) Vide supra, p. 285. THE AUGMENTATION OF BENEFICES. 1699 one acre of such land, not being part of a demesne or pleasure ground attached to any mansion house, as a site for a church, chapel, meeting house, or other place of divine worship, or for the residence of a minister officiating in such place of worship or in any place of worship within one mile of such site, or for a burial place, or any number of such sites, provided that each such site does not exceed the extent of one acre : Provided also, that no such grant, conveyance or enfranchisement made by any person seised or entitled only for life or lives of or to any such manor or lands shall be valid unless the person next entitled to the same for a beneficial interest in remainder in fee simple or fee tail (if legally competent) shall be a party to and join in the same, or if such person be a minor, or married woman, or lunatic, unless the guardian (q), husband, or committee of such person respectively shall in like manner concur : Provided also, If land cease that in case the said land so granted, conveyed or enfranchised p^rpdses^f^ as aforesaid, or any part thereof, shall at any time be used for act, then to any purpose other than as a site for such place of worship or revert, residence, or burial place, or, in the case of a place of worship or residence, shall cease for a year at one time to be used as such place of worship or residence, the same shall thereupon revert to and become a portion of the lands from which the same was severed, as fully to all intents and purposes as if this act had not been passed, anything herein contained to the contrary notwith- standing. The provisions hereinbefore contained with respect to any manor or lands of freehold tenure shall apply to lands of copyhold or customary tenure, but so, nevertheless, that the pro- visions of the Lands Clauses Consolidation Act, 1845 (r), with respect to copyhold lands (being sections 95, 96, 97, and 98 of such act), shall for the purposes of this enactment be incor- porated with this act." Sect. 2. " The purchase money or enfranchisement money or As to payment money to be received for equality of exchange on any such sale, mo^eyC aSG" enfranchisement, or exchange shall, if such sale, enfranchise- ment, or exchange be made by any person or persons seised or entitled in fee simple or fee tail, be paid to the person or persons making such sale, enfranchisement, or exchange, but if such sale, enfranchisement, or exchange be made by any person or persons seised or entitled for life or lives only, then such purchase money, or enfranchisement money, or money to be received for equality of exchange, shall be paid to the exist- ing trustees or trustee (if any) of the instrument under which such person or persons is or are so seised or entitled, to be held by them upon the trusts upon which the land conveyed for such site was held, or if there be no such existing trustees or trustee (q) Where the natural guardian and The Ecclesiastical Commissioners, is the tenant for life, his concur- L. R., 2 Ch. D. p. 29, reversing lie rence will be sufficient, and with it Marquis of Salisbury, L. E. 20 Eq. a conveyance can be made under p. 527. this act. Be Marquis of Salisbury (r) 8 & 9 Vict. c. 18. 1700 CHURCH EXTENSION. to two or more trustees to be nominated in writing by the person or persons making such sale, enfranchisement, or exchange ; and the receipt of any person or persons to whom such money is hereby directed to be paid shall effectually discharge the person or persons paying such purchase or enfranchisement money or money for equality of exchange therefrom, and from all liability in respect of the application thereof . . . ." Persons under Sect. 3. " Where any person or persons is or are equitably empowered to en^tled to any manor or lands, but the legal estate therein shall grant for pur- be in some trustee or trustees, it shall be sufficient for such poses of act. person or persons to convey or otherwise assure the same for the purposes of this act without the trustee or trustees being party or parties to the conveyance or other assurance thereof, and where any married woman shall be seised or possessed of or entitled to any estate or interest, manorial or otherwise, in land proposed to be conveyed or otherwise assured for the purposes of this act, she and her husband may convey, or otherwise assure the same, for such purposes by deed without any acknowledg- ment thereof; and where it is deemed expedient to purchase any land for the purposes aforesaid belonging to or vested in any infant or lunatic, such land may be conveyed or otherwise assured by the guardian of such infant or the committee of such lunatic respectively, who may receive the purchase money for the same, and give valid and sufficient discharges to the party paying such purchase money, who shall not be required to see to the application thereof ; and in every such case respectively the legal estate shall, by such conveyance or other assurance, vest in the trustees of such place of worship or residence ; and if any land taken under this act be subject to any rent, and part only of the land subject to any such rent be required to be taken for the purposes of this act, the apportionment of such rent may be settled by agreement between the owner of such rent and the person or persons to whom the land is conveyed ; and if such apportionment be not so settled by agreement, then the same shall be settled by two justices as provided in the Lands Clauses Consolidation Act, 1845 (s), sect. 119 : Provided never- theless, that nothing herein contained shall prejudice or affect the right of any person or persons entitled to any charge or incumbrance on such land." Form_ of Sect. 4 gives the following form of grant : — grants, c. M j j-^, un(}er ^he authority of an act passed in the thirty- sixth and thirty-seventh years of her Majesty Queen Victoria, intituled, An Act to afford further Facilities for the Conveyance of Land for Sites for Places of Eeligious Worship and for Burial Places, do hereby freely and voluntarily, and without any valuable consideration [or, do, in the consideration of the sum of pounds to me or the said paid], grant [alienate] and convey («) 8 & 9 Vict. c. 18. THE AUGMENTATION OF BENEFICES. 1701 [or lease] to A. B. all [description of the premises], and all [my or our or the right, title, and interest of the] to and in the same and every part thereof, to hold unto and to the use of the said and his or their heirs, or executors, or administrators, or successors, for the pur- poses of the said act, and to be applied as a site for a place of worship, or for a residence for a minister or ministers, officiating in , or for a burial place, and for no other purposes whatever. [Tn case the site be conveyed to trustees, a clause providing for the removal of the trustee*, and in cases where the land is purchased, exchanged, or demised, usual covenants or obligations for title may be added. ~] " In witness whereof, the conveying and other parties have hereunto set their hands and seals, the day of " Signed, sealed, and delivered by the said M in the presence of of ." And proceeds : "One witness to the execution of the document by each party shall be sufficient, and any assurance under this act shall be and continue valid if otherwise lawful, although the donor or grantor shall die within twelve calendar months from the execution thereof." Sect. 5. " The persons hereinbefore specified may convey, by Eeclesiastical way of gift, sale, or exchange, any site or sites, not exceeding commissioners in the case of any one site the quantity aforesaid, for any of the ^^ft^CCept purposes of the Church Building Acts, to the Ecclesiastical Commissioners for England, or as such commissioners may direct, and such commissioners may also act as trustees for the purpose of taking and holding any sites granted under this act ; and all conveyances made under this present enactment shall be deemed to be made under the Church Buildings Acts, and the land conveyed shall vest in conformity with such conveyances and the Church Building Acts." By 45 & 46 Viet c. 21, s. 1, "The Places of Worship Sites Act, 45 & 45 Vict. 1873" (36 & 37 Yict. c. 50), "shall be construed as extending to c; 2L authorize any corporation, ecclesiastical or lay, whether sole or ^^e^nce of aggregate, and any officers, justices of the peace, trustees, or ecclesiastical commissioners holding land for public, ecclesiastical, parochial, and otlie.r charitable, or other purposes or objects, to grant, convey, or another*13 enfranchise for the purposes of the act such quantity of land as public bodies, therein mentioned : Provided as follows : (a) An ecclesiastical corporation sole, being below the dignity of a bishop, shall not make any such grant without the consent in writing of the bishop of the diocese to whose jurisdiction he is subject : (b) A municipal corporation shall not make any such grant without the consent in writing of the Commissioners of Her ^Majesty's Treasury : (c) Parochial property shall not be so granted without the 1702 CHURCH EXTENSION. consent of a majority of the ratepayers and owners of property in the parish to which the property belongs, assembled at a meeting to be convened according to the mode pointed out in the act of the session held in the fifth and sixth years of the reign of King William the Fourth, chapter 69, intituled 'An Act to facilitate the conveyance of workhouses and other property of parishes, and of incorporations or unions of parishes in England and Wales,' and of the Local Government Board and of the guardians of the poor of the parish or of the union comprising the parish, testified by their being parties to the conveyance : (d) Property held on trust for charitable purposes shall not be so granted without the consent of the charity commissioners for England and Wales." Poorer for Sect. 2. " The said act shall be construed as extending to incase ™neT authorize any person seised or entitled only for life or lives of or unborn or un- to any manor or lands of freehold tenure to make such grant, ascertained conveyance, or enfranchisement as is mentioned in the said act in manatoder" cases where the person next entitled to the same for a beneficial convey, &c. interest in remainder in fee simple or fee tail is unborn or un- ascertained : Provided that no such grant, conveyance, or enfran- chisement made by any such person seised only for a life or lives shall be valid unless the person seised or entitled for a beneficial interest for life or lives, or for an estate in fee simple or fee tail (as the case may be) in remainder immediately expectant on the estate of such unborn or unascertained person of or to such manor or lands (if any, and if legally competent) shall be a party to and shall join in the same ; and if there be no such person, or if such person be not legally competent, unless the trustees or trustee (if any) of such manor or lands during the suspense or contingency of the then immediate or expectant estate in fee simple or fee tail in such manor or lands shall in like manner concur." ( 1703 CHAPTER V. THE BUILDING OF CHURCHES. The various acts with reference to this purpose have had for Object of acts, their immediate object the best method of disposing of certain sums of 1,000,000?. and 500,000/. voted by parliament, and of the benefactions which private individuals have been autho- rized to make, in order to increase the number of churches in the kingdom. The sum of 1,000,000/. in exchequer bills was granted by 58 Geo. 3, c. 45 ; and the further sum of 500,000/. by 5 Greo. 4, c. 103. Previously, however, to these acts had been passed 43 Greo. 3, 43 Geo. 3, c. 108, which is set out in the previous chapter, with the cases c- 108- decided on its construction (a). The statute 51 Geo. 3, c. 115, and the case of Forbes v. The 51 Geo. 3, Ecclesiastical Commissioners (b), decided on the construction of c- 115- this section, have also been already mentioned (c). And by 52 Geo. 3, c. 161, s. 27 (which, however, is repealed 52 Geo. 3, by 10 Geo. 4, c. 50, s. 1, except as to the Duchy of Lancaster), the c. 161. lords of the treasury may by warrant appropriate small portions of crown lands for curtilages or accesses to churches. The important act, 36 & 37 Yict. c. 50, enabling any person 36 & 37 Vict, seised in fee simple, fee tail, or for life or lives, and having the c- 50- beneficial interest therein, to give, sell, or exchange an acre of land for a site for a church or chapel, or the residence house of a minister, or for a burial place, and to give any number of such sites, subject to the conditions and in the manner pro- vided by the act, has been given at length in the preceding chapter (d). So has the act 45 & 46 Yict. c. 21, which gives further exten- 45 & 46 Vict, sions to its provisions (e). 0. 21. By the aforesaid act, 58 Geo. 3, c. 45, certain commissioners, 58 Geo. 3, commonly called " The Church Building Commissioners," were c' 45 \ appointed for ten years, who were to examine and inquire into ^^rc™61^ the spiritual condition of parishes in order to ascertain where building com- new churches were most required, and to employ the sum of missioners. 1,000,000/. above mentioned in building the churches requisite, (a) Vide supra, p. 1678. (b) L. E., 15 Eq. p. 51. (c) Vide supra, p. 1679. (d) Vide supra, p. 1698. (e) Vide supra, p. 1701. 1704 CHURCH EXTENSION. 19 & 20 Vict, c. 55. Provisions as to church rates. Distribution of parliamen- tary grant. Acceptance of sites for churches. Grants by persons under disability. and otherwise to carry into execution the provisions of the act. The commissioners were afterwards made a hody corporate, and the term of their commission was continued hy divers acts, till at last by 19 & 20 Yict. c. 55, their powers were, from January 1, 1857, transferred to the ecclesiastical commissioners (e). One of the means by which the church building commis- sioners were authorized to assist the building of new churches was by making loans to parishes on security of the church rates, or meeting funds raised by church rates by contributions to an equal amount out of their own fund. Since the Compulsory Church Eate Abolition Act, 1868, 31 & 32 Yict. c. 109, these provisions have become obsolete, except in so far as they relate to past transactions in which the loans on the security of the church rates have not yet been paid off (/) . The provisions which appear to have no application, except to this purpose, are con- tained in 58 Geo. 3, c. 45, ss. 35, 54 — 61 ; 59 Geo. 3, c. 134, ss. 14, 23—25, 36, 40 ; 3 Geo. 4, c. 72, ss. 5—7, 11 ; 5 Geo. 4, c. 103, s. 13. On the construction of some of these now obsolete sections were decided the cases of Warner v. Gater (g) and Piggott v. Bearbhck (//). Certain rules were laid down for the guidance of the church building commissioners in the distribution of the sums voted by parliament, as to the amount of population and the existing church accommodation, the prospect of subscriptions in aid, &c, in the parishes to be benefited ; but as the sums voted by parlia- ment have been long since practically expended, these provisions are not now of much practical importance. They were contained in 58 Geo. 3, c. 45, ss. 13, 14, 15 ; 59 Geo. 3, c. 134, ss. 4, 5, 6, 7, 22 ; 3 Geo. 4, c. 72, s. 32 ; 8 & 9 Yict. c. 70, s. 12. By 58 Geo. 3, c. 45, s. 33, the commissioners are empowered to accept sites for churches and chapels with churchyards ; and every such site when it is conveyed to the commissioners and the church is erected thereupon, and notice thereof is given to the bishop of the diocese, shall become for ever thereafter devoted to ecclesiastical purposes only, in order that the same may be con- secrated by the bishop. By various sections (?') in this and the following acts, powers, similar to those given to so many public undertakings by virtue of the Lands Clauses Consolidation Act (j) , are given to the crown, to public bodies, corporations, and generally to persons under disability, enabling them to convey sites for churches and chapels to the commissioners. Provision was made for appor- (e) Vide supra, p. 1674. (/) Vide supra, p. 1446. (g) 2 Curt. p. 315. (h) 3 N. C. p. 85. (i) 58 Geo. 3, c. 45, ss. 34, 36— 54; 3 Geo. 4, c. 72, ss. 1—4, 8, 29, 32 ; 5 Geo. 4, c. 103, s. 19 ; 1 & 2 Vict. c. 107, s. 6; 8 & 9 Vict. c. 70, ss. 19, 20, 21, 24; 19 & 20 Vict, c. 104, s. 28. By 59 Geo. 3, c. 134, s. 20, corporations and persons under disability might grant stone, timber, &c. for building churches. {j) 8 & 9 Vict. c. 18. THE BUILDING OF CHURCHES. 1705 tioning quit or other rents in cases where the lands so conveyed were, with other lands, subject to quit rents or comprised in a lease, by 3 Geo. 4, c. 72, s. 9, for cases under that act; and generally by 14 & 15 Yict. c. 97, s. 27, and 17 & 18 Yict. c. 22. The commissioners may also, under certain restrictions (k), Compulsory put in force compulsory powers for taking sites which they may purc ase" require ; and where a parish does not require their aid in other respects, they may be invoked for the purpose alone of procuring a safe conveyance of a site through their instrumentality (I). Provision is made for the ascertainment and payment of the purchase-money, and for the re-sale of lands not required. The title to a site is not to be questioned after five years (m). When titles This provision, it has been decided, in the case of The Attorney- unquestion- General v. The Bishop of Manchester, must be construed most able* strictly, so as to extend only to sites transferred to the commis- sioners for building churches or chapels thereon, and not to chapels actually built which are transferred to them in violation of some trust (n). In the same case it was holden that the words in 3 Geo. 4, c, 72, s. 1, which are the largest in any of the church building acts, empowering the master general of the ordnance, the principal officers of any public department, and "any and every body politic, corporate and collegiate and cor- poration aggregate or sole," and " any trustees, guardians, com- missioners, or other persons having the control, care, or manage- ment of any hospital, schools, charitable foundations, or other public institutions, to give, grant and convey any messuages, buildings, lands, grounds, tenements or hereditaments respec- tively," do not authorize the conveyance of a private chapel belonging to a charityr in violation of the rights of the charity by the trustees thereof, not for valuable consideration, but in order that the chapel might be consecrated and made a parish church. In this case the chapel had been actually consecrated, and an order in council assigning a district to it had been ob- tained; but on an information and bill filed, the Court of Chan- cery held the conveyance to the commissioners to be a breach of trust and ordered them to reconvey the chapel to the trustees of the charity (m). Provision was made by 59 Geo. 3, c. 134, s. 34, in the acts for Where land the case of lands being in the possession of the commissioners and not yet consecrated at the expiration of the term of years or c ^ * to which the commission was limited. And by 3 & 4 Yict. c. 60, s. 19, in cases where land has been conveyed to the commis- sioners under 1 & 2 "Will. 4, c. 38, to be hereafter referred to, or 1 & 2 Yict. c. 107, and a part only of the land is required for the purposes for which it was originally conveyed to them, the (k) 58 Geo. 3, c. 45, s. 53. ing and endowing under that act, U ) Ibid. s. 52. provided they pay the original value (m) 3 Geo. 4, c. 72, s. 29. A of the lands (s. 18). similar provision is contained in (n) To be ascertained as directed 1 & 2 Will. 4, c. 38, s. 17, as to sites by L. R., 3 Eq. p. 436. conveyed to private persons build- 1706 CHURCH EXTENSION. or trusts. commissioners may, with the consent of the grantor or donor, appropriate the rest to other ecclesiastical purposes or to any charitable or public purpose relating to the parish or place in wbich the land is situate. Remission of It should be here noted that for the purposes of these acts, duties. and for facilitating the erection of churches under them, various duties on brick, stone and timber (then payable), and stamp duties on instruments, were remitted (o). 3 Geo. 4, c. 72. By 3 Greo. 4, c. 72, all powers and provisions in local acts are Cases under to remain good, and may be put in force for the objects of this special acta act (py And, by sect. 33, the commissioners may make grants to churches or chapels already subject to special trusts, and may at the same time, by special resolution, confirm the trusts already existing. In whom sites By the earlier acts, 58 Greo. 3, c. 45 ; 59 Geo. 3, c. 134, and to be vested. 3 Qea ^ 0 72, the sites were to be conveyed to the commis- sioners for the purpose of consecration. But by 5 Greo. 4, c. 103, s. 14, lands conveyed under the provisions of that act are to be vested in the persons specified in the sentence of consecration ; and some similar vesting seems to be contemplated by 1 & 2 Will. 4, c. 38, in cases under that act. Now by the joint effect of 8 & 9 Yict. c. 70, s. 13, and 19 & 20 Vict. c. 104, s. 10, it would appear that, in all cases arising under the church building acts, the freehold of the church, churchyard and all lands, tithes and hereditaments belonging to the church, and the house of residence, are to vest in the incumbent; except that, where by local act of parliament the same are vested in any vestry, they shall not be vested in the incumbent without the consent of the vestry. ChampneysY. In the case of Champneys v. Arrowsmith (q), the facts were Arrowsmith. these . — pn 1816, under a local act, a new church was built in St. Pancras, which was to be "the parish church, " the old church being thereby converted into a " parish chapel." In 1853, by an order in council, the original burial place for the parish, which surrounded the old church, and also an additional ground provided under an earlier local act, were closed, and a cemetery was provided for the whole parish. In 1863, that part of the parish in which the old church stood was turned into a new district, and the "parish chapel" was declared to be the church of that district. It was holden by the Exchequer Chamber, affirming the judgment of the Court of Common Pleas (r), that the 10th section of 19 & 20 Yict. c. 104, did not operate to vest the old churchyard in the incumbent of the new district church, but that the freehold thereof still remained in the vicar of the parish. Eegina v. Lee. In Regina v. Lee (s), it was attempted to make the incumbent of (o) 59 Geo. 3, c. 134, ss. 21, 35 ; 3 Geo. 4, c. 72, ss. 27, 28. (p) Sects. 7, 35. (q) L. E., 3 C. P. p. 107. (r) L. E., 2 C. P. p. 602. (s) 4 Q. B. D. p. 75. Vide supra, p. 1384. THE BUILDING OF CHURCHES. 1707 a new church responsible as owner for the expenses of removing a part of the church which was a dangerous structure, but this contention failed. In The Board o f Works for the Plumstead District v. The Eecle- The Board of siastical Commissioners (t), it was attempted to make the Eccle- ^oris/°^^f siastical Commissioners, as owners or the Jand on which a trict v, xhe church was built, and of an additional piece of land, all of which Ecclesiastical had been conveyed to the commissioners, liable to contribute Gomm*8sionerg' towards the cost of paving a new street. But it was holden that the freehold of the whole piece of land was in the incumbent, and that the commissioners were not owners. As to the patronage of the churches built or endowed under Patronage, the provisions of these acts, it was provided, in the case of In incumbent chapels built by church rates, that the patronage should be in £or^™ari~h the incumbent of the parish (it). With this exception the ormerPans patronage of all churches to which districts or district parishes are attached is vested in the patron of the parish out of which the district or district parish is taken (v). But where such a district or district parish is again subdivided, the patronage is in the incumbent of such district or district parish [w). "Where a consolidated chapelry is formed out of several parishes In nominee of or extra-parochial places, the patronage is in such persons as JjjJjjJjJ?1 of the several patrons of such parishes and extra-parochial places, parishes and or the majority of them, subject to the approval of the commis- places, sioners, agree to nominate (x). By 3 Greo. 4, c. 72, s. 31, in any case where the commissioners 3 Geo. 4, c. 72. build or assist in building a church or chapel " in any parish or *n bishop, place in which the patronage of or nomination or appointment of the ecclesiastical person to serve such church or chapel shall not belong to anyone, the commissioners may, by instrument under seal, declare the patronage to be in the bishop of the diocese, or if the place be exempt from the jurisdiction of a bishop, then in the bishop within whose diocese the place is locally situate. By 14 & 15 Yict. c. 97, s. 26 (except where the commissioners with the consent of the bishop otherwise determine), the patron- age of all new churches built in extra-parochial places if not vested elsewhere is to be in the bishop of the diocese. It should here be mentioned that, bv virtue of 59 Greo. 3, Surrender of c. 134, s. 15, 3 Geo. 4, c. 72, s. 15, and 1 & 2 Yict. c. 107, s. 15, patronage, corporations, trustees, persons with only a limited interest or under disability, are empowered to surrender or agree to surren- der to the commissioners, or the bishop, or any other persons, with the sanction of the commissioners and bishop, all rights of patronage that they may possess for facilitating any of the pur- poses of any of these acts. (f) 2 Q. B. 1891, p. 361. Vide s. 13. supra, p. 1675. [w) 1 & 2 Yict. c. 107, s. 12. (u) 58 Geo. 3, c. 45, s. 68. fas) 59 Geo. 3, c. 134, s. 6 ; 14 & (v) Ibid. s. 67 ; 59 Geo. 3, c. 134, 15 Vict. c. 97, s. 20. P. VOL. IT. 5 s CHURCH EXTENSION. By 1 & 2 Will. 4, c. 38, ss. 24, 26, 8 & 9 Yict. c. 70, s. 23, and 11 & 12 Yict. c. 37, s. 4, the patron and incumbent of the parish in which a new church is being built may, before its consecration, enter into any agreement in writing as to the future patronage thereof, and such agreement is to be binding upon them. By a series of acts beginning with 5 Geo. 4, c. 103, a power of building and endowing churches and chapels was conferred in certain circumstances upon private persons, without the inter- vention of the commissioners in any way. By 5 Geo. 4, c. 103, s. 5, where there is not spiritual accom- modation for more than one-fourth of the inhabitants of any parish, township or place, and twelve householders shall certify to the bishop that they are willing to raise by subscription money to build or buy a church or chapel, and to provide out of the pew rents for the maintenance and repair of the church or chapel, and the stipend of a minister and clerk, the bishop may consent to the building or buying of such church or chapel. By the same act the money necessary might have been raised, to the extent of one moiety, out of the church rates (sect. 9). By sect. 10, every application to the bishop shall offer to set apart such number and proportion of free seats as is required by the previous acts, in cases in which churches or chapels are built or purchased under the provisions of the said acts (y), with any money advanced by the commissioners under the said acts ; and no pew rents are to be taken nor service performed in such church or chapel till it has been consecrated. By sect. 6, certain life-trustees are to be appointed " for the general regulation of the temporal affairs of such church and chapel ; " and by sect. 15, these life-trustees may sell the vaults and burial places under the church or chapel, and out of the pro- ceeds of such sale they are to pay the incumbent the ordinary dues receivable by an incumbent on the opening of vaults in a parish church, and the residue of the proceeds is to be invested, and the income applied in aid of the payment of stipends and general expenses of the church or chapel. The provisions of the former Church Building Acts for enforcing payment of pew rents, and for the recovery by the incumbent of his salary, are applied to this act (z) . The next provision made on this subject was 7 & 8 Geo. 4, c. 72, s. 3 ; but this section, after having given rise to a most elaborate discussion in the case of Bliss v. Woods (a), was re- pealed by 1 & 2 Will. 4, c. 38, s. 1. By sect. 2 of this last act (as amended and extended by 1 & 2 Yict. c. 107, ss. 1, 3, and 3 & 4 Yict. c. 60, ss. 13, 14), in all parishes and extra-parochial places, the population of which according to the last census shall amount to 2,000, and in which (tj) This probably refers to 58 built wholly or partially out of Geo. 3, c. 45, s. 75, requiring one- rates. fifth of the seats to be free in any (z) 5 Geo. 4, c. 103, s. 18. case where the church or chapel is (a) 3Hagg. Eccl. p. 486, at p. 511. THE BUILDING OF CHURCHES. 1709 the existing churches or chapels do not afford accommodation for more than one-third of the inhabitants for attendance upon divine service, and also in all parishes and extra-parochial places in which 300 persons, whatever be the amount of the whole population, are resident more than two miles from any existing church or chapel, and within one mile of the site of the proposed church or chapel, and where any persons are ready to build a church or chapel, or to purchase a building fit in the opinion of the bishop to be used as a church or chapel, or where a church or chapel has been built on the faith of the repealed act of 7 & 8 Greo. 4, c. 72, s. 3, in such a situation as shall in the opinion of the bishop be adapted for the inhabitants for whom more spiritual accommodation is necessary, and where such persons are ready to provide a sum of 1,000/. or an annuity of 40/. charged on lands, tithes or other hereditaments, at least, by way of endowment for such church or chapel in addition to the pew- rents and other profits, if any, and further to provide a repair fund after a certain ratio therein mentioned, and to set apart one-third at least of the sittings as free seats if the bishop shall so require, it seems that such church or chapel may be conse- crated, and certain privileges as to the patronage thereof, which will be referred to hereafter, are given to the subscribers thereto ; provided always, that no such church or chapel shall be built for the accommodation of 300 persons as above mentioned within two miles of the existing parochial church or chapel. It is provided that nothing in the act shall extend to repeal or alter any local acts, unless with the sanction of the incum- bent, patron and vestry (b). It was decided in Williams v. Brown (c) that the conditions Decision on specified in this act are conditions precedent, which must be thls sectl0n- strictly complied with before the benefits given by it can be claimed, and that the existence of a proper repair fund is one of these conditions. But before the powers given by this act can be put in force, Previous notice of the intention to build, or purchase and endow such a notice and church or chapel, must be served upon the patron and incumbent Preference- of the parish (d) with certain particulars ; and if the patron shall within two months bind himself to build and endow an additional church or chapel to the satisfaction of the bishop, then the patron shall be preferred ; or where there is a population of .1,000 within two miles of an existing church, and any persons shall, with the consent of the vestry, bind themselves to enlarge the existing church to a certain specified extent, they shall be preferred ; that is, their scheme shall be taken instead of the scheme of building a new church or chapel (e) . (b) Sect. 27. See Fitzgerald v. on the patron alone : 1 & 2 Vict. Champneys, 2 J, & H. p. 31, de- c. 107, s. 2; and in extra-parochial cided on the act 2 & 3 Vict. c. 49. places on the bishop : 3 & 4 Vict. (c) 1 Curt. p. 54. c, 60, s. 16. (d) Where there is no incumbent (e) 1 & 2 Will. 4, c. 38, ss. 7, 8. 5 s 2 CH URCH EXTE X SIGN. By 3 & 4 Vict. c. 60, s. 12, the endowment required by 1 & 2 Will. 4, c. 38, s. 2, may be in lands or houses worth 1,000/., or partly in them and partly in the funds ; and by sect. 15, for the purposes of the repair fund required a perpetual rent-charge on lands or hereditaments equal in value to the endowment may be given, and the incumbent instead of the trustees pro- vided by the original act may hold such rent-charge, and in cases where the rent-charge comes into the hands of trustees they may assign it to the incumbent. By 23 & 24 Yict. c. 124, s. 30, the commissioners may release a rent-charge granted to them by way of endowment only, in consideration of a sum of Consolidated Bank Annuities to be transferred into their names. The trustees just mentioned were first established by 5 Geo. 4, c. 103, s. 6. That section provides for the appointment of three life trustees by the subscribers of 50/. and upwards from among themselves " for the management and general regulation of the temporal affairs of such church and chapel." They are to con- tinue trustees as long as the church shall be served by any pre- sentee of theirs as hereinafter mentioned. By sect. 7, if any trustee dies or resigns, a meeting is to be called, and the majority of the subscribers of 50/. and upwards, being owners or renters of pews, may appoint a new trustee from among themselves. It appears from the case of Fowler and Allen v. The Bishop of Gloucester (f/) that this meeting must be called by one of the surviving trustees. By sect. 8, if the number of persons subscribing does not exceed three, the subscribers are the life trustees, and any one of them dying or resigning may by his will, or any instrument signed by him, appoint a trustee in his place. This last provision, it was holden in the case just mentioned, applies only where the original subscribers did not exceed three, and not where they have been reduced to that number in course of time. By sect. 12, if all the subscribers die, so that no election of trustees can be made, the incumbent of the parish becomes a trustee. By the same section the trustees have the patronage of the living for the first two turns, or any number of turns occurring within forty years ; but if they all die, the incumbent of the parish has the nomination for the residue of that period. At the expiration of that period the patronage vests in the incumbent of the parish, unless the chapel is made into a district church, in which case it vests in the patron of the original parish. By sect. 13, in cases where chapels were built by rates, the incumbent of the parish had the patronage, unless the chapel were made into a district church. (g) L. E., 4 C. P. p. 668 ; affirmed Allen v. Bp. of Gloucester, L. E., 6 by the House of Lords, nomine H. L. 219, THE BUILDING OF CHURCHES. 1711 By sect. 15 of the same act, the trustees may sell the vaults under the church or in the churchyard, and after paying a portion of the purchase-money to the incumbent of the parish in lieu of fees, shall invest the residue and employ the income in paying the stipend of the minister, the salary of the clerk, and other expenses. By sect. 18, the powers and provisions of the previous acts as to the recovery and payment of stipends and salaries, and the recovery of pew rents, are to apply to chapels built under this act. The provisions of 1 & 2 Will. 4, c. 38, s. 2 (amended by 1 & 2 l & 2 Will. 4, Vict. c. 107, s. 1, and 3 & 4 Yict. c. 60, s. 13), as to the patron- c- 3S- age of churches or chapels built under it, or 7 & 8 Geo. 4, ^Sefb^t c. 72, were these : — The bishop may, by writing under his hand under that and seal, declare that the patronage of such church or chapel, act> or 7 when all the conditions have been complied with (//), shall be Geo* 4' c* in the persons building, or purchasing and endowing, their heirs and assigns, or in such trustees, being members of the church, as they shall appoint, and in such future trustees as may be appointed, or in some ecclesiastical person or body corporate ; provided that the number of trustees, except in some particular specified cases, shall not exceed five. By 14 & 15 Yict. c. 97, s. 14, 14 & 15 Vict, however, this power is taken away from the bishop, and it would c* 97- now appear to be vested, if at all, in the commissioners. By sect. 5 of 1 & 2 "Will. 4, c. 38, in all cases not therein- l & 2 Will. 4, before provided for, where any persons declare their intention of c- 38 • endowing any chapel already built or intended to be built by them with some permanent endowment to the satisfaction of the commissioners, they may, by instrument under their seal (sect. 19), declare the patronage to be in such persons, their heirs and assigns, or such persons, ecclesiastical person or body corporate as they shall appoint ; or if the chapel is built by subscription, then in such persons, &c. as the major part in value of such subscribers (being subscribers of 50/. at least (?) ) shall at any time appoint (k) : provided that, except in certain particular cases, the number of patrons does not exceed five. But before the commissioners can so declare, an a23plication in writing must be made to them setting forth certain particulars, copies of which are to be sent to the patron and incumbent of the parish. By sect. 9, the patronage shall, upon consecration, immediately vest in the patron already mentioned by the name and style specified in the sentence of consecration. By sect. 15, provision is made for cases where the crown is the patron of the original parish. By 14 & 15 Yict. c. 97, s. 7, all restrictions as to population Extension by contained in 1 & 2 Will. 4, c. 38, are removed, and the com- 14 * 15 Vict- missioners (with the bishop) may, in all cases where a church or c' ' chapel is built and endowed to their satisfaction and a com- (/?) Vide supra, p. 1709; Williams pealed, subject to savings, by 37 & V. Brown, 1 Curt. p. 54. 38 Vict. c. 96]. (?) 3 & 4 Vict. c. 60, s. 11 [re- (/.-) 3 & 4 Vict. c. 60, s. 9. 1712 CHURCH EXTENSION. Commis- sioners may- accept, for the purpose of an endowment and a repair fund, lands, &c. and money. 6 & 7 Vict, c. 37. Patronage under 6 & 7 Vict. c. 37. petent repair fund is provided, declare the patronage to be in the persons so buildicg and endowing or their nominees. Pro- vision' is made for the appointment of trustees by sect. 10 of the same act. Previous, however, to any such declaration being made by the commissioners, an application in writing must be made to them setting out certain particulars ; and copies of such application must be sent to the patron and incumbent of the parish and of any other parish affected (/). The 14 & 15 Yict. c. 97 makes the following provision for the establishment of an endowment or repair fund : — Sect. 8. " The exemption from the pro visions of the Mortmain Acts, and the restrictions applicable to such exemption contained in" 3 & 4 Yict. c. 60, " shall be applicable to any endowment or grant or conveyance for the purpose of a repair fund of any such church or building ; and, subject as aforesaid, the said commissioners may accept, by way of endowment and for the purpose of a repair fund for such church or building, such permanent provision as they may consider satisfactory, consist- ing of all or any of the following descriptions of property, namely, land, tithes, rent-charges and other tenements or here- ditaments, money charged on land or invested in the funds ; and such endowment and repair fund shall be exclusive of and in addition to the pew rents (if any) of such church or building; and as regards any endowments to be made for the purpose of obtaining the patronage as aforesaid, the same may be vested in such trustees, not exceeding five, as the said commissioners direct; and such trusts thereof, and for the sale or conversion thereof, and reinvestment of the produce either in land or in govern- ment securities, with powers of granting building or other leases, and all other powers for the due administration of such endow- ments and repair fund, and appointment of new trustees, may be declared as the said commissioners think fit" (m). The act 6 & 7 Vict. c. 37, is directed rather to the formation of new parishes, and to the endowment of the ministers thereof, than to the building of churches ; but by sect. 24 it is expressly provided that the church building commissioners may make grants in aid of the erection of the church of any district formed under the act ; and by sect. 22, power is given to private persons to give benefactions " for or towards providing any church or chapel for the purposes and subject to the provisions of this act" (n). By sect. 20, the patronage of any new parish or district formed under the act may be assigned to any ecclesiastical corporation, the universities of Oxford, Cambridge, or Durham, or any college therein, or any persons or their nominees, on the condition of contributing to an endowment for the minister or a church. Unless or until such an assignment of patronage is {I) 14 & 15 Vict. c. 37, s. 11. See (n) Vide supra, p. 1695, and also sects. 12 — 15. Baldwin v. Baldwin, 22 Beav. (w) Vide supra, p. 1710. p. 419, there cited. THE BUILDING OF CHURCHES. 1713 made, the patronage is to vest in the crown and the bishop alternately, the bishop first (0) . By 19 & 20 Yict. c. 104, s. 16, the provisions of the 6 & 7 Extended by Yict. c. 37, s. 20, shall be extended so as to apply "to the case of ^9jq420 Vlct' the patronage of any church or chapel to which a district shall belong," and the patronage of which is ex officio vested in the incumbent of the original parish, and to any new parish made under this act, or any parish having neither incumbent nor patron, or to any benefice in the patronage of the Crown, the Chancellor of the Duchy of Lancaster or Duke of Cornwall, or any corporation ; provided that the permanent endowment does not exceed 100/. a year, or the income from all sources 250/. a year. This patronage may not, however, be assigned for any less considera- tion than the building of a church and endowing it with 45/. a year, or an endowment alone of 150/. ; and the assignments may only be made with the consent of the patron, where the crown or any corporation is such patron, of the bishop in parishes where there is neither incumbent nor patron, and, where the patronage is in the incumbent of a benefice itself in private patronage, with the consent of the bishop and after one month's notice to such patron, who may if he pleases require compensa- tion for the diminished value of his advowson (p). Until any such provision is made the patronage may, if the commissioners think fit, be vested in the incumbent of the old parish during his incumbency (q). Where the commissioners under the last act, or 6 & 7 Yict. c. 37, vest the patronage in the nominees of any body or person, such nominees shall not exceed five, and shall be named in the deed, and shall sign declarations that they are members of the church ; and provision is made for the appointment of new trustees (r) . Inasmuch as the sale or assignment of ecclesiastical patronage 9 & 10 Vict, holden by any spiritual person in virtue of his dignity or c- 88- spiritual office was made illegal by 3 & 4 Yict. c. 113, s. 42 (s), ^fssia^eante it is specially provided by 9 & 10 Yict. c. 88, that this provi- for purposes sion shall not extend to make assignments or agreements to pf acts not assign patronage under 1 Geo. 1, st. 2, c. 10, or 8 & 9 Yict. lUeoal- c. 70, or any act recited therein, illegal (s). By 19 & 20 Yict. c. 104, s. 21, "Whenever the right of 19 & 20 Vict, patronage of any such before-mentioned benefice with cure of c- 104- souls shall, pursuant to the foregoing provisions of this act, ^j^g^6 not have become vested in perpetuity in any body or person by reason of such body or person having augmented the endow- ment of such benefice in such adequate manner as is hereinbefore mentioned, and whenever such benefice shall, at the time of such transfer of patronage, be already permanently endowed with an annual sum of not less than one hundred pounds, or whenever (0) Sect. 21 ; see 7 & 8 Vict. c. 94, SB. 1—3. (p) 19 & 20 Vict. c. 104, ss. 17, 18; 32 & 33 Vict. c. 94, s. 10 ; see also 19 & 20 Vict. c. 104, ss. 19, 20. q) Ibid. s. 22. r) Ibid. s. 24. («) Vide supra, p. 882. 1714 CHURCH EXTENSION. Penalty of lapse if sold. 32 & 33 Vict, c. 94. Contract for the assign- ment of patronage under Church Building and New Parishes Acts not to he simoniacal. Certain assignments of patronage under Church Building and New Parishes Acts to be valid, and penalties against si- mony not to attach. 3 Geo. 4, c. 72. Substitution of new for old church. the annual income of such benefice from all sources shall, when calculated upon an average of the three years immediately pre- ceding such augmentation, amount to one hundred and fifty pounds, no subsequent sale or assignment or other disposition of such patronage by any body or persons whatsoever, for any valuable consideration whatever, shall be made until thirty years next after such transfer, unless the entire proceeds be legally secured to the further permanent augmentation of such benefice, but every such sale, assignment, or other disposition of such patronage shall be illegal, and every presentation, colla- tion, admission, institution or induction thereupon shall be void, and the right of patronage of such benefice shall thereupon for that turn lapse to the bishop : provided also, that when the patronage of any church or chapel to which a district shall have been assigned is vested in the incumbent of the original parish, district, or place out of which such district has been taken, the person holding the incumbency of such original parish, district or place at the time of the passing this act shall not be deprived of the patronage of such church or chapel by any assignment of the same during his incumbency without his consent." By 32 & 33 Yict. c. 94, s. 12, " No contract, agreement, or arrangement under any of the provisions of the Church Building Acts or New Parishes Acts relative to the exercise by, or the vesting in, or the assignment to any body or person of the right of patronage of or presentation to any church or chapel, iu consideration of such body or person erecting or enlarging or contributing towards or procuring or agreeing to procure the erectiug or the enlarging of such church, or per- manently endowing or contributing towards, or procuring or agreeiDg to procure the permanent endowment of such church, or of its incumbent or minister, shall be deemed corrupt or simoniacal." Sect. 13. "Every instrument whereby any declaration or assignment, or other disposition of any right of patronage dr of presentation to any church or chapel has already been made, or shall hereafter be made under any of the provisions of the said acts, or in pursuance of any such contract or agree- ment as aforesaid, shall be deemed to have been and shall be good ; and every presentation, institution, or induction which has already taken place, or shall hereafter take place in pursu- ance thereof, or of any such contract, agreement, or arrange- ment as aforesaid, shall be deemed to have been and shall be good, and no penalty or disability under either the canon law or the common or statute law, shall be deemed to have been or shall be thereby incurred." With respect to the churches built under any of the acts which have been mentioned, provision was made by 3 Greo. 4, c. 72, s. 30 (t), for the substitution of the new church thus built as the parish church in the place of the old parish church, in certain cases and under certain conditions. (t) Eepealed by 36 & 37 Vict. c. 91. THE BUILDING OF CHURCHES. 1715 By 1 & 2 Yict. c. 107, ss. 16, 17, the commissioners, with the l & 2 Vict, consent of the bishop, the patron of the parish church, and the c- 107- vestry, may direct that any church or chapel in the parish shall become the parish church, and the old parish church a chapel of ease, so that the new church shall have all the rights and privi- leges of the old one, and be the church of the incumbent of the parish, and in the gift of the patrons of the old parish church. By 2 & 3 Yict. c. 49, s. 9, however, these powers shall not 2 & 3 Vict, extend to enable the commissioners to make any chapel, built c- 49- under 1 & 2 Will. 4, c. 38, or any church or chapel, the patron- age of which is in other hands than that of the old parish church, into the parish church without the consent of the patron and incumbent of such church or chapel. By 8 & 9 Yict. c. 70, it is enacted as follows : — Sect. 1. "Notwithstanding any limitation or restriction or 8 & 9 Vict, other thing contained in " 3 Greo. 4, c. 72, " where a new church c- has been already built or shall hereafter be built in any parish Explanation i • i • i • i i I'll i j i and extension or district parish, or ancient or parochial chapelry, and where of tlie provi_ the bishop of the diocese and the patron and incumbent of such sions of 3 Geo. parish, district parish, or ancient or parochial chapelry shall at 4> c- 72> 8- 30- any time certify to her majesty's commissioners for building new churches that it will be for the convenience of such parish, district parish, or ancient or parochial chapelry that such new church, being duly consecrated, should be substituted for the old or existing church situate therein, it shall be lawful for the said commissioners, by an instrument under their common seal, with the consent of such bishop, patron, and incumbent, under their hands and seals, to declare that such new church, being duly consecrated, shall be substituted for such old or existing church, and to transfer the endowments, emoluments, or rights belong- ing to such old or existing church, or to the incumbent or minister thereof, to such new church, and to the incumbent or minister thereof, and his successors ; and it shall be lawful in every such case for the trustees (if any) of such old or existing church, or of any rights, emoluments, or endowment belonging thereto, or to the incumbent or minister thereof, and they are hereby required, and indemnified for so doing, to transfer the same according to the direction of the said commissioners ; and imme- diately from and after such transfer all glebe lands, tithes, and other endowments, emoluments, fees, and profits, and every matter or thing, whether real or personal, and all rights and privileges wherewith any such old or existing church is or was, at the time of such substitution, endowed, or to which the in- cumbent or minister thereof was or is entitled, shall be vested in and belong to the incumbent or minister for the time being of such new church, and his successors, in as ample a manner as the incumbent or minister of the old or existing church might have enjoyed the same if such transfer had not taken place, and the incumbent or minister of such old or existing church shall thereupon be, to all intents and purposes, the rector, vicar, per- petual curate, or minister, as the case may be, of such new 1716 CHURCH EXTENSION. church, instead of rector, vicar, perpetual curate, or minister of such old or existing church, without any presentation, institu- tion, induction, collation, or other form of law being had, ob- served, or required ; and such new church shall thereupon have the same rights and privileges as such old or existing church, and such offices of the church as were performed and celebrated in such old or existing church shall be performed and celebrated in such new church, and such new church shall be to all intents and purposes in lieu of the old or existing church ; and at any time within six months after the substitution of such new church for the old or existing church the bishop of the diocese may of his own mere motion issue, or, if thereunto required by any per- son claiming to hold a pew or seat free of rent in such old or existing church by faculty or prescription, shall issue, a commis- sion under his hand and seal, directed to the archdeacon of the archdeaconry in which such old or existing church shall be situate, and to any two incumbents of parishes situate within such archdeaconry, and to any two laymen nominated by the churchwardens of such old or existing church, who are hereby required to nominate for such purpose two fit persons not claim- ing any such pew or seat as aforesaid; and such commission shall direct the commissioners thereby appointed to inquire into the rights of persons, if any, who claim to hold any such pews or seats as aforesaid ; and the said commissioners, or any three or more of them, of whom the said archdeacon shall be one, shall, as soon as conveniently may be, proceed to examine into such claims, after giving fourteen days' previous notice thereof, by affixing a copy of such commission on the church door of such new church ; and such notice, signed by such archdeacon, shall specify the day and time and place on which such examination is to be made ; and after making an examination into such claims Claims of per- the commissioners so appointed, or the majority of them, shall innthe°oMWS UG(^er their hands transmit in writing to the said bishop the church to be names and residences of the persons who have substantiated investigated, their claims to such pews or seats, and if the said bishop is satis- and if proved f[e(j therewith he shall assign, under his hand and seal, to such such persons , • i ° • , , -i to have pews Pai>ties respectively, convenient pews or seats m sucn new in the new church, and such seats so assigned shall be held and enjoyed by church on the parties entitled to the same in as free and ample a manner same terms as A i L • i xi i i n j t. v in the old one. as the pews or seats to wmcn tney nacl or would nave been entitled in such old or existing church ; and if any party shall find himself aggrieved by the finding of such commission the bishop of the diocese shall have power to atford redress, by allotting to such party seats in such new church, if the justice of the case shall in his judgment require it (tt) ; and the old or existing church, if such bishop shall think fit, may thereupon be wholly or partly pulled down, under a faculty to be granted for that purpose ; and the said bishop shall in that case take care that all tombstones, monuments, and monumental inscrip- (u) Vide supra, p. 1442. THE BUILDING OF CHURCHES, 1717 tions in such church so pulled down are as far as may be preserved by the churchwardens, at the expense of the parish, or if it shall seem fit to the said bishop the same shall be trans- ferred to the church so substituted as aforesaid, at the expense of the said parish or district parish, or ancient or parochial chapelry, as the case may be ; provided that in case such new church shall have been built wholly or in part out of the funds placed at the disposal of her Majesty's said commissioners under the provisions of the hereinbefore recited acts (x) or any of them, and such transfer shall have been made, rents for the pews or seats in such new church shall only be fixed by her Majesty's said commissioners under the provisions of such acts for that number of seats therein which shall exceed the number of seats provided in such old or existing church : provided always, that nothing herein contained shall authorize the sub- stitution of any new church in lieu of the old or existing church as aforesaid, when the advowson of or right of nomination to such new church shall belong to any other body or person than to the patron of such old or existing church, without the consents in writing of the patron and incumbent or minister of such new church." By sect. 2, the incumbent of the old church and his successors Incumbent shall be incumbents of the new church, and the patronage shall and Patron- be in the patrons of the old church. a°e" Sect. 4. " Where any part of the cathedral church has been Where any accustomed to be used as a parochial church, it shall be lawful ^hedral church for her Majesty's said church building commissioners, with has been ac- consent of the ecclesiastical commissioners for England, and customed to with the consents of the bishop of the diocese and of the dean k^^Ll8 a and chapter of such cathedral church, and with the consents church^a also of the patron and of the incumbent or minister of such transfer of the church, to transfer the rights, emoluments, tithes, and other ^f^ts' &cf endowments (if any) as hereinbefore particularly specified, be- belonging' to longing to the incumbent of such church, to any new church such parochial which has been or hereafter may be built, and which is situate ^^certam in the parish where such part of such cathedral is, or is deemed consents be to be, the parish church ; and in case of such transfer the same ma(le by the provisions hereinbefore contained, touching the rights and privi- ^ c^mls-" leges, succession and appointment of the incumbent or minister sioners to a of such new church, and the performance of the offices therein, new church ; and the examination into the claims of parties claiming to hold rochioTchurch pews or seats by faculty or prescription in the old parish church, shall thence- and the assignment of pews or seats to those who have substan- fortl1 be under tiated such claims as hereinbefore mentioned, shall apply to such tr(^ ^Id sub^" new church, which after such transfer shall become the parish ject to the church in lieu of the former parish church so belonging to such same laws as cathedral ; and such new church, and the incumbent or minister existPwith re- thereof , shall, from and immediately after such transfer, be and spect to the remain subject in all respects to the same ordinary and other ^^,^ral (cc) Apparently all the then previously existing Church Building Acts. 1718 CHURCH EXTENSION. 32 & 33 Vict, c. 94. Preservation of site. Churchyards. Purchase of. Outside parish bounds. Cemetery chapel. Transfer of cemeteries to burial boards. Relation to Burial Acts. ecclesiastical jurisdiction and superintendence as the old paro- chial church and the incumbent or minister thereof respectively were or otheiwise would have been subject to ; and the part of the cathedral church so vacated shall thenceforth remain and be deemed to be part of the cathedral church itself, in the same manner and as fully as if it had never been used as a parochial church, and shall thenceforth be subject to the same control and superintendence, and to the same laws as to repairs, as exist and are in force with respect to the cathedral church itself ; and the parish shall thenceforth be exempt from all further liability (if any) to keep the same in repair : provided always, that the party or parties liable to the repair of the said part of the said cathedral church, whilst it was so used as a parochial church, shall continue to be liable to the repairs of such new church." By 32 & 33 Yict. c. 94, s. 8, the bishop in granting a faculty for wholly pulling down a church under sect. 1 of this last act may make provision for the use or preservation of the site of the church. Attached to the churches and chapels, for building which so much provision has been made by the legislature, are church- yards and chapelyards. Provision for purchasing land for the purposes of churchyards and chapelyards was made by 58 Geo. 3, c. 45, s. 33, 59 Geo. 3, c. 134, s. 22, and 3 Geo. 4, c. 72, ss. 1 — 4, already cited ; also by sects. 37 and 38 of 59 Geo. 3, c. 134, and sect. 26 of 3 Geo. 4, c. 72. Under the act of 59 Geo. 3, c. 134, s. 22, the commissioners might grant money for purchasing cemeteries outside the bounds of the parish ; and by 8 & 9 Yict. c. 70, s. 14, the commissioners were empowered to declare that any such cemeteries, whether purchased under grants from them or not, if conveyed to them, were part of the parish for the use of which they were bought. This act was extended by 9 & 10 Yict. c. 68, s. 1, to all parishes and districts. It was by this last act further provided that, where a cemetery was bought for more than one parish, the commissioners might order any chapel built thereon to be used for each of the parishes to which the cemetery belonged (s). The freehold of a chapel so built is by 14 & 15 Yict. c. 97, s. 28, to be in the bishop. The provisions in 20 &21 Yict. c. 81, s. 7, enabling cemeteries made under the Church Building Acts, to be transferred to burial boards in certain cases, have been already mentioned (t) . It appears that burial grounds purchased and consecrated under the Church Building Acts are not " cemeteries established under the authority of any act of parliament" within the mean- ing of sect. 5 of 16 & 17 Yict. c. 134, which exempts such cemeteries from the usual provisions for closing burial grounds in towns by order in council (u). (s) See also sects. 2—4. h) Yide supra, p. 662. (u) Ibid. p. 659 ; Beg. v. Justices of Manchester, 2 Jur., N. S. p. 182; 5 E. & B. p. 702 ; and see Roberts v. Aulton, 2 H. & N. p. 432; Ormerod v. Blackburn Burial Board, 21 W. R. p. 539 ; Jackson v. Cour- THE BUILDING OF CHURCHES. 1719 It may be here mentioned that by 58 Geo. 3, c. 45, s. 80, no 58 Geo. 3, grave is allowed under or within twenty feet of any church c- 45- built under that act; but this provision does not extend to Yaults- vaults. By 5 Geo. 4, c. 103, s. 15, the trustees or churchwardens may 5 Geo. 4, sell the vaults under chapels built in virtue of the provisions of °- 103- this act. As to the officers of new churches, parish clerks, and sextons, Officers of and the rights of these and of the parish clerks and sextons of new churches, the mother parish, the law will be found already stated (.r). The law as to churchwardens of new parishes will be found Church- already treated of in the chapter on churchwardens, and further wardens- in the next chapter (//). The subject of seats or pews and pew rents in newly-built Seats or pews, churches or chapels still remains. By 19 & 20 Yict. c. 104, s. 5 (s), residents in new parishes or districts who claim seats in the church of such new parish do thereby surrender rights to an equal number of sittings in the old church. Pew rents were authorized to be taken by the older Church Pew rents. Building Acts, 58 Greo. 3, c. 45, s. 62 (a), and 59 Geo. 3, c. 134, ss. 26, 27 (b). They were also authorized by the acts for enabling private persons to build churches and chapels (5 Geo. 4, c. 103, and 1 & 2 Will. 4, c. 38), and by 1 & 2 Yict. c. 107, s. 18, and 19 & 20 Yict, c. 104, s. 6. But later acts (14 & 15 Yict. c. 97, and 32 & 33 Yict, c. 94) have made provisions for the cesser of pew rents. And by 35 & 36 Yict. c. 49, the ecclesiastical com- missioners may accept sites for churches where pew rents are prohibited. The whole matter will be found treated of with the general law as to church seats (b). tenay, 8 E. & B. p. 8 : 3 Jur., N. S. p. 889 ; White y. Norwood Burial Board, 16 Q. B. D. p. 58. (x) Vide supra, pp. 684, 1515, 1516. (y) Vide supra, pp. 1475 — 1478 ; infra, pp. 1729, 1731. (z) Yide supra, p. 1439. (a) See also 8 & 9 Yict. c. 70, s. 11. (b) Yide supra, pp. 1437—1442. 1720 CHURCH EXTENSION. CHAPTEE VI. THE DIVISION OF PARISHES. aTtothis Before|58 Greo. 3, c. 45, there was no legal machinery by division. which a parish could be divided. The 1 Geo. 1, stat. 2, c. 10, provided, it is true, for making curacies augmented by Queen Anne's Bounty into perpetual curacies (sect. 4) (a) ; but it was especially provided (sect. 5) that this should not affect the cure of souls in the parish. Local or private acts for dividing parishes were occasionally passed. At one time fifty new churches with parishes were erected in the metropolis, by 9 Anne, c. 17 ; 10 Anne, c. 20, and 1 Geo. 1, c. 23. Provided for It was, however, a part of the scheme of church extension BuSding-h which occasioned the Church Building Acts to divide the old Acts. parishes where necessary into new and more manageable ecclesi- astical divisions. Hence it happens that generally, though not universally, the same statutes treat of building churches and of new parishes, though the subjects are in reality very distinct, and much of the difficulty in which the old law of church extension is involved has arisen from confusing them. Classification There are three distinct groups of acts under which parishes of acts* may be divided :— (^W, 20 OW 1 /<$>/ and, on the consent of the patron being granted, may 'represent c" 4o* » the whole matter to* the Queen 'in Council' setting forth 'the bounds by which it is proposed* 'to divide' the ^parish ; and the Queen in Council may make an order effecting such division, which shall not however take place till after the avoidance of his living by the existing incumbent of the parish. By sects. 17, 19, each distinct parish shall be'a rectory, vicarage, donative or perpetual curacy* like the old parish, and the incumbent of each distinct parish shall have the same power of recovering the fruits of his benefice as the incumbent of the old parish had ; but by sect. 20 any donative or perpetual curacy shall be subject to the law of lapse, and the incumbent thereof shall not be removable at the pleasure of the patron (c). By sect. 22, the boundaries of such distinct parishes are to Boundaries be marked out ; by sect. 23, and 3 & 4 Vict. c. 60, s. 6 (d)9 of- these boundaries may be altered from time to time by order in council. By 59 Greo. 3, c. 134, ss. 8, 9, the commissioners may, with 59 Geo. 3, the consent of the bishop and patron, apportion the glebe, tithes c- 134- and other endowments between the distinct parishes, without regard to the fact of such glebe, tithes and endowments being locally situate or arising within or without any of the new parishes ; and they may at the same time apportion, with the consent of the bishop, the charges on the old parishes or the incumbents thereof. By 58 Greo. 3, c. 45, s. 26, the church of any such distinct 58 Geo. 3, parish shall not be hold en with the church of the parish out of ^'4^\^Ggo' which such distinct parish has been taken ; and by 59 Greo. 3, r^enure ^ c. 134, s. 12, the churches of such distinct parishes shall after benefice, consecration be distinct benefices and churches, but during the incumbency of the existing incumbent they shall be served by licensed stipendiary curates. By 3 Geo. 4, c. 72, s. 16, the commissioners may, with the 3 Geo. 4, c. 72. consent of the ordinary and patron and incumbent, or in case of District the refusal of the incumbent, upon the next avoidance, convert ^^2? a " district chapelry " into a distinct parish, where a house of parish, residence and competent maintenance is provided for the incum- bent of such new distinct parish, and compensation is made for all fees, offerings and dues which by such conversion are lost to the incumbent of the old parish. Such conversion is to be under (c) Sect. 20 is repealed, subject to (d) See 3 & 4 Vict. c. 60, s. 7, and savings, by 36 & 37 Vict. c. 91. 8 & 9 Vict. c. 70, s. 16. 1722 CHURCH EXTENSION. seal of the commissioners and registered in the diocesan registry, aud enrolled in chancery. 1 & 2 Will. 4, By -J & 2 Will. 4, c. 38, s. 23, where there are chapels of ease c. 38. having chapelries, townships or districts supposed to belong Irishes thereto, if an endowment be provided for the minister of such under other chapel, the bishop may, with consent of patron and incumbent, acts. declare such chapel separate from the parish church, and the l & 2 Vict. chapelry, township or district a distinct parish. By 1 & 2 Yict. c 107. c. 107, s. 7, this extends as well to chapels hereafter to be built as to chapels in existence before the act. 8 & 9 Vict. By 8 & 9 Yict. c. 70, s. 5, " Where at the passing of this act c- 70- there is not any consecrated church in one of two parishes which for"unite^t0" ma^ nave Deen ^or thirty years next before the passing of this with another act united, or reputed to have been united for ecclesiastical pur- shall be dis- poses, and where a new church has been or shall hereafter be ch^rtibein^ built wholly or in part out of any funds at the disposal of the built therein? commissioners in the said parish in which there is not any such church as aforesaid, the whole of such parish may after the con- secration of such new church be disunited for ecclesiastical pur- poses from the other parish, and may be formed into a separate and distinct parish, for such purposes, with the same consents, in the same manner, and under and subject to the same provi- sions and consequences, as are mentioned and contained in the hereinbefore recited acts (c) or any of them or in this act, relative to the formation of a distinct and separate parish, when the same is formed out of one parish not united with another parish." District (2.) As to " district parishes." Bv 58 Greo. 3, c. 45, s. 21, parishes. t]ie commissioners may, where they think it more expedient to ^845eo" 3' divide a parish into ecclesiastical districts, with consent of the bishop, represent the matter to the Queen in Council, and the Queen in Council may order such division. The provisions in 58 Greo. 3, c. 45, ss. 22, 23, and 3 & 4 Yict. c. 60, s. 6, as to boundaries of distinct parishes, apply equally to these districts. By 58 Greo. 3, c. 45, s. 24, on the boundaries being marked out such districts become " district parishes," and the churches thereof " district parish churches," "for all purposes of eccle- siastical worship and performance of ecclesiastical duties." By sect. 25, these churches are perpetual curacies. 59 Geo. 3, By 59 Greo. 3, c. 134, s. 19, no chapel situate in a district c 134. parish which shall not be made the church of such district parish shall be a perpetual curacy. 58 Geo. 3, By 5g Qe0_ 3? c# 45^ s> 30, the division of a parish into dis- trict parishes shall not affect any glebe, tithes or other endow- ments, which shall continue to belong to the incumbent of the old parish, and for all these purposes the old parish shall remain as if undivided. 59 Geo. 3, The provisions of 58 Greo. 3, c. 45, s. 26, and 59 Greo. 3, c. 134, c. 134. (c) Apparently all the then previously existing Church Building Acts. THE DIVISION OF PARISHES. 1723 c. 72. Burial. s. 12, as to the separation of the benefices, apply as well to dis- trict parish churches as to distinct parish churches. By 8 & 9 Vict. c. 70, s. 15, " "Where any district parish has 8 & 9 Vict, been or shall hereafter be formed, under the provisions of " 58 c- 70- Geo. 3, c. 45, "it shall be lawful for the incumbent of the parish Strict pL-ish out of which such district parish shall have been formed to resign may be re- voluntarily ? with the consent of the bishop of the diocese, the signed by church of such district parish, and such resignation shall have ^^^nt °* the same effect as the avoidance or resignation of the parish parish; such church, with respect to the performance of the offices of the resignation to church in the church of such district parish ; and thereupon such °ame manner district parish, and the church thereof, shall be a perpetual as avoidance curacy and benefice, and shall be subject to the same laws as are of church of in force with respect to district parishes where an avoidance or parish* resignation of the church of the original parish shall have taken place." By 7 & 8 Geo. 4, c. 72, s. 2, till a burial ground is provided I $ Ge0- 4> for the district parish, persons dying within it may be interred in the burial ground of the old parish. By 1 & 2 Yict. c. 107, s. 10, whenever an endowed church or l & 2 Vict, chapel has been augmented under Queen Anne's Bounty and c- 107- the patronage thereof acquired in accordance with the acts Queen Anne's relating thereto, the commissioners may, with consent of bishop, patron and incumbent, make it a district parish {d). T3.) As to " dist^cJ^dmn£llips " Thpse wF>re originally evented 59 Geo. 3, under 59 Geo. 37c. 134, s. 16 ; but the provisions contained in c- . • this section have been much altered by 2&J3 Yict. c. 49, ss. 1—4, 3 & 4 Yict. c. 60, s. 1, and 8 & 9 YictTcTTO, s. 17. The joint cp ' effect of these acts is that the commissioners may, in like manner and with the same consents as in the case of "district parishes," assign a district to any chapel built or to be built ; and such district is to be under the care of the curate appointed to serve such chapel, who is to be nominated by the incumbent, except in cases where the patronage is otherwise vested (e). Such chapels may be augmented by the governors of Queen Anne's Bounty ; district chapelries may be formed out of former dis- trict chapelries, or out of such district chapelries and other parts of the original parish or any extra-parochial place. The curate is now to be a perpetual curate, with perpetual succession and capacity to hold lands and tithes, with exclusive cure of souls, and not subject to the incumbent of the old parish; but the commissioners may, with consent of the bishop, determine what proportion of the fees for marriages, baptisms, churchings and burials shall be assigned to the curate ; and it seems that the incumbent of the old parish receives the Easter offerings. By 11 & 12 Yict. c. 37, s. 3, the commissioners, with consent 11 & 12 Vict, of the bishop, the patron and incumbent of the chapelry, and (d) Tide supra, p. 1649; infra, (e) By 14 & 15 Yict. c. 97, s. 26, in p. 1726. extra- parochial places the patron- age is. in certain cases, in the bishop. P. VOL. IT. 5 T c. 37. Boundaries. 1724 CHURCH EXTENSION. Fees. Tuclcness v. Alexander. (Parochial chapels.) Fitzgerald v. Fitzpatrick. the patron and incumbent of any parish to be affected, may recommend the Queen in Council to alter, and the Queen in Council may alter, the bounds of such chapelry by adding to it portions of any adjacent parishes. District chapelries are not " districts or divisions " of parishes within the 10th section of 59 Greo. 3, c. 134, which gives the fees in such districts or divisions to the clerk and sexton thereof ; and, on the contrary, the clerk of the old parish is entitled to the fees in a district chapelry (/). In the case of Tuekness v. Alexander, it was holden that, under these provisions, an ancient parochial chapelry might be divided into district chapelries, and one of such chapelries assigned to the ancient parochial chapel itself, though the effect of such an assignment was to take away the vested rights of the incumbent of the parochial chapel throughout the old chapelry (g). In the case of Fitzgerald v. Fitzpatrick (/?), the circumstances were these : — By a deed of 1840 a certain chapel was vested in trustees, upon trust to permit the same to be used as a chapel- of- ease, dependent upon the parish church, and to permit the vicar for the time being or his curates to officiate as ministers thereof, and to allow the vicar and churchwardens to let the pews, and to permit the churchwardens to receive the pew rents and other emoluments for the benefit of the vicar, after paying the neces- sary expenses ; and the vicar and churchwardens were authorized to appoint the clerk, pew-openers and other officers of the chapel. By an Order in Council, dated October, 1860, the chapel was constituted a district chapelry, and it was ordered that marriages, baptisms, &c. should be solemnized and performed in the chapel, and that the fees should belong to the minister of such chapel for the time being, subject to a proviso that so long as the existing vicar remained vicar the fees should be paid to him, but the order did not mention or affect to deal with the pew rents. It was holden, that the effect of the order in council was to withdraw the chapel from all the purposes included in the trust deed ; to constitute the district chapelry a benefice ; and to deprive the vicar and churchwardens of the parish church of all right to receive the pew rents, or to nominate the officers of the church. Whether after the creation of the district chapelry the pews of the chapel could lawfully be let, and the pew rents re- ceived for the benefit of the minister of the chapel, was said to be doubtful. . Consolidated (4.) As to " consolidated chapelries." The only difference chapelries. between these chapelries and district chapelries in their origin is, that these chapelries are formed out of portions of many parishes, " whpre a population is collected together at the (/) Roberts v. Aulton, 2 H. & N. p. 432 ; Ormerod v. Blackburn Burial Board, 21 W. E. p. 539. Vide supra, p. 1516. (g) 9 Jur., N. S. p. 1026; 2 Dr. & Sm. p. 614 ; 32 L. J., Ch. p. 794; (h) 33 L. J.,Ch.p.670; 10 Jur., N. S. p. 913. THE DIVISION OF PARISHES. 1725 extremities of and locally situate in parishes or extra-parochial places contiguous to each other " The manner in which these consolidated chapelries are to he 59 Geo. 3, formed is regulated by 59 Geo. 3, c. 134, s. 6, and 8 & 9 Yict. *Q& 9 c. 70, s. 9. The commissioners, with the consent of the bishop c ' ' ' or bishops and the patrons of the various parishes or extra- parochial places (?'), make a representation to the Queen in Council setting forth the proposed boundaries of the consolidated chapelry, and that there is or is about to be a church therein (J), and the Queen in Council orders such consolidated chapelry to be formed. Either a chapel may be built for the consolidated chapelry, or a consecrated church already built within the limits of the district may be made the chapel thereof. Unless such church or chapel be already a rectory or vicarage, the benefice is to be a perpetual curacy — with exclusive cure of souls and a right to all fees and offerings — and subject to the juris- diction of the bishop and archdeacon within whose diocese and archdeaconry the altar or communion table of the chapel (A*) is situate (/). The patrons of the various parishes and extra-parochial places out of which the chapelry is taken are to agree as to the future patronage of the chapel and benefice. By 14 & 15 Yict. c. 97, s. 19, consolidated chapelries may be H & 15 Vict, formed out of new parishes or districts as they may be out of c' 97 old ones. 59 Geo. 3, c. 134, s. 6, required the enrolment of the Boundaries, boundaries in chancery ; but it was holden by the Court of Queen's Bench, in the case of Regina v. The Overseers of South Weald (#»), that this clause was substantially repealed by 8 & 9 Yict. c. 70, s. 9. It is now formally repealed by 36 & 37 Yict. c. 91. It should here be observed, that by 1 & 2 Yict. c. 107, s. 12, i & 2 Vict, a " distinct parish " or " district parish " may be afterwards gu^^irion divided into other distinct or district parishes or into district u on' chapelries. (5.) As to chapels without districts: by 58 Geo. 3, c. 45, s.21, Chapels with- the Church Building Commissioners might, if they thought fit, out make grants to chapels to be served by curates to the incumbent of the parish; by 59 Geo. 3, c. 134, s. 19, these chapels are not to become perpetual curacies; but by 3 Geo. 4, c. 72, s. 22, the commissioners, with the consent of the bishop and patron, may apportion glebe, tithes and other emoluments "for the benefit of the incumbent of or person serving any such chapel." By 8 & (i) Or the major part, 14 & 15 (h) Vide supra, p. 724. Vict. c. 97, s. 20. {I) Even though part of the dis- (/) It used to be necessary also trice was in an exempt or peculiar to set forth the proposed patrons of jurisdiction, 2 & 3 Will. 4, c. 61. the consolidated chapelry ; but this (to) 5 B. & S. p. 391; 10 Jur., is not so now; see 34 & 35 Vict. N. S. p. 1099. c. 82. 5t2 1720 CHURCH EXTENSION. Ways of di- vision under 5 Geo. 4, c. 103, and 1 & 2 Will. 4 c. 33. Assignment of district. 1 & 2 Vict, c. 107. 2 & 3 Vict, c. 49. 1 & 2 Will. 4, c. 38. 11 & 12 Vict, c. 37. 8 & 9 Vict, o. 70. As to stipen- diary curate. New parishes formed by ecclesiastical commis- sioners. G & 7 Vict, c. 37; 19&20 Vict. c. 104. 9 Vict. c. 70, s. 18, the licence of the curate serving such chapel is not to be made void by the avoidance of the parish church. (B-.) As to divisions of parishes formed under 5 Geo. 4, c. 103, and 1 & 2 Will. 4, c. 38, churches built under the former act may, by sects. 16, 17, be made into district churches at , once by the commissioners with consent of the majority of the subscribers, bishop, patron and incumbent ; and become so in any case after forty years, if a district is assigned to them by order in council. Sects. 10, 11 of the latter act, as amended by 14 & 15 Yict. c. 97, ss. 14, 15, provide that the commissioners, with consent of the bishop, " and also with the consent of the patron and incumbent " (or patrons and incumbents, if more than one parish is affected) "in all other cases in which additional churches or chapels shall have been already built and endowed," shall proceed to assign, except in special circumstances, a district to every such church, and such district shall be under the care of the minister of the church " so far only as regards the visitation of the sick and other pastoral duties, and shall not be deemed a district for any other purpose whatsoever." Pro- vision may, however, be made, if they think fit, for solemnizing baptisms, churchings, and burials. The boundaries of such district shall be registered in the registry of the diocese, and may, by 11 & 12 Yict. c. 37, s. 2, from time to time be altered. By 1 & 2 Yict. c. 107, s. 10, such a district may be assigned and the same may be made a district parish, in all cases where a church has been built by subscription and has been sub- sequently augmented by Queen Anne's Bounty (m) ; and by 2 & 3 Yict. c. 49, s. 10, the minister of any chapel with a district has exclusive cure of souls within the district. By 1 & 2 Will. 4, c. 38, ss. 12, 13, such a church is a per- petual curacy, and may not be holden with the original church of the parish, or with any other benefice. By 11 & 12 Yict. c. 37, s. 1, a district formed under the preceding act may be considered as an original parish for the purpose of forming out of it a district parish, district chapelry or consolidated chapelry. By 1 & 2 Yict. c. 107, s. 13, the licence of the curate appointed to serve a district church or chapel is not to be rendered void by the avoidance of the parish church : and this is extended by 2 & 3 Yict. c. 49, s. 11, and 8 & 9 Yict. c. 70, s. 18, to all stipendiary curates of district chapelries, district parish churches, and new churches built or assisted out of funds belonging to the commissioners. (C.) As to the acts for making new parishes through the agency of the ecclesiastical commissioners. By 6 & 7 Yict. c. 37, s. 9, amended by 19 & 20 Yict. c. 104, s. 1, the ecclesiastical com- missioners may frame a scheme, and the Queen in Council upon such scheme may, with consent of the bishop, set apart any part or parts of any parishes, chapelries, district or extra-parochial (m) Vide supra, p. 1723. THE DIVISION OF PARISHES. 1727 places, properly marked out, and constitute them a separate district. Before, however, the scheme is laid before the Queen in Service on Council a draft of it must be sent to the incumbents and patrons PJ£jjj^te 3 affected, in order that they may have an opportunity of making u 1 b G - objections to it. Provision is made by 7 & 8 Yict. c. 94, ss. 4, 5, 6, and 32 & 33 Yict. c. 94, s. 11, for the service of the scheme on the incumbents and patrons in peculiar cases. Such district need not contain within it any church or chapel at the time ; or if it does contain one, it may, by 19 & 20 Vict. c. 104, s. 2, Church, be constituted in the scheme the church of such district. The commissioners must provide an endowment for the Endowment minister, or, by 19 & 20 Yict. c. 104, s. 3, there must be endowment, reason to expect one from other sources, to the amount of 150/. a year. By 6 & 7 Yict. c. 37, s. 10, and 7 & 8 Yict. c. 94, s. 8, there Map. must be a map of the district annexed to the scheme and registered. By 6 & 7 Yict. c. 37, ss. 11, 12, upon such district being 6 & 7 Vict, constituted, a minister is to be licensed (n) for the district, who c* shall have power to perform " all such pastoral duties appertain- Mmisters- ing to the office of a minister, according to the rights and usages of the Church of England, .... as shall be specified and set forth in his licence," and where a building has been licensed for divine worship, " such services and offices as shall be speci- fied and set forth in the same or any further licence and he shall so far have the cure of souls (o). The minister is to be styled "The minister of the district of and shall have a perpetual succession (p). By sects. 13, 14, the bishop may license a temporary place of Place of worship (q) : but otherwise the old parish shall not be affected, ^^ch^uilt until a church is consecrated for the district. Upon consecration of a church, however, by sects. 15, 16, New parish the district becomes a new parish, and all the offices of the formed> when, church may be celebrated in the church thereof, and the minister becomes a perpetual curate, with a right to all fees, dues and Easter offerings within his district. By 47 & 48 Yict. c. 65, s. 2, if a church has not been pro- 47 & 48 Vict, vided or allotted for a district formed under these acts, the c# 65 • district may be dissolved by an order in council made upon a scheme of the ecclesiastical commissioners with the consent of the bishop ; and the scheme may provide for the return or reverting of the endowment and for other incidental matters. By 6 & 7 Yict. c. 37, s. 19, the ecclesiastical commissioners 6 & 7 Vict, may, out of their endowment funds, not only provide the endow- ^n3d7owmei t ments for the ministers of these new parishes, but also make com- compen- sation. (n) The patronage in the case of (;>) See 8 & 9 Vict. c. 70, s. 18. such ministers has been treated of (q) By 54 & 55 Vict. c. 39, in the previous chapter : vide schedule, tit. Licence, a stamp supra, pp. 1712, 1713. duty of ten shillings is imposed on (o) See 7 & 8 Vict. c. 94, s. 10. such licence. 1728 CHURCH EXTENSION. Boundaries. 14 & 15 Vict, c. 97. Subdivision. 35 & 36 Vict, c. 14. New cures to form part of one diocese only. Attempt to bring previous acts into one system. 19 & 20 Vict, c. 104. Districts may become separate and distinct parishes for ecclesiastical purposes. Including marriages and burials. pensation to the incumbents of the old parishes for the loss of fees and dues sustained by them. By the joint effect of 7 & 8 Yict. c. 94, s. 9, 13 & 14 Yict. c. 94, s. 27, 32 & 33 Yict. c. 94, s. 1, and of 47 & 48 Yict. c. 65, the boundaries of these new parishes or districts may be altered from time to time. By 14 & 15 Yict. c. 97, s. 16, a new parish created under the foregoing provisions may be treated as an original parish for the purpose of any of the Church Building Acts or of the act itself. By sect. 21 of the same act, where parishes cannot be brought under the provisions of any of the acts for dividing parishes by reason of local acts affecting the parish, the commis- sioners may override the local act, upon an application by the patron, incumbent and vestry. By 35 & 36 Yict, c. 14, s. 3, " It shall be lawful for the Ecclesiastical Commissioners for England in recommending to Her Majesty in Council the formation of any new cure to be taken partly out of one diocese and partly out of another or others, to recommend also that such new cure shall form part of some one (to be specified by the said commissioners) of such dioceses ; and such new cure shall, upon its formation, become and be a part of the diocese so specified, and of no other diocese." (E.) An attempt has been made to bring the various divisions of parishes into one system by the following sections of 19 & 20 Yict. c. 104. Sect. 14. "Wheresoever or as soon as banns of matrimony and the solemnization of marriages, churchings, and baptisms according to the laws and canons in force in this realm are authorized to be published and performed in any consecrated church or chapel to which a district shall belong (r), such district not being at the time of the passing of this act a separate and distinct parish for ecclesiastical purposes, and the incumbent of which is by such authority entitled for his own benefit to the entire fees arising from the performance of such offices without any reservation thereout, such district or place shall become and be a separate and distinct parish for ecclesi- astical purposes, such as is contemplated in the fifteenth section of " 6 & 7 Yict. c. 37, " and the church or chapel of such district shall be the church of such parish, and all and singular the provisions of " 6 & 7 Yict. c. 37, and 7 & 8 Yict. c. 94 "(as amended by this act), relative to new parishes, upon their becoming such, and to the matters and things consequent thereon, shall extend and apply to the said parish and church as fully and effectually as if the same had become a new parish under the provisions of the said last-mentioned acts." The ecclesiastical purposes within this section include mar- riages (&) and burials (t). (r) Vide infra, p. 1735. (a) Fuller v. Alford, 10 Q. B. D. p. 418. (t) Hughes v. Lloyd, 22 Q. B. D. p. 157. THE DIVISION OF PAKISHES. 1729 Sect. 15. " The incumbent of every new parish created or Incumbents of hereafter to be created pursuant to the pro visions of" 6 & 7 Yict. £o have^x1-68 c. 37, and 7 & 8 Yict. c. 94, " or of this act, shall, saving the rights elusive cure of of the bishop of the diocese, have sole and exclusive cure of souls souls therein, and the exclusive right of performing all ecclesiastical offices within the limits of the same, for the resident inhabitants therein, who shall for all ecclesiastical purposes be parishioners thereof, and of no other parish, and such new parish shall, for the like purposes, have and possess all and the same rights and privileges, and be affected with such and the same liabilities, as are incident or belong to a distinct and separate parish, and to no other liabilities : Provided always, that nothing herein con- tained shall be taken to affect the legal liabilities of any parish regulated by a local act of parliament, or the security for any loan of money legally borrowed under any act of parliament or otherwise. " By 31 & 32 Vict. c. 117, s. 2, the incumbent of any such parish 31 & 32 Vict, is a vicar. °" ll7' The words " who shall for all ecclesiastical purposes be Election parishioners thereof and of no other parish,', do not take away of c^m'cn" from the parishioners of the new parish the right of voting for the election of churchwardens in the old parish (u). In the case of Beg. v. Perry (x), a new church was built and %e9> v- Jtofy- endowed and had a district assigned to it and a fund provided for its repairs under 1 & 2 "Will. 4, c. 38, and the bishop under 6 & 7 Will. 4, e. 85 (//), gave his licence for banns and marriages and for the fees being taken by the incumbent. It was holden that the district did not become a separate and distinct parish under 19 & '20 Yict. c. 104, s. 14, because the " authority" con- templated by that statute is not a licence by the bishop, which (by 6 & 7 Will. 4, c. 32) is revocable ; but an authority under an order of the commissioners under 19 & 20 Yict. c. 104, s. 11, and that therefore the election of a churchwarden was in the renters of pews and not in the parishioners. By 19 & 20 Yict. c. 104, s. 25, " it shall be lawful for the 19 & 20 Vict, commissioners, by the authority aforesaid " (that is, by an Order c* 104- in Council), " and subject to such consents as are hereinafter men- j^^^d^ tioned, to divide any parish into two or more distinct and sepa- with certain rate parishes for all ecclesiastical purposes whatsoever, and to fix consents, and settle the respective proportion of tithes, glebe lands, and other endowments which shall arise, accrue, remain, and be within each of such respective divisions, according as by the like authority shall be deemed advisable ; and the Order made by Her Majesty in Council, ratifying the scheme for such divi- sion, shall be good and valid in law for the purpose of effecting the same ; and such scheme shall set forth the particular expe- (m) Reg, v. Stevens, 3 B. & S. (x) 3 E. & E. p. 640; 7 Jur., N. p. 333 ; 32 L. J., Q. B. p. 90. Vide S. p. 6,35. supra, p. 1477. (y) Vide supra, p. 590, 1730 CHUKCH EXTENSION. In new parishes and parishes already di- vided, a divi- sion and re- settlement of endowments may be made. diency of such division, and how far it may he necessary in consequence thereof to make any alteration in ecclesiastical jurisdiction, and how the changes consequent upon such division in respect of patronage, rights of pew holders, and other rights and privileges, glebe lands, tithes, rentcharges, and other eccle- siastical dues, oblations, offerings, rates, and payments, may be made with justice to all parties interested; and such scheme shall also contain such directions and regulations relative to the duties and character of the incumbents of the respective divisions of such parish, and to the performance of the offices and services of the church in the respective churches thereof, and to the fees to be taken for the same respectively, and to any other matter or thing which may be necessary or expedient by reason or in consequence of such change : Provided always, that such divi- sion shall be made in the following cases with the following consents only ; that is to say, in the case of a benefice in the patronage of the Crown, or in the Chancellor of the Duchy of Lancaster for the time being, or of the Duke of Cornwall, or of any archbishop or bishop, or of any lay or ecclesiastical corpo- ration aggregate, or of a benefice in private patronage, with the consent of the patrons thereof respectively, with the consent of the bishop of the diocese, such consents to be testified as afore- said : And provided also, that no such provision shall take effect until after the first avoidance then next ensuing of the church of the parish to be so divided, unless with the consent in writing of the actual incumbent thereof." Sect. 26. " In cases where any parish shall have been divided into two or more distinct and separate parishes, or where any district or new parish shall have been constituted or formed out of any parish, district, or place, it shall be lawful, by the autho- rity aforesaid, and with the consent of each of the respective patrons and incumbents of such distinct and separate parishes, or of such parish, district, or place, as the case may be, to make a separation and division of the glebe lands, tithes, rentcharges, and other endowments belonging to such distinct and separate parishes, or to such parish, district or place, and to annex and re-settle the same to and for the benefit of such distinct and separate parishes, or of such parish, district, or place, and the district or new parish constituted or taken thereout, as the case may be, in such manner and proportions as by the authority aforesaid may be deemed expedient, and to make such regula- tions and arrangements as may be requisite for effectually com- pleting such division and settlement as aforesaid ; and upon every such re-settlement of endowments, whenever the whole of the ecclesiastical dues arising within the limits of any parish, district, or place, consisting of any praedial or rectorial tithe shall become and be made payable to the incumbent of such parish, district, or place, such parish, district, or place, shall thereupon become and be a rectory, and such incumbent the rector thereof, anything hereinbefore contained to the contrary notwithstanding. " THE DIVISION OF PARISHES. 1731 By 32 & 33 Vict. c. 94, s. 11, " In the case of any parish or 32 & 33 Vict, place wherein there is no parish church nor any person known c- 94- to be or claiming: to be patron of the ancient church or advowson, A^to PJrislL. • • "WllOr© til 61*6 IS if any, of such parish or place, then for all purposes of forming no church and an ecclesiastical district or ecclesiastical districts, either wholly no patron, or partly out of such parish or place under the powers of the Church Building Acts or New Parishes Acts, or any other act or acts of parliament now or hereafter in force, such parish or place shall be deemed to be and shall be treated for such purposes as an extra-parochial place, and in any case in which notice shall be required to be sent or given to a patron under the provisions of such acts or any of them it shall be sufficient with respect to such parish or place so to be treated as an extra- parochial place as aforesaid to send or give such notice to the bishop of the diocese alone, and such notice, when so sent or given, shall be held to be a full compliance with the require- ments of the said acts or act in respect of such notice : Provided always, that nothing herein contained shall affect the rights of the Crown, if any, with regard to any such parish or place." The division of parishes affects several of the ecclesiastical Effect of duties and privileges of the parishioners, more especially as to division on (1) church rates ; (2) the appointment and powers of church- wardens ; (3) the offices of the church ; (4) the apportionment of the ecclesiastical and charitable endowments arising therein. (1.) The power of recovering church rates having been now church rates, abolished (//), it is enough here to say that under 58 Greo. 3, c. 45, , ss. 31, 70, 71, district and distinct parishes were to bear their own church rates, but were also for twenty years to contribute to the repair of the original parish church ; and that by 3 Greo. 4, c. 72, ss. 20, 21, chapels, not being churches of distinct or district parishes, were, unless specially excepted, to be repaired by the parish at large. The following cases have been decided upon the construction of these sections : — Varty v. JSfunn (z), Beg. v. The OffieialPrin- cvpal of The Consistory Court of London (a), Jones v. Gough (b). (2.) As to the appointment and power of churchwardens. The church- sections of the various statutes, 58 Greo. 3, c. 45, s. 73 ; 1 & 2 wardens. Will. 4, c. 38, ss. 16, 25 ; 6 & 7 Vict. c. 37, s. 17 ; 8&9 Yict. c. 70, ss. 6, 7, 8, and the cases upon their construction have been set out at length in the chapter on churchwardens (c). (3.) As to the offices of the church. By 58 Greo. 3, c. 45, ss. 27, Offices of the 28, 29 (d), marriages, christenings, churchings, and burials are cnurch- to be performed in the churches of distinct and district parishes, ^84(Jeo* 3' (y) Vide supra, p. 1446. (z) 5 Jur. p. 1138. (a) 2 B. & S. p. 339; 31 L. J., Q. B. p. 106 ; 12 C. B., N. S. p. 220 ; nomine Ex parte BeaU> 31 L. J., C. P. p. 237. (b) 3 Moo. P. C. C., N. S. p. 1; 11 Jur., N. S. p. 251 ; nomine Gough and Carhvriyht v. Jones, 9 Jur., N. S. p. 82. (c) Vide supra, pp. 1475 — 1478. See also the case of Lloyd v. Burr up, L. E., 4 Ex. p. 63, given supra, p. 1438. (d) Vide supra, pp. 593, 594. 1732 CHURCH EXTENSION. upon the first avoidance of the old parish by the incumbent thereof, as if they had been old parish churches, but not before. At the same time provision is made in sect. 32 for compensat- ing the incumbent of the old parish church for any loss of fees, oblations and offerings which he may sustain by the division of his parish. The fees for performing the offices of the church enumerated above after the avoidance of the old parish, go to the incumbents of the distinct or district parishes (e) . 59 Geo. 3, By 59 Geo. 3, c. 134, s. 6, consolidated chapelries were to be c" 134, treated as old parishes for these purposes from the time of their creation. 8 & 9 Vict. But by 8 & 9 Vict. c. 70, s. 10, the fees arising from marriages c' performed in the churches of district chapelries, unless voluntarily relinquished, are to belong to the incumbent and clerk of the old parish as long as each continues in office. After the first avoidance the fees are to go to the incumbent and clerk of the new parish. By 14 & 15 Vict, c. 97, s. 17, the commissioners, with the bishop, may determine whether the offices enumerated above shall be solemnized in the churches of district chapelries or not ; if they determine that they or any of them shall be celebrated, they are to determine what portion of fees shall be paid to the curate of the chapel, and what to the incumbent of the old parish. King v. Alston. In King v. Alston (/), by an order in council, a district, with a district church, was parted off from the parish of St. Matthew, Bethnal Green, and the order in council directed that during the incumbency of the then rector of St. Matthew, two-thirds of the fees to be received for marriages, church- ings and burials at the district church " should belong and be paid to the rector, and one-third to the district minister." It was holden that, where the minister had actually received the entire fees for marriages, &c, the rector might recover from him the two -thirds in an action for money had and received. But that the act and order in council did not oblige the minister to receive the fees or any part of them : and that the rector could not maintain assumpsit against him on a supposed duty to take the fees and pay the rector his two- thirds. 7 & 8 Vict. By 7 & 8 Vict. c. 56, s. 4 (g), and 14 & 15 Vict. c. 97, s. 17, li^'iTvict aDOve cited, when the commissioners do not originally order the c 97# ' performance of all or any of these offices, they may do so after- wards by a supplemental order in council. 3 Geo. 4, By 3 G-eo. 4, c. 72, s. 12, in all cases of divisions of parishes c. 72. (e) See Edgell v. Burnaby, 8 Ex. p. 1026 ; 2 Dr. & Sm. p. 614 ; supra, p. 788. p. 1724. (/) 12 Q. B. p. 971. See also (g) Vide supra, p. 598. Tuckness v. Alexander, 9 Jur. N. S. THE DIVISION OF PARISHES. 1733 the commissioners may reserve the whole of the fees, or any portion of them, to the incnmbent of the old parish church, and may alter or rescind this reservation within five years from the first making thereof. By sect. 18, the provisions of the above-mentioned acts apply to cases of the division of extra-parochial places. By sect. 19 (/*), the bishop is to certify when the office of matrimony may be performed in any church under the provi- sions already set forth, and his certificate is to be conclusive evidence that marriages celebrated after the date thereof were lawfully celebrated therein. By 1 & 2 "Will. 4, c. 38, s. 10, the commissioners, with consent l & 2 "Will. 4, of the bishop, or the bishop alone in certain cases, may determine c- 38- whether baptisms, churchings and burials may be celebrated in churches or chapels built or appropriated under that act. By sect. 14, all the fees and dues for these offices, except such as may, with the consent of patron and incumbent, be assigned to the minister of the church or chapel, shall belong to the incumbent or clerk of the " parish, chapelry or place in which such church or chapel shall have been or shall be erected." In Carr v. Mostyn (/), it was holden that the word " chapelry" Carr v. here meant an ancient parochial chapelry only. Mostyn. By 7 & 8 Vict. c. 56, provision was made for celebrating Marriages marriages, which had been omitted from the list of offices y^tOT 7 ^68 authorized by the last act, in churches or chapels built under 10 ' c* it(t). By sects. 1, 2, the commissioners and bishops are given the same powers of authorizing marriages and of allotting the fees thereon, as they had in regard to the other offices (/). By sect. 2, the bishop's certificate that marriages are authorized is conclusive. By sect. 3, certain marriages already celebrated in such 3 & 4 Vict- chapels are rendered valid. By 3 & 4 Vict, c, 60, s. 18, the necessity of the consent of Consents not the incumbent and patron of the old parish to the assignment of as any portion of the fees under 1 & 2 Will. 4, c. 38, s. 14, to the minister of the chapel, is abrogated, and the commissioners and bishop, or the bishop alone in certain cases, may assign the whole or any portion of such fees to the minister. It should be mentioned that 7 & 8 Yict. c. 56, s. 6, takes Boundaries, away the necessity of enrolling the boundaries in chancery, and requires the registration of a map in the diocesan registry, in all cases where the offices of the church are to be performed in any church or chapel built under the previous acts ; and that 14 & 15 Certain Yict. c. 97, s. 25, validates all marriages performed by error in ^M*^8 h) Tide supra, p. 595. (?) By 14 & 15 Yict. c. 97, s. 18, i) 5 Ex. p. 69; 19 L. J., Ex. the necessity of the consent of p. 249. patron and incumbent is taken (k) Tide supra, pp. 596—598. away. 1734 CHURCH EXTENSION. 6 & 7 Vict, c. 37. Compensation for fees. 14 & 15 Vict, c. 97. Vaughan v. The South Metropolitan Cemetery Compan y. Boicyer v. Stantial. In metropolis. the church of any parish or district in which they could not legally be performed. By 6 & 7 Yict. c. 37, s. 15, all the offices of the church may be performed in new parishes created under that act (m), and the chancellor of the diocese is to fix a table of fees (n). By the provisions of 58 Geo. 3, c. 45, s. 32, 59 Greo. 3, c. 134, s. 6, 6 & 7 Yict. c. 37, s. 19 (extended by 19 & 20 Yict. c. 104, s. 13, to that act), 14 & 15 Yict. c. 97, ss. 2, 3, 4 (o), compensation may be made to the incumbent of the original parish for the loss of fees which is sustained by him on account of the division of his parish. By 14 & 15 Yict. c. 97, s. 5, where such compensation is made, all the fees and dues, in the cases of consolidated chapel- ries, district chapelries, or particular districts (?". e., districts assigned under 1 & 2 Will. 4, c. 38), shall belong to the incum- bent of such chapelry or district, even though originally reserved to the incumbent of the original parish by order in council. By sect. 6, where no express reservation has been made, the fees and dues in the same cases belong to the incumbent of the chapelry or district, even though no compensation has been made to the incumbent of the old parish. In Vaughan v. The South Metropolitan Cemetery Company (7;), the Cemetery Act provided that certain fees should be paid by the company to the incumbent of the parish or other ecclesiastical district or division from which any body should be removed for interment in the cemetery, and also directed that a portion of such fees should be paid over to the churchwardens or chapel- wardens, to be by them applied among the persons entitled by law or custom to share in the burial fees receivable in such parishes or districts by the churchwardens or chapelwardens. It was holden by Yice- Chancellor Wood that the fees in respect of interments from a district which had been created since the passing of the Cemetery Act, under an order in council, con- ferring powers of marrying, churching and baptizing, but silent as to burials, were payable to the incumbent of such district, and not to the incumbent of the mother parish. In Bowyer v. Stantial (g), the Exchequer Division and the Court of Appeal came to the same conclusion upon the same act. 15 & 16 Viet. c. 85, s. 36, contains special provisions as to the division of burial fees between the incumbents of old and new parishes in the metropolis (r). This, by 16 & 17 Yict. c. 134, is extended to all cases where burial boards are formed, and have burial grounds. Where this is the case, the incumbent of each separate and distinct parish has a right to perform the service of burial over his own parishioners (s). (m) Tide supra, p. 1727. (n) Vide supra, p, 1251. (0) See also 19 & 20 Yict. c. 104, 8. 12, infra, p. 1735. (p) 1 J. & H. p. 256 ; 7 Jur., N. S. p. 159. {q) 3 Ex. D. p. 315. (r) Vide supra, p. 680. (3) Wood v. Burial Board of Iltadingleij, 1 Q. B. 1892, p. 713. THE DIVISION OF PARISHES. 1 730 Now by 19 & 20 Yict. c. 104, it is provided as follows :— 19 & 20 Vict. Sect. 11, "The commissioners may, if they shall think fit, c- l0i- upon application of the incumbent of any church or chapel to ^°ch to bcf which a district shall belong, with the consent in writing of the performed in bishop of the diocese, make an order under their common seal, a11 churches authorizing the publication of banns of matrimony and the appiiJatfo^of solemnization therein of marriages, baptisms, churchings and the incum- burials, according to the laws and canons now in force in this bent- realm ; and all the fees payable for the performance of such offices, as well as all the mortuary and other ecclesiastical fees, dues, oblations or offerings, arising within the limits of such district, shall be payable and be paid to the incumbent of such district." In Fuller v. Alford (7), it was contended (strangely enough) Fuller v. that where a new parish had been formed under this act and an AJford- order made under this section, the old parish still remained for the purpose of marriage and that parishioners of the new parish were still entitled to be married at the old parish church, and the vicar of the old parish church was entitled to marry them and to receive fees. The Queen's Bench Division, however, decided the contrary («). Sect. 12. " In every case in which all or any part of the fees 19 & 20 Vict, or other ecclesiastical dues arising within the limits of any °* 104, district, or payable in respect of marriages, baptisms, churchings, ^eiont to^ and burials in the church or chapel thereof, or of such fees as original la- are hereby made payable to the incumbent of any district, shall cumbent until have been reserved, or if such last-mentioned order had not anc^then'to been made, would of right belong to the incumbent of the the ineum- original parish, district or place out of which the district of such b^£f new church or chapel shall have been taken or to the clerk thereof, parl!? ' an account of such fees shall be kept by the incumbent of such church or chapel, who is hereby required to receive and every three months pay over the same to the incumbent and clerk respectively who would have been entitled to them in case such districts had not been formed; and from and after the next avoidance of such incumbency, or the relinquishment of such fees by such incumbent, and after the situation of such clerk shall have become vacant, or after a compensation in lieu of fees has been awarded to such clerk by the bishop of the diocese, which he is hereby empowered to do, such reservation shall altogether cease and determine, and all such fees and dues shall belong to the incumbent of the district within which the same shall arise or to the clerk of the church thereof." In Cronshaw v. The Wigan Burial Board (v), a district was Cronshaw v. decided to have become a separate and distinct parish for eccle- Thc Wwm 1 L Burial Board. (?) 10 Q. B. D. p. 418. Vide supra, p. 678. supra, p. 1728. \v) L. E., 8 Q. B. p. 217. Vide (m) (1892) 1 Q. B. p. 713. Vide supra, p. 684. 1736 CHURCH EXTENSION. Hughes v. Lloyd. Result of enactments and decisions as to the offices of the church. Apportion- ment of en- dowments. 3 Geo. 4, c. 72. Parochial charities. 8 & 9 Vict, c. 70. Apportion- ment of bequests, &c. and also of siastical purposes by virtue of sect. 14 of 19 & 20 Vict. c. 104 (a?) ; and it was holden, this being the case, that the incumbent of this new parish had a right to perform the burials of his parish- ioners within the burial ground provided by the burial board for the whole of the old parish, and to receive the fees. In Hughes v. Lloyd (y), it was decided that the inhabitant of a separate and distinct parish for ecclesiastical purposes has not a right to be buried in the churchyard of the old mother church. In that case a parishioner of the new parish desired to bury his daughter in the churchyard of the old mother church, and the rector of the old mother church denied the right and required of the parishioners of the new parish a special fee of 10s. for the privilege ; and it was decided that the rector should recover the fees so demanded. The result of all these enactments and decisions is that where a new district or parish becomes a separate and distinct parish for ecclesiastical purposes, the parishioners of such separate and distinct parish lose all ecclesiastical rights in the mother parish, such rights including those of marriage and sepulture, and must resort for them to their new church and to its churchyard or to the appropriate civil burial ground ; and that the incumbent, parish clerk, and sexton (z) of the old parish have no claim for fees in respect of the performance of marriage or burial by the incum- bent of the new parish in his own church or churchyard, or in the appropriate civil burial ground. (4.) As to the apportionment of endowments between divi- sions of old parishes. It has been already pointed out that the tithes, glebe and other ecclesiastical endowments may be, in many and now in all cases (a), apportioned by the commissioners among the divisions of the parishes. The ecclesiastical burdens on parishes may also be apportioned in many cases (b). As to other charitable endowments, by 3 Greo. 4, c. 72, s. 11, the commissioners might, on a division of a parish or place made by them under the provisions of that and the previous acts, apportion "any charitable bequests or gifts which shall have been made or given to any such parish or place, or the produce thereof, between the divisions of the parish or place." Provision was to be made for the distribution of such appor- tioned part, and every apportionment was to be registered in the registry of the diocese. Now, however, a new provision is made by 8 & 9 Yict. c. 70, which enacts, by sect. 22, that where the commissioners " shall have already formed or shall hereafter form any distinct and separate parish, district parish, or district chapelry, under the (as) Vide supra, p. 1728. \y) 22 Q. B. D. p. 157 ; supra, p. 1728. (z) For parish clerks, vide supra, pp. 1515, 1516 ; for sextons, supra, p. 1519. (a) By 58 Geo. 3, c. 45, s. 16; 59 Geo. 3, c. 134, ss. 8, 9, 18; 3 Geo. 4, c. 72, s. 22 ; 19 & 20 Vict, c. 104, s. 26. (b) See the same sections. THE DIVISION OF PARISHES. 1737 provisions of the hereinbefore recited acts or any of them (c) , or charges to be this act, out of any parish or extra-parochial place, it shall be q^J. ^ the lawful for the Court of Chancery, anything in the hereinbefore chancery, recited acts to the contrary notwithstanding, on a petition being presented to the said court by any two persons resident in any such parish or extra-parochial place (such petition to be presented, heard and determined according to the provisions of " 52 Geo. 3, c. 101), "to apportion between the remaining part of such parish or place and the distinct and separate parish, or district parish, or district chapelry, any charitable devises, be- quests or gifts which shall have been made or given to or for the use of any such parish or extra-parochial place, or the pro- duce thereof, and in any such case to direct that the distribution of the proportions of such devises, bequests or gifts, or the produce thereof, as shall be so apportioned, shall be made and distributed by the incumbent or spiritual person serving the church, or by the churchwardens of any such distinct and sepa- rate parish, district parish, or district chapelry, either jointly or severally, as the said Court of Chancery may think expedient ; and it shall also be lawful for the said Court of Chancery to apportion between the remaining part of such parish or place as aforesaid, and such separate divisions or districts, any debts or charges wrhich may have been before the period of such apportionment contracted or charged upon the credit of any church rates in such parish or place ; and all such apportion- ments shall be registered in the registry of the diocese in which such parish or place shall be locally situate, and duplicates thereof shall be deposited with the churchwardens of such parish or place, and of each such division or district as aforesaid, and in all such cases the costs shall be at the discretion of the said court ; and such apportioned debts or charges shall be raised and paid by the parish or place in which they may be appor- tioned in such and the like manner as the entirety was to be raised and paid, or in such manner and under such provisions and conditions as the said court shall direct, and when any securities may have been given for the same the court may order new securities to be given for the apportioned debts by such per- sons and bodies, and in all respects as the said court may direct, and all securities shall be valid and binding . . . " (d). In re West Hani Charities (c), it was holden that under this In re West section the court is bound to act if called upon, although no *?am Chan- complaint is made of the mode in which the distribution of the gifts has been made since the division of the districts ; and that the court has jurisdiction to apportion gifts made specifically to a particular division of a parish, part of which has been formed into a chapelry district. (c) Apparently all the previous G. & Sm. p. 626; Be Campden Church Building Acts. Charities (No. 2), 24 Ch. D. p. 213. (d) See Ex parte Incumbent and (e) 2 De G. & Sin. p. 218. Churchwardens of Brompton, 5 De 1738 CHURCH EXTENSION. Does not apply to new parishes. Re Church Estate Charity. Wandsworth. It has been decided that this provision does not apply to " new parishes " formed by the ecclesiastical commissioners under 6 & 7 Yict. c. 87 (e). The principles on which the court will act are best laid down in Re Church Estate Charity, Wandsworth (/). In that case the churchwardens and overseers of the poor of a parish had from time immemorial been seised of certain plots of land, one of which was known as the Clock Acre, producing a small annual income, for the use and rejDairs of the parish church, known as the Church Estate. In 1820 a second church was erected, to which a district was assigned in 1846 under the provisions of the Church Building Acts, and other district churches had also been erected. Out of the income of the church estate ten shillings was annually paid to the minister for a sermon on St. Matthew's Day, and the rent of the Clock Acre was paid to the curate in augmentation of his stipend, subject to which the income had been constantly applied to the support of the fabric of the parish church, except from 1820 to 1846, when the income was applied to the support of both churches. On an application by the parishioners of the district parish, claiming a right to participate in the income of the above funds, it was holden by the Master of the Rolls that the in- ference to be drawn from the facts relating to the charity, so far as they were known, established that the estate was devoted to the repair of the particular parish church, and must be decided, in the absence of evidence to the contrary, to have been speci- fically given for that purpose ; and, consequently, that the dis- trict church was not entitled to participate. And this decision was affirmed on appeal (/). (e) ^.-G. v. Zoyc, 23 Beav. p. 499; (/) L. E., 6 Ch. App. p. 296; 18 3 Jut., N. S. p. 948. W. R. p. 1101. ( 1739 ) CHAPTER YII. CHURCH SOCIETIES. The societies which have been formed from time to time for the Some formally purpose of evangelizing, on the principles of the church, the constituted, people at home and abroad, must be distinguished for legal Somevolun- purposes into societies confirmed by royal charter or recognized d y' by statute, and those which are without the recognition of the state. It is almost exclusively with the former category that this chapter is concerned. The Church Building Society is incorporated by the 9 Greo. 4, The Church C. 42. Building The constitution and government of the society are thus g0^*^ settled by it : — c> 42.' ' " I. After reciting 1 that it is expedient to provide for the Account of better collection and application of voluntary contributions for the society, enlarging, building, rebuilding, and repairing churches and chapels in England and Wales,' it is enacted by the second section, that ' The Society for Promoting the Enlargement and Building of Churches and Chapels ' (which is therein mentioned to have been instituted in the year 1818), is, both as to its then and future members, declared to be a body corporate by the name of ' The Incorporated Society for Promoting the Enlarge- ment, Building, and Repairing of Churches and Chapels' (a). " II. The Archbishop of Canterbury, for the time being, is The com- declared to be the president of the society, and the Archbishop mittee. of York, for the time being, and the bishops of the two provinces, for the time being, together with twenty-five lay peers and commoners, the vice-presidents thereof. All vacancies which may from time to time occur in the number of the lay vice- presidents are to be filled up from the lay members of the society by the committee. " III. The society is to be governed by a committee, consist- ing of the president, vice-presidents and treasurer, and of thirty- six members elected from the society, one-half at least of whom are to be laymen. The treasurer, and one-fourth of the thirty- six elected members of the committee (in rotation) are to vacate fa) The statements in this and the following eight paragraphs are taken from the publications of the society. P. VOL. II. 5 u 1740 CHURCH EXTENSION. Qualification of members. General court Orders, acts, powers, and duties of the committee. The enlarge- ment or build- ing of churches and chapels. Rules to be observed in selecting parishes. their offices at the annual general court, but are to be capable of immediate re-election. " IY. All persons who contribute ten guineas in one donation, or one guinea annually, are declared to be members of the society, and to have a right to vote at general courts, and to be eligible to the committee, provided their annual subscriptions be not in arrear. "V. A general court is to be holden annually in May, and often er if the committee shall think it expedient. At the annual general court three auditors are to be appointed for the year ensuing, a treasurer elected, and the vacancies in the com- mittee filled up. All such elections are to be by ballot, from a double list prepared by the president and vice-presidents. "VI. Every order made and act done by the committee, for the time being, of the society, is to be made and done with the consent of the majority of the members present at any meeting of the committee, such meeting to consist of not less than five ; and the committee, or the major part of them at any such meeting, are to have full power and authority to make all such laws and regulations, not being repugnant to the laws of the kingdom or the express provisions of the act (9 Geo. 4, c. 42), as to them shall from time to time seem expedient, for the management and government of the society, and for carrying its designs into effect. The committee are to have the sole management, control and disposal of the estates, funds, revenues and other property belonging to the society ; and also the power of affixing the common seal of the society, or directing it to be affixed, to such instruments as the committee, or such major part of them, shall think fit. The committee are to have also the sole control over, and appointment of, all officers, agents, or servants whom it may be thought expedient to employ in the service of the society, or in any of the concerns relating thereto. But it is provided that no laws or regulations made by the committee shall be of any force or effect, unless the same shall be confirmed by the members of the committee, or the major part of them, who shall be present at the next meet- ing of the said committee after the same shall have been first made, such next meeting to consist of not less than five. " VII. In the selection of parishes, or extra-parochial places to which the committee shall grant any part of the society's funds towards the enlarging or building of any churches or chapels, they are to have regard to the amount of the popula- tion, and also to the disproportion between the number of in- habitants and accommodation for attendance upon divine service according to the rites of the . . . Church of England . . . and, in giving preference among such parishes and extra-parochial places, are also to have regard to the proportion of the expense which shall be offered to be contributed or raised by such respective parishes or places towards the enlargement or building of churches or chapels therein, and to the pecuniary ability of the inhabitants thereof. CHURCH SOCIETIES. 1741 " YIII. The committee are at liberty to grant aid towards The repairs the repairs of churches and chapels which have fallen into a ^l^^h^ state of great dilapidation without neglect or fault of the exist- Rules to be ' ing parishioners, and the entire expense of repairing which the observed in parishioners shall be proved, to the satisfaction of the committee, sele.ct"1& to be unable to defray ; but in all such cases reference is to be p ris had to the amount of money raised by the parishioners by rates or subscription, and to the improvement which it may be pro- posed to effect in the accommodation for the poor. " IX. The committee are annually to present to Her Majesty Annual report an account of the progress made by the society in the execution t°^er of its designs, stating the number of churches or chapels en- larged, built, rebuilt, or repaired, or in the course of being so; the money expended, and for what purposes; and such other particulars as shall be necessary for explaining the progress made by the society, together with a list of all officers, agents and servants employed by the society, and a statement of their respective salaries." By sect. 1 of 9 Geo. 4, c. 42, the act " for the better collecting 9 Geo. 4, charity money on briefs by letters patent," &c. (4 Ann. c. 14), c- 42\ . is repealed. But by sect. 10, if the crown is at any time pleased 4iefs!10IL to issue royal letters authorizing contributions, the same when received shall be paid to the treasurer of the above society. In Incorporated Church Building Society v. Barrow (b), it was Incorporated holden, that the society having no power to purchase land, but Ohurch Butlf? 1)1(1 'lOClCtff v only to build churches or chapels on land already purchased, Barrow. could take a bequest of pure personalty by will, without being obnoxious to 9 Geo. 2, c. 36. The Society for the Propagation of the Gospel in Foreign Society for the Parts was incorporated by royal charter on the 10th of June, ^™£e^o°^i 1701, "for the receiving, managing and disposing of funds con- tributed for the religious instruction of the Queen's subjects beyond the seas ; for the maintenance of clergymen in the plantations, colonies and factories of Great Britain, and for the Propagation of the Gospel in those parts (c)" The following was the constitution of the society as contained in the material extracts from the original charter : — " That the said Society for the Propagation of the Gospell in Election of Forreigne Parts, and their successors for ever, shall . . . yearely, officers- meet at some convenient place to be appointed by the said society, or the major part of them, who shall be present at any generall meeting, betweene the houres of eight and twelve in the morning ; and that they, or the major part of such of them that shall then be present shall choose one president, one or more vice-president or vice-presidents, one or more treasurer or trea- surers, two or more audittors, one secretary, and such other (b) 3 De Gk, M. & G. p. 120. 5 De G., M. & G. p. 324. See Incorporated Church Building (c) Vide infra, pp. 1771, 1793. Society v. Coles, 1 K. & J. p. 145 ; 5 u 2 17 1-2 CHURCH EXTENSION. officers, ministers and servants, as shall be thought convenient to serve in the said offices for the yeare ensueing . . . ." " That if it shall happen, that any of the persons at any time chosen into any of the said offices shall dye, or on any account be removed from such office at any time between the said yearly dayes of election, that in such case it shall be lawfull for the surviving and continueing president, or any one of the vice- presidents, to issue summons to the severall members of the body corporate, to meet at the usuall place of the annuall meeting of the said society, at such time as shall be specified in the said summons ; and that such members of the said body corporate, who shall meet upon such summons, or the major part of them, shall and may choose an officer or officers into the roome or place of such person or persons, soe dead or removed, as to them shall seem meet." This charter provided for an annual, quarterly and monthly meetings on certain Fridays ; but the necessity of meeting on these or on any particular days has been taken away by a sup- plemental charter (b). " That noe act done in any assembly of the said society shall be effectuall and valid, unlesse the president or some one of the vice-presidents, and seaven other members of the said company at the least, be present, and the major part of them consenting thereunto." "The Lords Archbishops of Canterbury and York; the Bishops of London and Ely ; the Lord Almoner and Dean of Westminster; the Dean of St. Paul's, and Archdeacon of London ; and the two Regius and two Margaret Professors of Divinity of both our Universities for the time being, are members of the corporation ex officio" " That the said society and their successors shall and may at any meeting on such third Friday in the month, elect such persons to be members of the said corporation, as they, or the major part of them then present, shall think beneficiall to the charitable designes of the said corporation." Subscriptions. " That the said Society for Propagation of the Gospell in Forreigne Parts, and their successors, or the major part of such of them as shall be present at any meeting of the said society, shall have power from time to time, and all times hereafter, to depute such persons as they shall think fitt to take subscriptions, and to gather and collect such moneys as shall be by any person or persons contributed for the purposes aforesaid. And shall and may remove and displace such deputyes as often as they shall see cause soe to doe." Accounts. " That the said society shall yearely, and every yeare, give an account in writing to our Lord Chancellor, or Lord Keeper of the Great Seale of England for the time being, the Lord Cheife Justice of the King's Bench, and the Lord Cheife Justice of the Common Pleas (c), or any two of them, of the severall summe or (1) Vide infra, p. 1743. (c) There is now no Lord Chief Justice of the Common Pleas. Meetings. Members ex officio. Election of members. CHURCH SOCIETIES. 1743 summes of money by them received and laid out by vertue of these presents, or any authority hereby given, and of the management and disposieon of the revenues and charityes afore- said." In 1881 the society determined to apply to the crown for Supplemental a supplemental charter, which was issued that same year. cliarter- After reciting the previous charter, her Majesty was graciously pleased to ordain, declare and grant as follows, viz. : 1. " Henceforth, the Most Reverend the Lord Archbishop of Canterbury for the time being, shall be the president of the said society." 2. " The Most Reverend the Lord Archbishop of York for the time being, and the Right Reverend the Bishops of the Church of England respectively, for the time being holding sees in England or Wales, shall henceforth be vice-presidents of the said society." 3. Removed the oath prescribed by the original charter. 4. " The management of the affairs of the society shall be entrusted to a committee or other select body of members, whether the same shall be the standing committee of the said society appointed and elected under the existing bye-laws, or any committee or body to be hereafter elected or appointed under the same or any other bye-law or resolution of the society, and the said committee or body shall have, exercise, and enjoy all rights, powers, and privileges of the said society by the said charter of King William III., or hereby granted, except powers of granting leases, altering or affixing or using the seal, choosing officers, and electing members of the corpo- ration, and except the power of transacting any business which from time to time by any bye-law or resolution hereafter to be made or passed shall be specially reserved for the society. The said committee or body shall also have, exercise, and enjoy all such further or other powers of the said society (including those hereinbefore excepted) as the society shall from time to time, by any bye-law or resolution ordain and appoint. But such committee or body shall not at any time have the power of making, varying, or repealing any bye-law or resolution of the society." 5. "It shall be lawful for the said society from time to time, by resolution to make any bye-laws whereby provision shall be made for holding upon any day in the year, one yearly meeting of the society, and such bye-laws may also provide for holding other or special meetings of the said society, and for the con- vening thereof by such officers or officer or members of the said society, and upon or without requisition and at such times, on such occasions, or for such causes as the said society shall see fit ... ." 6. " For the several purposes of the elections authorized by the said charter of King William III., and by these presents (except the election of the president and ex-officio vice-presi- 1744 CHURCH EXTENSION. dents), and for the purpose of electing any members or member of the said standing committee or other select body of members to which the management of the affairs of the society may from time to time be entrusted as hereinbefore provided, and for the purpose of any poll or other occasion for taking the votes of the said society, it shall, in addition to the powers of voting conferred by the aforesaid charter of King William III., hence- forth be lawful, subject to any bye-law of the society, for members of the society not personally present at any meeting to vote by means of a voting-list or paper signed by the member voting. And the said society may make, and from time to time add to, repeal, or vary as it may seem fit, any bye-laws regu- lating the manner in which such voting papers shall be used, and generally prescribing the method of conducting any election or 7. "If at any meeting a poll of the society in respect of any resolution, motion, matter, or question which may have been submitted to and voted upon by such meeting be demanded by two members of the society present at such meeting, such demand shall be put to the votes of the members present at such meeting for their approval or disapproval, and if such demand be supported by the votes of one-third of the members present at such meeting, and shall at some time after the close of such meeting receive the consent of the president of the society, then, the vote of such meeting in respect of such resolution, motion, matter, or question as aforesaid, shall be of no force or validity until after such poll shall have been taken, and such poll of the whole society shall then be taken by means of such voting-lists or papers as aforesaid within such time and in such manner and with such conditions and otherwise as the bye-laws of the society shall direct, and the result of such poll shall be the resolution of the said society." 8. " Henceforth it shall be lawful for the said society, by bye- law or resolution, from time to time, to lay down and prescribe the conditions and manner upon and in which the resignation of any member of the said corporation desirous of resigning his membership may be made and accepted. And it shall be lawful for the said society to declare any member of the said corpora- tion, who for the time being shall not fulfil such conditions as to subscribing to the society or as to payment or collection of sub- scriptions as may from time to time be laid down by the said society, disqualified, and thereupon the person so declared dis- qualified shall cease to be a member of the said corporation." 9. "It shall be lawful for the said society and their successors to receive and hold all such moneys as have been, or shall be, given or bequeathed to the said society, whether the same shall be charged upon or payable out of or constitute an interest in land or not, and also to advance any of their surplus or unem- ployed moneys upon mortgage of, and as such mortgagees to hold, any freehold, copyhold or leasehold lands, messuages or CHUKCH SOCIETIES. 1745 hereditaments, and also to purchase, have, hold, take and enjoy any manors, messuages, lands, tenements, rents, advowsons, liberties, privileges, jurisdictions, franchises, and other heredita- ments of any nature, tenure or value, wheresoever situate, for any estate, term or interest therein respectively, and whether or not the same or any of them shall exceed the clear yearly value of 2,000/. without incurring any of the penalties or forfeitures of the Statutes of Mortmain. But so nevertheless that such of the said hereditaments (other than land and hereditaments in mort- gage to the society) as shall be held for an estate in fee simple, together with such of the said hereditaments other than as aforesaid as shall be held for any term exceeding 500 years shall not at any time exceed in clear yearly value the sum of 10,000/." Clause 10 gives the society power to let, sell, exchange, en- franchise, mortgage, and otherwise deal with their landed pro- perty. The society is further governed by bye-laws made under the Bye-laws, charters. In Chester v. Chester it was holden, that the purposes of the Chester v. society were " charitable " within the meaning of 9 Geo. 2, chester- c. 36 (d). " The National Society for Promoting the Education of the National Poor in the Principles of the Established Church " was originally Society, founded in 1811, and was incorporated by royal charter in charter. May 23, 1817. The following is a summary of its constitution as fixed by the charter, taken from the society's publications. " That there shall and may be a society to be called 6 The National Society for Promoting the Education of the Poor in the Principles of the Established Church throughout England and Wales,' and that the presidents and vice-presidents of the said society, and their successors for ever, and every person paying one guinea annually to the funds of the society, or ten guineas in one donation, shall be a corporation with perpetual succession, common seal, power to hold property to the value of 10,000/. per annum, and any other property and effects. " That the Archbishop of Canterbury be president ; that the Archbishop of York and all the bishops and ten other persons, being either temporal peers or privy councillors, be vice-presi- dents. " That any vacancies in the number of such last-mentioned vice-presidents be filled up by the nomination of the president and the remaining vice-presidents, or the major part of them, at a meeting to be holden for that purpose as soon as conveniently may be after the occurrence of such vacancy, or by the nomina- tion of the major part of such of them as shall be present at the said meeting. (d) L. R., 12 Eq. p. 444; vide supra, p. 1568. .1746 CHUKCH EXTENSION. " That for the managing and conducting the affairs of the said incorporated society there shall be a standing committee, and that such committee shall consist of the president and of the vice-presidents, and of sixteen other members of the society, together with such one other member of the society as shall, for the time being, be appointed to fill the office of treasurer of the said society. " That one-fourth part in number of the said sixteen com- mittee-men shall annually vacate their offices in regular rota- tion, unless by death, or voluntary resignations, any other vacancies shall have been occasioned since the last general annual meeting ; in which case so many only of the four persons next in rotation shall be required to resign, or vacate their said offices, as shall be sufficient, with the vacancies occasioned by death or voluntary resignation, to create or make four vacancies in the whole in the said committee of sixteen ; and that any of the said committee-men so vacating their offices by rotation shall be capable of being immediately re-elected as committee-men by the society at large, in manner hereinafter mentioned ; and accord- ingly, for the purpose of such election, that lists shall be formed by the president and vice-presidents for the time being, or the major part of them, of persons in their opinions fit to be elected members of such committee ; which last-mentioned lists shall contain twice as many names as shall be then vacancies to be filled, whether such vacancies shall be occasioned by members of the committee vacating their offices in the manner hereinbefore mentioned, or by deaths, or voluntary resignations, since the last election ; and that out of such lists so many persons as shall be necessary to supply the vacancies then existing in the said com- mittee shall be elected and chosen by the members of the said society, present at their annual general meeting, or the major part of them, by such mode of voting or ballot as the said com- mittee for the time being, or the major part of them, shall pre- scribe. " That for the purpose of such election, and for the election of auditors of the accounts, and for receiving the reports, and for other the affairs of the said society, a general meeting of the said society shall be holden at such place as the committee, or the major part of them, shall appoint in the month of May or June in every year, and that due notice shall be given of the time and place of such meeting, at least fourteen days previous to the day of meeting, by advertising in some or one of the public news- papers published daily in the cities of London and Westminster. " That the treasurer of the said society shall be chosen and appointed by such of the members of the committee for the time being as shall be present at a meeting to be holden for that purpose, or the major part of them ; and that such treasurer for the time being shall, by virtue of his office, be a member of the said committee. CHUttCH SOCIETIES. 1747 " That the said committee for the time being, or the major part of them, shall have full power and authority to frame, appoint, order, and make all such laws, rules, regulations, con- stitutions and ordinances, not being repugnant to the laws of this kingdom, or to the express provisions of this charter, as to the said committee, or the major part of them, shall from time to time seem expedient for the management and government of the said society, and for carrying into effect the designs thereof; and shall have the sole management, control, and disposition of the estates, funds, revenues, and other property belonging to the said society ; and shall have the power of affixing the common seal of the said society, or directing it to be affixed, to such instruments as the said committee, or the major part of them, shall think fit ; and shall have the sole control over and appoint- ment of all officers, agents, or servants whom it may be thought expedient to employ in the service of the said society, or in any of the concerns relating thereto : provided, that such laws, rules, regulations, constitutions, and ordinances so to be made by the said committee, or the major part of them, shall not be of any force or effect unless the same shall be approved, ratified and confirmed by the members of the said committee, or the major part of them, who shall be present at the next meeting of the said committee after the same shall have first been made." Laws and regulations have been framed under the charter. Eegulations. In all schools united to the society the following clause is Trust deed, required to be inserted in the trust deed thereof. " And it is hereby declared that the said school shall always be in union with and conducted accordingly to the principles and in furtherance of the ends and designs of the incorporated national society for promoting the education of the poor in the principles of the established church throughout England and Wales" (e). The Society for Promoting Christian Knowledge has never Society for been incorporated. It is, however, one of the oldest church ^h^San^ societies, having been founded in a.d. 1098 ; and the members Knowledge, thereof contributed largely to the foundation and incorporation of the Society for the Propagation of the Gospel and of the National Society. The original preamble to which all members subscribed their names was as follows : — " Whereas the growth of vice and immorality is greatly owing to gross ignorance of the principles of the Christian religion, we, whose names are under written, do agree to meet together as often as we can conveniently, to consult (under the conduct of divine providence and assistance) how we may be able, by due and lawful methods, to promote Christian knowledge. The Corporation of the Church Plouse was founded in the Corporation of (e) Tide supra, p. 1625; and the act 23 Vict. c. 11, s. 2, there quoted. CHURCH EXTENSION. year 1887 as a memorial of the Jubilee of her Majesty's reign. The scheme of a Church House was first suggested by Sir Eobert Phillimore, the writer of this work, in letters written to The Guardian in 1865. The Church House was incorporated by Eoyal Charter on Feb. 23, 1888. It is governed by a council consisting of the following cx-qfficio members : the Archbishop of Canterbury, the Lord Chancellor, the Archbishop of York, the Bishop of London, the Dean of Westminster, and the Prolocutors of the Lower Houses of the Convocations of Canterbury and York respectively, and of nine members elected from among the members of the corporation by the members of the corporation. ( 1749 ) PART X. CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. CHAPTER I. CHURCH IN IRELAND. The fifth article of the Act for the Union of Ireland with Great 39 & 40 Geo. 3, Britain (39 & 40 Geo. 3, c. 67) enacts, " That it be the fifth ^67- article of union, That the churches of England and Ireland, as of England68 now by law established, be united into one protestant episcopal and Ireland to church, to be called, The United Church of England and ^ u^^to Ireland ; and that the doctrine, worship, discipline, and govern- one c urc ment of the said united church shall be, and shall remain in full force for ever, as the same are now by law established for the church of England ; and that the continuance and preservation of the said united church, as the established church of England and Ireland, shall be deemed and taken to be an essential and fundamental part of the union ; and that in like manner the doctrine, worship, discipline, and government of the church of Scotland, shall remain and be preserved as the same are now established by law, and by the acts for the union of the two kingdoms of England and Scotland." In the first year of Greorge II., an act was passed to enable archbishops, bishops, and other ecclesiastical persons, to grant their patronage or right of presentation to small livings to such persons as shall augment the same. In 1836, an act was passed to amend the last foregoing statute Early acts of and to encourage the building of chapels of ease in Ireland (a). ]mVe™1 In 1812, an act was passed to enable coadjutors to archbishops to°lrish and bishops in Ireland to execute the powers of archbishops and Church, bishops respectively, for all purposes but that of presenting and collating to benefices, and in all cases except such as concerned royal privileges or prerogatives (b). On the 21st June, 1824, an act was passed to consolidate and («) 6 & 1 Will. 4, c. 31. (6) 52 Geo. 3, c. 62. 1750 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. amend the laws for enforcing the residence of spiritual persons on their benefices ; to restrain spiritual persons from carrying on trade or merchandise ; and for the support and maintenance of stipendiary curates in Ireland (r). 3 & 4 Will. 4, On the 14th August, 1833, an act — The Irish Church Tem- c- 37- poralities Act (3 & 4 Will. 4, c. 37), was passed, effecting a very extensive alteration in the temporalities of the Irish Church. 4 & 5 Will. 4, This act was subsequently amended by one (4 & 5 Will. 4, c. 90) c" 90* which passed on the loth August in the ensuing year. Organization The Church of Ireland was, until the passing of the Irish in Ireland™*1 ^nurch Temporalities Act, under the control of four archbishops, before Irish one ^0T eacn °^ the ^our provinces of Ireland, and named from the Church cities of Armagh, Dublin, Cashel, and Tuam, in which the archi- Temporalities episcopal sees are situated. The Archbishop of Armagh, now universally recognized as first in rank, though his right to that station was long disputed by the Archbishop of Dublin, is styled Primate and Metropolitan of all Ireland; the Archbishop of Cashel, Primate and Metropolitan of Munster ; and the Archbishop of Tuam, Primate and Metropolitan of Connaught. The four archiepiscopal provinces were subdivided into thirty-two dioceses, which were consolidated and united under eighteen bishops. The dioceses in Armagh province were those of Armagh (holden by the archbishop), Clogher, Meath, Down and Connor united, Deny, Eaphoe, Kilmore, Dromore, and Ardagh united to Tuam. There were, therefore, seven bishops in this province, suffragan to the Archbishop of Armagh. The province of Dublin was subdivided into the dioceses of Dublin and Glan- delagh united, Kildare, Ossory, and Leighlin and Ferns united. The Archbishop of Dublin had, therefore, three suffragan bishops under him. The province of Cashel contained the dioceses of Cashel and Emly united, Limerick united with Ardfert and Aghadoe, Waterford united with Lismore, Cork united with Ross, Cloyne, and Killaloe united with Kilfenora. The number of suffragan bishops in this province was five. The province of Tuam comprehended the dioceses of Tuam, Elphin, Confert united with Kilmacduagh, and Killala united with Achonry. There were, therefore, three bishops in this province suffragan to the Archbishop of Tuam. 3 & 4 Will. 4, This arrangement was considerably altered by the 3 & 4 4 & 5 WOl 4 WilL 4' Cl 37' and 4 & 5 WilL 4' c- 90' cited above; according c. 90. ' ' to the provisions of which, the hierarchy was to consist of two archbishops only, those of Armagh and Dublin ; the two others being reduced to the rank of bishops. The eighteen suffragan bishops were to be reduced by the consolidation of the dioceses to ten, five under each archbishop. The new arrangement was to be effected gradually on the demise of the several bishops whose sees were to be united to others. When completed, the (c) See 5 Geo. 4, c. 91 : this answers to the act 1 & 2 Yict. c. 106, for England. CHURCH IN IRELAND. 1751 ecclesiastical division of Ireland was to be as follows: — The province of Armagh, containing the bishoprics of Meath, Deny united with Paphoe, Down united with Connor and Dromore, Kilmore united with Ardagh and Elphin, and Tuam united with Killala and Achonry : the province of Dublin, containing the bishoprics of Ossory united with Leighlin and Ferns ; Cashel united with Enily, Waterford and Lismore ; Cloyne united with Cork and Ross ; Killaloe united with Kilfenora, Clonfert, and Kilmacduagh ; and Limerick united with Ardfert and Aghadoe. The income of the archbishops and bishops was derived chiefly from lands let upon leases of twenty-one years, and renewed from time to time, at the original rent, on payment of a fine on renewal, fluctuating according to the altered value of land, and the period to which the renewal was to extend. According to 3 & 4 Will. 4, c. 37, s. 51, the archiepiscopal 3 & 4 Will. 4, sees of Cashel and Tuam having become void, the Archbishops c- 3~- of Armagh and Dublin were to succeed each other, in future, in {^*jJtion of parliament, from session to session ; and arrangements were aenta^re™" made for episcopal rotation as to seats in parliament. bishops. The ecclesiastical dignitaries subordinate to the bishops were Deans, the deans, thirty-three in number ; all were presentative by the crown, except those of St. Patrick's, Dublin, and of Kildare, — who were elective by their respective chapters, — and of Clon- macnois, collative by the Bishop of Meath. Twenty- six deans had cure of souls, and seven had not. The deans of St. Patrick's, Dublin, Christ Church, Dublin, St. Canice, Kilkenny, and Lis- more, exercised peculiar jurisdictions, varying in each, within their respective deaneries. Three dioceses — Aleath, Kilmore, and Diocesan Ardagh — were without chapters ; in lieu of which there was a synods- synod, consisting of all the beneficed clergymen, in which the archdeacon presided. The chapters and synods were corporate bodies, and used a common seal. The chapters were thirty in Chapters, number ; and though all had a general similarity of constitution, each was marked by some special peculiarity. Their component members were as follows — the precentors or chanters : their number was twenty-six — seventeen with cure of souls, and nine without cure ; they were all appointed by their respective bishops, except the precentor of Christ Church, Dublin, who was nomi- nated by the crown. The next members were the chancellors ; they were twenty-two — fifteen having cure of souls, and seven being without cure ; all appointed by the bishops, except that of Christ Church, Dublin, who was nominated by the crown. The treasurers were also twenty-two — sixteen with cure of souls, and six without cure; the right of appointment was the same as that of the precentors and chancellors. The archdeacons were thirty-four in number — all appointed by the bishops. There were two provosts (d), belonging to cathedral churches; but they were said to have had no official duties, cure of souls, or spiritual jurisdiction. Besides the subordinate dignitaries now (d) This title occurs in Scotch and Continental cathedrals. 1752 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. recited, the chapters had prebendaries, 180 in number. There were also in twelve of the cathedral churches certain subordinate bodies, consisting of five canons, fifty-nine vicars choral, and fifteen choristers. One peculiar. There was but one instance of a territorial exemption from episcopal jurisdiction, — the lordship of Newry; the proprietor of which held his spiritual court, and granted marriage licences and probates of wills, under the seal of the religious house to which the lordship belonged before the Reformation. Parochial The dioceses were divided into parishes, which were in the clergy. spiritual charge of clergymen in full orders, called rectors and vicars, and perpetual curates. They derived their incomes chiefly from tithe, of which there were two kinds, — great and small ; the former derived from corn of every kind, hay and wool ; the latter from flax, hemp, garden produce, and in some cases potatoes ; but by another and more general explanation of these terms, two-thirds of the tithe of corn, hay and wool constituted the great tithe, and the remaining third the small tithe of a parish : the former was considered the property of the rector, the latter of the vicar. Latterly, a new order of parochial clergy had been introduced into the church, under the name of perpetual curates, who had charge of a portion of a parish specially allotted to them, the tithe of which they received, and and were not subject to the incumbent of the remaining portion of the parish, but held their situations for life. The parochial clergy derived part of their income from glebe land attached to their respective benefices. The total quantity of glebe land amounted to 91,137 acres, from which, if a twen- tieth part be deducted as unprofitable, there remained 86,581 acres of profitable land ; it is said that if equally apportioned among the benefices, it would have given an average of 62 acres to each incumbent. It was, however, very unequally distributed, by much the greater quantity of it lying in the northern pro- vince of Armagh. Most of the glebes were furnished with manses or glebe houses, built partly by a donation of money from the board of first fruits, partly by loan from the same source, and partly at the cost of the incumbent, repayable by instalments from his successors. In cities and towns the paro- chial clergy were paid, in lieu of tithe, by minister's money, which was an assessment on every house of a certain value, estimated according to the amount of rent paid. The incomes of the parochial clergy were subject to certain deductions. These were, first fruits, payments towards diocesan and parochial schools, repairs of certain parts of the churches, and repairs of glebe houses. The first fruits were designed to be the amount of the first year's income of every benefice, pay- able by the new incumbent in four annual instalments, and intended to be applied to ecclesiastical purposes, especially the building and repairing of churches and glebe houses, and the purchase of glebe land. But as the amount on each parish was CHURCH IN IRELAND. 1753 rated according to assessments made in the time of Henry YIIL, Elizabeth, and James L, which had never since been altered, notwithstanding the extraordinary increase in the value of agri- cultural produce, the impost was little more than nominal, and was suppressed by the last acts for regulating church property. The diocesan schools were to be maintained by annual contribu- tions from the bishop and the beneficed clergy ; but the levy drawn from this source was little more than nominal. The parochial schools were supposed to be maintained by an annual stipend from the incumbent, estimated by custom at two pounds per annum. In many cases this was not paid. Every incum- bent was bound to keep his glebe house in tenantable order ; to enforce which regulation, the bishop appointed a certain number of rural deans, whose duty it was to visit the several parishes within their respective districts, and to report to him upon the state of the churches and of the glebe houses. The churches were at one time kept in repair at the expense of the inhabitants of the parish. But afterwards this duty was transferred to the ecclesiastical commissioners for Ireland, who were authorized to appropriate to this purpose a sufficient portion of the incomes of the extinguished sees, and other revenues in their hands. The Irish Church had a body of one hundred canons, passed Canons, in a synod holden in 1634 (e). Five further canons were passed in a synod holden in 1711. There is much interesting matter in these canons (/). But they have been superseded by a new set of canons passed in 1871 since the disestablishment (g). In 1869, The Irish Church Act, 1869 (32 & 33 Yict. c. 42), 32 & 33 Vict, was passed ; it was entitled " An Act to put an end to the Cl 42 * Establishment of the Church of Ireland, and to make provision me^ir^h in respect of the Temporalities thereof, and in respect of the Church. Royal College of Maynooth." It recited : " Whereas it is expedient that the union created by act of parliament between the Churches of England and Ireland, as by law established, should be dissolved, and that the Church of Ireland, as so separated, should cease to be established by law, and that after satisfying, so far as possible, upon principles of equality as between the several religious denominations in Ire- land, all just and equitable claims, the property of the said Church of Ireland, or the proceeds thereof, should be applied in such manner as Parliament shall hereafter direct : " And whereas Her Majesty has been graciously pleased to signify that she has placed at the disposal of Parliament her interest in the several archbishoprics, bishoprics, benefices, cathe- dral preferments, and other ecclesiastical dignities and offices in Ireland." And it enacted as follows : — Sect. 2. " On and after the first day of January, 1871, the Dissolution of legislative (e) Canon 19 has been referred to this work, at p. 467, note (?/), and at p. 542, note (r), supra. elsewhere. (/) They are bound up in the (000- 5x2 175S CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. benefactions or the produce thereof : and any particular private endowment might within twelve months substantiate its claim to a share in this lump sum. Moveable By sect. 30. "All plate, furniture, and other moveable chattels loniin^ to "see belonging to any church or chapel, or used in connection with or church. the celebration of Divine worship therein, shall vest in the re- presentative Church body when incorporated; and, subject to the life enjoyment of same by the existing incumbents, all moveable chattels held and enjoyed by the incumbent for the time being of any see, cathedral preferment, and benefice in his corporate right, together with or as incident to the occupation of any ecclesiastical residence, shall also vest in the same body when incorporated ; and where any property is vested in any ecclesiastical or cathedral corporation in Ireland in trust for the poor or any other charitable purpose, the dissolution of such corporation shall not affect the continuance of the trust, but such property shall immediately upon such dissolution vest in the representative body of the said church, or, in default of and until the same shall be constituted, in the commissioners for the execution of this act, but subject always to the trusts affecting the same, and under the same supervision, local or otherwise, as theretofore, or as near thereto as the circumstances of the case will admit ; and in all cases where ecclesiastical persons are at present in right of their dignities or offices entitled to be members of any lay corporations constituted for the management of any private endowment, or are trustees for the management of property belonging to institutions of private foundation for purposes not ecclesiastical, then the persons (if any) who shall hereafter at any time discharge duties similar or analogous to those now discharged by such ecclesiastical persons shall be entitled to succeed in their room, end be members of such lay corporations, and to act as such trustees." The act disposed of the surplus of church property to the following imperfect extent : — Ultimate trust Sect. 68. "And whereas it is further expedient that the of surplus. proceeds of the said property should be appropriated mainly to the relief of unavoidable calamity and suffering, yet not so as to cancel or impair the obligations now attached to property under the acts for the relief of the poor : be it further enacted, that the said proceeds shall be so applied accordingly in the manner Parliament shall hereafter direct " (//). The act contains these saving clauses. Provision as Sect. 69. " In all enactments, deeds, and other documents in i^t^United wmcQ mention is made of the United Church of England and Church of Ireland, the enactments and provisions relating thereto shall be England and read distributively in respect of the Church of England and the (h) Though the Irish Church Irish Land Acts, the Editor believes Fund has been repeatedly pledged it has never been absolutely as- for loans made under the various signed, or disposed of in perpetuity. CHURCH IN IRELAND. 1759 Church of Ireland, but, as to the last-mentioned church, subject to the provisions of this act." Sect. 70. "Nothing in this act contained shall affect the Saving rights patronage or right of presentation to any proprietary or district astopropne- parochial church or endowed chapel of ease which has been ana chapels endowed out of private funds, or affect the property in any of ease, such church or chapel, or the property held for the purposes of or appropriated to the use of the same, or affect the continuance of the trust relating thereto as originally constituted." Sect. 72 contains a series of definitions of words used in the act, amongst which the following definition is to be noted : — "Jurisdiction shall mean legal and coercive power and shall not extend to or include any power or authority which may be exercised in a voluntary religious association upon the footing of mutual contract or agreement." Notwithstanding the disestablishment of the Irish Church, the j^"iages in clergy of that church are recognized by the " Matrimonial caches. Causes and Marriage Law (Ireland) Amendment Act, 1870," 33 & 34 Yict. c. 110, ss. 32 —35, 38, and 40, as having autho- rity to celebrate marriage (/), and the bishops as having autho- rity to license any church or chapel within their " episcopal superintendence" for the celebration of marriage, and to depute persons to grant licences and themselves to grant special licences for marriage, when both parties are members of that church or of the Church of England or the Episcopal Church of Scotland : and provision is made for the terms on which such licences are to be granted and for an appeal from a refusal to grant one; and marriages in churches are directed to be preceded by banns, licence, special licence, or registrar's certificate. (?) See Reg. v. Magee, referred to at pp. 643 and 1755, supra. 1760 CHUKCH OF ENGLAND IN RELATION TO OTHER CHURCHES. CHAPTER II. CHURCH IN SCOTLAND. 6 Anne, c. li. jN 1706 the act 6 Anne, o. 11, passed for the union of England and Scotland (a). By sect. 2, her Majesty, with advice and consent of the Estates of Parliament, " ratines, approves, and for ever confirms the fifth act of the first parliament of King William and Queen Mary, intituled ' Act ratifying the confession of faith, and settling Presbyterian Church government,' with all other acts of Parliament relating thereto, in prosecution of the declaration of the estates of this kingdom, containing the claim of right, bear- ing date the eleventh of April, one thousand six hundred and eighty-nine. And her Majesty with advice and consent afore- said expressly provides and declares, that the foresaid true protestant religion, contained in the above-mentioned confession of faith, with the form and purity of worship presently in use within this Church, and its Presbyterian Church government and discipline, (that is to say), the government of the Church by kirk sessions, presbyteries, provincial synods, and general assemblies, all established by the foresaid acts of Parliament, pursuant to the claim of right, shall remain and continue unalter- able, and that the said Presbyterian government shall be the only government of the Church within the kingdom of Scotland." Sect. 3 of the same statute secures the Church of England. Articles of By sect. 4 . . . . " all and every the said articles of union as Act0forefta- 6 ratified and approved by the said act of Parliament of Scotland, Wishing Pres- as aforesaid, and herein before particularly mentioned and in- byterian serted ; and also the said act of Parliament of Scotland for estab- vernmen? °&c ^sh^g the Protestant Eeligion and Presbyterian Church govern- ratifled and ' ment within that kingdom, intituled, ' An Act for securing the confirmed. Protestant Eeligion and Presbyterian Church Government,' and every clause, matter and thing in the said articles and act con- tained, shall be, and the said articles and act are hereby for ever ratified, approved and confirmed." Acts for set- By sect. 5, " The said act [that is, 6 Anne, c. 8] passed in Church Go ^s present session of parliament, intituled, 'An Act for se- (o) See Grub, The Ecclesiastical Historical Catalogue of the Scottish History of Scotland, 1861 ; Keith, Bishops, &c, 1824. CHURCH IN SCOTLAND. 1761 curing the Church of England as by law established/ and all vernments in and every the matters and things therein contained, and also g^J^nd a^ the said act of Parliament of Scotland, intituled, 'An Act for declared' ■ securing the Protestant religion, and Presbyterian Church essential parts government,' with the establishment in the said act contained, of the Union, be and shall for ever be held and adjudged to be and observed as fundamental and essential conditions of the said union, and shall in all times coming be taken to be, and are hereby declared to be essential and fundamental parts of the said articles of union and the said articles of union so as aforesaid ratified, approved and confirmed by act of Parliament of Scotland, and by this present act, and the said act passed in this present session of Parliament, intituled, ' An Act for securing the Church of England as by law established,' and also the said act passed in the Parliament of Scotland, intituled, 'Act for securing the Protestant religion, and Presbyterian Church government,' are hereby enacted and ordained to be and continue in all times coming the complete and entire union of the two kingdoms of England and Scotland." In 1711 an act was passed (10 Anne, c. 10), intituled " An 10 Anne> Act to prevent the disturbing those of the Episcopal Com- * . " munion in Scotland in the exercise of their religious worship, church^ and in the use of the liturgy of the Church of England, and for Statutes af- repealing an act passed in the parliament of Scotland, intituled, feting- the * Act against irregular baptisms and marriages.' " This last- church in mentioned statute of the Scotch parliament was made in 1695, Scotland, and framed in a spirit of persecution, similar to that which in- flamed the most bigoted period of the Roman church, inasmuch as it inflicted perpetual imprisonment or exile on all members of the Episcopalian Church, who, being expelled from their churches, should presume to baptise a child or solemnize a marriage. The next act- affecting the Episcopal Communion in Scot- l Geo. l, land (1 Geo. 1, c. 29) was passed in 1718 ; its object was to c- 29- secure the House of Brunswick against the Pretender ; it there- fore prescribed an oath of allegiance to King George and of abjuration of the Pretender, to be taken by all ministers of the Episcopal Church, and it required every episcopal congregation "to pray in express words " for the king and the royal family. This act was followed by 19 Geo. 2, c. 38, and 21 Ceo. 2, J93^e°n2d> c. 34. These statutes had the same purpose as that of the above Qeo/2aic. 34. act of George the First, namely, of securing the reigning family against political disaffection. But 21 Geo. 2, c. 31, contained a clause (s. 13), which, in order to remove any doubt as to the qualification required by the former act for episcopal ministers, expressly enacted that any other letters of orders than those granted by some bishop of the Church of England or Ireland should be an insufficient qualification. The next act (32 Geo. 3, c. 63), relieved the members of the 32 Geo. 3, episcopal communion from many of the penalties and restrictions c- 63- imposed upon them by former statutes, but it rendered ministers 1762 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. 3 & 4 Vict, c. 33. 27 & 28 Vict, c. 94. Persons ad- mitted into holy orders by bishops in Scotland not to be admitted to benefices, &c. in Eng- land or Ire- land "without consent of bishop of the diocese. Penalty on such persons officiating in certain cases ■without eon- sent of bishop. Discipline of tbe Episcopa- lian Church. of that communion in Scotland incapable of taking any benefice in England unless ordained by an English or Irish bishop. In. 1840 an act, 3 & 4 Yict. c. 33, very important in its bear- ing upon the civil status of the Episcopal Church of Scotland, was passed. This act was repealed as to Scotland by 27 & 28 Yict. c. 94, hereafter cited, and has since been repealed altogether by 37 & 38 Vict. c. 77. The material provisions of 27 & 28 Yict. c. 94 are as fol- lows : — Sect. 5. " No person admitted into holy orders by any bishop of the Protestant Episcopal Church in Scotland shall be entitled to be admitted or instituted to any benefice or other ecclesiastical preferment in England or Ireland, without the consent and ap- probation of the bishop of the diocese in which such benefice or other ecclesiastical preferment may be situated ; and any such bishop shall be entitled to refuse such consent and approbation without assigning reason for such refusal, any law or practice to the contrary notwithstanding ; and every such person seeking to be admitted or instituted to such benefice or other ecclesiastical preferment, or to be licensed to any curacy, shall, before being admitted, instituted, or licensed, make and subscribe before such bishop every such declaration and subscription as he would by law have been required to make and subscribe at his ordination if he had been ordained by a bishop of the united Church of England and Ireland : Provided always, that the provisions of this section shall not apply to any such person who shall hold or shall have held any benefice or ecclesiastical preferment in England or Ireland." Sect. G. "Any person admitted into holy orders by any bishop of the Protestant Episcopal Church in Scotland, and who does not hold or who has not held any benefice or ecclesias- tical preferment in England or Ireland, who shall knowingly officiate on more than one day within three months in any church or chapel in any diocese in England or Ireland, without notifying the same to the bishop of the diocese in which such church or chapel is situate, or who shall officiate contrary to any injunction of the bishop of the diocese under his hand and seal, shall for every such offence forfeit and pay the sum of ten pounds to the Governor (sic) of Queen Anne's Bounty, to be recovered by action of debt, brought in the name of the treasurer of the said bounty, in any of her Majesty's Courts of Record at Westminster, or in the Court of Session in Scot- land, at the suit of the public prosecutor, or in Ireland in any court of common law in the name of the Ecclesiastical commis- sioners. The history of the external discipline and government of the Church in Scotland is very concisely and perspicuously stated in the preface to the revision of their canons in 1838 (b). After a brief exposition of the doctrine of apostolical suc^ CHURCH IX SCOTLAND. .1763 cession, the preface to the revision in question proceeds as fol- lows : — " Such is the form, in which has been regularly handed down the ecclesiastical authority of the Episcopal Church in Scotland ; a Church in itself completely constituted and organized, in respect of spiritual power and sacred ministrations, by its own bishops, priests, and deacons. In this character, being in full communion with the United Church of England and Ireland, and adopting as the standard of her faith the thirty-nine articles of religion, as received in that Church, she claims the authority which, according to the thirty-fourth of those articles, belongs to ' every particular or national church, to ordain, change, or abolish cere- monies or rites of the Church ordained only by man's authority, so that all things be done to edifying.' " The doctrine of the Church, as founded on the authority of the Scripture, being fixed and immutable, ought to be uniformly received and adhered to, at all times and in all places. The same is to be said of its government, in all those essential parts of its constitution, which were prescribed by its adorable Head. But in the discipline, which may be adopted for furthering the purposes of ecclesiastical government, regulating the solemnities of public worship, as to time, place, and form, and restraining and rectifying the evils, occasioned by human depravity, this character of immutability is not to be looked for. The disci- pline of the Church is to be determined by Christian wisdom, prudence, and charity ; and when any particular Church has drawn up a body of canons for its own use, regard has always been had to its peculiar situation at the time when its disci- pline was thus regulated. In one country, a pure Apostolic Church is found to be legally established, amply endowed, and closely incorporated writh the State ; while in another, forming a part of the same empire, it is only tolerated by the State, and as to all matters of spiritual concern, derives no support from the civil government. " Such is precisely the difference of situation between the Established Church of England and Ireland (c), and the un- established, the merely tolerated Episcopal Church in Scotland. In things of a purely ecclesiastical nature, embracing the doc- trine and government of the Church, the faith peculiar to Christianity, and the mode of transmitting an apostolic epis- copacy— in these respects the Reformed Episcopal Church is the same in every part of the British empire. That system of reli- gious faith and ecclesiastical order, by which it is distinguished in every district of England and Ireland, is also its mark of distinction to the remotest corner of Scotland ; and although in this country it is wholly unconnected with the State in the exercise of its spiritual authority, yet does it still depend, (c) This was before the Irish Church was disestablished in 1869. Vido supra, pp. 1754 — 1759. 1764 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. under Grod, on the civil power for peace and protection, in the enjoyment of all its rights and privileges, as a society purely spiritual, and constituted for the purpose of affording the means of grace and salvation to the members of Christ's mystical body. " Viewing it in this light, the clergy of the Episcopal Church in Scotland declare, in the most sincere and unequivocal manner, that the ecclesiastical commission handed down to them has no relation to such secular powers and privileges as are peculiar to a national establishment ; nor does it in the least interfere with the rights of the temporal estate, or the jurisdiction of the supreme civil magistrate. On the contrary, the clergy of this Church, of every rank and order, feel no hesitation in asserting and maintaining that the king's majesty, to whom they sincerely promise to bear true allegiance, is the only ' supreme governor within his dominions, whose prerogative it is to rule all estates and degrees committed to his charge by Grod ; and to restrain, with the civil sword, the stubborn and evil doers of every denomination, clergymen as well as laymen.' They further ' declare, that no foreign prince, person, prelate, state, or poten- tate, hath, or ought to have, any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual, within this realm ; ' and they do, from their hearts, ' abhor, detest, and abjure, as impious and heretical, that damnable doctrine and position, that princes ex- communicated or deprived by the Pope, or any authority of the see of Rome, may be deposed or murdered by their subjects, or any other whatsoever.' " Such are the solemn acknowledgments of the king's sove- reignty required from candidates for holy orders in the United Church of England and Ireland. A similar obligation, as ex- tended to all ecclesiastical persons, was enforced in a code of canons intended for the Established Church of Scotland in the reign of Charles the First. But the attempt to introduce a proper system of discipline, conjoined to the uniform use of a Liturgy, was completely frustrated by the events of that disas- trous period ; and the troublesome state of affairs in the two succeeding reigns was equally unfavourable to the establishment of order and unity in the Church. The Revolution in 1688 set aside the legally established episcopacy of Scotland ; and for several years after the shock which our Church received by the termination of that national struggle, the bishops had enough to do in keeping up a pure episcopal succession, till it should be seen what, in the course of Providence, might be further effected towards the preservation, though not of an Established, yet of a purely primitive Episcopal Church, in this part of the kingdom. For this purpose a few canons were drawn up, and sanctioned by the bishops, in the year 1743, which, though very well cal- culated to answer the purposes intended by them, while the Church was under legal restraint and threatened with persecu- tion, have yet left room for considerable enlargement, and require to have embodied with them, or added to them, several CHURCH IN SCOTLAND. 1765 regulations suited to the now happily tolerated and protected state of the Episcopal Church in this country. " In accomplishing this good work, some aid might be ex- pected from the canons appointed for the Church of England in the year 1603, for the Church of Ireland in 1634, and for the Church of Scotland in 1636. For the purpose of collecting from these and other sources a system of ecclesiastical discipline proper for the Church under their episcopal charge, the Protes- tant bishops in Scotland came to the resolution of holding a general ecclesiastical synod ; and being duly convocated by the primus, did accordingly meet at Aberdeen, on Wednesday, the 19th day of June, in the year of our Lord 1811, together with the deans of their several dioceses, and a representative of the clergy from each diocese containing more than four presbyters, when a code of canons for preserving and regulating order and discipline in the Protestant Episcopal Church in Scotland was adopted and sanctioned. A second general synod met at Lau- rencekirk, in the county of Kincardine, on Wednesday, the 18th day of June, 1828, when the canons of 1811 were revised and altered. A third was held in Edinburgh, on Wednesday, 17th of June, 1829, when some enactments in the sixteenth canon of 1828 were repealed. A very general desire being expressed throughout the Church, especially in the year 1837, that a further revision of the whole code should be made, another general synod was in consequence duly summoned, and met accordingly in Edinburgh, on Wednesday, the 29th August, 1838, and being then and there duly and solemnly constituted with prayer, after full deliberation and discussion during several successive days, the synod so assembled and constituted did, and hereby do, adopt and sanction the following revised and amended code of canons, and declare them to be in future the stated rules and regulations for preserving order and discipline in the said Church in Scotland. In testimony whereof, we, the members of the said synod, have hereunto annexed our names and designa- tions in the register-book of the Episcopal College, and we have, moreover, entrusted to a committee in Edinburgh the duty of causing the revised and amended canons now approved and sanctioned to be faithfully inserted in the foresaid register, and together with this introduction, to be carefully printed for the general use of the Church. For these purposes, an authentic copy, verified by the primus, the clerk of the Episcopal College, and by the prolocutor of the second chamber, in the presence of the synod, has been given to the committee, which they are required to preserve when these purposes are attained, along with the register-book aforesaid ; committing the custody thereof to the clerk of the Episcopal College, whose duty it is to preserve the said register, and the general records of the Church." The legal effect of the canons of the Church in Scotland, which Legal effect were again revised in 1863, came under consideration in the of canons- 1766 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. Forbes v. Eden. Primus of the Episcopalian Church. Synod. Representa- tive church council. Bishopric of Gibraltar conferred on Scotch bishop. Letters patent. case of Forbes v. Eden (d), which will be more fully mentioned in the next chapter. Before the distinction of archbishop was introduced into Scot- land, one of the bishops had a precedency under the title of Primus Scotorum Episcopus ; and the Synod of 1838, in com- pliance with the practice of the Episcopal College for the last century, decreed that the bishops should choose a primus without respect to seniority of consecration or precedency of diocese, who should enjoy no other privilege among the bishops but the right, under particular restrictions, "of convocating" and presiding. But he is empowered, with the advice and consent of his col- leagues, to determine any case relating to discipline in a vacant diocese, and to provide for the performance of any episcopal office that may be necessary. To the primus also the decease of every bishop must be notified by the dean of the diocese. This dean is chosen from the presbyters, and his appointment is im- perative on every bishop. The synod consists of two chambers : the first, of the bishops only ; the second, of the deans and a representative of the clergy elected by each diocese. There are seven sees : — 1. Edin- burgh. 2. St. Andrews, Dunkeld and Dunblane. 3. Aberdeen. 4. Argyle and The Isles. 5. Brechin. 6. Glasgow and Gal- loway. 7. Moray and Eoss. Besides the synod there is now a representative church council consisting of bishops, clergy and lay representatives, established in 1876. In the year 1863, Dr. Trower, a priest by ordination of an English bishop, a bishop by consecration of the Scotch bishops, was appointed by the crown to the episcopal see of Gibraltar. In this case the Archbishop of Canterbury, to whose metropolitan see the bishopric of Gibraltar is subject, gave " due and canonical mission" to the Bishop of Gibraltar so appointed by letters patent. The letters patent were as follows : — " Victoria by the grace of God of the United Kingdom of Great Britain and Ireland queen, defender of the faith, To all to whom these presents shall come greeting : Whereas, by our letters patent under the great seal of our United Kingdom of Great Britain and Ireland, bearing date the 21st day of August in the year of our Lord 1 842, we did found and create a bishop's see within our town and territory of Gibraltar, and did constitute the church of the ' Holy Trinity ' within our said town of Gibraltar to be the cathedral church of the said see, and did ordain that the whole town of Gibraltar should henceforth be a ty and be called the ' city of Gibraltar,' and did ordain, make, ci constitute and declare the said city and all the territory com- prised in our said possession of Gibraltar and its dependencies to be the diocese of the Bishop of Gibraltar and of his successors, and did likewise place under the spiritual and ecclesiastical jurisdiction of the said bishop and his successors and of his officers named in the said letters patent all churches, chapels and (d) L. E., 1 S. & D. p. 568. Vide infra, p. 1789. CHURCH IN SCOTLAND. 1767; other places within our island of Malta and its dependencies which then were or might thereafter be founded, set apart or used for the service of Almighty God according to the ritual of the united Church of England and Ireland, and more especially the church founded by the pious munificence of our dearly- beloved aunt Adelaide, the queen dowager, in the city of Yaletta, and did name and appoint our well-beloved George Tomlinson, doctor in divinity, to be ordained and consecrated bishop of the said see : and whereas the said George Tomlinson was duly or- dained and consecrated bishop of the said see : and whereas the said George Tomlinson is now dead and the said see of Gibraltar has thereby become and now is vacant ; now we, having great confidence in the learning, morals and probity of our well- beloved The Eight Reverend Walter John Trower, doctor in divinity and bishop, do name and appoint him to be bishoj) of the said see of Gibraltar for the term of his natural life, subject nevertheless to the right of resignation in the aforesaid letters patent expressed : and do hereby signify to The Most Reverend Father in God Charles Thomas by Divine Providence Archbishop of Canterbury, Primate of all England and Metropolitan, our nomination of the said Walter John Trower to be the bishop of the said see and diocese : and whereas the said Right Reverend Walter John Trower has been already duly canonically ordained and consecrated a bishop, and cannot therefore be ordained and consecrated by the Archbishop of Canterbury, we do hereby expressly declare that so much of our said letters patent as require the Bishop of Gibraltar to be consecrated and ordained by the said Archbishop of Canterbury shall be and are hereby revoked, abrogated and of none effect so far as they would or might otherwise in any way affect the appointment of the said Right Reverend Walter John Trower to the bishopric of Gibraltar : and we do require and by the faith and love whereby he is bound to us command the said Most Reverend Father in God the Lord Archbishop of Canterbury to administer to the said Right Reverend Walter John Trower the usual oaths of alle- giance and supremacy and the oath of due and canonical obe- dience to the Archbishop of Canterbury for the time being as his metropolitan : and we do direct that after the said oaths shall have been so administered and taken the same sball be recorded in the Registry of the Court of the Yicar General together with the due and canonical mission from the said arch- bishop to the said Right Reverend Walter John Trower to be the bishop of the said see and diocese, and diligently to do and perform all other things appertaining to his office in this behalf with effect : and we do ordain and declare that the said Right Reverend Walter John Trower, so by us nominated and ap- pointed, may by virtue of such nomination, appointment and mission enter into and possess the said bishop's see as bishop thereof without let or impediment from us, our heirs or succes- sors, and in as full and ample a manner in every respect, and with the same rights, titles, powers, privileges and obligations as 1768 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. Form of giving due and canonical Notarial act. Bishops in United States. Colonial "bishops. his predecessor enjoyed and was subject to, as upon reference to our said letters patent founding the see of Gibraltar (dated the 21st day of August, 1842) will more particularly appear : and we do by these presents give and grant to the said Bight Reverend Walter John Trower, aforesaid, full power and autho- rity to perform all the functions peculiar and appropriate to the office of bishop within the said diocese of Gibraltar. Now we do declare our pleasure to be, that all provisions whatever contained in the before-recited letters patent, so far as they relate to the said George Tomlinson and his successors, bishops of Gibraltar, shall (except so far as they are aforesaid revoked) apply to the said Walter John Trower so long as he shall be and remain bishop of the said diocese : And to the end that all things afore- said may be firmly holden and done, we will and grant to the aforesaid Walter John Trower that he shall have our letters patent under our great seal of our united kingdom duly made and sealed. In witness whereof we have caused these our letters to be made patent. Witness ourself, at Westminster, the 12th day of September in the 27th year of our reign. " By warrant under the queen's sign manual. " C. ROMILLY." The form of giving due and canonical mission by the arch- bishop was as follows : — " We, Charles Thomas, by divine providence Archbishop of Canterbury, primate of all England and metropolitan, in obe- dience to the command contained in certain letters-patent of her most gracious Majesty Victoria by the grace of Grod of the United Kingdom of Great Britain and Ireland queen, defender of the faith, bearing date the 12th day of September in the 27th year of her reign, appointing you the Right Reverend Walter John Trower, doctor in divinity and bishop, to be bishop of the see and diocese of Gibraltar, having duly administered to you the usual oaths of allegiance and supremacy, and also the oath of due and canonical obedience to the Archbishop of Canterbury, for the time being, as your metropolitan, and you the said right reverend the bishop having taken the oaths so as aforesaid pre- scribed : Now we, the archbishop aforesaid, as your metropolitan, do give you the Right Reverend Walter John Trower the bishop aforesaid due and canonical mission to be bishop of the said see and diocese of Gibraltar ; and do direct the said oaths, together with the due and canonical mission from us as aforesaid, to be recorded in the registry of the court of our vicar-general. " C. T. Cantuar." The notarial act which recorded the proceedings is to be found in the registry of the vicar-general. From the Church in Scotland came the first consecration of a bishop for the United States of America (d). The church in Scotland has since taken part in the extension of the colonial episcopate, having founded the bishopric of St. John, Kaffraria (e). (cZ) Vide infra, p. 1771. (e) Vide infra, pp. 1775, 1776. ( 1769 ) CHAPTER III. CHURCH IN THE COLONIES. Sect. 1. — History of the Establishment and Organization of the Church in the Colonics. 2. — General Status of the Church in the Colonies. 3. — Church in the West Indies. 4. — Church in Canada and other Colonies. Sect. 1. — History of the Establishment and Organization of the Church in the Colonies (a). The extension of the Church of England beyond the seas began in the early age of English colonization. Virginia was the first ^j^^1 land which it reached ; and Thomas Hariot, a graduate of Oxford, who, as a mathematician and astronomer, accompanied Sir ~W\ Raleigh, in 1584, has been called the first English mis- sionary to the New World. The charters granted by James the First to the Virginia Company were accompanied by orders for preaching the word of God according to the rites and doctrines of the Church of England, both " in the colonies and among the savages bordering upon them." At Jamestown, in Virginia, the first English church was built by the Rev. R. Hunt about 1607. Tithes, glebes and other provision for the clergy were made in Virginia by the local legislature. There it was that King William and Queen Mary erected the college which was called after them, and thither an ecclesiastical commissary, the Rev. J. Blair, was sent in their reign. In Maryland, in 1692, the local assembly provided a legal maintenance for parochial clergymen, and the Rev. T. Bray was sent thither as Bishop Compton's commissary at that time. These two colonies were not, however, the only places in which clergymen of the Church of England went to minister to con- In West bJ ° Indies. (a) For the sketch in this sec- the Jubilee Keport in 1891 at tion the author, who made some p. 1776, infra. See also Hawkins, very slight alterations, was in- "Historical Notices of the Missions debted to the Rev. W. T. Bui- of the Church of England in the lock, then secretary of the Society North American Colonies previous for the Propagation of the Gos- to the Independence of the United pel. To the original sketch has States." London, 1S45. now been added the summary from 1770 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. Order in Council placing British sub- jects abroad under juris- diction of Bishop of London. Early organization. Society for the Propaga- tion of the Gospel. gregations of their fellow-countrymen in foreign parts : but there only and in some of the West Indian Islands they were found' in sufficient numbers to lead to any local attempt at or- ganization. All British subjects in foreign parts were declared by an order in council in the time of Charles I. to be under the jurisdiction of the Bishop of London as their diocesan. When the office for the ministry of baptism to adults was inserted in the Prayer Book in 1662, one of the reasons assigned in the preface for it was that it may be always useful for the baptising of natives in our plantations (b). The credit of the first attempt to organize effectually the Church abroad is due to Archbishop Laud, who proposed, in 1638, to send a bishop to New England ; and the next to Lord Clarendon, who obtained the sanction of Charles II. to a proposal for a bishop of Virginia. These and many subsequent efforts to supply the first necessity for church organization were frustrated by the opposition of parties acting upon mixed political and religious grounds. The multiplication of ministers went on in the colonies. The merely casual supply from home was unequal to the demand. The " Xew England Company," as it is now called, was founded by an Act of the Long Parliament in 1649 for the propagation of the gospel in" Xew England : an endowment was provided for it by parochial collections in England and Wales. After the Restoration it was incorporated by charter 14 Charles II. 1662-3, when Clarendon and R. Boyle were appointed among its governors. Its endow- ments, which are very considerable, are regulated by three decrees in Chancery (in the years 1792, 1808 and 1836), and are now applicable to two objects : to promoting and propagating the Grospel of Christ among the heathen nations in what was formerly called Xew England (between 40° and 48° north lati- tude) and parts adjacent in America, and to advancing the Christian religion among Indians, Blacks and Pagans in some or one of the British plantations and colonies. The ministers sup- ported by this Company have always been chiefly though not exclusively selected from other denominations than the Church of England. After some discussion in the Convocation of Canterbury, and without parliamentary sanction, the Society for the Propagation of the Gospel in Foreign Parts (c) was founded by charter from (b) " Together with an office for the baptism of such as are of riper years ; which, although not so necessary when the former book was compiled, yet by the growth of anabaptism, through the licentious- ness of the late times crept in amongst us, is now become neces- sary, and may be always useful for the baptizing of natives in our plantations and others converted to the faith."— Preface to the Book of Common Prayer. (c) Vide supra, pp. 1741 — 1745. In 1840, the Act 3 & 4 Yict. c. 78, to provide for the sale and dis- tribution of the clergy reserves in Canada, ordered, by s. 5, that the share of the Church of England should be expended under the au- thority of this society. CHURCH IN THE COLONIES. 1771 "William III. in 1701. The charter constituted some ninety persons, chiefly bishops and clergymen, a body corporate, as already stated ; and the object for which they were appointed is thus stated in the charter : " Wee are credibly informed, that in many of our plantacons, colonies and factories beyond the seas, belonging to our king- dome of England, the provision for ministers is very mean ; and many others of our said plantacons, colonies and factories are wholly destitute, and unprovided of a mainteynance for minis- ters, and the publick worshipp of God ; and for lack of support and mainteynance for such, many of our loveing subjects doe want the administration of God's Word and Sacraments, and seem to be abandoned to atheism and infidelity ; and alsoe for want of learned and orthodox ministers to instruct our said loveing subjects, to popish superstition and idolatry. " And wee think it our duty, as much as in us lyes, to pro- mote the glory of God, by the instruccon of our people in the Christian religion ; and that it will be highly conducive to ac- complishing those ends, that a sufficient mainteynance be pro- vided for an orthodox clergy to live amongst them, and that such other provision be made, as may be necessary for the pro- pagation of the gospell in those parts. " And wee have been well assured, that if wee would be gra- tiously pleased to erect and settle a corporacon for the receiving, manageing and disposeing of the charity of our loveing subjects, divers persons would be induced to extend their charity to the uses and purposes aforesaid" (d). Besides supplying an increasing number of clergy to all the First estab- British colonies, &o., the Society for the Propagation of the £5™["j0* Gospel continued for the first eighty years of its existence, in Episcopate, conjunction with clergy and laity abroad and persons of distinc- tion at home, to represent to the British government the neces- sity of establishing the episcopate in foreign parts. All efforts were in vain. The statute and common law of England were supposed to forbid English bishops to communicate the power and authority of their order to any person without the sanction of the crown, and that sanction was constantly withholden. At length, after the United States had severed their political {^^Jtetea connection with England, and after Bishop Seabury of Con- necticut had been consecrated in 1784 by Scotch bishops, the consecration of Bishops "White of Pennsylvania and Provost of New York by the Archbishop of Canterbury in 1787 was per- mitted by an act (now repealed), 26 Geo. 3, c. 84 (c). From these three bishops has come the great Church of the United States, which had, in 1894, sixty-six bishops. In the year 1787 letters patent were also issued for the erection Xova Scotia of the see of Nova Scotia, and Dr. Charles Inglis, the first (d) Nearly a century afterwards voluntary association, (in 1799) tiie Church Missionary (e) Vide supra, p. 117. Society was constituted as a purely P. VOL. II. 5 Y CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. colonial bishop, was consecrated for that diocese. The second colonial diocese, Quebec, was founded in 1793. In 1836 a diocese of Australia ; in 1839, one of Newfoundland, with Bermuda, and one of Toronto, were founded. The episcopate obtained in America was extended in 1814 to the East Indies under the severe restrictions of the act 53 Geo. 3, c. 155, and 3 & 4 Will. 4, c. 85, s. 93 ; and in 1824 to the West Indies, by act 6 Geo. 4, c. 88. The further extension of the colonial episcopate was due mainly to the Colonial Bishoprics' Council, a voluntary associa- tion constituted in 1841. The erection and endowment by subscription of new bishoprics in the colonies, had been for some time in contemplation ; when a meeting of archbishops and bishops was holden at Lambeth on the Tuesday in Whitsun week, 1841, and the following decla- ration was agreed to by all present : — " We, the undersigned archbishops and bishops of the united Church of England and Ireland, contemplate with deep concern the insufficient provision which has been hitherto made for the spiritual care of the members of our national church residing in the British colonies and in distant parts of the world, especially as it regards the want of a systematic superintendence of the clergy, and the absence of those ordinances, the administration of which is committed to the episcopal order. We therefore hold it to be our duty, in compliance with the resolutions of a meeting convened by the Archbishop of Canterbury on the 27th of April last, to undertake the charge of the fund for the endow- ment of additional bishoprics in the colonies and to become responsible for its application. " On due consideration of the relative claims of those depen- dencies of the empire which require our assistance, we are of opinion that the immediate erection of bishoprics is much to be desired in the following places : — New Zealand, the British possessions in the Mediterranean, New Brunswick, Cape of Good Hope, Yan Diemen's Land, and Ceylon. " When competent provision shall have been made for the endowment of these bishoprics, regard must be had to the claims of Sierra Leone, British Guiana, South Australia, Port Phillip, Western Australia, Northern India, and Southern India. " In the first instance, we propose that an episcopal see be established at the seat of government in New Zealand, offers having been already made which appear to obviate all difficulty as to endowment. " Our next object will be to make a similar provision for the congregations of our own communion established in the islands of the Mediterranean, and in the countries bordering upon that sea ; and it is evident that the position of Malta is such as will render it the most convenient point of communication with them, as well as with the bishops of the ancient churches of the East, to whom our church has been for centuries known only by name (e). (e) Gibraltar was ultimately fixed upon for this See. CHURCH IN THE COLONIES. 1773 " We propose, therefore, that a see be fixed at Yaletta, the residence of the English government, and that its jurisdiction extend to all the clergy of our church residing within the limits above specified. In this city, through the munificence of her Majesty the Queen Dowager, a church is in course of erection, which, when completed, will form a suitable cathedral. " Our attention will then be directed to the countries named in the foregoing lists, without binding ourselves to the exact order therein followed, or precluding ourselves from granting assistance to any place where means may be found for the earlier endowment of a bishopric. " In no case shall we proceed without the concurrence of her Majesty's government (/) ; and we think it expedient to appoint a standing committee, consisting of the Archbishop of Canter- bury, the Archbishop of York, the Archbishop of Armagh, the Archbishop of Dublin, the Bishop of London, the Bishop of Durham, the Bishop of Winchester, the Bishop of Lincoln, and the Bishop of Eochester, with full powers to confer with the ministers of the crown, and to arrange measures, in concert with them, for the erection of bishoprics in the places above enume- rated." The second declaration of the council was issued from Lam- beth Palace in July, 1872. It was as follows : — " The first declaration of the archbishops and bishops to whose Second _ management the Colonial Bishoprics' Fund is committed was declaratl0n- set forth in 1841. It was subscribed with the names of four archbishops and thirty-nine bishops ; and it proposed the erec- tion of bishoprics in New Zealand, the British possessions in the Mediterranean, New Brunswick, Cape of Good Hope, Yan Diemen's Land, Ceylon, Sierra Leone, Guiana, South Australia, Port Phillip, West Australia, North India, and South India. In thirty-one years which have elapsed since then, the council have received and administered a capital sum of 237,893/., which, with the liberality it has stirred up in others, has provided for the endowment or expenses of the bishops of thirty new sees. All the places above-mentioned, with the great exception of North and South India, became, within sixteen years from the date of the declaration, the seats of new bishoprics. " In again appealing to the liberality of the church, we point to the work already done, and to the manifest blessing from Almighty God which has rested upon it. Mainly through the aid of the fund, struggling missions have grown into fully- organized branches of the church, breaking forth from the English stem, and promising to spread throughout the heathen (/) This provision, however Privy Council in Long v. Bishop proper at the time when it was of Capetown, 1 Moo. P. C. C. N. S. made, and while the practice of p. 411, hereinafter adverted to. issuing letters patent by the crown, Moreover the churches in the West now discontinued, was still in force, Indies and Ireland have both boon has been rendered unnecessary by disestablished by statute sinco this the unforeseen decision of the statement was written. 5 y 2 1774 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. world the primitive doctrine and discipline maintained by the Mother Church. " Still the vast needs of the unconverted countries which Grod's providence has connected with Great Britain call for fresh efforts. To name the most pressing — North " North America. — The enormous diocese of Rupertsland, America. stretching from Labrador to the Rocky Mountains, over a sur- face of 2,700,000 square miles, urgently requires division. The Pacific Eailway is now attracting multitudes of emigrants into the fertile south-west of Rupertsland, and a new diocese of (1) Saskatchewan should be established for their spiritual benefit. The missions among the Indians have now become so extensive and remote, that they ought to be superintended by two new bishops, to whom the districts of (2) Moose and (3) Athabasca, or Mackenzie River, could be assigned ; the Church Missionary So- ciety is willing to have two of its missionaries consecrated, and to allow them, for the present, suitable stipends. " The Bishop of Columbia long ago proposed a division of his diocese, which now includes a part of the continent as well as Vancouver's and Queen Charlotte's Islands ; and a small fund has been collected towards an endowment for a diocese of (4) New Westminster. West Indies. " West Indies. — The disendowment of the West Indian Church renders it desirable in the lifetime of the present bishops to collect an endowment fund for each diocese, excepting any which may perhaps be endowed by the local legislatures. The old dioceses are (5) Jamaica, (6) Barbados, (7) Antigua, (8) Nassau, and (9) Guiana, and to these must be added the new diocese of (10) Trinidad, and possibly (11) Honduras. Some grants in aid, in proportion to the need of each case, should be given to encou- rage these dioceses to provide endowments for their bishops. The case of the diocese of Jamaica is distinguished by the fact that the bishop of Kingston, by whom it is now administered, has lost his episcopal income of 1,200/. since the death of the Bishop of Jamaica. Africa. "Africa. — The missionary bishopric of the (12) Niger Ter- ritory has no endowment. The Church Missionary Society has hitherto supported Bishop Crowther, whose ministrations, are carried on in the region adjoining the colony of Lagos, including the Niger and its tributary the Bonny. " A bishopric in connection with the "West Indian Mission to West Africa was long ago projected. If this is to be effected, the (13) Isle cle los, now a station of the Society for the Propa- gation of the Grospel, would form a healthy and convenient site for a bishopric. " A small endowment has already been provided for the arch- deaconry of (14) George, in the hope that it will be separated at no distant time from the diocese of Capetown and constituted a separate bishopric. This is indeed an urgent claim. The Bishop of Capetown has expressed, to those to whom he has spoken in CHURCH IN THE COLONIES. 1775 confidence, his conviction that, unless some such effectual aid is afforded him, he must ere long sink under his labours. " The extensive missionary diocese of (15) Bloemfontcin, which is now burdened with the additional care of the African Dia- mond Fields, requires help to complete its endowment. The bishop is at present entirely supported by an annual grant from the Society for the Propagation of the Grospel, and the people of the Orange River Territory are trying to collect part of an endowment. "In the (16) Transvaal Republic, there are not only multi- tudes of unconverted Baralongs and Matabele, but also a large number of English residents in the towns and settlements for whom a bishop is required. "The largo district of (17) Kaffraria and (18) Alfredia, between the dioceses of Grrahamstown and Natal, will at no distant time afford a field for two bishops : the support of one would be undertaken by the Scottish Episcopal Church. " An endowment for at least one missionary bishop in (19) Madagascar should be at once provided. "Asia.— The diocese of Calcutta (72,000,000 population) still Asia, remains under one bishop. (20) Lahore or Agra, (21) Burmah, British or Independent, and (22) Singapore in the Straits, now a separate colony, have been suggested by local authorities as the sees of future bishops. (23) Tinnevellg, with its 40,000 native christians, 18,000 catechumens, and 80 native clergy, distant 330 miles from Madras, was long ago pointed out as needing a resident bishop. These, and other cases in India which are most urgent, might be the object of a general col- lection for Indian bishoprics, to be applied by the Colonial Bishoprics' Council as opportunities are afforded in that vast heathen dependency and the missionary districts near it. " The Church Missionary Society has expressed its readiness China, to pay, for the present, the salary of an additional bishop in (24) China, and steps have been taken with a view to an appoint- ment. Ultimately his salary should be provided for by a per- manent endowment. "Australasia. — The endowment of a new bishopric in (25) Australasia. North Australia has already been commenced. A division of the large diocese of Melbourne by making (26) Ballarat the site of a new bishopric has been proposed, and it seems to be called for both for the relief of the over-burdened bishop and by the increasing population of the colony. The diocese of (27) Hawaii. Honolulu is without endowment, and it is desirable that some assistance towards it should be given from this country, which has supplied Hawaii with its first two bishops. " Of the above twenty-seven bishoprics, eight are already in existence and nineteen are new. It is not proposed by the council that the entire endowment of these sees should be raised in England, but that the christians in each country (specially those which are already under a colonial bishop), and the mer- chants who derive wealth from thence, should unite according 1776 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. to their ability with the Colonial Bishoprics' Council, with the Church Societies, and others in England, in providing the necessary funds. " Such is but a portion of the work now before us. Will the Church of England, in the sight of these needs, and in gratitude to Grod for the unequalled mercies it has itself received, enable us to undertake the discharge of so urgent and so blessed a duty as to plant the church in its integrity in those wide districts ? We appeal to it earnestly to grant us the funds we require. Never was it more true, never perhaps was it more needful to repeat the truth : ' The Harvest truly is plenteous, but the labourers are few.' " Jubilee In 1891 the Council for Colonial Bishoprics put forth a Report. Jubilee Eeport. In that it is shown that the following bishoprics mentioned in the Eeport of 1872 have since been established: — (2) Moosonee, (24) Mid China (10) Trinidad, (17) St. John'Sj Kaffraria, in that same year; (3) Mackenzie River, (1) Saskatchewan, (26) Ballarat, (19) Madagascar in 1874; (20) Lahore, (21) Rangoon in Burma h in 1877; and (16) Pretoria in the Transvaal, (25) North Queensland, and (4) New Westminster in 1880. Moreover, bishoprics not mentioned in the Eeport of 1872 had been established under the rapid development of Eng- lish colonization and church work in the following places : — Algoma in 1873, Niagara in 1874, Caledonia in 1877, Travancore and Cochin in the same year, North China in 1880, Japan in 1883, Assiniboia and Qu 'Appelle in 1881, Riverina in 1884, and Chota Nagpur in 1889. Organization The establishment of bishops in the colonies was not the only and synods. g£ep reqUire(j for the organization of a Church whose members, scattered over forty colonies, were already, in 1872, ministered to by more than 2,000 clergymen. Diocesan and provincial synods became a matter of necessity to insure harmonious action, and these were constituted in the course of a few years by independent and almost simultaneous efforts in America, Aus- tralia, New Zealand and Africa. Only the most important of these efforts can be recorded here. In America. The clergy and laity present at the triennial visitation of the diocese of Toronto in 1851, determined that it was expedient and desirable to apply to the crown for the establishment of a diocesan synod or convocation, consisting of the laity as well as the clergy. And at the next triennial visitation, in 1853, it was resolved that this meeting, composed of the bishop, clergy and lay representatives, are the diocesan synod of this diocese. On their petition an act (19 & 20 Yict. c. 141 (Canadian)) was passed in Canada in June, 1856, and assented to by her Majesty in May, 1857, to enable members of the united Church of England and Ireland in Canada to meet in synod, both in their several dioceses, and in general assembly. This act was afterwards explained by 22 Yict. sess. 1, c. 139 (Canadian). The Church Society of the diocese of Toronto is, by virtue of a CHURCH IN THE COLONIES. 1777 statute of the Province of Ontario (/), now incorporated with the Synod of the diocese of Toronto under the name of the Incorporated Synod of the Diocese of Toronto. The synod of the united Church of England and Ireland in the diocese of Toronto consists of the bishop, the priests and deacons licensed by the bishop, or holding office in any college or school under his Jurisdiction, and not under ecclesiastical censure ; and lay representatives, not more than three from each parish. The representatives must be male communicants of at least one year's standing, elected annually by the laymen of twenty- one years of age and upwards within the parish, who have declared themselves in writing in a book to be members of the united Church of England and Ireland, and to belong to no other religious denomination. The synod meets annually. No act is valid without the concurrence of the bishop and of the majority both of the clergy and the laity present ; and when a division takes place, the lay representatives vote by parishes, the majority being considered as the vote of the parish. The provincial synod of the united Church of England and Ireland in Canada held its first meeting on 10th September, 1861. It consists of the bishops having sees or assisting within the province, and of delegates chosen from the clergy and laity, twelve of each order from each diocese. The bishops deliberate in one house, the delegates in another. The second Wednesday of September in every third year is the ordinary time of meet- ing ; and a majority of the bishops, with one-fourth of the clerical and one-fourth of the lay delegates, constitutes a quorum. The metropolitan presides in the upper house, and an elected prolocutor in the lower. No proposition is valid until it has received the separate sanction of both houses, which must be declared by the president in writing. Among its canons are some on the nomination and election of a metropolitan, on his powers, on the constitution of his court of appeal, on the trial of a bishop, on the submission of clergy to the canons of the provincial and diocesan synods, &c. On October 1st, 1850, Bishop Broughton of Sydney, with In Australia, his suffragan bishops of New Zealand, Tasmania, Adelaide, Melbourne, and Newcastle, held a memorable conference at Sydney, and published their decisions and opinions on various doctrinal and ecclesiastical matters in a report. They stated the necessity for duly constituted provincial and diocesan synods composed of bishops and clergy, and meeting simultaneously with provincial and diocesan conventions composed of elected laymen ; and they organized the Australian Board of Missions. In April, 1866, at a conference holden in Sydney, certain constitutions were agreed to for the management of the united Church of England and Ireland in the colony of New South Wales. Synods are to be holden annually in each diocese (/) 32 Yict. c. 51, intituled unite the Church Society of the "An act to incorporate the Synod diocese of Toronto therewith." of the diocese of Toronto, and to 1778 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. under the presidency of its bishop, who does not vote. The number of lay representatives must not exceed in Sydney and Groulburn thrice, and in Newcastle twice, the number of clergy summoned. One-fourth of the members of each order consti- tute a quorum. Yotes are not taken by orders unless desired in Sydney and Groulburn by five members, or in Newcastle by the bishop or five members. If the bishop withholds his assent to any ordinance, it may be referred for determination to a pro- vincial synod. In Sydney and Groulburn all clergymen licensed to a separate cure of souls, and in Newcastle all licensed clergy- men, .are summoned to the diocesan synod. Representatives are elected in each separate cure of souls by the male occupiers of seats who are twenty-one years old or more, and declare them- selves in writing to be members of the united Church of England and Ireland. The representatives in Sydney and Groulburn must be male communicants of full age ; two from each cure, unless more than fifty qualified electors meet, when there may be three ; and in Sydney a clergyman not licensed to a separate cure may be chosen a representative ; in Newcastle, the representatives must be lay communicants of full age, one from each cure, unless more than thirty qualified electors meet, when they may choose two. A colonial or provincial synod of the united Church of England and Ireland within the colony shall be holden once in every three years under the presidency of the metropolitan bishop of Sydney ; there shall be two houses, viz. of bishops and diocesan representatives ; in the latter house the voting is by dioceses, three clerical and three lay representatives being a quorum for each diocese. The colonial synod by its decisions binds all members of the Church within the colony. No synod shall make any alteration in the articles, liturgy, or formularies of the Church, except in conformity with any alteration made by competent authority of the Church in the ITnited Kingdom. All ordinances passed by any synod are to be sent to the Arch- bishop of Canterbury. An act afterwards passed the colonial legislature giving bind- ing force to the synodal constitutions in connexion with the holding of property (g). The first diocesan conference in Melbourne was holden in 1851 ; and some unsuccessful attempts were made to carry a bill through the local legislature. After a second diocesan con- ference in 1854, the legislature, in November, 1854, passed an act to enable the bishops, clergy and laity of the united Church of (g) 30 Vict. No. 2 "An Act to ence thereto." See also 8 Will. 4. enable the members of the united No. 5, 21 Vict. No. 4, 51 Vict. Church of England and Ireland in No. 1 (The Sydney Bishopric and New South Wales to manage the pro- Church Property Act), 52 Vict, perty of the said Church," amended No. 2 (The Church of England Pro- by 44 Vict. No. 3, "An Act to pro- perty Act), and 56 Vict. No. 1, vide for the creation of corporate (The Church of England Property bodies of trustees in which pro- Act, 1889, Amendment Act) so far perty belonging to the Church of as it affects the diocese of Goul- England may be vested, and to burn. All these acts are New South make further provisions in refer- Wales acts. CHURCH IN THE COLONIES. 1779 England and Ireland in Yictoria to provide for the regulation of the af fairs of the said Church. The royal assent was given to this act in 1856. It enacts that it shall be lawful for any bishop of the united Church of England and Ireland in Yictoria to convene an assembly of the licensed clergy and the laity of the Church in his diocese (h). Their regulations bind only the bishop, clergy and laity of the Church, and are not valid without the concur- rence of the three orders voting separately. The assembly may establish a commission for the trial of ecclesiastical offences. The right of appeal to the Queen in Council, to the Archbishop of Canterbury, and to the metropolitan, is preserved. One or more (not exceeding four) lay representatives are elected in each cure of souls by the laymen therein, who are of the age of twenty-one years, and have declared in writing that they are members of the united Church of England and Ireland, and belong to no other religious denomination. The representatives (one for every fifty electors) must be communicants of at least a year's standing. Regulations passed by the assembly must be sent to the Archbishop of Canterbury, to the metropolitan, and to the Queen, and may be disallowed by her Majesty. So soon as a province shall have been constituted in Yictoria, it may convene the bishops thereof, and require them to convene representatives of their diocesan assemblies to meet in provincial assembly. On October 9th, 1855, the bishop, clergy and lay representa- tives of the diocese of Adelaide in synod assembled, signed and sealed certain fundamental provisions and regulations for the government of that diocesan church, which were declared to be a consensual compact between the subscribing parties. The diocese is declared to be a part of the united Church of England and Ireland, and to maintain the doctrine and sacraments of Christ as that Church receives them, together with the Book of Common Prayer. The synod consists of the bishop, licensed clergy (deacons having no vote), and synodsmen (four for each city church, and two for each country church) being in full communion, and elected annually, in the respective congrega- tions, by the stated attendants at the church who have signed a declaration that they are members of the united Church of England and Ireland, and belong to no other religious denomi- nation. The synod meets annually in Adelaide under the pre- sidency of the bishop. Clergy and synodsmen speak and vote on equal terms. A fourth of the whole body is a quorum. All questions respecting the appropriation of the funds are decided by a majority of the synod not voting by orders. No funda- mental provisions can be altered without the consent of the bishop, and at least two-thirds of the clergy and synodsmen present, respectively voting by orders. On June 15th, 1857, the bishops and certain clergy and laity in ^ew Zealand. (70 18 Vict. No. 45. See also bearing office; 36 Vict. No. 4,54, 25 Vict. No. 157, providing for the and 48 Vict. No. 797. All those appointment, deposition, depriva- are Victorian Acts, tion, and removal of any person 1780 CHUECH OF ENGLAND IN .RELATION TO OTHER CHURCHES. representing a numerous body of the members of the united Church of England and Ireland in New Zealand met at Auck- land' and agreed to a constitution, associating themselves together by voluntary compact as a branch of the said Church. The fundamental provisions declare entire agreement in doctrine with the Church of England, and ordain a general synod of the branch of the united Church of England and Ireland in the colon}' of New Zealand, which shall consist of three orders, bishops, clergy and laity, the consent of all which orders is necessary to all binding acts. The general synod meets every third year, each diocese being entitled to an equal number of clerical representatives and an equal number of lay representa- tives (communicants of full age). This synod is entrusted with power to declare persons incompetent to take part in a general or diocesan synod, power to determine how and by whom patronage shall be exercised, to frame regulations for the management of the property holden in trust for the synod, aud to depose from his appointment any person receiving income out of such trust property, power to establish tribunals for doctrine and discipline, and to associate with itself missionary dioceses in the islands of the Pacific. The diocesan synods must be similar in constitution to the general synod, and persons aggrieved by them may appeal to it, and it may alter or supersede any regu- lation of a diocesan synod. The nomination of a bishop is made by a diocesan synod, and sanctioned by the general synod, sub- ject to his declaring in writing his assent to this constitution. Every clergyman, trustee and catechist under the authority of the general synod, must sign a declaration of his submission to its authority, and consent to resign his appointments and emolu- ments whenever called upon by the general synod to do so. The Trusts Act passed the New Zealand parliament in 1858 (g). The first provincial synod of New Zealand was holden at Wellington in March, 1859 ; the first diocesan synod of New Zealand at Auckland in 1860. In South In 1857, on January 21st and following days, the Church of Africa. the diocese of Capetown in synod assembled agreed upon certain constitutions and acts. In a preliminary declaration of principles they declared themselves in union and full communion with the united Church of England and Ireland, — an integral portion of that Church ; also that they received the authorized version of the Bible and the Book of Common Praj^er, and maintained the doctrine and sacraments of Christ as the Church of England receives them. They disclaimed the right to alter the standards of faith and doctrine, the formularies in use in the Church. The synod consists of the bishop, the clergy inducted or licensed by the bishop (deacons having no vote), and lay delegates, one (except in the case of the cathedral church, which may send (g) 19 & 20 Vict. c. 21 (NewZea- charitable, or educational purposes land). An act to render more in New Zealand; amended by 27 simple and effectual the titles by Vict. c. 15 (New Zealand), which property is held for religious, CHURCH IN THE COLONIES. 1781 two) from each parish, chapelry or separate congregation, elected after notice has been given of the meeting of the synod ; the delegates must be of the full age of twenty- one years, and on the list of communicants for the twelve months preceding the election. Every adult male parishioner is entitled to vote at that election if he be on the list of communicants or have signed a declaration that he is a member of the church of the diocese of Capetown in union and full communion with the united Church of England and Ireland, and belongs to no other religious body. The clergy and delegates ordinarily sit and vote as one body ; but any member may demand a vote by orders. A quorum consists of not less than one-fourth of the qualified presbyters of the diocese, and one-fourth of the elected delegates. The synod meets at intervals of not less than two and not more than four years. In the event of a provincial assembly being convened, the diocese of Capetown was to be represented by f our clergj^ and four lay delegates of the synod, elected by the synod ; a deacon- representative may be elected by the deacons. A conference of the bishops of the province was holden on 26th December, 1860, at Capetown. In February, 1870, the Church of the province of South Africa, otherwise known as the Church of England in those parts, met by representation as a provincial synod in Capetown. They agreed upon a constitution in twenty-four articles and upon twenty-seven canons, and passed twenty resolutions. The synod consists of the bishops of five dioceses, one clerical repre- sentative for every ten (or fraction of ten) clergymen in each diocese, and the same number of lay representatives as clerical. Lay representatives must be communicants of at least twenty- one years old (h). The present organization of the Church in foreign parts con- Provinces and sists of six provinces, viz., Canada, Rupertsland, New South loceses- Wales, New Zealand, South Africa, and India and Ceylon, under metropolitans ; and eighty-five dioceses, viz., Montreal, Quebec, Toronto, Huron, Ontario, Fredericton, Algoma, Niagara, Nova Scotia, Newfoundland, Bupertsland, Athabasca (now Mackenzie Eiver), Selkirk, Moosonee, Qu'Appelle (late Assini- boia), Saskatchewan, Calgary, Caledonia, Columbia* -f, New Westminster, Jamaica -}-, Nassau +, Barbados*-}-, Trinidad-4-, Antigua* + , Guiana -f, Falkland Islands* +, Sierra Leone -h, Capetown, Grrakainstown, Natal (now Maritzburg), Zululaud*, Pretoria, Zanzibar, Nyassa Land, Eastern Equatorial Africa, Western Equatorial Africa (formerly Niger Territory-}-), Mada- gascar, St. Helena, Mashonaland, Lebombo, St. John's, Kaf- fraria, Bloemfontein*, Mauritius-}-, Jerusalem* +, Calcutta*-}-, Madras*+, Bombay* + , Colonibo-f , Lahore, Eangoon, Travan- core and Cochin, Chota Nagpur, Singapore Labuan-h and (A) As to the effect of tibia con- v. Williams, 7 App. Ca. p. 484; stitution, see the case of Merriman infra, p. 1786. 1782 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. Acts of colonial legislatures. Norfolk Island. Sarawak, Sydney, Goulburn, Newcastle, Grafton and Armidale, Bathurst, Biverina, Brisbane, Melbourne, Adelaide, Ballarat, North Queensland, Rockhampton, Perth, Tasmania, Christ- church, Auckland, Wellington, Nelson, Waiapu, Dunedin, Melanesia*, Honolulu +, Gibraltar* + , Mid China, North China, Victoria, Hongkong, Corea and Shingking (Manchuria), Central Japan, South Japan (or Kiu Shiu). The dioceses marked with an asterisk (*) had in 1873 no diocesan synod; those marked with a cross (+) no provincial synod. In this chapter, the principal acts which have been noticed are statutes of the imperial legislature. There are, however, as matter of fact, many statutes framed by the local legislature in the colonies on ecclesiastical matters ; some of which have been noticed, not only in colonies where the Church is or has been formally established by the imperial legis- lature, but also in colonies where the Church has never been so established. It should be noticed here, that Norfolk Island was, by an imperial act, 6 & 7 Vict. c. 35, and letters patent pursuant thereto, at one time made part of the diocese of Tasmania; this act being afterwards formally repealed by another act, 32 & 33 Vict. c. 16. Sect. 2. — General Status of the Church in the Colonies. The question as to the legal status of the Church in the colonies has undergone much discussion during the last quarter of a century. It is unnecessary here to consider whether the different steps of legal reasoning which have led to the conclu- sions which I am about to state were consistently and wisely taken or not. Classification The colonies of the crown admit relatively to the present pur- of colonies. p0se 0f this classification, viz. : — 1. Colonies which have a parliamentary representation. 2. Colonies which have not, usually called crown colonies. Decisions as A series of comparatively recent judgments, chiefly those of of the Church ^e Pr^v^ c°nncil, must be consulted upon this subject ; from in the Colo- them the following extracts are taken (i) : — nies. The privy council, in the case of Re The Bishop of Natal, in Me The Bishop 1864, said : — " We therefore arrive at the conclusion, that although of Natal. [n a Crown Colony, properly so called, or in cases where the letters patent are made in pursuance of the authority of an act of parliament (such, for example, as the act of the 6 & 7 Vict. c. 13), a bishopric may be constituted and ecclesiastical jurisdiction conferred by the sole authority of the Crown, yet that the letters patent of the Crown will not have any such effect or operation in a colony or settlement which is possessed of an independent legislature " . . . " Let it be granted or assumed that the (i) See Bernard, Remarks on some late Decisions respecting the Colonial Church, 1866. CHURCH IN THE COLONIES. 1783 letters patent are sufficient in law to confer on Dr. Gray the ecclesiastical status of Metropolitan, and to create between him and the Bishops of Natal and Graham's Town the personal rela- tion of Metropolitan and Suffragan as ecclesiastics, yet it is quite clear that the crown had no power to confer any jurisdiction or coercive legal authority upon the Metropolitan over the Suffragan bishops, or over any other person" (j). In an earlier case, Long v. The Bishop of Capetown, in 1863 (k), Long v. The the same tribunal expressed itself as follows : — Bishop of " The Church of England, in places where there is no Church ape °wn' established by law, is in the same situation with any other reli- gious body, — in no better, but in no worse position ; and the members may adopt, as the members of any other communion may adopt, rules for enforcing discipline within their body which will be binding on those who expressly or by implication have assented to them. " It may be further laid down that where any religious or other lawful association has not only agreed on the terms of its union, but has also constituted a tribunal to determine whether the rules of the association have been violated by any of its members or not, and what shall be the consequence of such violation, the decision of such tribunal will be binding when it has acted within the scope of its authority, has observed such forms as the rules require, if any forms be prescribed, and, if not, has proceeded in a manner consonant with the principles of justice. "In such cases the tribunals so constituted are not in any sense courts; they derive no authority from the Crown; they have no power of their own to enforce their sentences ; they must apply for that purpose to the courts established by law, and such courts will give effect to their decision, as they give effect to the decisions of arbitrators, whose jurisdiction rests entirely upon the agreement of the parties. " These are the principles upon which the courts in this country have always acted in the disputes which have arisen between members of the same religious body, not being members of the Church of England. They were laid down most distinctly and acted upon by Vice- Chancellor Shadwell and Lord Lynd- hurst in the case of Dr. Warren, so much relied on at the bar, and the report of which in Mr. Grrindwood's book seems to bear every mark of accuracy. " To these principles, which are founded in good sense and justice, and established by the highest authority, we desire strictly to adhere " . . . .(I). In Regina v. Eton College (m), the Court of Queen's Bench, in Reginaj. Eton 1857, then presided over by Lord Campbell, had said — College, " We do not question the power of the Queen to create a bishopric in any part of her dominions except where, as in Scot- (/) Re Bishop of Natal, 3 Moo. 461,462. P. C. C, N. S. p. 115, at p. 151. (m) 8 E. & B. p. 610, at p. 635 (7c) 1 Moo. P. C. C, N. S. p. 411. (1857). (0 1 Moo. P. C. C, N. S. at pp. 1784 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. land, such an exercise of prerogative is forbidden. In a newly settled colony such an exercise of prerogative is lawful ; but we must bear in mind that in such a colony there is no established church, and that the ministers of religion in communion with the Church of England, with the Church of Scotland, and with the Church of Rome, in the absence of any imperial or colonial legislation on the subject, are all upon an equal footing. If, by legislative enactment, there were a fund created for the support of ' the Protestant clergy in New Zealand,' according to the opinion given by the judges in the house of lords upon the Canada Reserves (;?), the Episcopalian and Presbyterian clergy in the colony would be entitled to share it in equal proportions. It has likewise been held that the Crown may create an ecclesias- tical Roman Catholic corporation in an English colony, as well as a Protestant bishopric." The actual decision in the case was that the Crown had no right of nomination to a benefice vacated by the appointment of the holder of it to a bishopric in the colonies (o). " There can be no doubt," the judges said, " that, on the promotion of the incumbent of a benefice in England to a bishopric in England, the benefice is avoided, and it belongs to the Queen to present to the benefice so avoided. This is clearly a prerogative of the Crown, whatever may have been the reason for it, and how- ever it may have been acquired. It rests upon uniform usage, and is supported by so many dicta of our text writers, and decisions of our courts of justice, that it cannot now for a moment be questioned. The prerogative is stated likewise to extend to the bishopric of Sodor and Han, not within the realm of England, although held under the crown of England, that see having been immemorially a see of the Church of England, anciently attached to the province of Canterbury, and more recently to the province of York. Whether the prerogative likewise extends to the case of an English incumbent promoted to a bishopric in Ireland has been considered a question of grave doubt," The privy council having decided that the metropolitan Bishop of Capetown had no coercive jurisdiction over the Bishop of Natal, and, therefore, that deprivation of that pre- late by him was civilly null and void, another form of the question came in the case of The Bishop of Natal v. Gladstone, in 1866, before the Master of the Rolls. The facts of this last case may be stated as follows : — The Bishop of Funds were subscribed and vested in trustees in England Natal v. for the creation and endowment of a bishop of the united Church Gladstone. Q| England and Ireland in Natal — a colony having an indepen- dent legislature, — and the crown, on the application of the trustees, appointed the plaintiff bishop of the see or diocese of Natal by letters patent, purporting to give him coercive juris- diction over his clergy, and to make him subject to the Bishop (n) Journals, House of Lords, p. 1793. 4 May,. 1840, p. 254. Vide infra, (o) Vide supra, p. 52. CHURCH IN THE COLONIES. 1785 of Capetown as his metropolitan. The plaintiff was consecrated in 1853. A snit was instituted by the plaintiff to obtain pay- ment of the income of the endowment. The trustees alleged by their answer that the effect of the judgment of the judicial committee in Re Bishop of Natal (p) was that, inasmuch as no coercive jurisdiction could be given to a bishop in a colony possessed of an independent legislature, the letters patent had failed to create a legal see or diocese, and thus the objects of the subscribers had failed. Upon this state of facts it was, in sub- stance, decided : That the plaintiff retained his legal status as Bishop of Natal, notwithstanding the said judgment; that though the letters patent had failed to confer upon him any effective coercive jurisdiction over his clergy, he could still enforce obedience by having recourse to the civil courts ; and that, as no allegation was raised in the pleadings against the plaintiff's character or doctrine, he was entitled to the income of the endowment (q). In The Bishop of Capetown v. The Bishop of Natal another The Bishop of phase of the same question came before the privy council on G"?et™* v- „ o . p , 1 The Bishop of the following tacts : — Natal. In 1850 a grant was made in the name and on behalf of her Majesty of a piece of land in the town of Pietermaritzburg and district of Natal in the colony to the appellant, the Bishop of Cape Town, and his successors, in trust for the English Church. In October, 1853, the appellant, in pursuance of the power given him in his letters patent, resigned the office and dignity of Bishop of Cape Town. In November, 1853, letters patent were issued for erecting the district of Natal into a separate see or diocese, subject and subordinate with the see of Graham's Town, thereby also created a separate see, to the metropolitan see of Cape Town ; and the respondent was appointed Bishop of Natal. The respondent was, as in the original letters patent creating the appellant Bishop of Cape Town, constituted a cor- poration sole, with the like power to hold and enjoy lands ; and the church then building on the ground granted in 1850 was declared to be thenceforth the cathedral church and see of the respondent as such Bishop of Natal. Soon after the respondent's consecration, the appellant appointed him by power of attorney to act as trustee of certain lands and churches in the colony and see of Natal, including the land and cathedral church thereon in the city of Pietermaritzburg, granted in 1850, and which had then been entered on the colonial register in the name of the appellant. In 1864 the appellant revoked this power of attorney. In consequence of this and other proceedings taken at the instance of the appellant to prevent the respondent from having the free use of the cathedral church at Pietermaritzburg, the respondent brought an action of ejectment against the appel- lant for possession of the land and church, claiming nominal damages, and for the substitution of his own for the appellant's {p) 3 Moo. P. C. 0., N. S. p. 115 ; (2) L. E., 3 Eq. p. 1 (1866). supra, p. 1782. 1786 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. name as trustee thereof. The supreme court gave judgment in favour of the respondent, and decreed the land and the buildings thereon to stand vested in the respondent and his successors as bishops of Natal. On appeal, the judicial committee held, first, that though the suit was not properly framed so as to allow the substitution of the respondent as trustee in the place of the appellant, yet that, having regard to the terms of the grant and the successive letters patent appointing the appellant and respondent respec- tively Bishops of Cape Town and Natal, and that the respon- dent's patent was subsequent to the appellant's resignation, but prior to his second patent as metropolitan, the appellant had ceased on such resignation to be a trustee of the land and the cathedral church, or to have any estate or right to interfere with the respondent's free access to and use of such church ; and, secondly, that it was competent to the Crown at the date of the letters patent to the respondent, to " ordain and declare that the church in the city of Pietermaritzburg shall thenceforth be the cathedral church and see of the respondent and his successors, Bishops of Natal." And the decree of the court below was varied by its being declared, that the respondent, as Bishop of Natal, should have free and uninterrupted access to the land and premises in the grant of 1850, for the purpose of enjoying and exercising all rights, privileges and immunities which had hitherto been enjoyed and exercised, or ought to be enjoyed and exercised, by the Bishop of Natal, as such bishop or otherwise, in reference to or within the cathedral thereon, and its appurtenances ; and that the appellant, the Bishop of Cape Towtl, and his agents, be restrained from in any manner interfering with such access, enjoyment, or exercise; saving, however, to any, except the appellant, any rights in reference to the cathedral church which they also enjoyed (o). Letters Since the decisions in the above cases of Long v. The Bishop patent. 0f Capetown and Re Bishop of Natal, the government has dis- continued the issue of letters patent to bishops in colonies pos- sessing an independent legislation. Merrimanv. In the case of Merriman v. Williams (p), the Bishop of Gra- Williams. hamstown had brought a suit in the civil court of the colony against Dr. Williams, who had accepted the office of dean under and from him, but who was also officiating minister in possession of the Church of St. George, in Grahamstown, which had been made the cathedral, to enforce sentences of the Diocesan Court of Grahamstown, whereby the defendant, as member of the Church of the Province of South Africa, had been found guilty of contumacious disobedience, suspended from his ministerial functions, and finally excommunicated. It appeared in the dis- cussion of the case before the Privy Council that the only civil (o) 6 Moo. P. C. C, N. S. p. 203 {p) 7 App. Ca. p, 484. (1869). CHURCH IN THE COLONIES. 1787 remedy which could be asked for was in respect of the possession and user of the Church of St. George, which had been originally granted by the Crown for ecclesiastical purposes in connection with the Church of England. The Privy Council, confirming the decision of the Supreme Court of Cape Colony, held that the Church of the Province of South Africa, of which both parties were members, was not a church in connection with the Church of England as by law established, and that in consequence the Church of South Africa had not, and Bishop Merriman had not, any rights to the Church of St. George, and that it was not his cathedral. They founded this decision upon the canons passed in the provincial synod of 1870 (q), and especially upon an article in the constitution, which was as follows : — "Provided also that in the interpretation of the aforesaid standards and formularies the church of this province be not held to be bound by decisions in questions of faith and doctrine, or in questions of discipline relating to faith and doctrine, other than those of its own ecclesiastical tribunals, or of such other tribunal as may be accepted by the provincial synod as a tribunal of appeal." The Privy Council held that this proviso created a " present and actual divergence " between the two churches, with only a " potential agreement " : because, though the ecclesiastical tri- bunals of South Africa might possibly decide on all important points as the Privy Council had done, the standards of the two churches were different. If it be respectful to criticise this decision, the editor would Examination point out two things : first, that the creeds, articles and liturgies ? jj ^J^011" of a church are its standards ; and that, if the judicial interpre- decision, tation of these formularies be the standard, divergence from which makes a different church, then, as the Privy Council may (for so it has itself declared) come to different interpretations at different times, the Church of England is or may be different from itself : Secondly, that the Church of Ireland has not now, and had not even when it was in union with the Church of England, the same final tribunal, and therefore, though in union, was not, according to this decision, and still less is now, in connection with the Church of England. The decision of the Supreme Court of the Cape was in part rested, and might have been wholly supported and the same conclusions might have been reached, upon quite different grounds ; and, indeed, as will be seen by the report of the argument, the ground upon which the Privy Council based its judgment was by no means the most prominent in the argu- ments urged by counsel for the successful party before its bar. But still it must be taken that where trusts of land or build- How far ings for religious purposes have been declared to be for such points decided (q) Yide supra, p. 1781. P. VOL. II. CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. of general purposes " in connection with the Church of England," that app ica ion. particular form of words will he holden by the Courts to exclude any colonial church which does not formally accept the decisions of the Privy Council sitting as a court of final appeal in eccle- siastical cases. But it is hardly likely that the decision would he extended or applied to any form of words except the particular one. JenMnl6 ^n parte Jenkins (q), it appeared that in 1867, the court of chancery of the Bermuda Islands made certain orders, the effect of which was to refuse an application hy a clerk in holy orders for a writ de vi laicd removendd, to remove an opposition to his heing inducted into a parish church in the island under a mandate from the commissary of the Bishop of Newfoundland. In explaining the reasons for refusing the writ, de vi laicd removendd, the chief justice, after stating that it was not com- petent to the crown to alter the constitution of the church in the colony hy conferring hy patent upon a hishop any coercive or judicial powers not granted by the imperial parliament or the local legislature, added, " That although the institution of a clergyman to a benefice is not an act of coercive or contentious jurisdiction, yet it is not a mere ministerial act, but is of a judicial nature " There was an appeal from this sentence to the Privy Council in 1868. The judgment of that tribunal, referring to this language of the chief justice, observed, " Strictly speaking, however, it is not so much the institution which is judicial, as the previous examination of the fitness of the clerk presented ; for if the clerk be really idonea persona, the bishop would be bound to institute him. But whether institution is to be re- garded as a judicial or a ministerial act is wholly immaterial. The question is, whether the Crown has conferred an authority which was not within its competency. " Now, it is a fact, which cannot be disputed, that for more than a century the Crown possessed the power of collating to all the vacant benefices in the Bermudas by direct nomination, a power which it exercised by delegation to the successive governors, who were usually described as Ordinaries in their patents, and who, to a certain extent, exercised the powers of that ecclesiastical officer. But when a Bishop or Ecclesiastical Ordinary was duly appointed, with spiritual oversight of the Church in the Bermudas, the Crown, as patron, thought proper to leave to the Governor the power of nominating the clerk, but recognized, by the letters patent granted to the Bishop, the power of institution belonging to his office. The Bishop, as has been said, is bound, if the clerk be idonea persona, to institute him. " It cannot be supposed that when the Crown gave a clergy- man a title to a living by one act of collation, the appointment was made without previous inquiry as to his qualifications. The whole effect of the alteration of the system of conferring bene- fices in the Bermudas is to transfer this inquiry from the Governor to the Bishop. (7) L. R., 2 P. C. p. 258. CHURCH IN THE COLONIES. 1789 " It seems to have been supposed, however, that the cases of Long v. The Bishop of Cape Town (r) and In re The Lord Bishoj) of Natal (s), are authorities for the proposition that the Bishop of Newfoundland has no legal status, and cannot lawfully exercise any episcopal function, within the Bermudas. The first case certainly does not go the length of that proposition, for it decided only that the Crown cannot confer coercive autho- rity on a bishop, in a colony possessing a constitutional form of government, without the consent of the legislature. The judicial committee, in deciding the case of the Bishop of Natal, has cer- tainly used expressions which would restrain the power of the Crown in the creation of bishops within even narrower limits. " It has been argued that the Master of the Rolls, in his judg- ment in The Bishop of Natal v. Gladstone (t) has greatly qualified the effect of the former judgment of the Privy Council. " Their lordships think that in the present case they are not called upon to express an opinion, whether these two decisions can be reconciled. For they are clearly of opinion that the question, whether the Bishop of Newfoundland has any lawful status, or can exercise any Episcopal function, and particularly that of institution, in the Bermudas, has been set at rest conclu- sively by the repeated recognition of his status and functions by the colonial legislature. The Acts of 1843, of 1864, of 1865 and 1866, mentioned in the memorandum of the Attorney- Greneral of the Bermudas, all recognize the legal status of the bishop of the diocese (u)." The status of the Church in the colonies being thus placed for Forbes v. the most part on the footing of voluntary religious societies (%) , Eden- it is important to record the careful language of the House of ^^n^ry Lords on this subject in the case of Forbes v. Eden (y). In this associations, case, which was a suit instituted in a civil court by a clergyman of the Scotch Episcopal Church, to set aside canons passed in 1863, for the purpose of cementing the union between the Scotch Episcopal Church and the Church of England and Ireland, the suit was dismissed with costs. Lord Cranworth in that case said, " Save for the due disposal and administration of property, there is no authority in the Courts either of England or of Scotland to take cognizance of the rules of a voluntary society entered into merely for the regu- lation of its own affairs. If funds are settled to be disposed of amongst members of a voluntary association, according to their rules and regulations, the Court must necessarily take cog- nizance of those rules and regulations, for the purpose of satis- fying itself as to who is entitled to the funds." And Lord Colonsay said, " A court of law will not interfere (r) 1 Moo., P. C. C, N. S. p. 411. (a;) Vide Natal {Bp. of) v. Green, (a) 2 Ibid. p. 115. 18 L. T. 112, Supremo Court of It) L. E., 3 Eq. p. 1. Natal. (u) Ex parte Jenkins, L. R. 2 P. (y) L. R., 1 Sc. & D. p. 568, C. at pp. 269, 270. Vide supra, p. 1766. 5 z 2 * 1790 CHUIICH OF ENGLAND IN RELATION TO OTHER CHURCHES. with the rules of a voluntary association, unless to protect some civil right or interest which is said to be infringed by their operation." — ♦ — 6 Geo. 4, c. 88. Letters patent appointing bishops, arch- deacons and ministers for the dioceses of Jamaica : and of Bar- badoes and the Leeward Islands. Extensions. Disestablish - ment. 31 & 32 Vict, c. 120. No person hereafter appointed bishop, arch- Sect. 3. — Church in the West Indies. Jamaica had belonged to Great Britain ever since its conquest and acquisition by Oliver Cromwell, and many of our possessions in the West Indies since the Treaty of Utrecht : it was not, however, till the 5th of July, 1825, that any provision was made by the government of this country for the proper discipline of the church then established in those colonies. 6 Geo. 4, c. 88, enacted the first provisions. Its preamble is as follows : — " Whereas His Majesty, by His several royal letters patent, has been graciously pleased to direct and appoint that the island of Jamaica, the Bahama Islands, and the settlements in the bay of Honduras, and their respective dependencies, should be and become a bishopric, and the diocese and see of a bishop of the united Church of England and Ireland as established by law, to be called ' The Bishopric of Jamaica ; ' and that there should be one bishop of the said diocese, and that there should also be one archdeacon and seven ministers of the Grospel in and for the said diocese ; and in like manner that the islands of Barbadoes, Gre- nada, St. Yincent's, Dominica, Antigua and Mountserrat, St. Christopher's, Nevis and the Virgin Islands, Trinidad, Tobago and St. Lucie, and their respective dependencies, should be and become a bishopric, and the diocese and see of a bishop, to be called ' The Bishopric of Barbadoes and the Leeward Islands/ and that there shall be one bishop of the said last-mentioned diocese, and that there should also be one archdeacon in and for the island of Barbadoes, and one archdeacon in and for the island of Antigua, and that there should be thirteen ministers of the Gospel and three catechists within the said last-mentioned diocese ; and it is expedient that provision should be made for the payment of yearly salaries to such bishops, archdeacons, ministers and catechists respectively, and also to enable His Majesty to grant to such bishops respectively yearly pensions or annuities on their retiring from their dioceses." This act was amended and extended by 7 Greo. 4, c. 4, and 5 Yict. sess. 2, c. 4. But the Church in the West Indies has since, like the Church in Ireland, been disestablished, as far at least as the imperial legislature is concerned. This was in 1868 by virtue of 31 & 32 Vict. c. 120, entitled " An Act to relieve the Consolidated Fund from the Charge of the Salaries of future Bishops, Archdeacons, Ministers and other Persons in the West Indies." This statute, after reciting the acts above mentioned, proceeds as follows : — Sect. 1. "No person who, after the passing of this act, shall be appointed bishop of any diocese in her Majesty's West Indian possessions, or who, after the passing of this act, shall be appointed archdeacon, minister, catechist, or schoolmaster in CHURCH IN THE COLONIES. 1791 any such diocese, shall receive under the provisions of said acts (z), deacon, minis- in respect of any such appointment, any salary or other sum eS'st°under" whatsoever out of the growing produce of the Consolidated Fund recited^cts, of the United Kingdom or under any " Provided always, that nothing herein contained shall autho- ^ttei's Patent rize any diminution during the life and incumhency of any pursuance bishop or archdeacon of any salary of which he is now in the thereof, to receipt ; and that every minister, catechist and schoolmaster in ouTof^rasoH the said dioceses to whom at the time of the passing of this act dated fund, any sum has been appropriated and made payable as afore- said under the said act of the fifth year of the reign of her present Majesty shall continue to receive the same, but no larger sum thereunder, so long as he shall hold the appoint- ment, and, subject to any leave of absence which may be granted to him by the officer administering the government of the colony, perform the duties in respect of which such sum was so appropriated and made payable to him, or, subject as aforesaid, so long as he shall perform within the said colony such other duties as may be imposed on him by the bishop of the diocese in addition to, or in lieu of, the duties attached to the appointment which he now holds." Sect. 2. " In the event of a vacancy of the said see or diocese Coadjutor of Jamaica the present coadjutor bishop shall, so long as he ^a^r^nt administers the said diocese as such coadjutor, continue to act in caslTof611 in the same manner as at present as archdeacon of Middlesex " (a), vacancy of see The third section provides for an annual return to parliament of Jamaica- of money paid out of the consolidated fund for ecclesiastical purposes in the "West Indies. Sect. 4. — Church in Canada. The conquest of the province of Quebec was completed in the Roman year 1759. The rights, privileges, lands or seignories holden jJjJJJJjJ1111 by the Eoman Church previous to the conquest were secured by Canada, the articles of capitulation, and subsequently guaranteed by an act of the British parliament in 177-1 (b). This act must be holden to recognize the Church of Home as an, if not the, Estab- lished Church of Lower Canada ; but in this legislative measure the Church of England was not altogether neglected, it being therein expressly provided (sect. 6), " That it should be lawful for his Majesty, his heirs or successors, to make such provision out of the rest of the said accustomed dues and rights, for the encouragement of the Protestant religion, and for the mainten- ance and support of a Protestant clergy, within the said pro- vince, as should, from time to time, be thought necessary and expedient." In the year 1791, in consequence of a message from the Crown 31 Geo. 3, (z) 6 Geo. 4, c. 88 ; 7 Geo. 4, c. 4; (a) In the Island of Jamaica. 5 Yict. sess. 2, c. 4. (b) 14 Geo. 3, c. 83. 1792 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. to the parliament, the 31 Greo. 3, c. 31, commonly called the Constitutional Act of the Canadas, was passed. This statute contained provisions for the maintenance of " a protestant clergy." It has since been repealed. Certain king's instructions were sent to the Governor of the Canadas in 1818; but they have ceased to be legally binding on the Church. A doubt having arisen whether rectors and parsons duly instituted did not become possessed of rights in all respects similar to those enjoyed by incumbents in England, and were entitled to tithes, etc., was set at rest by an act passed in 1823 by the colonial legislature. Claim by About thirty years after the passing of the 31 Geo. 3, c. 31, Presbyterians. a ciaim was preferred by the Scotch Presbyterian clergy to a share in the provision made for the protestant clergy under the 36th and 42nd sections of that act. Yarious denominations of dissenters afterwards asserted a similar right ; their claims, as well as the state of the church in Canada in 1827, were set forth in a Report of the Committee of the House of Commons. Opinion of In 1840 the subject of the clergy reserves underwent frequent to tie cfero-aS anc^" venemen^ discussion in both houses of parliament. The reserves.6^7 House of Lords finally resolved that certain questions should be put to the judges upon this subject, as well as upon an act of the colonial legislature with respect to them; and on the 4th of May, Chief Justice Tindal stated, " that, on the part of her Majesty's judges, he had the honour to represent to their lordships that all the judges of England, with the exception of Lord Denman and Lord Abinger, had met together in Serjeants' Inn, for the purpose of taking into consideration the several questions which their lordships had been pleased to propose to them ; and that, after due discussion and consideration of the several subjects involved in these questions, they had agreed unanimously to the answers to be returned to them. Their lord- ships' questions were as follow : — "'1. Whether the words "a protestant clergy" in the 31 Geo. 3, c. 31, (ss. 35 — 42,) include any other than clergy of the Church of England, and protestant bishops and priests and deacons, who have received episcopal ordination ? And if any other, what other ? 2. Whether the effect of the 41st section of the 31 Greo. 3, c. 31, be not entirely prospective, giving power to the legislative council and assembly of either of the provinces of Upper or Lower Canada as to future allotments and appro- priations ; or whether it can be extended to affect lands which have been already allotted and appropriated under former grants ? 3. Whether the Legislative Council and Assembly of the province of Upper Canada, having in an act " to provide for the sale of the clergy reserves, and for the distribution of the proceeds thereof," enacted that it should be lawful for the governor, by and with the advice of the Executive Council, to sell, alienate, and convey in fee simple, all or any of the said clergy reserves ; and having further enacted, in the same act, that the proceeds of all past sales of such reserves which have been or may be in- CHURCH IN THE COLONIES. 1793 vested under the authority of the act of the imperial parliament passed in the seventh and eighth years of the reign of his late Majesty king George 4th, intituled "An Act to authorize the Sale of part of the Clergy Reserves in the Provinces of Upper and Lower Canada" (//), shall be subject to such orders and directions as the governor in council shall make and establish for investing in any securities within the province of Upper Canada the amount now funded in England, together with the proceeds hereafter to be received from the sales of all or any of the said reserves, or any part thereof, did, in making such enact- ments, or either of them, exceed their lawful authority ? ' " To the first question, the judges answered, — " ' We are all of opinion that the words " a protestant clergy" in the 31 Geo. 3, c. 31, are large enough to include, and that they do include, other clergy than the clergy of the Church of England.' " And when their lordships asked, 4 If any other, what other?' the judges answered, ' The clergy of the Church of Scotland.' " To the second question, the judges said, — " ' We are all of opinion, that the effect of the 41st section of the statute is prospective only ; and that the power thereby given to the Legislative Council and Assembly of either province cannot be extended to affect lands which have been already allotted and appropriated under former grants.' " In answer to the last question, the judges said, — " ' We all agree in opinion that the Legislative Council and Assembly in Upper Canada have exceeded their authority in passing an act " to provide for the sale of the clergy reserves, and for the distribution of the proceeds thereof," in respect of both the enactments specified in your Lordships' question ; and that the sales which have been, or may be, effected in conse- quence, are contrary to the provisions of the statute of Geo. IV., and are therefore void "' (z). This opinion of the judges was followed by the imperial 3 & 4 Vict, statute 3 & 4 Vict. c. 78. It was intituled " An Act to provide c- 78- for the Sale of the Clergy Reserves in the Province of Canada, and for the Distribution of the Proceeds thereof." By it the reserves were sold and the Scotch Presbyterians were admitted to a share in them. The 5th section enacts thus : — " . . . . the share allotted and appropriated to each of the said churches shall be expended for the support and maintenance of public worship and the propagation of religious knowledge, the share of the said Church of England being so expended under the authority of the 6 Society for the Propagation of the Gospel in Foreign Parts' . . . . " (a). {y) 7 & 8 Geo. 4, c. 62. Vide supra, p. 1784. (z) Hansard, Parliamentary De- (a) Vide supra, p. 1770. bates, vol. hii. pp. 1156 — 1158. 1794 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. CHAPTEE IV. CHURCH IN THE EAST INDIES. The first bishopric in the immense and increasing possessions of the East Indies was created by letters patent in 1814 ; and by 53 Greo. 3, c. 155, its revenues and jurisdiction were settled as follows : — Sect. 49. " And whereas no sufficient provision hath hitherto been made for the maintenance and support of a church estab- lishment in the British territories in the East Indies and other archdeacons parts within the limits of the said company's charter (a), be it shall be esta- therefore enacted, That in case it shall please his Majesty, by India byhis n^s r0J^ letters patent under the great seal of the said United Majesty's Kingdom, to erect, found and constitute, one bishoprick for the letters patent, whole of the said British territories in the East Indies, and tobe paiTby Par^s aforesaid; one archdeaconry for the presidency of Fort the East India William in Bengal; one archdeaconry for the presidency of Company. Fort St. Greorge on the coast of Coromandel ; and one arch- deaconry for the presidency and island of Bombay, on the coast of Malabar ; and from time to time to nominate and appoint a bishop and archdeacons to such bishopric and archdeaconries respectively ; the court of directors of the said company, during such time as the said territorial acquisitions shall remain in the possession of the said company, shall, and they are hereby required to direct and cause to be paid, certain established salaries to such bishop and archdeacons respectively ; that is to say, from and out of the revenues of the said presidency of Fort William in Bengal to the said bishop, five thousand pounds by the year, at an exchange of two shillings for the Bengal current rupee ; and to the said archdeacon of the said presidency of Fort William, two thousand pounds by the year, at the like exchange ; and from and out of the revenues of the presidency of Fort St. George, on the coast of Coromandel, to the archdeacon of the said presidency of Fort St. Greorge, two thousand pounds by the year, at an exchange of eight shillings for the pagoda at Madras; and from and out of the revenues of the presidency and island of Bombay, on the coast of Malabar, to the archdeacon of the said presidency and island of Bombay, two thousand pounds by the year, at an exchange of two shillings and threepence for the Bombay rupee." 53 Geo. 3, c. 155. If a bishop and three (a) The East India Company's charter. CHURCH IN THE EAST INDIES. 1795 Sect. 50. "... . the said salaries shall take place and com- Salaries to mence from and after the time at which such persons as shall he ^^^con appointed to the said offices respectively, shall take upon them the an(j ^ cease' execution of their respective offices : and .... all such salaries when func- shall be in lieu of all fees of office, perquisites, emoluments and tl0ns cease- advantages whatsoever ; and .... no fees of office, perquisites, emoluments or advantages whatsoever, shall be accepted, received or taken, in any manner or on any account or pretence what- soever, other than the salaries aforesaid, and .... such bishop and archdeacons respectively shall be entitled to such salaries so long as they shall respectively exercise the functions of their several offices in the East Indies, or parts aforesaid, and no longer. " Sect. 51. " . . . . such bishop shall not have or use any juris- Bishop to diction, or exercise any episcopal functions whatsoever, either in Jj^?0no ]uris" the East Indies or elsewhere, but only such jurisdiction and functions functions as shall or may from time to time be limited to him by except those his Majesty by letters patent under the great seal of the United }lmited °y Kingdom " (J). _ letters patent. These provisions forbidding any exercise of episcopal functions outside the East Indies have since been modified by 15 & 16 Vict. c. 52, 16 & 17 Vict. c. 49, and 37 & 38 Vict. c. 77, s. 13 (c). Sect. 52. " .... it shall and maybe lawful for his Majesty, Modifications, from time to time, if he shall think fit, by his letters patent His Majesty under the great seal of the said United Kingdom, to grant to ™aF 8rant to such bishop so to be nominated and appointed as aforesaid, such letters patent ecclesiastical jurisdiction, and the exercise of such episcopal such ecclesias- functions, within the East Indies and parts aforesaid, as his J^lo^s'li Majesty shall think necessary for the administering holy cere- may^hink ° monies, and for the superintendence and good government of necessary, the ministers of the church establishment within the East Indies and parts aforesaid ; any law, charter or other matter or thing to the contrary notwithstanding." Sect. 53. "That when and as often it shall please His Majesty Warrant for to issue any letters patent respecting any such bishopric or lettew patent archdeaconry as aforesaid, or for the nomination or appoint- DyUpresidentd ment of any person thereto, the warrant for the bill in every of board, such case shall be countersigned by the president of the board of commissioners for the affairs of India." The 89th section allows for outfit to the bishop the sum of 1,200/., and to each of the archdeacons 500/. Sect. 2 of 4 Geo. 4, c. 71, repealed so much of the former act 4 Geo. 4, as related to pensions. c- <1- By sect. 3 of the last act, " It shall and may be lawful for His Pensions to Majesty, his heirs and successors, in manner in the said act blshoPs- mentioned, to grant to any such bishop who shall have exercised (b) By the patent of the Bishop to the Archbishop of Canterbury, of Calcutta, an appeal is given from (c) Vide infra, pp. 1812, 1813, any sentence he may pronounce, by 1816. virtue of his ecclesiastical authority, 1796 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. Chaplains appointed archdeacons to be entitled to pension in a certain proportion. Further provisions as to chaplains. Residence and expense of visitations of bishop to be defrayed by- company. Bishop of Calcutta may admit persons to holy orders without the qualifications required in England. in the East Indies or parts aforesaid, for ten years, the office of bishop or archdeacon . . . pensions not exceeding such sums respectively as His Majesty, by the said act " 53 Geo. 3, c. 155, " is empowered to grant to any such bishop . . . ." Sect. 4. " .... if any person residing any time in the East Indies or parts aforesaid, as one of the chaplains of the said united company (d), shall have been or shall be appointed to the office of such archdeacon as aforesaid, and shall have resided in the East Indies or parts aforesaid as such archdeacon seven years, the period of residence of such person as chaplain shall be accounted and taken as and for a residence as such archdeacon, in the pro- portion of three years' residence as such chaplain to two years' residence as such archdeacon : Provided also, that nothing herein contained shall extend or be construed to extend to prejudice the right of any person being or having been a chaplain of the said united company, to any benefit he may be entitled to as under or by virtue of any regulation now in force or hereafter to be made by the said united company or their court of direc- tors, nor to prejudice or affect the right of the said united com- pany or their court of directors, to make, repeal, vary, or alter any regulation or regulations respecting the chaplains of the said united company, or the pay or allowances, pensions or re- tirements of such chaplains which the said united company or their court of directors may now lawfully make, repeal, vary, or alter." Sect. 5. " .... it shall and may be lawful for the said com- pany, and they are hereby required to provide a suitable house at Calcutta for the residence of the said bishop, and .... the expense of the visitations to be made by the said bishop from time to time shall be defrayed by the said company, out of the revenues of the British territories in India : Provided always, that no greater sum on account of providing such house, or of such visitations, be at any time issued, than shall from time to time be defined and settled by the court of directors of the said company with the approbation of the commissioners for the affairs of India, any law or statute to the contrary notwithstanding." Sect. 6. " 'And whereas doubts have arisen whether the Bishop of Calcutta, in conferring holy orders, is subject to the several provisions and limitations established by the laws of this realm or canons ecclesiastical, as to the titles of the persons to be ordained, and as to the oaths and subscriptions to be by such persons taken and made ; ' Be it further declared and enacted, That it shall and may be lawful for the Bishop of Calcutta for the time being, to admit into the holy orders of deacon and priest respectively any person whom he shall, upon examination, deem duly quali- fied specially for the purpose of taking upon himself the cure of souls or officiating in any spiritual capacity within the limits of the said diocese of Calcutta and residing therein ; and that a declaration of such purpose, and a written engagement to per- (ri) The East India Company. CHUKCH IN THE EAST INDIES. 1797 form the same, under the hand of such person, being deposited in the hands of such bishop, shall be held to be a sufficient title with a view to such ordination ; and that in every such case, it shall be distinctly stated in the letters of ordination of every person so admitted to holy orders, that he has been ordained for the cure of souls within the limits of the said diocese of Calcutta only ; and that unless such person shall be a British subject of or belonging to the United Kingdom of Great Britain and Ireland, he shall not be required to take and make the oaths and subscriptions which persons ordained in England are required to take and make : Provided always, that nothing herein contained shall be construed to repeal or affect the provisions of " 53 Greo. 3, c. 155, " or any letters patent issued by His late Majesty, or by His present Majesty, their heirs and successors, in virtue of the said act or of their lawful prerogative." By 6 Greo. 4, c. 85, s. 5, when any Bishop of Calcutta dies on 6 Geo. 4, his voyage out to India, or within six months after his arrival, c- 85 • his representatives shall have a whole year's salary ; and if he Jea^SQ^of dies after having been six months in India, they shall have six voyage out, months' salary over and above what was then due to him. &c. After a lapse of twenty-two years since the erection of this Further see, two new bishoprics were created, that of Madras in 1836, blshoPrics. and of Bombay in 1837 ; and fresh provisions were enacted rela- tive to the discipline of the Church in India, as will be seen by 3 & 4 wm- 4> the following extracts from 3 & 4 Will. 4, c. 85 :— c- 8a' Sect. 89. " ' And whereas the present diocese of the bishopric Kespecting of Calcutta is of too great an extent for the incumbent thereof the incon- to perform efficiently all the duties of the office without endan- ©f the diocese* gering his health and life, and it is therefore expedient to of Calcutta, diminish the labours of the bishop of the said diocese, and for that purpose to make provision for assigning new limits to the diocese of the said bishop, and for founding and constituting two separate and distinct bishoprics, but nevertheless the bishops thereof to be subordinate and subject to the Bishop of Calcutta for the time being, and his successors, as their Metropolitan ; ' be it therefore enacted, That in case it shall please His Majesty If the king to erect, found and constitute two bishoprics, one to be styled bishoprics the bishopric of Madras and the other the bishopric of Bombay, of Madras and from time to time to nominate and appoint bishops to such and Bombay, bishoprics under the style and title of Bishops of Madras and salaries to be Bombay respectively, there shall be paid from and out of the paid to the revenues of the said territories to such bishops respectively the bishops, sum of 24,000 Sicca rupees by the year." Sect. 90. " . . . . the said salaries shall commence from the time Such salaries at which such persons as shall be appointed to the said office fa^J^^J of bishop shall take upon them the execution of their respective taking office, offices ; and .... such salaries shall be in lieu of all fees of office, to be in perquisites, emoluments or advantages whatsoever, and .... no f1^ 0^11 fees of office, perquisites, emoluments or advantages whatsoever shall be accepted, received or taken by such bishop or either of 1798 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. them, in any manner or on any account or pretence whatsoever, other than the salaries aforesaid ; and .... such bishops respec- tively shall be entitled to such salaries so long as they shall respectively exercise the functions of their several offices in the British territories aforesaid." Action of S" ^ec^ " ' ' ' ' SUC^ ^snoPs snaH n°t nave or use any juris- such°bishops. Action, or exercise any episcopal functions whatsoever, either in the said territories or elsewhere, but only such jurisdiction and functions as shall or may from time to time be limited to them respectively by His Majesty by His royal letters patent under the great seal of the said United Kingdom." Modifications. The provisions forbidding any exercise of episcopal functions outside the territories of Madras and Bombay have since been modified by 15 & 16 Yict. c. 52, 16 & 17 Yict. c. 49, and 37 & 38 Yict, c. 77, s. 13 (c). The king Sect. 93. . . . it shall and may be lawful for His Majesty LTterTTtlY fl>0m time to time' if he sha11 tMllk fit> b^ His r0^al letters" to limit juris- patent under the great seal of the said United Kingdom, to assign diction and limits to the diocese of the bishopric of Calcutta and to the functions. dioceses of the said bishoprics of Madras and Bombay respec- tively, and from time to time to alter and vary the same limits respectively, as to His Majesty shall seem fit, and to grant to such bishops respectively within the limits of their respective dioceses the exercise of episcopal functions, and of such ecclesi- astical jurisdiction as His Majesty shall think necessary for the superintendence arid good government of the ministers of the United Church of England and Ireland therein." SkStobe Sect' 94' " ' ' ' ' tnebisnoP of Calcutta for the time being metropolitan & sna^ De deemed and taken to be the Metropolitan Bishop in India, in India. and as such shall have, enjoy, and exercise all such ecclesiastical jurisdiction and episcopal functions, for the purposes aforesaid, as His Majesty shall by His royal letters patent under the great seal of the said United Kingdom think necessary to direct, subject nevertheless to the general superintendence and revi- sion of the Archbishop of Canterbury for the time being ; and .... the bishops of Madras and Bombay for the time being respectively shall be subject to the bishop of Calcutta for the time being as such Metropolitan, and shall, at the time of their respective appointments to such bishoprics, or at the time of their respective consecrations as bishop, take an oath of obedi- ence to the said bishop of Calcutta in such manner as His Majesty by His said royal letters patent shall be pleased to direct." Warrants for Sect. 95. " That when and as often as it shall please His bills on letters Majesty to issue any letters patent respecting the bishopric of Cal- pointingP" cutta, Madras or Bombay, or for the nomination or appointment bishops. of any person thereto respectively, the warrant for the bill in every such case shall be countersigned by the president of the board (c) Yide infra, pp. 1812, 1813, 1816. CHURCH IN THE EAST INDIES. 1799 of commissioners for the affairs of India, and by no other person." Sect. 96. "It shall and maybe lawful for His Majesty, His The king may heirs and successors, by warrant under His royal sign manual, ^.rant Pen~ countersigned by the chancellor of the exchequer for the time bishops of being, to grant to any such bishop of Madras or Bombay Madras or respectively who shall have exercised in the British territories BomDay- aforesaid for fifteen years the office of such bishop a pension not exceeding 800/. per annum, to be paid quarterly by the said company." Sect. 97 makes similar provisions as to the bishops of Madras and Bombay to those made for the bishop of Calcutta by 6 Greo. 4, c. 85, s. 5 (d). Sect. 98. " If it shall happen that either of the bishops of As to resi- Madras or Bombay shall be translated to the bishopric of Cal- jjence of cutta, the period of residence of such person as bishop of Madras iftSSaar or Bombay shall be accounted for and taken as a residence as Bombay if bishop of Calcutta ; and if any person now an archdeacon in the q3^1^01 to said territories shall be appointed bishop of Madras or Bombay, d uUI a* the period of his residence in India as such archdeacon shall, for all the purposes of this act, be accounted for and taken as a residence as such bishop." Sect. 99. " If any person under the degree of a bishop shall As to conse- be appointed to either of the bishoprics of Calcutta, Madras or CT^n oi^n7 Bombay, who at the time of such appointment shall be resident l^deo-ree of in India, then and in such case it shall and may be lawful for a bi>hop, if the Archbishop of Canterbury, when and as he shall be required j^^nJ 1Q so to do by His Majesty by His royal letters patent under the pointed^ a great seal of the said United Kingdom, to issue a commission bishopric, under his hand and seal, to be directed to the two remaining bishops, authorizing and charging them to perform all such requisite ceremonies for the consecration of the person so to be appointed to the degree and office of a bishop." Sect. 100. " The expenses of visitations to be made from time Provision for to time by the said bishops of Madras and Bombay respectively expen*es of shall be paid by the said company out of the revenues of the 1 lsltatlon:?- said territories ; provided that no greater sum on account of such visitations be at any time issued than shall from time to time be defined and settled by the court of directors of the said company, with the approbation of the commissioners for the affairs of India." Sect. 101. "No archdeacon hereafter to be appointed for the Xo arch- archdeaconry of the presidency of Fort William in Bengal, or j^!^*1^^ the archdeaconry of the presidency of Fort Saint George, or the a Mdaxy archdeaconry of the presidency and island of Bombay, shall exceeding receive in respect of his archdeaconry any salary exceeding 3>°oo sicca 3,000 sicca rupees per annum. Provided always, that the whole rupees* expense incurred in respect of the said bishops and archdeacons shall not exceed 120,000 sicca rupees per annum." (<7) Vide supra, p. 1797. 1800 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. 5 & G Vict, c. 119. Furlough allowances. 34 & 35 Vict. c. 62. Power to make rules for leave of absence for bishops, and as to ex- penses. 37 & 38 Vict, c. 13. Development of Indian episcopate. 32 & 33 Vict, c. 88. Straits Settle- ments. Ceylon. 43 & 44 Vict, c. 3. By 5 & 6 Yict. c. 119, the following provisions are made as to furlough, allowances. By sect. 1 , in case the crown shall grant permission to any bishop of Calcutta who has resided in India ten years, or any bishop of Madras or Bombay who has so resided fifteen years, to return to Europe for not more than eighteen months, reckon- ing from the departure from India, a furlough allowance not exceeding the amount which might be granted for a pension may, in the same manner in which a pension may be granted to the bishop of Calcutta under " 53 Greo. 3, c. 155, "be granted to such bishop. By sects. 2 and 3 a second furlough allowance may be granted after five years; but not more than one bishop is to have a furlough allowance at any one time. By sect. 4, if the crown enable the bishop of Madras or Bombay to perform the duties of the bishop of Calcutta during his absence on furlough, such bishop so performing the duties shall have an additional allowance of 10,000 company's rupees. By 34 & 35 Yict. c. 62, s. 1, "It shall be lawful for her Majesty to make such rules as to the leave of absence of Indian bishops on furlough or medical certificate as may seem to her expedient : Provided that no farther expenditure of the revenues of India be incurred thereby than is already authorized under existing acts of parliament." This act did not at first affect the bishopric of Calcutta, but was extended to that bishopric by 37 & 38 Yict. c. 13. These three bishoprics only are, as has been seen, the subject of parliamentary enactment, — an episcopate lamentably inade- quate to the wants of India. The stipends and status of these bishops are indeed secured by statute ; but if the peculiar legal status of these bishoprics had been holden to prevent (whether by the appointment of suffragans or coadjutors or otherwise) the extension in India of the episcopate on the voluntary prin- ciple, now generally prevalent in the foreign dependencies of the crown, the advantage would have been very dearly bought. But, as has been stated, bishoprics at Lahore, Eangoon, Tra- vancore and Cochin, and Chota Nagpur, have since been erected (d). An imperial act (32 & 33 Yict. c. 88) was passed to separate the Straits Settlements (now formed into the diocese of Singa- pore, Labuan, and Sarawak) from the diocese of Calcutta. The bishopric of Colombo is in the province of India and Ceylon. By 43 & 44 Yict. c. 3, s. 2, "It shall be lawful for the Secretary of State in Council of India, from time to time to fix, alter, or abolish the allowances for equipment and voyage of the several officers specified in the first schedule to this act (d) Vide supra, pp. 1775, 1776. CHURCH IN THE EAST INDIES. 1801 or any of them," among those officers "being " the bishops and archdeacons of Calcutta, Madras, and Bombay." Sect. 3. "It shall be lav^ful for the Secretary of State in Council of India from time to time to fix and alter the salaries, and to fix, alter, or abolish the allowances of the bishops and archdeacons of Calcutta, Madras, and Bombay, or any of them : Provided that nothing in this section shall affect the salary or allowances of any person who is such bishop or archdeacon at the passing of this Act." 1802 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. CHAPTER Y. CHURCHES ATTACHED TO CONSULSHIPS. 6 Geo. 4, c. 87. Provision for support of churches, &c. in foreign places where chaplain appointed ; consuls may- advance a sum equal to amount subscribed. 6 Geo. 4, c. 87, an act which regulates the payments of salaries and allowances to British consuls at foreign ports, and the dis- bursements at such ports for certain public purposes, contains various provisions relating to churches and chaplains attached to consulships. For by that act the whole management of the funds and the regulation of the expenditure is under the control of the consul-general or consul, and not of the ambassador ; and, by a strange anomaly, if there should be any foreign court where there is an ambassador and not a consul-general or consul, there is no legislative provision for any chaplain at all. Sect. 10 recites, " And whereas churches and chapels for the performance of divine service, according to the rites and cere- monies of the united church of England and Ireland, . . . have been erected, and proper grounds have been appropriated and set apart for the interment of the dead, in divers foreign ports and places, and chaplains have been appointed for the performance of divine service in the said churches and chapels, and are now resident in such foreign ports and places ; " and enacts " that at any foreign port or place in which a chaplain is now, or shall at any future time be, resident and regularly employed in the celebration of divine service, according to the rites and cere- monies of the united church of England and Ireland, . . . and maintained by any voluntary subscription or rate, levied among or upon his majesty's subjects resorting to or residing at such foreign port or place, or by any rate or duty levied under the authority of any of the acts hereinafter repealed, it shall and may be lawful for any consul-general or consul, in obedience to any order for that purpose issued by his Majesty through one of his principal secretaries of state, to advance and pay from time to time, for and towards the maintenance and support of any such chaplain as aforesaid, or for and towards defraying the ex- penses incident to the due celebration of divine service in any such churches and chapels, or for and towards the maintaining any such burial grounds as aforesaid, or for and towards the interment of any of his Majesty's subjects in any such burial grounds, any sum or sums of money, not exceeding in any one year the amount of the sum or sums of money, which during that year may have been raised at such port or place for the said CHURCHES ATTACHED TO CONSULSHIPS. 1803 several purposes or any of them, by any such voluntary sub- scription or rate as aforesaid ; and every such consul-general or Consuls to consul shall, once in each year, transmit to one of his Majesty's g^g^^f principal secretaries of state an account, made up to the thirty- j^te annual first day of December in the year next preceding, of all the sums accounts of of money actually raised at any such port or place as aforesaid, moneJ raised, for the several purposes aforesaid, or any of them, by any such voluntary subscription or rate as aforesaid, and of all sums of money by him actually paid and expended for such purposes, or any of them, in obedience to any such orders as aforesaid, and which accounts shall by such principal secretary of state be transmitted to the lord high treasurer, or the commissioners of his Majesty's Treasury of the united kingdom of Great Britain and Ireland, for the time being, who shall give to any such consul-general or consul as aforesaid credit for all sums of money not exceeding the amount aforesaid, by them disbursed and ex- pended in pursuance of any such order as aforesaid, for the pur- poses before mentioned, or any of them." Sect. 11. "In case any of his majesty's subjects shall by Where voluntary subscriptions among themselves raise and contribute co^J^^ons such a sum of money as shall be requisite for defraying one-half towards erect- part of the expense of erecting, purchasing or hiring any church hig churches, or chapel or building, to be appropriated for the celebration of p^^f' °r divine service according to the rites and ceremonies of the united burial church of England and Ireland, ... or for defraying one-half grounds, in part of the expense of erecting, purchasing or hiring any build- consuls ing to be used as a hospital for the reception of his Majesty's are resident, subjects, or for defraying one-half of the expense of purchasing ^h^^s or hiring any ground to be used as a place of interment for his equal6 majesty's subjects at any foreign port or place wherein any to amount of consul-general or consul appointed by his Majesty shall be resi- ^^ntri" dent, then and in any such case it shall and may be lawful for u lon ' such consul-general or consul, in obedience to any order to be for that purpose issued by his Majesty through one of his prin- cipal secretaries of state, to advance and pay, for and towards the purposes aforesaid, or any of them, any sum or sums of money not exceeding in the whole in any one year the amount of the money raised in that year by any such voluntary contri- bution as aforesaid ; and every such consul-general or consul as Annual aforesaid shall in like manner once in every year transmit to one *°°°s^ted t0 of his Majesty's principal secretaries of state an account, made secretary of up to the thirty- first day of December in the year next preceding, state, of all the sums of money actually raised at any such port or place as aforesaid, for the several purposes aforesaid, or any of them, by any such voluntary subscription as aforesaid, and of all sums of money by him actually paid and expended for such purposes or any of them, in obedience to any such orders as aforesaid, and which accounts shall by such principal secretary of state be transmitted to the lord high treasurer, or to the lords commissioners of his Majesty's Treasury, for the time being, who P. VOL. II. 6 A 1804 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. His Majesty' approbation be first obtained. Proviso as to an actual dis- bursement of money by consul. Salaries to chaplains not to exceed sums herein mentioned. Regulations for meetings of subscribers to churches, chapels, &c. shall give to such consuls-general or consuls credit for all sums of money not exceeding the amount aforesaid, by him disbursed and expended in pursuance of any such order as aforesaid, for the- purposes before mentioned or any of them." i Sect. 12. " .... no such order shall be issued as aforesaid through any of his Majesty's principal secretaries of state, autho- rizing the expenditure of money for the erection, purchase or hiring of any such new church or chapel or hospital as aforesaid, or for the purchase or hiring of any such new burial ground as afore- said, unless and until such consul-general or consul shall first have transmitted to his Majesty, through one of his Majesty's principal secretaries of state, the plan of such intended church or chapel, hospital or burial ground, with an estimate, upon the oath of some one or more competent person or persons, stating the probable expense of and incident to the erection, purchase or hiring of any such church, chapel, hospital or burying ground as aforesaid, and unless and until his Majesty shall have signified, through one of his said principal secretaries of state, his approba- tion of the said plan and estimate : Provided also, that no money shall actually be disbursed by any such consul-general or consul as aforesaid, for any of the purposes aforesaid, unless and until the money to be raised by any such voluntary subscription as aforesaid be actually paid up and invested in some public or other sufficient security, in the joint names of such consul-general or consuls and two trustees appointed for that purpose by the persons subscribing the same, or unless and until two or more of such subscribers shall enter into good and sufficient security to his Majesty, by bond or otherwise, that the amount of such sub- scriptions shall actually be paid for the purposes aforesaid, by a certain day to be specified in every such bond or security, and which bond or security shall be preserved in the office of such consul-general or consul, and shall by him be cancelled and de- livered back to the parties entering into the same, their heirs, executors or administrators, when and so soon as the condition thereof shall be fully performed and satisfied." Sect. 13. " . . . . the whole salary of any chaplain heretofore appointed or to be appointed to officiate in any church or chapel in any foreign port or place in Europe, shall not exceed in the whole five hundred pounds by the year ; or in any foreign port or place not in Europe, eight hundred pounds by the year : Pro- vided also, that all such chaplains shall be appointed to officiate as aforesaid, by his Majesty, through one of his principal secre- taries of state, and shall hold such their offices for and during his majesty's pleasure, and no longer." Sect. 14. " All consuls-general and consuls appointed by his Majesty to reside and being resident at any foreign port or place wherein any such church or chapel, or other place appropriated for the celebration of divine worship, or hospital, or any such burial ground as aforesaid, hath heretofore been or shall here- after be erected, purchased or hired, by the aid of any voluntary CHURCHES ATTACHED TO CONSULSHIPS. 1805 subscription or rates collected by or imposed upon his Majesty's subjects, or some person or persons for that purpose duly autho- rized by any writing under the hand and seal of any such consul-general or consul, shall, once at the least in every year, and more frequently if occasion shall require, by public adver- tisement, or in such other manner as may be best adapted for insuring publicity, convene and summon a meeting of all his Majesty's subjects residing at such foreign port or place as afore- said, to be holden at the public office of such consul-general or consul, at some time, not more than fourteen days nor less than seven days next after the publication of any such summons ; and it shall and may be lawful for all his Majesty's subjects residing or being at any such foreign port or place as aforesaid, at the time of any such meeting, and who shall have subscribed any sum or sums of money not less than twenty pounds in the whole, nor less than three pounds by the year, for or towards the purposes before mentioned, or any of them, and have paid up the amount of such their subscriptions, to be present and vote at any such meetings ; and such consuls-general or consuls shall preside at all such meetings ; and in the event of the absence of any such consuls-general or consuls, the subscribers present at any such meeting shall, before proceeding to the despatch of business, nominate one of their number to preside at such meet- ing ; and all questions proposed by the consul-general, consul or person so nominated as aforesaid to preside in his absence, to any such meeting, shall be decided by the votes of the majority in number of the persons attending and being present thereat : and in the event of the number of such votes being equally divided, the consul-general, consul or person so presiding in his absence, shall give a casting vote." Sect. 15. "It shall and may be lawful for any such general General meet- meeting as aforesaid to make and establish, and from time to ^sbmt^" time, as occasion may require, to revoke, alter and render such ruies for general rules, orders and regulations, as may appear to them to management be necessary for the due and proper use and management of ^/^j^tto such churches, chapels, hospitals and burial grounds as aforesaid, sanction of or for the proper control over and expenditure of the money consul, who raised by any such subscription as aforesaid, or otherwise in re- ^me f lation to the matters aforesaid, as may be necessary for carrying majesty's into execution the objects of this act, so far as relates to those approbation, matters, or any of them : Provided always, that no such rule, order or regulation as aforesaid shall be of any force or effect, unless or until the same shall be sanctioned and approved by the consul-general or consul for the time being, appointed by his Majesty to reside and actually resident at such foreign port or place ; and provided also, that the same shall, by such consul- general or consul, be transmitted by the first convenient oppor- tunity for his Majesty's approbation ; and ... it shall and may be lawful for his Majesty, by any order to be by him issued through one of his principal secretaries of state, either to confirm 6 a2 1806 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. or disallow any such rules, orders and regulations, either in the whole or in part, and to make such amendments and alterations in or additions to the same, or any of them, as to his Majesty shall seem meet, or to suspend for any period of time the execu- tion thereof, or any of them, or otherwise to direct or prevent the execution thereof, or any of them, in such manner as to his His majesty's Majesty shall seem meet ; and all orders so to be issued by his tot^ 'recorded ^ajesty' ^n relation to the matters aforesaid, through one of his in consul's principal secretaries of state, shall be recorded in the office of the office. said consul-general or consul at the foreign port or place to which the same may refer, and shall be of full force, effect and autho- rity upon and over all his Majesty's subjects there resident" (a). (a) As to consular marriages and sular chapels, vide supra, pp. 621, marriages in ambassadors' and con- 626, 628, 643, 644. ( 1807 ) CHAPTER VI. COLONIAL AND FOREIGN ORDERS. The statute law respecting the effect of the ordination of minis- ters by Scotch bishops has been already inquired into (a). In this chapter are considered — First : The statutable restrictions on the exercise within these Divisions of dominions of the power of consecration by English bishops and sul:)Ject- ordination by them of foreign subjects. Secondly : The statutable restrictions as to officiating in the Church of England in this country on persons so consecrated and ordained, and on persons consecrated or ordained by bishops in our Colonies, in the United States, or elsewhere in the Western or in the Eastern Church (b). 1a. With regard to the consecration of bishops. Two propositions of law were enunciated in the preamble of Consecration 26 Geo. 3, C. 84 : ^orei^artT 1 . That the consecration of a bishop required the licence and mandate of the crown. 2. That every person consecrated must take the oath of alle- giance. Whether in reality this statute recited propositions of consti- tutional law, or whether the law relating to bishops of the church established in England was not erroneously applied, on a new and sudden emergency, to bishops destined to exercise their functions beyond seas, it is perhaps not worth while now to inquire. The statute which originally contained the recital has been since repealed. But the English bishop is still supposed to be subject to civil penalties if he exercise his purely spiritual function of consecration without licence from the crown. It always was and is quite clear, without the recital in the recent statute (34 & 35 Vict. c. 53) (c), that no " ecclesiastical title of ^ & 35 Vict, honour or dignity " taken from any place within this realm, and no " pre-eminence or coercive power " can be validly conferred " otherwise than under the authority and by the favour of her Majesty; " but these propositions do not concern the exercise of purely spiritual functions. In the year 1784, not long after the establishment of the in- Americans dependence of the North American Kepublics, the citizens of J^j^^S^ this newly-erected state, who had been, while it was subject to this country, members of the Church of England, were anxious (a) Tide supra, p. 1762. Orders (b) See remarks of Willes, J., in given by Irish bishops seem to have Bp. of Exeter v. Marshall, L. R. precisely the same civil effect as 3 H. L. p. IT. before the disestabUshment of that (c) Vide infra, p. 1818. church. 1808 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. to obtain ordination for their clergymen at the hands of the English bishops; but whereas (to borrow the words of the preamble of 24 Geo. 3, c. 35) " by the laws of this realm, every person who shall be admitted to holy orders is to take the oath of allegiance in manner thereby provided,,, an application was made to the legislature of Great Britain to remove this 24 Geo. 3, obstacle, which produced the statute of 24 Geo. 3, sess. 2, c. 35, SeSSbl2d°them herein ^nere *s ^ne following recital : " whereas there are to obtain it™ divers persons, subjects or citizens of countries out of his majesty's dominions, inhabiting and residing within the said countries, who profess the public worship of Almighty God according to the liturgy of the Church of England, and are desirous that the word of God and the sacraments should con- tinue to be administered unto them according to the said liturgy, by subjects or citizens of the said countries, ordained according to the form of ordination in the Church of England ; " the statute then proceeds to enact as follows : — The Bishop of Sect. 1. " .... it shall and may be lawful to and for the Bishop London, or 0£ Lond.on for the time being, or any other bishop by him to be bishop by him appointed, to admit to the order of deacon or priest, for the pur- appointed, poses aforesaid, persons being subjects or citizens of countries alfens tothe ou^ °^ majesty's dominions, without requiring them to take order of the oath of allegiance " (b). deacon or Sect. 3. " In the letters testimonial of such orders there shall pnest. ke inserted, the name of the person so ordained, with the addi- countraiof ^on °^ ^e coun^ry whereof he is a subject or citizen, and the person further description of his not having taken the said oath of ordained to be allegiance, being exempted from the obligation of so doing by inserted in ^ f tMg t » monial. Those subjects of the North American Eepublics who adhered Episcopal to the doctrine and discipline of the Anglican Church were consecration further desirous of procuring the due consecration of their for Americans, "bishops an(j for some time resorted to the Scotch bishops for this purpose. But in 1786 they had again recourse to the 26 Geo. 3, parliament of Great Britain, and obtained the 26 Geo. 3, c. 84 (c), c* 84- which has been since superseded, and is now repealed. Jerusalem The following account is taken from " A Statement of Pro- bishopric, ceedings relating to the Establishment of a Bishopric of the United Church of England and Ireland in Jerusalem ; pub- lished by authority " : — King of In the year 1841, the appointment of a bishop for Jerusalem misdon'to was ProPose(l Dy ms majesty the King of Prussia, by a special England on mission to the Queen of England, and a particular communica- the subject of tion to the Archbishop of Canterbury. His majesty had in Jerusalem1 v*ew ^G conversi°n of the Jews, and also the spiritual care of such of his own subjects in Palestine, who might wish to join themselves to the church so formed in Jerusalem. His majesty (b) Sect. 2 of this act has been Vide infra, p. 1813. repealed by 37 & 38 Vict. c. 77. (c) Vide supra, p. 1771. COLONIAL AND FOREIGN ORDERS. 1809 undertook to give fifteen thousand pounds towards that object, Funds for the annual interest of which, amounting to six hundred pounds, b:shoPnc- is to be paid yearly in advance, till the capital sum (together with that which is to be raised by subscription for the purpose of completing the bishop's annual income of twelve hundred pounds) can be advantageously invested in land situate in Pales- tine (d). The bishop of the United Church of England and Ireland at Nomination, Jerusalem is to be nominated alternately by the Crowns of authorit of England and Prussia, the Archbishop having the absolute right bishop at of veto with respect to those nominated by the Prussian Crown. Jerusalem. The bishop will be subject to the Archbishop of Canterbury as his metropolitan, until the local circumstances of his bishopric shall be such as to make it expedient, in the opinion of the bishops of that United Church, to establish some other relation. His spiritual jurisdiction will extend over the English clergy and congregations, and over those who may join his church and place themselves under his episcopal authority in Palestine, and for the present in the rest of Syria, in Chaldea, Egypt, and Abyssinia ; such jurisdiction being exercised, as nearly as may be, according to the laws, canons, and customs of the Church of England ; the bishop having power to frame, with the consent of the metropolitan, particular rules and orders for the peculiar wants of his people. A college was to be established at Jerusalem, under the bishop, College at whose chaplain will be its first principal. Its primary object Jerusalem, will be the education of Jewish converts ; but the bishop will be authorized to receive into it Druses and other Gentile converts ; and if the funds of the college should be sufficient, Oriental Christians may be admitted ; but clerical members of the or- thodox Greek Church will be received into the college, only with the express consent of their spiritual superiors, and for a subsi- diary purpose. The religious instruction given in the college will be in strict conformity with the doctrines of the United Church of England and Ireland, and under the superintendence and direction of the bishop. Congregations, consisting of Protestants of the German tongue, German con- residing within the limits of the bishop's jurisdiction, and willing jj£J5«!gy- to submit to it, will be under the care of German clergymen men. ordained by him for that purpose, who will officiate in the German language, according to the forms of their national liturgy, compiled from the ancient liturgies, agreeing in all points of doctrine with the liturgy of the English Church, and sanctioned by the bishop with consent of the metropolitan, for the special use of those congregations ; such liturgy to be used {d ) In Thomass. pt. i. 1. 1, eh. 29, speaking two different languages, [vol. i. p. 210,] will be found some But on examination they will bo examples of two bishops in one dio- chiefly found to be encroachments cese, which contained inhabitants by the pope on the Greek church. 1810 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. Confession of Augsburg-. Rite of con- firmation. 5 Vict. c. 6. Archbishops may con- secrate British subjects or foreigners to be bishops in foreign coun- tries, without the royal licence for election, &c. Spiritual jurisdiction of such bishops. Civil limits. Archbishops to obtain her Majesty's licence for consecration, and to ascer- tain the in the German language only. Germans intended for the charge of such congregations are to be ordained according to the ritual of the English Church, and to sign the articles of that church : and in order that they may not be disqualified by the laws of Germany from officiating to German congregations, they are, before ordination, to exhibit to the bishop a certificate of their having subscribed, before some competent authority, the Confes- sion of Augsburg (d). The rite of confirmation will be administered by the bishop to the catechumens of the German congregations according to the form used in the English Church. The statute passed to forward the object of this statement is 5 Yict. c. 6. It recited part of the provisions of 26 Geo. 3, c. 84, and enacted as follows : — Sect. 1. "It shall and may be lawful to and for the Arch- bishop of Canterbury or the Archbishop of York for the time being, together with such other bishops as they shall call to their assistance, to consecrate British subjects, or the subjects or citizens of any foreign kingdom or state, to be bishops in any foreign country, whether such foreign subjects or citizens be or be not subjects or citizens of the country in which they are to act, and without the Queen's licence for their election, or the royal mandate under the great seal for their confirmation and consecration, and without requiring such of them as may be subjects or citizens of any foreign kingdom or state to take the oaths of allegiance and supremacy, and the oath of due obedience to the archbishop for the time being." Sect. 2. " Such bishop or bishops so consecrated may exercise, within such limits as may from time to time be assigned for that purpose in such foreign countries by her majesty, spiritual juris- diction over the ministers of British congregations of the United Church of England and Ireland, and over such other protestant congregations as may be desirous of placing themselves under his or their authority." Sect. 3. " . . . .no person shall be consecrated a bishop in the manner herein provided, until the Archbishop of Canterbury or the Archbishop of York for the time being shall have first applied for and shall have obtained her Majesty's licence, by warrant under her royal signet and sign manual, authorizing bishop of Canterbury wrote a letter commendatory, which was trans- lated into Greek, to the Bishops of the Ancient and Apostolic Churches in Syria ; and the King of Prussia published a statement to his sub- jects in Germany. The disastrous effects upon the Church of England which the establishment of this bishopric produced have been very plainly brought out in the recent histories of the Tractarian revival. (d) See note to the Life of Grabe, Biographia Britannica, ed. 1766, vol. vii., pp. 78, 79, note (k), for a plan for uniting all the Protes- tant churches of the Continent under an Episcopalian govern- ment. The reader should further consult, on the subject of the bishopric at Jerusalem, a pamphlet by Dr. Hook, Rector of Leeds ; and a very learned and able letter by Mr. James Hope Scott, then Chancellor of Salisbury. The Arch- COLONIAL AND FOREIGN ORDERS. 1811 and empowering him to perform such consecration, and express- fitness of ing the name of the person so to be consecrated, nor until the co^Jgcrate^8 said archbishop has been fully ascertained of the sufficiency of such person in good learning, of the soundness of his faith, and of the parity of his manners" (e). Sect. 5. "... . the archbishop who so consecrates shall give Archbishop to to the person consecrated a certificate under his hand and seal, §J2rte^Jf" containing the name of the country whereof he is a subject or consecration, citizen, and the name of the church in which he is appointed bishop ; and in case of such person being the subject or citizen of any foreign kingdom or state, then such certificate shall further mention that he has not taken the said oaths, he being exempted by virtue of this act from taking them." 1b. With regard to ordination (/). In July, 1819, was passed 59 Geo. 3, c. 60. It recites that 59 Geo. 3, " it is expedient that the archbishops and bishops of this realm c- 60- should from time to time admit into holy orders persons specially ^d™atian of destined for the cure of souls in his Majesty's foreign possessions, subjects, although such persons may not be provided with the title required by the canon of the Church of England, of such as are to be made ministers:" And that "it will greatly tend to the ad- vancement of religion within the same, that due provision shall be regularly made for a supply of persons properly qualified to serve as parsons, vicars, curates, or chaplains;" and enacts as follows : — Sect. 1. " . . . .it shall be lawful for the archbishop of Canter- Archbishop of bury, the archbishop of York, or the bishop of London, for the ^urterlniiy or time being, or any bishop specially authorized and empowered by jj^hop 0f any or either of them, to admit into the holy orders of deacon or London, or priest any person whom he shall upon examination deem duly au-" bl=>hop qualified specially for the purpose of taking upon himself the authorized by cure of souls, or officiating in any spiritual capacity in his any of them, majesty's colonies or foreign possessions and residing therein, ^^2?*far and that a declaration of such purpose and a written engage- ^ colonies, ment to perform the same under the hand of such person, being deposited in the hands of such archbishop or bishop, shall be held to be a sufficient title with a view to such ordination ; and Tne to be . ... in every such case it shall be distinctly stated in the letters Setosrf*11* of ordination of every person so admitted to holy orders, that he ordination, has been ordained for the cure of souls in his Majesty's foreign possessions " (g). In July, 1840, was passed 3 & 1 Vict c. 33, which came Repealed act under the censure of Sir Robert Phillimore in the first edition f ^* 4 Vlct> of this work, and probably contributed largely to his describ- ing the legislation on this subject as illiberal and due to jealousy. This act, however, having been first repealed as far (e) Sect. 4 has been repealed by rally, vide supra, pp. 116 — 117. 37 & 38 Tict. c. 77. Vide infra, (y) Sects. 2, 3, 4, and o have p. 1813. been repealed by 37 & 38 Vict. c. 77. (/) As to foreign ordination gene- Vide intra, p. 1813. 1812 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. 15 & 16 Vict, c. 52. East Indian bishops, under commission from bishops in England and Ireland, to perform all episcopal functions. Proviso sub- jecting colonial bishops to the laws of the realm and canons eccle- as the church in Scotland was concerned, has now been wholly repealed by 37 & 38 Yict. c. 77 (g). In 1852, was passed lo & 1G Yict. c. 52, entitled "An Act to enable Colonial and other Bishops to perform certain Episcopal Functions, under Commission from Bishops of England and Ireland." It recites 53 Geo. 3, c. 155 (h), and 3 & 4 Will. 4, c. 85 (i), and enacts as follows : — Sect. 1. " Notwithstanding anything in the said acts or in any letters patent as aforesaid contained, it shall be lawful for any bishop who by virtue of such royal letters patent under the Great Seal of the said United Kingdom shall exercise or have exercised in the British territories aforesaid the office of bishop of Calcutta, or Madras, or Bombay respectively, upon the request and by the commission in writing under the hand and seal of the bishop of any diocese in England or Ireland, and with the consent and licence in writing of the archbishop of the province within which such diocese shall be situated, to ordain any per- sons, provided such persons shall be presented to him under the direction and authority of the bishop of such diocese, and to perform all other functions peculiar and appropriate to the order of bishop>s within the limits of such diocese." The statute proceeded to repeal certain provisions in 59 Geo. 3, c. 60, and 3 & 4 Yict. c. 33, so far as they relate to persons admitted into holy orders specially for the colonies, or ordained by colonial bishops, as follows : — " .... nothing in the said recited acts contained shall extend or be held to extend to any person who, in pursuance of such request and commission as afore- said from the bishop of any diocese in England or Ireland, shall have been or may hereafter be ordained a deacon or priest within the limits of such diocese by any bishop who by virtue of her Majesty's royal letters patent (/>•) under the great seal of the United Kingdom of Great Britain and Ireland, shall exercise or have exercised the office of bishop within the British terri- tories in India, or in any of her Majesty's colonies or foreign possessions, and .... all admissions, institutions, and inductions to benefices in the United Church of England and Ireland, and all appointments to act as curates and chaplains therein, of persons so admitted into holy orders by any such bishop, shall, notwithstanding anything in the said recited acts contained, be to all intents and purposes good and valid in law." Sect. 3. " . . . . all and every of such bishops, who, in accord- ance with the provisions of this act, shall officiate in behalf of the bishop of any diocese in England or Ireland, in conferring holy orders, shall be subject to the several provisions and limitations established by the laws of this realm, or canons ecclesiastical, as V/) Vide infra, p. 1813. 7/) Vide supra, p. 1794. i) Vide supra, p. 1797. (k) At that time the crown had not ceased to grant letters patent to colonial bishops. Vide supra, pp. 1773, 1782, 1786. COLONIAL AND FOREIGN ORDERS. 1813 to the titles of the persons to be ordained, and as to the oaths siastical as to and subscriptions to be by such persons taken and made." JjjjkjJ &0- Sect. 4. " .... all letters of orders of persons ordained by ordained!3 any such bishop, in accordance with the provisions of this act, shall Letters of be issued in the name and be subscribed with the signature of orders to be such bishop, as commissary of the bishop of the diocese at whose ^^j^7 ^ request and by whose commission he shall officiate in conferring bLhopaa such orders, and shall be sealed with the seal of the bishop of commissary of such diocese ; and all such acts of ordination by any such bishop ^f£°p for shall be recorded and registered in like manner as if they had officiates, been performed by the bishop of such diocese." Sect. 5. "... . nothing in this act contained shall be con- Colonial strued to authorize any such bishop to use or exercise any juris- J^k°pnotto diction whatsoever within the United Kingdom of Great Britain dktwnia " and Ireland." united This statute was followed in 1853, by 16 & 17 Vict. c. 49. ^^om. That statute recites 15 & 16 Vict c. 52, and enacts as follows : J6^17 Vict " Notwithstanding anything in the said recited acts (/) or either Ordination of of them contained to the contrary, all persons who have been Or persons by hereafter shall be ordained deacon or priest by any of the colonial said bishops in or for the diocese of the bishop of any other of tbanThe^ her Majesty's foreign or colonial possessions, upon his request bishop of the in writing, shall be entitled to all the same rights, privileges, cheese valid, and advantages, as if he had been ordained by such bishop within the limits of a diocese over which he was at the time himself actually exercising jurisdiction, and residing therein." Secondly : As to the status of persons in colonial and foreign orders. The law has since the first edition of this work been con- solidated and rendered less illiberal (m) by the Colonial Clergy Act, 1874 (37 & 38 Vict c. 77), which enacts as follows : — 37 & 3S Vict. Sect. 2, '*The enactments enumerated in Schedule A. annexed c- ' to this act (») are repealed, but not so as to render invalid any- RePeal- thing lawfully done in conformity with any of them." Sect. 3. " Except as herein-after mentioned, no person who Colonial and has been or shall be ordained priest or deacon, as the case may ^^innotlier be, by any bishop other than a bishop of a diocese in one of the o^f^e with- churehes aforesaid (o) shall, unless he shall hold or have previously out permission held preferment or a curacy in England, officiate as such priest fro^1hth1® or deacon in any church or chapel in England, without written art w °r* permission from the archbishop of the province in which he proposes to officiate, and without also making and subscribing so much of the declaration contained in the Clerical Subscription Act, 1865 as follows ; (that is to say,) ' I assent to the Thirty-nine Articles of Eeligion, and to the Book of Common Prayer, and of the ordering of bishops, priests, (I) 59 Geo. 3, c. 60 ; 3 & 4 Vict. United Kingdom ; 59 Geo. 3, c. 60, c. 33. ss. 2, 3, 4, 5 ; 3 & 4 Vict. c. 33 ; 5 (to) Vide supra, p. 1S11. Vict. c. 6, s. 4. (n) That is, 24 Geo. 3, sess. 2, c. 35, (o) The churches of England and s. 2 ; 26 Geo. 3, c. 84, so far as the Ireland, same is in force in any part of her (;>) 28 & 29 Vict. c. 122. Majesty's dominions out of the 1814 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. Not to hold preferment nor act as curates with- out consent of "bishop. As to licence. Appoint- ments, &c. contrary to act void. Penalty for officiating contrary to act. 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, whilst ministering in England, will use the form in the said Book pre- scribed and none other, except so far as shall be ordered by lawful authority.' " Sect. 4. " Except as hereinafter mentioned, no person 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 one of the churches aforesaid, shall be entitled as such priest or deacon to be admitted or instituted to any benefice or other ecclesiastical preferment in England, or to act as curate therein, without the previous consent in writing of the bishop of the diocese in which such preferment or curacy may be situate. " Sect. 5. " Any person holding ecclesiastical preferment, or acting as curate in any diocese in England under the provisions of this act, may, with the written consent of the bishop of such diocese, request the archbishop of the province to give him a licence in writing under his hand and seal in the following form ; that is to say, < To the Eev. A. B., '"We, C, by Divine Providence archbishop of D., do hereby give you the said A. B. authority to exercise your office of priest (or deacon) according to the provisions of an act of the thirty- seventh and thirty-eighth years of her present Majesty, intituled "An Act respecting Colonial and certain other Clergy." ' Given under our hand and seal on the day of 'C. (l.s.) D.' And if the archbishop shall think fit to issue such licence, the same shall be registered in the registry of the province, and the person receiving the licence shall thenceforth possess all such rights and advantages, and be subject to all such duties and liabilities as he would have possessed and been subject to if he had been ordained by the bishop of a diocese in England : pro- vided that no such licence shall be issued to any person who has not held ecclesiastical preferment or acted as curate for a period or periods exceeding in the aggregate two years." Sect. 6. " All appointments, admissions, institutions, or induc- tions to ecclesiastical preferment in England, and all appoint- ments to act as curate therein, which shall hereafter be made contrary to the provisions of this act, shall be null and void." Sect. 7. " If any person shall officiate as priest or deacon in any church or chapel in England contrary to the provisions of this act, or if any bishop not being bishop of a diocese in England shall perform episcopal functions in any such church or chapel without the consent in writing of the bishop of the diocese in which such church or chapel is situate, he shall for every such offence forfeit and pay the sum of ten pounds to the governors of Queen Anne's Bounty, to be recovered by action brought within six months after the commission of such offence by the treasurer of the said Bounty in one of her Majesty's superior COLONIAL AND FOREIGN ORDERS. 1815 Courts of common law ; and the incumbent or curate of any church or chapel who shall knowingly allow such offence to be committed therein shall be subject to a like penalty, to be re- covered in the same manner." Sect. 8. " Any person ordained a priest or deacon in pursuance Persons of such request and commission as are mentioned in " 15 & 16 ordained Viet, c 52 (/), " shall, for the purposes of this act. be deemed to ySF "«l have been so ordained by the bishop of a diocese in England, and exempt, it shall not be necessary that the bishop to whom such commission shall have been given should have exercised his office within Her Majesty's dominions, or by virtue of Her Majesty's Royal Letters Patent, provided that such bishop be a bishop in communion with the Church of England ; and such commission shall not become void by the death of the grantor until after seven days : Provided always, that any such act of ordination by any such bishop as aforesaid shall be subject to the same laws and provi- sions as to the titles and as to the oaths and subscriptions of the persons to be ordained, and as to the registration of such act, as if it had been performed by the bishop of the diocese ; and that the letters of orders of any persons so ordained by any such bishop shall be issued in the name of, and be subscribed with the signature of such bishop as commissary of the bishop of the diocese, and shall be sealed with the seal of the bishop of such diocese." Sect. 9. "Any person ordained a deacon or priest under the Persons provisions of" 21 Greo. 3, sess. 2, c. 35, " or under the first section of" 59 Greo. 3, c. 60, "shall be subject to the provisions contained Geo. 3," sess. 2, in this act." c. 35, or 59 Sect. 10. "No admission, institution, induction or appoint- f e°' fubc-'eJJt°' ment to any benefice or other ecclesiastical preferment within to Act. Her Majesty's dominions, nor any appointment to act as curate Admissions, therein, nor any ministerial act performed by any person as &o. not to be priest or deacon of any of the churches aforesaid, shall be or be jj^jj^ con_ deemed to have been invalid at law by reason of its contrariety trary to to any of the enactments set forth in Schedule B. to this act certain annexed (w), unless its validity shall be inconsistent with the statutes- validity of some act, matter or thing lawfully done before the passing of this act." Sect. 11. " Nothing in this act contained shall alter or affect 27 & 28 Vict, any of the provisions of" 27 & 28 Yict. c. 94, "intituled 'An Act J^9?' to remove disabilities affecting the bishops and clergy of the avmg 0 ' Protestant Episcopal Church in Scotland.' " Sect. 12. " It shall be lawful for the archbishop of Canter- Archbishops bury or the archbishop of York for the time being, in conse- of crating any person to the office of bishop for the purpose of due obedience, exercising episcopal functions elsewhere than in England, to (/) Vide supra, p. 1812. Geo. 3, c. 60, ss. 2, 3, 4, 5 ; 3 & 4 \m) 24 Geo. 3, sess. 2, c. 35, Vict. c. 33, ss. 6, 7; 5 Vict, c. 6, s. 2; 26 Geo. 3, c. 84, s. 3; 59 8. 4. 1816 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. As to Indian Bishops. Definition. dispense, if he think fit, with the oath of due obedience to the archbishop." Sect. 13. "Nothing contained in" 53 Geo. 3, c. 155, or in 3 & 4 Will. 4, c. 85, " or in any letters patent issued as mentioned in the said acts, or either of them, shall prevent any person who shall be or shall have been bishop of any diocese in India from performing episcopal functions, not extending to the exercise of jurisdiction, in any diocese or reputed diocese at the request of the bishop thereof (n)." Sect. 14. "In this act the word ' bishop ' shall, when not inconsistent with the context, include archbishop ; the words ' bishop ' and ' archbishop,' in the matters of ' permission ' and ' consent,' and of ' consent and licence,' shall include the lawful commissary of a bishop or an archbishop ; the word ' England ' shall include the Isle of Man and the Channel Islands ; and the term ' church or chapel ' shall mean church or chapel subject to the ecclesiastical law of the Church of England." Greek church. The relations of the church of England with the orthodox Greek Church, formerly injured by the rash conduct of the non- jurors (o), have of late years been much strengthened (p). It has been seen, that when the bishopric of Jerusalem was founded it was carefully expressed by the authorities of the church that there was no intention of encroaching upon the rights, or injuring the position of the Greek church (q). A letter from the Archbishop of Canterbury was sent to the patriarch explanatory of the limited powers conferred on the English bishop. In 1868, the Archbishop of Canterbury furnished the Bishop of Gibraltar with a letter commendatory or systatical, written in Greek, to the Greek patriarch, who received it and the bishop with courtesy. The letter is rightly translated as follows : — " In the name of the Father, and the Son, and the Holy Ghost. Amen. " To the most holy and blessed patriarch of Constantinople, new Eome, and to the most holy metropolitans, archbishops and bishops of the Orthodox Eastern Church, and to the holy synod of Greece, Charles Thomas, by divine providence Arch- bishop of Canterbury, primate of all England and metropolitan, sendeth greeting in the Lord : " We make known unto you, brethren beloved in Christ, by these letters, that we have elected, confirmed and consecrated as bishop of the holy catholic and apostolic church, planted in England, Charles Amy and Harris, our honoured and well- beloved brother, approved in orthodoxy of faith and gravity of life ; whom also we have sent to the East, that he being estab- lished in the episcopal seat of the ancient Calpe, now Gibraltar, Letter com- mendatory of Bishop of Gibraltar. (w) Vide supra, pp. 1794, 1797. dox Church in the East, (o) See Lathbury, History of the (p) Vide supra, p. 3. Non-Jurors ; Williams, The Ortho- (q) Vide supra, p. 1809. COLONIAL AND FOREIGN ORDERS. 1817 an English Colony in the Mediterranean Sea, may be overseer and shepherd of the subjects of the British sceptre who are scattered throughout the regions of the East ; and that he may pay to your Blessedness due respect and courtesy. "Most willingly therefore we commend unto you, revered and beloved in the Lord, this our brother ; and earnestly do we entreat you to receive him with kindness and to assist him whensoever he shall have need of you, for such are his deserts. "We salute you in the Lord. Amen. " Given in our palace at Lambeth, and sealed with an archi- episcopal seal, the 21st day of the month of July, in the year of our redemption 1868." In 1870, the Archbishop of Syra and Tenos, who Came to Archbishop England for the purpose of consecrating a Greek church, was of sFra and very cordially received by the authorities of the English church, enos" and attended the consecration of some English bishops (r) . Some difficulties, however, still prevent a perfect union of the English with the Greek or Eastern church. The position of the church of Eome, on the other hand, Church of towards the English Church was, when the first edition of this Rome- work was written, extremely hostile. Sir Robert Phillimore wrote that the revived extravagances of the Ultramontanist and Jesuit party, their present influence over the councils of the papacy, and the novel doctrines which they have promulgated, had naturally widened the distance which separates the Roman from the Greek and Anglican churches (s) ; and that the curia of Rome in fact still continued the disunion of Christendom which it first created. In the year 1895, however, there are hopes of a better state of things. In connection with this subject should be mentioned the 3t & 35 Vict, statute 34 & 35 Yict. c. 53, passed in 1871, and entitled "An c- 53- Act to repeal an Act for preventing the Assumption of certain Ecclesiastical Titles in respect of Places in the United King- dom." The preamble, enunciating as it does a principle of constitu- tional law, and at the same time tempering the practical appli- cation of it by a wise and liberal policy, is very important. It recites as follows : " Whereas by an act passed in the session of parliament held in the fourteenth and fifteenth year of the reign of her Majesty, chapter sixty, intituled 'An Act to pre- vent the Assumption of certain Ecclesiastical Titles in respect of Places in the United Kingdom,' certain enactments were made prohibiting under penalties the assumption of the title of archbishop or bishop of a pretended province or diocese, or archbishop or bishop of a city, place, or territory, or dean of any pretended deanery in England or Ireland, not being the (r) Phill. Intern. Law, Vol. II., (a) Yido supra, pp. 2, 3. Part VIII., Chap. XI. and App. XI. 1818 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. see, province, or diocese of an archbishop or bishop or deanery of any dean recognized by law : " And whereas no ecclesiastical title of honour or dignity derived from any see, province, diocese, or deanery recognized by law, or from any city, town, place, or territory within this realm, can be validly created, nor can any such see, province, diocese, or deanery be validly created, nor can any pre-eminence or coercive power be conferred otherwise than under the autho- rity and by the favour of Her Majesty, her heirs and successors, and according to the laws of this realm ; but it is not expedient to impose penalties upon those ministers of religion who may, as among the members of the several religious bodies to which they respectively belong, be designated by distinctions regarded as titles of office, although such designation may be connected with the name of some town or place within the realm." After this preamble, the statute proceeds to enact that, 14 & 15 Vict. Sect. 1. "The said act of the session of parliament held in repealed. ^ne fourteenth and fifteenth years of the reign of her Majesty, chapter sixty, shall be and the same is hereby repealed : Pro- vided that such repeal shall not nor shall anything in this act contained be deemed in any way to authorize or sanction the conferring or attempting to confer any rank, title, or precedence, authority, or jurisdiction on or over any subject of this realm by any person or persons in or out of this realm, other than the Sovereign thereof." Admission of Among the documents prepared by convocation, but never formally promulgated, was a form for admitting converts from the Roman church or from " the separation " to the English church. It is a document of weight and interest. It appears to have been drawn up by Archbishop Wake in 1714 (r). It is to be found at length in Wilkins' Concilia (s). The Irish Prayer Book (referred to at p. 467, note (y), supra), has " a form for receiving lapsed protestants or reconciling con- verted papists to our church " (t). Finis. (r) Lathbury, History of the Convocation of the Church of Eng- land, p. 426. (s) Wilkins, Concilia, vol. iv. pp. 660—662. The form in Wil- kins is headed ' ' A form for ad- mitting converts from the Church of Eome ; and such as shall re- nounce their errors." (t) A form of penance and re- conciliation of a renegado or apos- tate from the Christian church to " Turcism" (Eeg. Laud. fol. 240 a) will be found in Wilkins, Concilia, vol. iv. at pp. 522—524. INDEX ♦ ABBEY LAND, tithes on, 1152. ABBOT, ABP., 82, 353, 1050, 1400. ABINGER, LORD, judgments of, 16. ABLUTIONS, THE, 780. ABSOLUTION, deacon may not pronounce, 108. private, 539. of persons excommunicate, 1096. ACCESSION DAY, THE, 809. ACOLYTE, 87, 89. ACORNS, TITHE OF, 1150. ACT ON PETITION, what, 964. ADMISSION, to benefice, 350. ADMONITION, 838, 1064, 1065. ADVERTISEMENTS, THE, of 1564-5.. 713— 715. ADVOCATE, college of advocates, 736. canons of (1603), as to, 934. office of, ib. report of Ecclesiastical Courts Commis- sion of (1832) respecting, 935. requisites before admission as an, 936. modern changes respecting, ib. barrister may be, ib. ADVOWSON, privilege of crown as to, 52, 267, 293. general observations respecting, 260. foundation of the right of, 260—262. early instance of, 261. derivation of, ib. ecclesiastical and laic, ib. an incorporeal hereditament, 263. appendant, 263, 264. in gross, 265, 267. temporarily appendant, 265. P. VOL. II. ADVOWSON— continued. of a moiety of a church, 267, 268. a trust, 268. how grantable, 270, 271. restrictions as to purchase of, 271, 272. descent of, 272. may be devised by will by the old law, ib. how lost by canon law, 273. exchange of, ib. Acts of Parliament respecting exchange of, 274, 276. who may present, 277. in case of deceased bishop, 279. in trustees, 279, 280. in hands of parishioners, 282, 1698. provisions of 19 & 20 Vict. c. 50, re- specting, ib. power to direct sale of, 283. conveyance of, ib. in municipal corporations, 286, 1697. presentation to, by husband in right of his wife, 286. in tenant by courtesy, ib. in tenant in dower, 287. in coparceners, joint tenants and tenants in common, ib. right of elder sister in, 288. who are coparceners, 290. in the mortgagor, 291, 292. in bankrupt, 292. in statute merchant, 293. in lord chancellor, 296 — 298, 303, 1698. And see Chancellor. in the hands of papists, statutes giving presentations to, to universities, 303, 309, 1610. remedies of patrons, 332. trial in spiritual court by jus patrona- tus, ib. effect of caveat, 337. trial in temporal courts by quare im- pedit, 338. of quare incumbravit, ib. proceedings under quare impedit, ib. sale of, when benefice vacant, 862- 866. not sold with the land when laud sold to redeem land tax, 1370. See Benefice ; Presentation. AFFINITY, 564. 6 B 1820 INDEX. AGATHA, Council of, 1457. AGATHON, POPE, 1524. AGISTMENT, tithe of, 1150. AGNUS DEI, singing of the, 776. AGRICULTURE, BOARD OF, powers as to tithe rent charge trans- ferred to, 1237. AGRICULTURAL HOLDINGS ACT. See Table of Statutes, 46 & 47 Vict, c. 61. AISLE, origin of word, 1403. when private property, ib. modern cases, as to, 1404. remedies of owners of, 1405. seats in, 1434. ALBE, 712, 717, 718. ALDERSON, BARON, judgments of, 478, 479, 588, 589. ALEXANDER II., POPE, 855, 1085. ALEXANDER III., POPE, 21, 212, 270, 311. ALEXANDRIA, school of, 1615. ALIEN, whether may he presented to benefice, 310. ALIENATION, of church property, a cause of depriva- tion, 1084. See Leases. ALIEN PRIORIES, 1154. ALLEGATION, responsive, 962. counter, ib. principles of law governing, 990. ALLOTMENTS, rector may demise, 1302. ALLOTMENTS ACT. See Table of Statutes, 50 & 51 Vict. c. 48. ALMS, chest for, 717, 725. parish clerk cannot claim, 1509. ALPHEG, ABP., 1457. ALTAR, 710, 712. of disused church, 404. lights upon, 710, 711, 772, 775. candlesticks upon, 711, 732, 772, 775. vestments or cloths for, 715, 722, 723, 731. rails about the, 723, 724. stone, 724. super, ib. second, ib. ledge or re-table upon the, 724, 731, 732. preaching from steps of the, 725. lights near, 774. position of priest at the, 777 — 779. removal of, effect upon re-consecration, 400. pall or cloth for, offered at coronation, 815. See Holy Table. ALTARAGE, what, 230, 1252. AMBASSADOR'S CHAPEL, marriages in, 626. AMERICAN CHURCH, THE, 18. See United States. AMICE, 718. ANCYRA, council of (3 14).. 1528. ANDREWES, BP., 510. ANNATES, what, 1355. ANN, DUCHESS OF YORK, 541. ANNE, QUEEN, 1540. See Queen Anne's Bounty. ANOINTING, at coronation, 817. ANSELM, ABP., 37, 1109. ANSWER. See Personal Answer. ANTIOCH, council of (341).. 74, 1528. ANTIPHONAR, 728, 729. APOTHECARIES, 1467. APPARELS, 718. APPARITOR, who, 951. how appointed, 952. office and duty of, ib. fees of, 953, 1398. has no vested interests, 954. APPEAL, to archbishop in case of refusal of licence for non-residence, 891. origin of, 967. early practice of church, as to, 967. INDEX. 1821 APPEAL — continued. origin of, to Rome, 967. abolished, 968, 1111. from archdeacon's court, 969. from bishop's court, ib. from archbishop's court, 969, 970. commission of review, 971. to convocation, where crown a party, 972. court of delegates abolished, ib. to judicial committee, ib. committee, how formed, 973. evidence how to be taken, ib. costs, 974. time of appealing, ib. under modern Acts, 975. suspension of sentence during, 977. inhibition, ib. when must precede, 978. effect of, ib. discretionary, 979. attentat, ib. judicial appeal, ib. extra-judicial appeal, ib. time allowed for, ib. modes of instituting, ib. power of judge " a quo," 980. " ad quern," ib. libel of, ib. new evidence on, ib. under 1 & 2 Vict. c. 106. . 1009. under 3 & 4 Vict. c. 86 . . 1023, 1025. under Public "Worship Regulation Act, 1031. under Clergy Discipline Act, 1040. from sentence of excommunication, 1097. APOLLINARIUS, heresy of, 1525. APPLES, tithe of, 1150. APPORTIONMENT, of profits during vacation of benefice, 373. on change of incumbent, 377. of tithes and rent - charges , 1165 — 1173. of income of benefices by patrons, 692. of endowments, on division of parishes, 1736. APPROPRIATION, history of, 218—222. nature of, 219. difference between and impropriation, 219. See Vicarages. AQILE BAJALUS, 1506, 1509. ARBITRATION ACT, THE. See Table op Statutes, 52 & 53 Vict. c. 49. ARCHBISHOP, when title first used, 20. precedence of, 32. consecration of, 33. jurisdiction of, over provincial bishops, 65. visitation of bishops by, ib. whether can deprive bishops, 67. power of, as to exempt or peculiar bene- fices, 441, 1015. appeal to, in case of refusal of licence for non-residence, from bishop, 891. appeals from Court of, 9"0. appeal to, against sequestrations, 1006. power of, under Public "Worship Regu- lation Act, 1030, 1034. when to pay first fruits, 1359. power of, to convene synod in province, 1531. power of, as to election of proctors and prolocutor in convocation, 1547, 1548. power of, to confer medical degrees, 1565. power of, to visit universities, 1605 — 1608. See Bishops. ARCHDEACON, may not grant letters dimissory, 101. has no jurisdiction over cathedrals, 133. qualifications of, 175, 199. primitive office of, 194 — 197. jurisdiction of, 197, 200. how appointed, 198. subscription required of, 198. visitation of, 198. official of, 200. powers of, under modern acts, 203. courts of, 207, 927, 969. assessor of bishop under 3 & 4 Vict. c. 86. .207, 1021. nature of cure of, 382. appeals from, 969, 970. to represent illegal acts to the bishop, 1028. may sue for pension before his official, 1241. when to pay first fruits, 1359. to cause churches to be repaired, 1418. act of, on consecration of a chiu-ch, 1398. school of, 1615. ARCHDEACONRIES, creation of new, 27. every diocese divided into, 30. number of, 203. provision for, 204. powers of Eccles. Com. as to, 204 — 207, 1671. mav be endowed with benefices, 206. Welsh, 207. estates of newly endowed, 205. ARCHES, dean of, 214. court of, 67, 73, 924. 6b2 1822 INDEX. ARCHES— continued. title of judge of, 924. patent of judge, 924, 925. solicitors now allowed to act as proctors in, 939. initiatory process in, 964. rules of procedure in, 998, 1023. judge appointed under Public Worship Act to be judge of, 1025. judge bas authority to deprive, 1087. ARIUS, heresy of, 1525. ARMY CHAPLAINS, 457. ARREST, freedom from, of clergyman attending divine service, 475. ARTICLES OE INQUIRY, exhibited by ordinary, 169 — 172. ARTICLES IN PROCEDURE, copy of, must be delivered to party cited, 991. general requisites of, 992. effect of misnomer in, ib. when to be exhibited, ib. amendment and admissibility of, ib. when court bound to admit, 993. necessary though offence admitted, ib. under 3 & 4 Vict. c. 86, ib. ARTICLES OF RELIGION, king's supremacy established by, 8. who to subscribe, 103, 1623. persons to be ordained deacons and priests, 103. perpetual curates, 242. before admission to benefices, 352, 1083. after induction, 363, 365. chancellors, commissaries, and offi- cials, 913. heads of colleges, 1622. language of, as to ritual, 704. public reading of, 749, 1083. declaration of, as to persons excom- municated, 1008. contravention of, 845 — 849. ARTICLES OF WAR, THE, 461. ARUNDEL, ABP., constitutions of, 248, 1223. register of, 965. convocation summoned by, 1546. ASIA, seven churches of, 19. ASSESSORS, bishops sitting as, in Privy Council, 975. under 3 & 4 Vict. c. 86. .1021. under 55 & 56 Vict. c. 32. . 1038, 1039. ASSIGNATION, what, 963. ATHANASIUS, ST., 20, 21, 1615. ATHEISM, a cause of deprivation, 1083. ATTENTAT, what, 979. ATTERBURY, BP., 149, 1532, 1539. 1540, 1553, 1555. ATTORNEY, may act as proctor, 939. may be district notary, 948, 949. exempt from serving as churchwarden, 1467. AUDIENCE, COURT OF, 221, 922, 923. AUDITORES, 511. AUGMENTATION, of vicarages, 231, 1611, 1681, 1683, 1684. of perpetual curacies, 242. of chapels of ease, 245. of benefices. See Benefices. See Queen Anne's Bounty. AUGSBURG, confession of, 537, 1810. AUGUSTINE, ST., 22, 31, 123, 703, 1524. AVOIDANCE, of archbishopric or bishopric, 35. of a benefice, 373. by death, 377. by resignation, ib. not to affect surveyor's report, 1268. See Vacation. BAKERS, work of, on Sundays, 795, 798. BALDACHIN, 735. BANCROFT, ABP., 168, 1117, 1119, 1622. BANGOR, diocese of, 26, 28. consistory court of, 999. BANK HOLIDAYS ACT. See Table of Statutes, 34 & 35 Vict. c. 17. BANK HOLIDAYS, 809. BANKRUPTCY ACT. See Table of Statutes, 46 & 47 Vict. c. 52. BANKRUPTS, presentations by, 292. BANNERS, use of, in churches, 722, 731. INDEX. 1823 BANNS. meaning of term, 580. marriages by, ib. publication of, 580, 581, 791. republication of, 582. marriage to be solemnized where they are published, 581. with full name of both parties, 583. before 26 Geo. 2, c. 33. .584, 585, 586. marriage without publication of, 585, 607. under 4 Geo. 4, c. 76. .586. no publication equivalent to undue publication of, 587. under false names, 588. where, when and how published, 588 — 591. time of, 588, 594. where parties reside in different dis- tricts, 595. duty and liability of clergymen as to, 599. must be asked in both parishes, ib. protection of clergy as to, 601. when forbidden, publication void, 603. BAPTISM. a sacrament, 482, 483. form of administration, 486. of infants, ib. public baptism, ib. font for, 487. time of, ib. minister not to delay, ib. previous notice of, ib. godfathers and godmothers, ib. their office, 488. naming the child, ib. dipping, ib. sign of the cross, ib. private baptism, 491. lay baptism, ib., 493. doctrine of Roman Church respecting, 493. of children of dissenters, 494. of those of riper years, 495. G or ham case, ib. registration of, 496. no fee to be demanded for, 508, 1251. BARBERS, work done by, on Sundays, 798. BARLOW, BP. OF BATH, 256. BARREN LAND, when to pay tithes, 1150, 1163. BASLE, council of (1431). .1528. BASTARDS, marriage of, 555. BASIN, for the offertory, 726. BATH AND WELLS, consistory court of, 999. BATTLE, dean of, 214. BEANS, tithe of, 1150. BEDE, 22, 703, 1615. BEES, tithe of, 1150. BELL ROPES, 1484. BELLS, ringing of, at funerals, 672. to be provided by parishioners, 717, 726, 729. formerly tolled at sentence of excom- munication, 1087. canons as to ringing of, 1385. incumbent's control of, 1385, 1386. churchwardens have property in, 1484. BENEDICT XIV., POPE, 1524. BENEFICE, vacant by promotion to a bishopric, 52. entry on, 260. admission to, 350. institution, difference between, and col- lation, ib. oath against simony, ib. of canonical obedience, 351. of allegiance, 351, 352. who should institute, 353. place of institution, ib. form and manner of institution, 354. entry in register, ib. evidence of 355. fee for, 356. effect of institution, 357. trial of, 358. superinstitution, ib. compounding for first fruits, ib. induction, 359. fee for, ib. effect of, 361. of temporal cognizance, ib. bishop to apportion duties whore two spiritual persons are instituted, 362, 363. assent to Articles and Prayer Book after induction to; 351, 352, 363. requisites after induction, 351, 363, 364. perpetual curate put in possession of, by licence, 366. lapse of, ib. vacation of, 373. union or disunion of, 397. annexation of district to, ib. none but priests to hold, 750. simoniacal presentation to, 860. corrupt institution to, 860. corrupt resignation of, 861. 1824 INDEX. BENEFICE — continued. when a clergyman may hold two, 902. charges on, 1350. special restraint of, ib. may be charged with pension to pre- vious incumbent, 1353. what charges may be made, ib. benefices without cure may be charged, 1354. annual value of, after deduction of rates and taxes to be ascertained before pensions granted, 1377. augmentation of, by impropriators, 1676, 1680. gifts of lands and. good,. 1677, 1678. restrictions on, 1678, 1679. grants of waste, 1679. gifts of sites for parsonages and places of worship, 1679. principal statute as to, 1 & 2 Will. 4, c. 45. .1680. by colleges and hospitals, 1680, 1681. leases on augmented benefices, 1682 — 1685. by ecclesiastical corporations, 1683, 1696, 1700. what benefices are to be raised in value, 1685. how and by whom powers of 1 & 2 Will. 4, c. 45, are to be exercised, 1686—1688. how consent of patrons testified, 1688, 1691. as to custody of instruments, ib. extension of provisions of 1 & 2 Will. 4, c. 45, by 17 & 18 Vict. c. 84 . . 1689, 1692. by annexation of sinecures, 1692. under 3 & 4 Vict. c. 113, ib. by 4 & 5 Vict. c. 39 . . 1692, 1693. by corporations sole, 1693. provisions of 2 & 3 Vict. c. 49, for augmented church or chapel with district, ib. order in council for, 1694. statutes enabling a testator to leave money to ecclesiastical commis- sioners for the, 1695. on exchange, 1698. by municipal corporations, 285, 1698. by parishioners, 282, 1698. by lord chancellor, 297, 302, 1698. ecclesiastical commissioners may ac- cept trusts for, 1701. See Advowson ; Commend am ; Ex- change ; Lapse ; Pbesentation ; Resignation ; Sequestration ; Union ; Vacation. BERKELY, BP., teaching of, as to confession, 540. BERWICK, town of, 687. BETHLEHEM HOSPITAL, 1592. BEVERIDGE, BP., 1525. BIBLE, HOLY, to be provided by parish, 717, 726. bishop's, 727. BIDDING PRAYER, THE, 788, 789. BIER, to be provided by parish, 726, 729. BILLS OF EXCHANGE ACT. See Table of Statutes, 45 & 46 Vict. c. 61. BIRETTA, 718, 719. BIRMINGHAM SCHOOL, 1619. BISHOP, holy orders to be conferred by, 4 . right of, to refuse ordination, 5. early history of, 19. election of, 20, 33—38. Hooker's description of, powers of, 22. age of persons to be made, 23. precedence of, 32. form and manner of consecration of, 33, 47—51. Irish bishops, 33. conflict of the investitures, ib. conge d'eslire, ib. nomination of person to be elected, 35. confirmation of election of, 36 — 47. case of Dr. Hampden, 40. case of Dr. Temple, 42. translation of, 47, 48, 54, 56. installation of, 51. residence of, at his cathedral, 53. attendance of, in parliament, ib. a lord of parliament, ib. in what capacity he sits in parlia- ment, 54. privileges of residence of, 57. order of sitting in parliament, ib. whether may vote in cases of blood, 58. trial of, 60. ornaments of chapel of, 65. archbishop's jurisdiction over, 65. cases of Bp. of St. David's, 67. Bp. of Clogher, 71. Bp. of Lincoln, 73. without a see, 75. chorepiscopi, origin of, ib. episcopi regionarii, 76. in partibus, ib. suffragans, ib. sees of, 77. nomination of, 78. consecration of, ib. power of, ib. residence of, 79. may hold two livings, ib. recognised by canons, ib. consecration of, in 1870, ib. new sees for, 80. coadjutors, ib. Bishops Resignation Act, 82. centre and head of his diocese, 87. INDEX. 1825 BISHOP— continued. jurisdiction of, 256, 257, 441, 912, 1004. donatives subject to, 259. right of, to examine presentee, 316. power of, to refuse presentee, 317 — 328. nature of cure of, 382. consent of, to exchange of glebes, 402. power as to exempt or peculiar bene- fices, 441, 753, 1015. charge of, a privileged communica- tion, 479. the authority as to ritual, 704, 768. statutory power of, to order service, 763, 764. power of, to inhibit, 787, 1024, 1037, 1081. power of, to grant licence to non- residents, 891. cannot create new office, 919. to appoint a chancellor, 931. secretary of, 944, 947. appeals from, court of, 969. sits as assessor in Privy Council on ecclesiastical appeals, 975. power under 1 & 2 Vict. c. 106. . 1003. under 3 & 4 Vict. c. 86. . 1013. modes of trial by, 1017. discretion of, as to allowing the promo- tion of his office, 1018, 1038. power of, under Public "Worship Act, 1029, 1031—1036. visitations of, 1045, 1049. residence, houses of, 1143, 1269. estates of, 1270, 1329. dilapidations by, 1270. leases by, 1281. exchange of lands of, 1321. when to pay first fruits, 1359. redemption of land tax by, 1370. right of, over church and cathedral seats, 1425. power of, to convene synod in diocese, 1530. when trustee of local trusts in diocese, 1570. consecrated for foreign countries whether British subjects or foreigners, 1810. BISHOPRIC OP BRISTOL ACT. See Table of Statutes, 47 & 48 Vict. c. 66. BISHOPRIC OF ST. ALBANS ACT. See Table of Statutes, 38 & 39 Vict, c. 34. BISHOP OF TRURO ACT. See Table of Statutes, 39 & 40 Vict. c. 54. BISHOPRICS, temporalities of, 23. in time of vacation, 34, 64. custody over, 64. profits of, ib. founded by Hen. 8. .23. act of 6 & 7 Will. 4 respecting, 24. BISHOPRICS — continued. recommendations as to, of Ecclesiastical Commissioners, 24. of recent creation, 28. crown's right of patronage over, 33. spiritualities of, in time of vacation, 62. guardianship of, ib. in Ireland, 1750, 1753. in Scotland, 1766. colonial, council of, 1772. declarations of, 1772—1776. in the colonies, 1781. in the East Indies, 1794, 1797, 1800. BISHOPRICS ACT, THE, 1878. See Table of Statutes, 41 & 42 Vict. c. 68. BISHOPS RESIGNATION ACT. See Table of Statutes, 32 & 33 Vict. c. 111. BLASPHEMY, 834, 842, 1083. BODIES, burial of, when found in seas or rivers, 655. protection of, 689. not to be removed without a faculty, 690. BOOKING, dean of, 214. BONIFACE, ABP., constitutions of, 349, 360, 1067, 1092, 1478, 1506, 1509, 1531. BOOK OF COMMON PRAYER. See Prayer Book. BOOKS, belonging to church, 726. provided by parish, for registers, 497, 498. BOUCHIER, ABP., 1546. BOUNTY OF QUEEN ANNE. See Queen Anne's Bounty. BRAGA, council of (563) . . 670. BRAWLING, in church or churchyard, 741, 765, 835, 1072. BREAD, for Holy Communion, who to provide, 525, 726. 1 remaining after service, 527. See Wafer Bread. BREVIARY, THE, 705. BRIDEWELL HOSPITAL, 15S9, 1592. BRISTOL, statute providing for future severanco of See of, from Gloucester, 30. arbitration as to Cathedral of, 155. organist of Cathedral of, 1521. 1826 INDEX. BROOM, tithe of, 1150. BUILDINGS. See Residence Houses and Dilapidations. BUILDING LEASES, 1323. BULL, PAPAL, procuring of, liable to praemunire, 12, 946. BURIAL, order for, 482. places of, 650, 651. in ancient times, 650. early Christian practice, ib. fees for, ib. in church, 651. in chancel, 652. in churchyard, 653. rector cannot be compelled to bury in any particular part of churchyard, 653. cremation not unlawful, 654. whether strangers may be buried in parish churchyard, ib. faculty for vault for, 655. of parishioner dying out of parish, ib. in cemeteries, 656. of dead bodies in seas or rivers, ib. ofpaupers, ib. bodies when buried not to be moved, 657. in consecrated portion of cemetery to be registered by chaplain, ib. not to take place in burial places closed by order in council, 658. in St. Paul's and "Westminster Abbey, 659. Burial Board, powers of, 651—659, 683. provision for Nonconformists, 660. ordinary to consecrate land for burial of poor, 661. power to bury before consecration, 663. when faculty required, 664. care of closed ground, ib. need not be performed in unconsecrated ground, 666. of lunatics, 667. not hindered by debt, ib. of attainted traitors, ib. mode of, of ecclesiastical cognizance, 668. minister not to refuse except in certain cases, 669. of suicides, 670. office of, 671. ringing at, 672. registration of 672, 698, 699. fees on, 673—684. provisions of the Cemeteries Clauses Act, for payments in compensation for fees, 678. clerks and sextons in burial grounds, 682. BURIAL— eon tinned. Burial Board regulations, 694. Burial Laws Amendment Act, provi- sions of, 696. office of, not used for those dying ex- communicate, 1089. chapels of closed burial grounds, 1462. burial grounds in Ireland, 1757. BURIAL LAWS AMENDMENT ACT, See Table of Statutes, 43 & 44 Vict, c. 41. BUTCHERS, work done "by, on Sundays, 798. CAIRNS, SIR HUGH, opinion of, 1563. CALENDAR. See Kalendae. CALVES, tithe of, 1150. CAMBRIDGE, UNIVERSITY OF, 906, 1138, 1594—1613, 1619, 1635, 1681. See Univeesities. CAMPBELL, LORD, opinion of, 880. CANADA, church in, 1791. CANADA RESERVES, THE, 1784, 1792, 1793. CANDLES. See Lights. CANDLESTICKS, upon the Holy Table, 711, 731, 732. CANON, sub- dean appointed from, 132. residence of, 135, 142 rule as to preaching, 136. has no cure of souls, 140, 382. not included in the Ecclesiastical Dilapi- dations Act, 142. in cathedrals of new foundation, 144, 180. three of St. Paul's appointed by the crown, 175. qualifications of, ib. enactments as to, ib. of old cathedrals appointed by the bis- hop, 179. resignation of, 190. See Chapters ; Cathedrals ; Minoe Canon. CANON LAW, THE, 15, 16. INDEX. 1827 CANONRY, what, 138. charge upon, legal, 140. no lapse of, 165. list of canonries, 176. suspended canonries, 176, 177. Christ Church, separate estates of, 182. CANONS OF (1571).. 1617. CANONS OF (1603).. 7. altered by convocation (1866) .. 15. summary of, as to discipline of the clergy, 907. as to hours of marriage, 1547. temporality not bound by, 1562. not to contravene the law of the land, ib. CANONS OF (1640).. 713. CANONS OF (1888).. 608. CANONS of the Irish Church, 1753. of the Church in Scotland, 1765. CANTERBURY, diocese of, 24. Ecclesiastical Court of. See Aeches Court and Vicar- General. Commissary Court of, 999. CANTERBURY, ABP. OF, income of, 27. first Archbishop of, 31. style of, ib. formerly had primacy over Ireland, ib. privilege of, to crown the Bang of England, ib. precedence of, ib. special licence granted by, 612, 613, 637. official principal of, 924, 928. power to grant dispensations, 946. power of, to issue scale of fees for diocesan courts in his province, 1002. degrees given by, 1565. visitation of universities by, 1605. CANTERBURY, CATHEDRAL OF, Bishops of the province to be conse- crated there, 48. CAPETOWN, BP. OF, 1774, 1784. CAPIAS, writ of, 1092, 1093, 1094. CARDINALS, college of, 21. CARLISLE, diocese of, 26. Consistory Court of, 999. case of Bishop of. See Table of Cases. CARTHAGE, Council of, 1524. CATECHISM, 482. origin of word, 510. youth to be instructed in, 512. from what formed, 513. CATECHISTS, 510. in colonies, 511. CATECHUMENS, 510. in India, 512. CATHEDRAL ACTS AMENDMENT ACT. See Table or Statutes, 36 & 37 Vict. c. 39. CATHEDRALS, residence of bishops at, 53, 134. provisions as to new, 122. chapters of. See Chapters. in England, 123. to be in cities, 125. difference between, and collegiate churches, ib. forfeitures for repairs of, 126. elections by chapter of, 127, 159 — 165. exempt from archdeacon's jurisdiction, 133. exempt from law as to faculties, ib., 1420. parish church of diocese, 134. dean and chapter's residence at, ib. administration of Holy Communion there, 135. vestments to be worn in, 135, 137. preaching in, 136. of new foundation, 137. civil jurisdiction in precincts of, 142. of foundation of Henry 8 . . 144. visitable by ordinary, 166, 169, 1048, 1605. articles of enquiry exhibited by ordi- nary, 169—172. unlawful decorations and ceremonies in, 172. statutes of Victoria as to, ib. honorary canons founded in, 186. founded in the reign of Victoria, 189. provisions in Public Worship Act as to, 1034. alterations made in, by dean and chap- ter, 1420. allotment of seats in, 1425. See Chapters ; Dean. CATHEDRAL SCHOOLS, 1628, 1630. CAVE, MR. JUSTICE, 469. CAVEAT, patron may enter a, 323. effect of, 337, 609, 614. nature of, 981. CELESTIN, POPE, 385, 1524. CEMETERIES CLAUSES ACT. See Table of Statutes, 10 & 11 Vict. c. 65. 1828 INDEX. CEMETERIES, chaplains to, 471. acts respecting, 656, 663, 678. made by sanitary authorities, 666. for lunatic asyla, 667. parish clerks in, 682, 1515. under Church Building Acts, 1718. CENSURES, ECCLESIASTICAL, nature of, 838, 839, 1064—1105. release and pardon from, 1105. CEREMONIES, mutable and immutable, 702, 703. distinction between rites and, 706. CERTIFICATE, penalty for false, 501. of publication of banns, 599. of registrar for marriages, 613, 619. of execution of writ, 963. CHALCEDON, COUNCIL OF (451).. 854, 1525. CHALICE, for Holy Communion, 717, 726, 729. mixed, 770, 771. cleansing of, 780. CHANCEL, right of vicar in, 237, 1403. burials in, 652. monuments and vaults in, 695. screens and gates in, 733, 1402. repaired by rector, 1258. origin of name, 1402. rubric as to, ib. other names for, ib. repair of, 1415—1418. disposition of seats in, 1432. impropriator's seat in, ib. vicar's seat in, 1433. difference between great chancels and lesser ones, 1434. CHANCELLOR, LORD, right of, as to king's benefices, 277, 296. power of, to sell advowsons, 297, 303, 1698. to require return of incumbent's in- come, 298 as to payment of purchase -money to, ib. as to application of purchase -money under direction of, 299. to augment benefices, 300, 302, 1698. formerly civilian or ecclesiastic, 474, 827. to sequester estates of parties contuma- cious, 1104. CHANCELLORS OF DIOCESES, to subscribe Thirty-nine Articles. 914. office of, 916, 928. court of, 917. jurisdiction of, 929, 930. bishop may be compelled to appoint, 931 . distinction between, and commissary, ib. varieties in patents of, in different dioceses, 932. when action lies against, 933. CHANCELLORS— continued. fee of, on consecration of churches, &c, 1398. in Charity Commission under 43 Eliz. c. 4. .1570. CHANCERY, marriages of wards in, 558. control of charities by, 1569. CHAPELS, ornaments of bishop's chapel, 65. statute of 1 Geo. 1, st. 2, c. 10, respect- ing, 242, 244. district, 243,460. See District Chapels. of ease, 244, 273, 1061, 1453, 1759. statute of 34 & 35 Vict. c. 66, respect- . ing, 244. rights of perpetual curate in, ib. curates in, origin of, ib. form of nomination to, ib. ministers of proprietary, 250. converted into parish church, 625. repairs of, 1418, 1458. private chapels, 1450. licence to perform service in, 1451. free chapels, 1452. parochial chapels, 1453. evidence of being, 1454. provisions in Church Building Acts as to, 1455, 1718. church or chapel, how to be tried, ib. effect of description of, in presenta- tion, 1455. government of, 1456. endowment of, ib. consents requisite for erection, ib. dependence of, on mother church, 1457. submission of curate of, 1458. who may erect, and who may nomi- nate to, 1459. district, 1723. proprietary chapels, 250, 436, 1459, 1759. unconsecrated, may revert, 1459. owner keeps control of, ib. churchwarden no power in, ib. to schools, 1461, 1626, 1630. bishop may license clergyman to officiate in, 1461, 1462. may revoke licence, 1462. status of minister in, ib. offertory in, ib. under Burial Acts, ib. in colleges, 757, 1461, 1462, 1570. CHAPLAIN GENERAL, office of, 459. CHAPLAINS, of privileged persons and the Queen, 452—454. statute of 21 Hen. 8, c. 13, respect- ing, ib. appointment and discharge of, 453. statutes of 57 Geo. 3, c. 99, and 1 & 2 Vict. c. 106, respecting, 455, 456. royal chaplains, 456. priests in ordinary differ from, ib. to the House of Commons, 457. INDEX. 1829 CHAPLAINS— continued. of privileged persons, &c. — continued. office of, in House of Lords, how performed, 457. in army and navy, ib. no special service for the army, ib. to forts and garrisons, 458. principal chaplain, ib. office of chaplain general revived, 459. might be a suffragan bishop, ib. Army Chaplains Act, 459—461. provisions in the Articles of War, 1871, respecting, 461. naval chaplains, 462. government of, ib. qualifications for office of, 462, 464. orders in council as to, 464. form of appointment of, ib. to gaols, ib. appointment of, ib. provisions of Prison Act as to, 465. assistant chaplains, 465, 467. appointed by Home Secretary, 465. room for use as chapel by, ib. performance of divine service by, 466. to visit prisoners, ib. to have access to prisoners under sen- tence of death, 467. substitute on death of, ib. Prison Ministers Act, ib. to workhouses, statute of 4 & 5 Will. 4, c. 76, as to, ib. judgment in case of Reg. v. Guardians of Br a in tree Union as to appointment of, 469. removal of, ib. may officiate against will of incum- bent, ib. to lunatic asyla, ib. Lunatic Asylums Act, ib. appointed by committee of visitors, 470. provisions of Lunacy Act respecting, ib. to cemeteries, 471. Cemeteries Clauses Act, ib. appointed with consent of bishop, ib. stipend of, ib. under Metropolitan Burial Acts, 472. CHAPTERS, CATHEDRAL, origin of, 21, 123. rights of, in election of bishops, 34 — 36. general law as to, 123. residence of members of, 135, 142. of who in a chapter consists, 137. without a dean, ib. in some places two, 138. capacity of to purchase or take, ib. estates of, 142, 188. making of statutes by, 142. grants made to, ib. power of, to present, ib. of the new foundation, 144. procedure of, at elections, 160. visitable by the ordinary, 166, 1048, 1605. CHAPTERS, CATHEDRAL— co^mw#£. to propose alteration in their own statutes, 171. constitution of, defined by 4 & 5 Vict. c. 39. .173. separate patronage of members of, 181. of Welsh cathedrals, 185. minor canons appointed by, 187. officials of, 927. exchange of lands of, 1321, 1669. leases by, 1323—1326, 1673. extinguishment of old leasehold inte- rests by, 1337—1346, 1673. transfer of estates of, by Ecclesiastical Commissioners, 1G69. See Cathedrals and Deans. CHARGE, of bishop, 479. CHARGES ON BENEFICES. See Benefices. CHARITABLE FOUNDATIONS , visitor of, 1046, 1604. CHARITABLE TRUSTS, origin of relation of church to, 1565. connection between church and, 1567. what are charities, ib. commissions to inquire into, under 43 Eliz. c. 4. .1567, 1568. gifts to church, how far a charity, 1568. privileges of, 1569, 1571. control of, 1569. subject to Mortmain Statutes, ib. jurisdiction of church over, ib. recognition by church of status in charitable corporation, 1570. privileges of the church with respect to, 1571. superstitious uses, ib. rural charities, 1575. restraints of mortmain, 1575 — 1586. Sec Mortmain ; Charity Commis- sioners. CHARITABLE TRUSTS ACT. See Table of Statutes, 16 & 17 Vict, c. 137. CHARITABLE TRUSTS AMEND- MENT ACT. See Table of Statutes, 18 & 19 Vict. c. 124. CHARITY COMMISSIONERS, THE, 1569, 1572—1575, 1586, 1587, 1593, 1630. CHARLES THE FIRST, 98, 1546. CHARLES THE SECOND, declaration of, as to suffragan bishops, 79. CHARTER-HOUSE, THE, 1618, 1619, 1626. CHASUBLE, 718, 719, 730. 1830 INDEX. CHEESE, tithe of, 1150. CHELSEA HOSPITAL, 1591. CHENEY, Bp. of Gloucester, 73. CHESTER, diocese of, 26. Consistory Court of, 999. CHICHELEY, ABP., register of, 798. constitution of, 912. appeal of, to a general council, 1528. convocation holden by, 1548. CHICHESTER, Consistory Court of, 1000. CHORAL COPE, 728, 730. CHORAL SERVICE, 765. CHOREPISCOPI, origin of, 75. CHORISTER, power of dean and chapter to remove, 131. CHRISM, 515. CHRIST CHURCH, OXFORD, dean of, 175, 906. statute of 23 & 24 Vict. c. 124, as to, 1346. is a spiritual body, 1604. CHRIST'S HOSPITAL, 1589, 1592, 1618, 1619. CHRISTENING. See Baptism. CHURCH of England. See England. in East Indies. See East Indies. in Scotland. See Scotland. in Ireland. See Ireland. in the Colonies. See Colonial Church. CHURCH, THE, definition of, 1. divisions in, 1, 2. law by which governed, 10. members of, 17. orders and offices of, 19. origin of parish, 219. law of, as to ritual, 702, 706. fabric of, ornaments and decorations of, 721. orderly behaviour in, 737. discipline of, 828. property of, 1121. land, belonging to, 1122. jurisdiction of, over charities, 1569. origin of word, 1383. ancient founding of, ib. CHURCH, THE — continued. freehold of, 1384. not rateable, ib. bells of, 1385. key of, ib. robbing of, 1387. sanctuary, ib. compensation for riotous destruction of, ib. consecration of, 1388. no church till consecration, ib. no consecration before endowment, ib. time of, 1389. authority for service, 1390. form of, 1390—1398. of churchyard with church, 1396. of churchyard singly, 1397. forms in present use, ib. other churches, effect on, 1398. procuration upon, ib. new table of fees on, ib. reconciliation of, 1399. legal effect of consecration of, ib. re -consecration, 1400. modern cases as to, ib. where communion table has been moved, ib. removal of chapel, 1401. power to pull down old church, ib. dedication of, to saint, ib. repairs of, anciently by bishops, 1415. next by rectors, ib. finally by inhabitants, ib. of chancel by rector, 1416. sometimes by vicar, ib. of chancel discharge from repairs of church, 1417. duty of sequestrator as to chancel, ib. old constitutions as to, 1418. of chapel of ease, no discharge from repairs of church, ib. of united churches, ib. no prohibition in case of, 1419. churchwardens' duty, ib. faculties for alterations, ib. principal decisions as to, 1420. unauthorized, restrained by injunc- tion, 1422. faculty required to pull down, 1423, 1718. building of, 1703. object of acts respecting, ib. benefactions in favour of, ib. appointment of church building com- missioners, ib. acceptance by commissioners of sites for, 1704. grants for, by persons under disability, ib. compulsory purchase of sites, 1705. cases under special acts or trusts, 1706. in whom sites to be vested, ib. patronage under Church Building Acts, 1707, 1708, 1711—1714. building by private persons, 1708. INDEX. 1831 CHURCH, THE— continued. provisions by statutes for, 1708. endowment and repair fund, 1710. life trustees, ib. substitution of new church for old, 1714. extension of the provisions of 3 Geo. 4, c. 72. .1715. where parochial church turned into cathedral, 1717. attached to consulship. See Consul- ship. See Aisle ; Chancel ; Seat : Way. CHURCH BUILDING ACTS. See Table of Statutes, 58 Geo. 3, c. 45, and 59 Geo. 3, c. 134. CHURCH BUILDING COMMIS- SIONERS, power of, transferred to ecclesiastical commissioners, 234, 1674. appointment of, 1703. church estates commissioners. See Ec- clesiastical CoidlSSIONEES. CHURCH DISCIPLINE ACT. See Table of Statutes, 3 & 4 Vict. c. 86. CHURCHES, united after fire of London, 1229—1231. CHURCHING OF WOMEN. 482. history of the service, 645. women to be veiled, 645, 708. offerings, 646. of unmarried women, ib. CHURCH HOUSE, THE, 1747, 1748. CHURCH MUSIC, 764. CHURCH RATES, 1445. old law as to, ib. compulsory church rates abolished. 1419, 1446. partly applicable to secular purposes, 1446. money due on security of, provision for, ib. not to affect local acts or vestries, 1447. trustees, &c. may subscribe to volun- tary, ib. persons refusing to pay, ib. loans under 5 Geo. 4, c. 36. .1418. CHURCH SEATS ACT. See Table of Statutes, 35 & 36 Vict. c. 49. CHURCH SOCIETIES. See Societies. CHURCH TRUSTEES, 1504. CHURCH UNION, THE. Sec English Chuech Union. CHURCHWARDENS. sequestration of revenue of vacant bene- fice committed to. 375, 1075, 1483. curate has power to nominate during vacancy of living, 443, 1482. duty of, as to copies of registers, 500. as to burial of strangers, 654. to provide all things needful for public worship, 717, 725, 726. care of church by, 722. to have care of churchyard fence, 722, 1406. duties of. during service, 737, 1483. status of, as complainants under Public Worship Act, 1028, 1481. presentments by, 1054, 1057, 1483. for what purpose a corporation, 1054, 1465, 1484. duties of, at visitations, 1054, 1059. to keep excommunicates out of church, 1088. to have custodv of copy of agreement to tithes, 1170. compensation for riotous destruction paid to, 1387, 1484. can compel lay rector to repair chancel, 1417, 14S4. to lew church rate in certain cases, 1419, 1445, 1484. to dispose of church seats. 1424—1437, 1483. pew rents under Church Building Acts collected by, 1437, 1438, 1484. office of, 1463. how far, have custody of church, 1464, 1465. to prevent interruption of service, 1465, 1483. no power in private chapel, lb. civil duties of, transferred to parish council, 1466. who are exempt or disqualified serving, 1467. election of, 1469. time of, ib. by whom, ib. how to be determined, 1471. Dr. Harris's opinion as to, ib. need not serve twice, ib. custom of City of London 1472. customs out of London, ib. where none appointed, 1474. ceasing to reside in parish, ib. holding office prima facie evidence of being, 1474, 1475. in new parishes, 1475. in additional church, 1477. qualifications of, ib. duty of, to be sworn, 1478. refusal of, to act, ib. oath of, 1479. declaration substituted for, ib. admission of, ib. opinion of Lord Stowell as to, 1482. where improper election, 14S3. official acts of, ib. have property in church goods, 1484. 1832 INDEX. CHURCHWARDENS— con tin ued. contracts by, 1484. one cannot release, 1485. taking" possession of lands, ib. how long in office, ib., 1485, 1486. accounts of, 1486. power of spiritual courts as to, ib. inspection of, ib. actions by, 1488. cannot bring, after office expired, ib. successors of, must bring, ib. de facto, ib. one cannot sue in ecclesiastical court, 1489. protection of, in execution of office, ib. criminal proceedings against, ib. removal of, 1489, 1490. opinions as to, 1490, 1491. liability of, for fees of visitation, ib. under Church Building Acts, 1731. CHURCH WAY. See Way. CHURCHYARD, burials in, 653. See Burial. whether strangers may be buried in parish, 654. consecration of, 664, 1398. right of donor in land added to, 665. closing of, 666. as a general rule no body buried in, without service, 672. parishioners to provide the enclosure of, 722, 729. penalty for disturbance in, 741. rector's rights in, 1405. mortmain, 1405. fences of, 1406. trees of, 1407, 1408. way through, 1408, 1413. private door into, 1408. boundary of, ib. building upon, 1409. compensation of rector for loss of, ib. may be transferred when disused to local authority, under 44 & 45 Vict. c. 34. .1411. portions of, converted into streets, 1415. use of, as open space, 1441. under Church Building Acts, 1718. CIRCUMSPECTE AGATIS. See Table of Statutes, 13 Edw. 1, st. 4. CISTERTIANS, THE, exempt from tithes, 1153. CITATION, nature and form of, 959, 963, 982. contents of, 982. to a company, 983. opinions respecting, ib. effect of misnomer in, 984. objections to, ib. service of, on minor, 985. served viis et modis, ib. citing out of the diocese, ib. statute of citations, 985 — 989. return of, under old law, 989. CITATION— continued. modern practice respecting, 990. CITATIONS, STATUTE OF. See Table of Statutes, 23 Hen. 8, c. 9. CITY OF LONDON PAROCHIAL CHARITIES ACT. See Table of Sta- tutes, 46 & 47 Vict. c. 36. CLANDESTINE MARRIAGE, 600, 601. CLARENDON, constitutions of, 5, 11, 58, 197, 967, 968. CLEAVER, BP., 520. CLEMENT V., 1355. CLERGY, of proprietary chapels, 250. civil status of, 473. not bound to serve in temporal office, ib. as to clerks in exchequer, 475. not bound to serve in war, ib. as to arrest, ib. exempt from serving on juries, ib. liberty of, to conduct worship in any building, 476. not to be obstructed in their office, ib. benefit of clergy, ib. sheriff cannot levy of ecclesiastical goods, ib. distresses not to be taken in church fees, ib. not to be taken on statute merchant or staple, 477. freedom of, from tolls, ib. not freed from general statutory charges, ib. sermons of the, 478. may not sit in House of Commons, 479, 480. penalty for sitting or voting, 480. may not be aldermen or town council- lors, 481. proceedings against, under Church Dis- cipline Acts, 1013. See Discipline. ' proceedings against, under Public Wor- ship Act, 1026—1036. proceedings against, under Clergy Dis- cipline Act, 1037. estates of the, 1122. residence houses of the, 1125 — 1142. See Benefice ; Discipline ; Plu- ralities. CLERGY DISCIPLINE ACT. Table of Statutes, 55 & 56 Vict. c. 32. CLERICAL DISABILITIES ACT. See Table of Statutes, 33 & 34 Vict. c. 91. CLERICAL SUBSCRIPTION ACT. See Table of Statutes, 28 & 29 Vict, c. 122. INDEX. 1833 CLERK OF PARISH. See Parish Clerk. CLOGHER, BP. OF, case of. See Table of Cases. CLOSE, CATHEDRAL, 133. CLOVER, tithe of, 1150. COADJUTORS, to bishops and other clergy, 80. death or resignation of, 85. COFFINS, 669. COLERIDGE, JUSTICE, 41, 42, 49, 471, 696. COLLATION, to benefice, 277. effect of wrongful, 313. difference between institution and, 357. COLLEGES AND UNIVERSITIES, special prayers for the dead in chapels of, 696. heads of, not to hold cathedral prefer- ment, 906. loans by, for buildings on benefices under their patronage, 1138. leases by, 1297. how to pay first fruits, 1363. redemption of land-tax on glebes be- longing to, 1368. chapels of, 757, 1461, 1462, 1570. changes respecting, in relation to church, 1594. university commissions, ib. L'niversities Tests Act (1871), 1595. religious instruction in, 1596. Morning and Evening Prayer to be used daily in, 1597. ecclesiastical elements in, ib. clerical education, 1600. Walter de Merton's College, 1601. colleges before and since the Reforma- tion, 1602, 1603. distinctions between, and universities, 1603. Christ Church, Oxford, 1604. visitor in, ib. difference between ecclesiastical and charity visitor, 1605. archbishop's general power of visita- tion, 1605, 1608. not under Charity Commissioners, 1609. preference given to founder's kinsmen, ib. title for orders, 1610. residence of heads of, 1611. augmentation of vicarages by, ib. to dissever benefices from headships of colleges, ib. may divert to other uses money holden for purchase of advowsons, 1613. first fruits and tenths, 1614. COLLEGES, &c— continued. for sons of tradesmen, 1618. theological, ib. augmentations of benefices by, 1680, 1681. COLLEGIATE CHURCHES, difference between, and cathedrals, 125. vestments worn in, 137. chapters in, ib. preferments, 185. provisions in Public Worship Regula- tion Act respecting, 1034. COLONIAL CHURCH, THE, oath of obedience of bishops in, taken to their own Metropolitan, 48, 117. Crown doe3 not appoint to benefice vacant bv promotion to a bishopric in, 52, 294, 1784. bishops of, enabled to perform functions in England, 117, 1812. catechists and catechumens in, 511, 512. bishops in, not admitted to Upper House of Convocation, 1543. in North America, 1769. early organization of , 1770. Order in Council placing British sub- jects abroad under jurisdiction of Bishop of London, 1770. colonial episcopate first established, 1771. in Nova Scotia, ib. colonial bishoprics' council, 1772. declarations of, 1772 — 1776. jubilee, reports of, 1776. organization and synods of, ib. in America, ib. in Australia, 1777. in New Zealand, 1779. in South Africa, 1780. provinces and dioceses of, 1781. acts of colonial legislatures, 1782. Norfolk Island, ib. legal status of, ib. classification of colonies, ib. recent decisions on subject, 17S2 — 1789. letters patent discontinued, 1786. law as to voluntary associations, 1789. church in the West Indies, 1769, 1790. provisions of 6 Geo. 4, c. 88, respect- ing, 1790. disestablishment of, ib. coadjutor-bishop in See of Jamaica, 1791. in Canada, ib. Roman Church in, ib. claim made by Presbyterians, 1792. opinion of judges as to clergy re- serves, ib. consecration of colonial bishops by Eng- lish bishops, 1807. in the East Indies. See East Indies. COLTS, tithe of, 1150. 1834 INDEX. COMMANDMENTS. See Ten Com- mandments. COMMEND AM, benefices held in, 380. COMMISSARY, to subscribe the Thirty-nine Articles, 921. court of, 926. distinction between, and chancellor, 931. appeal from, 932. nature of office of, 933. for special purposes, ib. COMMISSION, on resignation of benefices. See Re- signation. of inquiry, expenses of, 394. for union of benefices within the me- tropolis, 405. how to be nominated, 406. See Union. under 3 & 4 Vict. c. 86. .837, 1017. members thereof, ib. limit of power of commissioners, 1018. notice of, ib. proceedings of commissioners, ib. after letters of request no defect in, material, 1019. report of commissioners, ib. And see Procedure. in cases of exchange, 1313. of review, 971. COMMON LAW PROCEDURE ACTS. See Table of Statutes, 15 & 16 Vict, c. 76, and 17 & 18 Vict. c. 125. COMMON PRATER. See Peayeb Book. COMMONS IN GROSS, rent -charge on, 1177. COMMUNICANTS, posture of, 526. canon of (1603) as to, 528. COMMUNION, HOLY. See Loed's Supper. COMMUNION TABLE, THE, 526, 723, 732, 734, 772, 778, 1399. See Holy Table ; Altae. COMMUTATION. See Penance. COMPETENTES, 511. COMPTON, BP., 168. COMPULSORY CHURCH RATE ABO- LITION ACT. See Table of Statutes, 31 & 32 Vict. c. 109. CONFESSION, what, 538. history of, ib. teaching of Hooker respecting, ib. of Archbishop "Wake, 539. power of minister to absolve, ib. of Bishop Berkeley, 540. letter of Bishop Philpotts on, 540. authoritative statements of church as to, 541. whether admissible as evidence, 543 — 547. penalty for disclosing, 1084. CONEESSOR, of royal household, 540. CONFIRMATION, what, 515. founded on apostolical practice, ib. use of Roman and Greek churches, ib. age of persons to be confirmed, ib. cannot be repeated, 516. time of, ib. minister's duty as to, ib. godfather or godmother to be witness of, 517. change of name at, ib. requisite before admission to Holy Com- munion, 518. CONFIRMATION OF BISHOPS, 32. court of, 40, 41. CONGE D'ESLIRE, 34, 35, 127. CONIES, tithe of, 1150. CONSECRATION, of bishops, 33, 47, 51. of suffragan bishop, 78. of part of cemetery, 633, 656, 657, 659. of churchyards, 664—666, 1396. of churches, 1388—1401. CONSENSUS FRATRUM, in convocation, 1544. CONSISTORY COURT, established by charter of William the Conqueror, 197. jurisdiction of, 926. appeal to, from archdeacon's Court, ib. Table of Rules of Procedure in, 999. prosecutions in, under Clergy Discipline Act, 1038. CONSTANCE, council of (1414). .1528. CONSTANTINE POGONATUS, 1527. CONSTANTINE THE GREAT, 24, 1121, 1391, 1525. INDEX. 1835 CONSTANTINOPLE, 1st council of (381). .19, 1525. 2nd council of (553). . 1526. 3rd council of (680).. 1527. 4th council of (869) . . 1527. CONSTITUTIONAL ACT OF THE CANADAS. See Table of Statutes, 31 Geo. 3, c. 31. CONSTITUTIONS, of Clarendon, 5, 11, 58, 197, 967, 968. of archbLshop Langton, 58, 211, 318, 348, 356, 381, 527, 673, 1051, 1282. of Othobon, 58, 381, 387, 474, 985, 1259, 1389. of Otho, 93, 210, 899, 929, 934, 1045, 1051, 1389. of archbishop Reynolds, 94, 100, 102, 319, 1052. of archbishop Edmund, 94, 424, 1054, 1259. of archbishop Wetherstead , 101. of archbishop Stratford, 106, 210, 356, 841, 1052, 1060, 1061, 1088, 1106, 1450, 1452. of archbishop Peccham, 210, 312, 381, 521, 648, 789, 1066. of archbishop Arundel, 248, 319, 1223. of archbishop Winchelsea, 249, 250, 685, 728, 1191, 1406, 1416, 1433. of archbishop Boniface, 349, 360, 1067, 1092, 1478, 1506, 1509, 1531. of archbishop Islip, 424. of archbishop Sudbury, ib. of archbishop Wake, ib. of archbishop Egbert, 737, 1457. of Gregory, 900. of archbishop Chicheley, 912. of bishop Niger, 1223. of archbishop Mepham, 1259. CONSULSHIPS, churches attached to, 1802. provision for support of, ib. consul to transmit annual accounts, 1803. where voluntary contributions, ib. salaries of chaplains, 1804. meetings of subscribers, 1805. CONSULTATION, writ of, 1113. CONTEMPT, process for, 1087. under Clergy Discipline Act (1892), 1 105. CONTEMPT OF COURT, suspension for, 1073. CONVOCATION, licence to alter canons of (1603) . . 15. proceedings in, against Cheney, bishop of Gloucester (1571), and Goodman, bishop of Gloucester (1640). .73. P. VOL. II. CONVOCATION— continued. committee of, appointed by Elw. VI. to prepare Prayer Book, 705. appeal to, 972. regulations of, as to penance, 106S. meaning of term, 1530. before the Conquest, ib. epochs in History of, 1531. Atterbury's attempt to establish inde- pendence of Lower House of, 1532. subsidies voted in, 1533, 1536. accounts of Kennett and Hody, 1534. act of submission, 1535. resolutions of judges as to, in 8 Jac. I., ib. how summoned by Philip and Mary, 1536. conference between, and House of Lords, 1537. members of, ineligible to House of Com- mons, ib. messages from lower House of, to House of Commons, 1537, 1538. effect of abandonment of taxation in, ib. under Charles II., James II., and Will. III., 1539. under Anne and George I., 1540. prorogation of, 1540, 1544, 1552. re-assembling of, ib. proposed reform of, ib. letters of business in (1872), ib. form of opening of, 1542. colonial bishops in, 1543. suffragan bishops sit in lower house of, when archdeacons, ib. special prayer for, ib. archbishops Tenison and Marsh as to consensus fratrum, 1544. dissolved by death of sovereign, 1545. may sit after dissolution of parliament, 1546. making and promulging of canons by, ib. election of proctors, 1547, 1548, 1554. of prolocutor, 1548, 1549, 1560. business in lower house of, 1549. business in upper house of, 1550. proxies, 1551, 1555. what a synodical act is, ib. contiuuatio, 1552. right of petition of clergy in, ib. standing orders of, 1553. privileges of, 1553, 1561. report of committee of, in (1854), 1553. how far lower house of, dependent on upper, 1556. committees of lower house of, 1558, 1559. appeal to upper house of, 1562. no power to bind the temporally, ib. no power to contravene the law of the land, ib. trial of heresy by, ib. general powers of, under canons of (1603).. 1563. power of, to condemn heretical books, id. 6 c 1836 INDEX. COPARCENERS, presentations by, 277, 287, 289. COPE, decisions 'as to, 712, 713, 717, 718, 728, 730. COPYHOLD ACT. See Table of Statutes, 57 & 58 Vict. c. 46. COPYHOLDS, grants of, 1294. enfranchisement of, 1346. acts respecting-, ib. application of enfranchisement moneys, 1347. notice to be given to ecclesiastical com- missioners in certain cases, ib. leases by copy of court roll prohibited, 1348. saving of present interests in, ib. CORN, tithe of, 1148, 1150. average price of, 1169. rent -charges valued according to average price of, 1169, 1170. corn rents under local acts, 1231, 1232. CORN RETURNS ACT. See Table of Statutes, 45 & 46 Vict. c. 37. CORNWALL, DUCHY OF, patronage of, 1142. sale of glebe in, 1336. CORONATION SERVICE, THE, form and order of, 813—826. oath in the, 817. CORPORAS, 717. CORPORATIONS, municipal, presentations by, 277, 285, 286. power of, to alienate advowsons, 285, 1673. nominations vested in, 286. augmentation of benefices by, 1698. how far churchwardens are, 1054, 1465, 1484. cannot be excommunicated, 1088. loans by, 1135. aggregate and sole, grants by, 1282. power of, to contract for redemption of land tax, 1365. clerk or agent of, may vote in vestry, 1496. charitable, 1570. of two kinds, 1588. of church house, 1747, 1748. CORSE PRESENT, 685—687. COSIN, BP., 513, 519, 647, 710, 1059, 1062, 1090. COSTS, of commissions as to resignations, 394. in the disci'etion of judge, 995. taxation of, 995, 996. payment of, 996. general principles with respect to, ib. of prohibition, 997. security for, ib. appeals for, ib. on appeal, ib. in criminal suits, ib. proctor may be condemned in, ib. under Public "Worship Regulation Act, 1031. of suits in prohibition, 1119. COUNCILS, of the church, 1523. origin of, ib. cecumenic or general councils, 1524 — 1527. National, 1524. Provincial, ib. Diocesan, 1524, 1531. of Religious, 1525. of Trent, 1528. Vatican, council of (1870) . . 1529. Lambeth, synod of (1867), ib. COUNTER- ALLEGATION, 962. COUNTY COUNCILLORS, clergy may be, 481. COURTS, ECCLESIASTICAL, authority of, 827. civil jurisdiction oi,ib. criminal jurisdiction of, 828. jurisdiction of, to try simony, 878. administration of ecclesiastical law in, 912. jurisdiction of bishops, ib. qualifications of judges in, 912 — 914. surrogates, 914. bargain and sale of offices, 914, 915. acts restraining grant of new offices, 916. no grant of new office with new fee, 919. courts, where to be kept, 921. seal of court, ib. existing courts, 922. provincial, ib. Court of Audience, ib. Court of Arches, 924. of Isle of Man, 926. diocesan, 926, 927. of archdeacons, ib. judge of the Arches, 924. judge of York Courts, 926. in Jersey and Guernsey, 927. peculiars, ib. officials of deans and chapters, ib. chancellor, 928, 929. And see Chan- cellors. official principal and vicar- general, 928. INDEX. 1837 COURTS ECCLESIASTICAL— E SE, 671. FENCE, of churchyard, 1406. FERiE NATURiE, things, how tithable, 1151. FEREDAY SCHOLARSHIPS, 1610. FIRST FRUITS AND TENTHS, apportionment of, in case of bishop co- adjutor, 85. to be paid or compounded for after in- stitution, 358. FIRST FRUITS AND TENTHS— «wtf. history of, 1355. tenths, 1356. taken from the pope, ib. given to the king, ib. manner of payment of, 1357. penalty on not paying, ib. value of, how ascertained, ib. where to be rated, 1357, 1358. year, when to commence, 1358. within what time archbishops and bishops to pay, 1359. deans, archdeacons, and prebendaries, how to pay, ib. tenths to be deducted out of, ib. grants of exemptions from, to con- tinue, 1360. what livings exempt from, ib. St. George's Chapel, Windsor, exempt from, 1361. hospitals and schools exempt from, ib. lessor and not lessee to pay, ib. account of, sent to clerks on institu- tion, ib. notice of arrears, 1362. times of payment of tenths, ib. forfeiture on non-payment of, ib. tenths a charge upon executors, &c, 1363. bishops discharged from collecting, ib. case where no incumbent, ib. members of cathedrals and colleges to pay separately, ib. apportionment of, to new incomes of bishops, 1364. where estates vested in commissioners, ib. present application of, ib. of colleges, 1614. abolition of office of, 1650. FISH, carriage of, on Sundays, 797. tithe of, 1151. in ponds, 1190. in rivers and in sea, 1190 — 1192. FISHER, BP., 61. FITZALAN CHAPEL, 1405. FIXTURES, in residence houses, 1146. FLAX, tithe of, 1150. FLEET REGISTERS, 507. FLEETWOOD, BP., 493. FLORENCE, council of (1439).. 1528. FLOWERS, on the altar, 731, 732. INDEX. 1845 FONT, of disused church, 404. to be in churches, 487, 729. of stone, 725. FOREIGN MARRIAGE, 621, 626. FOREIGN MARRIAGE ACT. See Table op Statutes, 55 & 56 Vict, c. 23. FOREIGN ORDINATION, 116, 1813. FOREST LAND, how far liable to tithes, 1151. FORGERY, of letters of orders, 112. of marriage licence, 613. FORM, of testimonial for orders, 116. of endowment of a vicarage, 233. of nomination to a perpetual curacy, 244. of nomination to chapel of ease, 245. of a donation, 254. of presentation, 314. of institution, 354. of evidence of induction, 365. of stipendiary curate's declaration, 423. of admission and dismissal of domestic chaplain, 453. of appointment of a naval chaplain, 464. of registers of baptisms, 498 — 500. of notice of marriage to registrar, 617. of registrar's certificate of marriage, 619. of marriage register, 635. of register of burials, 672. of oath against simony, 858. of deed of relinquishment of orders, 909. of faculty appointing a notary public, 950. of significavit, 1101. of writ de contumace capiendo, ib. of writ of deliverance, ib. of mortgage of parsonage house and glebe, 1131. of deed of purchase of lands, &c, to be annexed to benefice, 1153. of mortgage to governors of Queen Anne's Bounty, 1279. of consecrating a church, 1391. of consecrating churchyard together with church, 1396. of consecrating a churchyard singly, 1397. of grant of a faculty for a seat in church, 1432. of oath of churchwarden, 1479. of removal of churchwarden, 1499. of opening convocation, 1542. of electing a prolocutor (1864) . . 1549. of subscription to Prayer Book, 1623. FORM — continued. of deed for purchase, &c, by governors of Queen Anne's Bounty, 1623. of deed for granting stipends, &c, 1651. for admitting converts from Church of Rome, 1818. FOWL, tithe of, 1150, 1151. FRAUDULENT MARRIAGES, 560. FRONTAL, what, 729, 730. FRUIT, tithe of, 1150, 1181. FRUIT GARDENS, tithe charge for, 1163, 1181, 1207. FUMIGATION, incense used for, 769. FUNERAL, ringing at, 672. expenses of, to be paid before debts, 689. See Burial. FURZE, tithe of, 1150. FUST, SIR H. JENNER, judgments of, 14, 576—578, 584, 603, 1489. GALLICAN CHURCH, THE, custom of, as to election of bishops, 22. objections to holding benefices "pleno et utroque jure," 221. doctrine of, respecting the councils, 1526. GANG DATS, THE, 808. GANGRA, council of, 1528. GAOLS, chaplains in, 464. GARDENS, howtithable, 1181. extraordinary charges in respect of, ib, exemption of small gardens, 1188. GARTER, THE, knights of, 805. GATES in chancel, 1403. GENERAL COUNCIL. See Council. GENUFLECTENTES, oil. GEORGE I., 1540. 1846 INDEX. GIBBS, SIR VICARY, opinion of, 984. GIBRALTAR, bishopric of, 1766, 1772, 1816. GIBSON, BP., 168. GILBERT, LORD CHIEF BARON, judgment of, 61. GIRDLE, 718. GLASS SHADES, in burial grounds, 694. GLEBE LAND, profits from, on death of incumbent, 377. in case of united benefices, 400 — 402. exchange of, 400—402, 1307. every church to have, 1125. improvements when taken by railway, ib. powers under statutes to give land for, 1143. exempt from tithes, 1152. power to purchase land for, 1311. power to define boundary of, 1320. may be exchanged, though no commu- tation pending, 1321. copyholds may be exchanged for, ib. sale of, under Land Commission Act, 1331—1336. charges on, for drainage, 1354. redemption of land tax on, when belong- ing to college living, 1368. redemption of land tax on, where rector is patron, 1369. in Ireland, 1757. GLEBE LANDS ACT. See Table of Statutes, 51 & 52 Vict. c. 20. GLOUCESTER, deanery of, 151. GLOUCESTER AND BRISTOL, diocese of, 25, 55. bishops of, how elected, 27. arbitration as to cathedral of, 156. consistory court of, 1000. GLOUCESTER, DUKE OF, marriage with Countess Dowager of Waldegrave, 578. GLOVES, formerly given to a bishop at his con- secration, 49. GODFATHER AND GODMOTHER, number of, for every child, 487. to be witnesses at confirmation, 517. GOLD, WEDGE OF, offered at coronation, 815. GOODMAN, Bishop of Gloucester, 73. GRAIL, what, 728, 729. GRAMMAR SCHOOLS, education in, 1617. foundation of, 1618. sites for, ib. law as to, 1619. ecclesiastical jurisdiction over, 1619 — 1625. recent legislation as to, 1625. GRAVAMINA, what, 1550, 1556. GRAVE, brick, faculty required for, 1423. provision of 58 Geo. 3, c. 103, respect- ing, 1419. See Monuments. GREAT TITHES, 1148. See Tithes. GREEK CHURCH, THE, relations of, with Anglican bishopric at Jerusalem, 3, 1809. validity of orders of, 4, 116. theory of, as to status of the pope, 18. number of sacraments in, 483. use of, as to confirmations, 515, 516. general relations with English Church, 1816, 1817. GREGORY, constitution of, 901. GREGORY THE GREAT, POPE, 21, 653. GREGORY VII., POPE, letter of, 21. GREGORY X., POPE, 1399. GRETNA GREEN MARRIAGES, 629. GRINDAL, ABP., 66, 167, 168, 646. GUARDIAN, may not present to benefice, 278. consent of, to marriage, 556. GUERNSEY, ecclesiastical court in, 927. HABERE FACIAS POSSESSIONEM, writ of, 1213. HACKET, BP. OF DOWN AND CON- NOR, 73. HADFIELD, council of (630). .1527. HADRIAN IV., POPE, 1153. INDEX. 1847 HALE, LORD CHIEF JUSTICE, judgments of, 6, 15, 55, 61, 912, 1291, 1562, 1592. HALLS, 1601. HAMPDEN, DR., BP. OF HERE- FORD. See Table of Cases. HAMPTON COURT CONFERENCE, THE, 488, 513, 706, 727, 746. HARDWICKE, LORD, 16, 161, 250, 445, 582, 868, 1291. act of. See Table of Statutes, 26 Geo. 2, c. 33. HARRIS, DR., opinions of, 654, 655, 941, 1424, 1470. HARROW SCHOOL, 1619, 1626. HASELT RECTORY, severed from deanery of Windsor, 175. HAY, tithe of, 1150. HEARING, 1006, 1021, 1029, 1030. See Procedure. HEATH, tithe of, 1150. HEIR, presentations by, 277, 278, 280. donations by, 258. HEMP, tithe of, 1150. HENRY I., 967. HENRY II., 967. HENRY III., 1528. HENRY IV., 1546. HENRY VI., 1546, 1564. HENRY VIII., excommunication of, 13. bishoprics founded by, 23. charters of foundation of, 125. ordered revision by convocation of books of devotion, 705. appeals to Rome abolished by, 968. act of submission and legislation of, 1532. HENRY DE BLOIS, 967. HEREFORD, diocese of, 25. consistory court of, 1000. HERESY, 842. how punishable, 844. cases of, exempt from jurisdiction of peculiars, 927. cause of deprivation, 1083. trial of, by convocation, 1562. See Councils. HERIOT, 685, 689. HERMAN, ABP. OF COLOGNE, 705. HERTFORD COLLEGE, 1596. HERTFORD, council of (673) 1524. HIGH COMMISSION COURT THE 1062. ' HIGHWAY ACT, THE. See Table of Statutes, 5 & 6 WiU. 4, c. 50. HIGHWAY RATE, 1378. HOADLEY, BP. OF BANGOR, 1541. HOLIDAYS EXTENSION ACT. See Table of Statutes, 38 & 39 Vict. c. 13. HOLIDAYS, PUBLIC, 809. HOLT, CHIEF JUSTICE, opinions and judgments of, 257, 444 509, 802,.1095, 1117, 1292, 1472, lolo', 1591. HOLY COMMUNION, THE, 109 111 135, 519-537. See Lord's Supper. HOLYDAYS. common prayer to be used on, 762. statute respecting feast days, 804, 805. fasting days, 806, 807. days of special service, 809. See Public Worship. HOLY ORDERS, validity of, 4. whether a sacrament, 89. title to, 96. letters of, 111. indelible, 96, 90S. relinquishment of, 909 — 911. power of bishop to depose from, under Clergy Discipline Act, 1042. colonial and foreign, 1807— 181S. HOLY TABLE, THE, 709, 711, 714, 723, 724, 725, 731, 732, 735, 772, 771, 777. See Altar. HOMILIES, THE, 485, 542, 727, 790. HONORARY CANONRIES, may be held with two benefices, 187, 900. HONORIUS I., POPE, 1527. HOODS, canon, as to the wearing of, 720, 721. HOOKER, RICHARD, 531. 1848 INDEX. HOPS AND HOP- GROUNDS, extraordinary tithe payable for, 1163, 1181, 1207. tithes of,, how to be valued, 1181. provision for change of culture, 1182. mixed plantations of hops and fruit, 1183. rent- charge for, 1163, 1181. no extraordinary charge for first year, 1183. redemption of extraordinary charge, 1184—1187. HORNE TOOKE, 480. HORSLEY, BP., charge of, 424. HORTON, MRS., marriage of, to Duke of Cumberland, 578. HOSPITALERS, THE, 179, 1153. HOSPITALS, presentations by brethren of, 277, 281, 282. exempted from first fruits, 1361. ecclesiastical hospitals, 1588. foundations of Christ's, Bridewell, St. Thomas's, St. Bartholomew's, con- firmed by 14 EUz. c. 14. . 1589. when considered benefices, ib. divers kinds of , ib. power of foundation of, ib. visitation and government of, 1590. elections in, 1591. how far exempt from rates and taxes, 1591, 1592. Sutton's, 1591, 1618. St. Katherine's, 1593. estates of, ib. Christ's, 1618. Charter House, ib. Emmanuel's, ib. augmentations of benefices by, 1680, 1681. HOST, THE, elevation of, 766, 767. HOSTELRIES, 1595, 1601. HOSTIARIES, office of, 106. See Ostiaby. HOUSE, whether tithable, 1193. HOUSE OF COMMONS, chaplains of, 457. HUSBAND, presentations by, in right of his wife, 277, 286. HYMNS, 729, 764, 776. ICONOCLASTS, schism of, 1524. IDIOTS, marriage of, not valid, 560. suits by, 957. ILLEGITIMATE ALLIANCES, 573. children, marriage of, 556, 583. ILLITERACY, a cause of deprivation, 1082. IMAGES, in churches, 729, 730, 733, 734, 1401, 1527. IMMERSION, at baptism, 486. IMPROPRIATION, difference between and appropriation, 219. IMPROPRIATOR, lay, rights of, in chancel, 227, 231. duties of, as to repairs, 1416. seat of, in chancel, 1432. may annex tithes to parsonage or vicarage, 1676, 1680. INAUGURATION DAY, 809. INCENSE, use of, 731, 768, 769. INCEST, suit for, 833. penance for, 1066, 1069, 1070. INCOME TAX ACT. See Table op Statutes, 16 & 17 Vict. c. 34. INCUMBENT, status of, under 31 & 32 Vict. c. 117.. 237. rights over chapels in his parish, 250, 907. profits from glebe on death of, 377. rights of lessees under, ib. exchange of benefice by, 379. sinecures held by, 382. resignation of, 385. lunatic, 393, 428. union of benefices under, 396. laws as to curates of, 424. See Curate. non-resident, 426, 884. inhibition of, under Public Worship Regulation Act, 1032. causes of deprivation of, 1083. See Benefice ; Clergy ; Vicab ; Di- lapidations. INDEX. 1849 INCUMBENT'S RESIGNATION ACTS. See Table of Statutes, 34 & 35 Vict, c. 44 ; 50 & 51 Vict. c. 23. INDICAVIT, ■writ of, 345. INDUCTION TO A BENEFICE, gives authority to preach, 111. mandate of, 359. manner of, ib. fee for, 360. effect of, 361. of temporal cognizance, ib. requisites after, 363. INERT ORNAJIENTS, 722. INFANTS, presentation to benefice by, 277, 278. public baptism of, 486. private baptism of, 491. INFIDELITY, a cause of deprivation, 1083. IN FORMA PAUPERIS, suits in ecclesiastical courts, 957. INHIBITION, an ecclesiastical censure under Public Worship Regulation Act, 838. writ of, 977. when must precede an appeal, 978. effect of, ib. discretionary, 979. pendente lite, 1024. under Public Worship Regulation Act, 1032, 1033. during visitation, 1050. during sequestration, 1081. to schoolmaster, 1622. INJUNCTIONS, THE, of (1547). .789, 800, 858. of (1559). .713, 789, 800, 808, 858, 1617. INNOCENT EC., POPE, 1390. INNOCENT III., POPE, SO, 520, 898, 1148, 1399. INNOCENT IV., POPE, 1355. INSCRIPTIONS, on tombstones, 694. INSTALLATION, of bishops, 51. of deans, 127. of prebendaries, 139. INSTITUTION, form and manner of, 354. entiy of, in register, ib. bishop's book of, 355. letters testimonial of, ib. INSTITUTION — continued. effect of, 357. trial of, 358. super-institution, ib. corrupt institution, 860. INSURANCE, of residence houses, 1137, 1146, 1275, 1276. INTERVENERS, who, 958. INTHRONIZATION, of archbishops, 32. of the queen, 822. ENTTT ULATTON, what, 382. INVESTITURES, conflict of the, 33. IRELAND, marriages in, 553, 1759. IRELAND, CHURCH IN, constitution of, passed in (1870) . .2. designation of, 2. formerly under the primacy of Arch- bishop of Canterbury, 31. bishoprics in, 33, 52. Bishop of Clogher's case, 71. union of, with Church of England, 1749. organization of, before Irish Church Temporali ties Act, 1750. provisions of 3 k 4 Will. 4, c. 37, and 4 & 5 WiU. 4, c. 90.. 1750. archbishops and bishops in, 1750, 1751. deans and chapters of the, 1751. diocesan synods of, ib. one peculiar, 1752. parochial clergy of, ib. disestablishment of, 1753. abolition of ecclesiastical courts and law, 834, 1756. incorporation of church body, 1756. provisions as to churches and burial grounds, ib. dissolution of legislative union with English Church, 1753, 1754. prohibition of future appointments, ib. property vested in commissioner*, ib. dissolution of ecclesiastical corpora- tions in, 1755. bishops not to sit in House of Lords, ib. repeal of laws prohibiting synods, ib. residence houses and glebes, 1 7 7 . moveable chattels, 1758. saviDg as to chapels proprietary and of ease, 1759. marriages in Irish churches, ib. 1850 INDEX. IRISH CHURCH ACT. See Table of Statutes, 32 & 33 Vict. c. 42. IRISH CHURCH TEMPORALITIES ACT. See Table of Statutes, 4 & 5 Will. 4, c. 90. IRISH PRAYER BOOK, THE, 467, 696, 1390, 1753, 1818. IRREGULAR MARRIAGES, 552. ISLIP, ABP., constitution of, 424. registry of, 1055. JAMES I., additions of, to the Book of Common Prayer, 746. Book of Sports of, 800, 801. offering of, 1242. JAMES II., 1539. JENKINS, SIR L., 213. JENNER, SIR H. See Fust. JEROME, ST., 703. JERSEY, ecclesiastical court in, 927, 1116. JERUSALEM, Anglican bishopric at, 3, 537, 1808 — 1810. dedication of church at, by Constantine, 1391. JEWEL, BP., 6, 571. JEWS, marriages of, 563. exempt from penalties for working on Sundays, 804. JOHN XXII., POPE, 1355. JUDGES. See Cottbts; Pbactice. JUDICIAL COMMITTEE OF PRIVY COUNCIL, appeals to, 972, 973, 975. origin of, 973. evidence taken by, ib. members of the, ib. discretion of, as to costs, 974. time of appeal to, ib. general powers of, ib. bishops sitting as assessors in, 975. whether minority in, can express dis- sent, ib. table of rules of procedure in, 998. JULIAN KALENDAR, THE, 781. JULIUS III., POPE, 1528. JURAL PERSONS, what, 1120. JURISDICTION. See Couets ; Peac- TICE. JUS ECCLESIASTIC UM, 10. JUS PATRON ATUS, what, 261. form and manner of trial of, 332. procedure on, 334. effect of, 337. JUSTINIAN EMPEROR, 1121, 1390. KALENDAR, year to begin on 1st January, 781. eleven days thrown out, ib. enactments respecting, 781, 782. enactments respecting Table of Lessons and Psalter, 782, 783. KEBLE COLLEGE, 1584, 1599. KELLY, LORD CHIEF BARON, 976. KENYON, LORD, judgments of, 445, 795, 871, 1428. KEYS, of church, 1385. KIDS, tithe of, 1150. KING'S BOOKS, THE, 1356. KING, THE, supremacy of, by common law, 6. by statute, 6, 8. oath of allegiance to, 9. consent of, to election of bishops, 21. right of patronage of, 33 — 35. mandates of, for confirmation and con- secration of bishops, 36, 48, 78. letters patent granted by, 38, 49, 50, 127. statute of 31 Hen. VIII. c. 9, respecting power of foundation of, 144. right of presentation of, to benefice or dignity vacant by promotion to a bishopric, 52, 293. has temporalities of bishopric during vacation, 64, 279. assent of, to election of dean and chap- ter, 127. has profits of peculiar during vacation, 215. is patron paramount of all benefices, 293. privileges of, as to advowsons, 267. writ of, to bishop to admit a clerk, 349, 350. INDEX. 1851 KING-, THE — continued. no lapse from, 371. chaplains of, 452, 456. priests in ordinary to, 456. confessor to household of the, 540. inauguration day of, 809. Coronation Service, 813 — 826. oath of, at coronation, 817. right of presentation of, in case of cor- rupt presentation, 875. Archbishop of Canterbury may grant dispensations to, 946. ecclesiastical jurisdiction of, by way of visitation, 1062. grant of pardons by, 1107. tithes belonging to, 1149. offerings of, 1242. first fruits given to, 1356. free chapels of, 1452. right of visitation of, 1452, 1605—1608. powers of, as to convocation, 1535, 1552. KNIGHTS OF THE GARTER, THE, 805. LAITY, THE, 17. discipline over, 827. suspension of, 1072. LAMBETH CONFERENCE, 3, 1529. resolutions of, 3. LAMBS, tithe of, 1150. LAMMAS LANDS, tithes of, 1177. LANDS, CHURCH. See Glebe Leases. LANDS CLAUSES CONSOLIDATION ACT. See Table of Statutes, 8 & 9 Vict. c. 18. LAND-TAX, 1364. And see Tax. LANFRANC, ABP., 58, 651. LANGTON, ABP., constitutions of, 58, 211, 318, 348, 356, 527, 673, 1051, 1282. LAODICiEA, councils of, 75, 1528. LAPSE, none of a canonry, 165. none of a donative, 256, 372. nature of, 366. incurred in six months, ib. case of insufficient clerk presented, 368. where usurpation, ib. P. VOL. II. LAPSE — continued. where, happens through bishop's own default, 368. shall not incur per saltum, 369. bishop being patron and ordinary shall not have twice six months, 370. incurred during metropolitical visita- tion, ib. bishop dying after lapse incurred, ib. none from king, 371. patron's right where advantage of, not taken, ib. under Clergy Discipline Act, 1041. LATERAN COUNCILS, 14, 98, 219, 380, 854, 1148, 1153, 1528, 1616, 1634. LAUD, ABP., 98, 167, 1390, 1606, 1622. LAWRENCE, DR., opinions of, 494, 983. LAY BAPTISM, 491, 493, 708, 709. LAY READER, 451, 1382, 1521. LAY RECTOR, rights of, as to vaults and tablets in chancel, 695. is bound to repair chancel, 1416. LEASES, under Tithe Commutation Acts, 1163. before the statutes of Victoria, 1281. by ecclesiastical persons de facto, ib. by common law, 1282. by corporations aggregate, ib. who must confirm, ib. by corporations sole, 1282, 1285. patron must have fee simple, 12 S3, requisites for confirmation of grants, ib. how corporation should confirm, 1285. under disabling statutes of Elizabeth, ib. by enabling statute of 32 Hen. S, c. 28, 1285, 1286. old law respecting, nearly obsolete, 1286. of tithes formerly void against suc- cessor, 1287. contrary resolutions, 1288. action of debt lies for rent on, 12S9. must be by deed, 1290. who are within statute of 32 Hen. 8, c. 28, ib. expiry of former lease, 1291. lands usually let ten, ib. length and date of, 1292. of bishops by disabling statute of 1 Eliz. 0. 19.. 129.!. as to copyholils, 1291. when voidable may bo confirmed by successor's acceptance of tout, i/>. by hospitals and colleges, 12 <*., r_V'7. of houses under 11 l'lliz. c. 11 . .12 S. concurrent leases, 1299. 6 D 1852 INDEX. LEASES —continued. of portions of lands usually letten to- gether, 1300. further regulations as to, 1300, 1301. charges on, for stipends of vicar, curate, or schoolmaster, 1301. under Enclosure Acts, ib. rectors, when may demise allotments, 1302. may charge improvements, 1303. restrictions on ecclesiastical persons granting, ib. recitals to be evidence, ib. may be granted conformable to ancient practice, 1304. contrary to 6 & 7 Will. 4, c. 20, void, ib. bonds to defraud the disabling sta- tutes, 1305. of houses of residence, ib. apportionments of rent, ib. leasing statutes of Victoria, 1321. agricultural leases, 1321, 1330. restrictions on powers of letting, 1322. surrender of, ib. consent of patrons, ib. lands holden in trust, 1323. building, ib. way and water, 1324. mining, 1324, 1326, 1341. confirmation of void, 1324. restrictions on, ib. who are to consent to, 1325. in consideration of premiums, 1326. land acquired under this act to be letten at rack rent, 1327. exception for Isle of Man, 1328. of lands assigned as endowments, ib. leases by dean and chapter when re- endowed, 1329. provisions in 46 & 47 Vict. c. 61, as to ecclesiastical landlords, 1330. sale of glebe by land commission, 1331—1336. extinguishment of old leasehold inte- rests, 1337. statutes relating to the subject, ib. power to sell, exchange and enfran- chise, ib. interests of lessees, ib. as to arbitration, 1339, 1342, 1345, 1346. for schools, 1340. power to sell estates holden under lease, 1344, 1345. - renewals where estate vested in trus- tees, 1346. enfranchisement of copyholds, ib. LECTION ART, NEW, 783. LECTURE, transfer of, 444, 449. times of, 445. LECTURER, office of, 444. how appointed, 445. when bishop may refuse to appoint, ib. licence of, 446, 447, 449. may be required to perform other clerical duties, 447. LEE, DR., Bishop of Manchester, 40, 46. LEE, SIR G., judgments of, 932, 1453. LEET COURTS, THE, 832. LEGATES, PAPAL, admission of, to England, 1110. LEGEND, THE, 728, 729. LEIGHTON, DR., judgment given against, 1086. LENT, observance of, 807. penance performed during, 1066. LETTERS DIMISSORY, 99—102. LETTERS OE BUSINESS, 1541. LETTERS OE ORDERS, 111, 112, 1053, 1054. LETTERS OE REQUEST, what, 980, 981. when refused, 981. to examine witnesses, 981. no form of, 1022. archbishop may send to his own court, ib. court must receive, ib. LETTERS PATENT, 38, 49, 50, 127, 1642, 1794, 1795, 1798. issue of, to bishops in colonies discon- tinued, 1786. LETTING. See Leases. LEVARI FACIAS, writs of, 1076, 1077, 1078. LEVITICAL DEGREES, 564. table of, 566—568. LIBEL, nature of, 990. principles of law governing, ib. delay to admit, 991. prohibition for not delivering copy of, 1117. LIBRARY, PAROCHIAL, visitation of, 1053. establishment of, 1636. ordinary to visit, ib. to be locked up daring vacancy of the church, ib. INDEX. 1853 LIBRARY, PAROCHIAL-coHfiW. new incumbent to give security, 1637. to make new catalogue, ib. books not to be alienable, ib. remedy if books lost, &c, ib. account to be kept of new benefactions, ib. new regulations, how to be made, ib. LICENCE, to elect archbishop or bishop, 35. to consecrate bishops of the province of Canterbury elsewhere than at Canter- bury, 48. to preach, 111, 786, 788, 1610. of curates, 242, 247, 248, 249, 442, 443. of lecturer, 446, 449. for chapels for solemnization of mar- riages, 590, 591, 634, 1759. of ordinary for marriage, 607, 1759. enactments of present Marriage Act in respect to, 609, 610. when illegally granted, 610. fraud in, 611. in false name, ib. special, 612, 613. forgery of, 613. of registrar for marriages, 614, 619. withdrawal of, by ordinary from priest to officiate in diocese, 839. for non-residence, 886, 887, 890—894. to hold two benefices, 902, 903. inspection of, at visitations, 1053. to perform services in chapels, 1451. to teach in schools, 1620, 1621. for temporary place of worship, 1727. LICHFIELD, diocese of, 25. consistory court of, 1000. LIGHTS, upon the altar, 710, 711, 772—775. near the altar, 774, 775. LIMITATIONS, STATUTE OF. See Table of Statutes, 32 Hen. 8, c. 2. LINCOLN, diocese of, 25. guardianship of spiritualities of, in time of vacation, 63. consistory court of, 1000. cathedral statutes of, 1399. LINCOLN, BP. OF, CASE OF. See Bp. of Lincoln v. Read ; Table of Cases. LITANY, kneeling at reading of, 737. form of, altered, 745. when to be used, 762. LITIS CONTESTATIO, what, 961. LITURGY, THE, 482. before acts of uniformity, 742. established by acts of uniformity, 743 — 749. See Ritual. LIVERPOOL, creation of bishopric of, 28, 189, 190. consistory court of, 1000. LP7ING, use of term, 272. See Advowson; Bene- fice. LLANDAFF, diocese of, 26, 325. cathedral of, 138. consistory court of, 1000. LOANS, by governors of Queen Anne's Bounty and by corporations, 1137, 1139. LONDON, diocese of, 24. councils of, 98, 108S. consistory court of, 999. synod of, 1110. city of, tithes in, 1192, 1193, 1223, 1231, 1237. fire of, 1229. Easter offerings in, 1243. fees in, fixed by chancellor of diocese, 1251. churchwardens in, 1471, 1472. legislation as to parochial charities of, 1572. university of, 1619. LONDON, BP. OF, provincial dean of the Abp. of Canter- bury, 31. precedence of, 32. order of sitting of, in parliament, 57. power of, as to union of benefices within metropolis, 405. LORD'S DAY, THE. See Sunday. LORD'S SUPPER, THE, who to consecrate, &»., 109, 111. administration of, in cathedrals, 135. sacrament of, 519. principal act of worship, ib. names of this sacrament, ib. who shall be admitted t.>. ,V_M. not to be administered in private house, except in necessity, 523. notice to be given of, 524. names when given, tb. number requisite for communicating, 524. bread and wine to be provided, 626, offertory at, 526. vestments of minister officiating, %b. Holy Table, t*. See Altab. posture of communii :ii its ik communion in both kinds, 527. bread and wine remaining, ib. oblations due to minister, tb. how often in the year to be administer* d, 528. penalty for depraving, 629. 6d2 1854 INDEX. LORD'S SUPPER, THE— continued. service when bo communion, 529. alteration of rubric, ib. Real Presence, the, ib. Bishop Jeremy Taylor on the Presence, 529, 530. Hooker on the same, 531. legal decisions upon, 532 — 537. case of the Archdeacon of Taunton, 532. jud°rment in the case of Sheppard v. Bennett, 533—537. elevation of the Host, 766, 767. consecration of the Bread and "Wine at, 767, 768. LOUIS LE DEB ONN AIRE, capitularies of, 1616. LOUTH SCHOOL, 1619. LUNACY ACT, THE. See Table of Statutes, 53 & 54 Vict. c. 5. LUNACY ACTS AMENDMENT ACT. See Table of Statutes, 25 & 26 Vict, c. 111. LUNATIC, incumbent, 393, 428. marriage of, when void, 560, 561. burial of, 667. suits by, 957. LUNATIC ASYLA, chaplains to, 469. cemeteries made for, 667. LUNATIC ASYLUMS ACT. See Table of Statutes, 16 7. colleges and other corporate Kulies may lend money to build, LI 88, Kill. consent of patrons, where necessary, 1140. consent, how testified, where crown patron, 111. where patron incapacitated. 111-. 6 e 2 1870 INDEX. RESIDENCE HOUSES— continued, of the parochial clergy — continued. where patronage attached to duchy of Cornwall, 1142. dilapidation moneys, ib. grant of sites for, ib. of bishops, deans and canons, 1143. disposal of, ib. may be taken down, sold or altered, 1144. provisions of 5 & 6 Vict. c. 26, re- specting, 1144, 1145. chapters, deans and canons may pur- chase and alter, 1145. bishop's house may be made the deanery, ib. fixtures in, 1146. insurance of, ib. repairs of, 1258, 1259. See Dilapida- tions. nature of repairs, 1262. faculty required for alterations in, 1263. leases of, 1305. power to exchange, 1306, 1307. to annex by benefaction, 1309. to sell when unfit for residence, 1316. purchase-money to be paid to governors of Queen Anne's Bounty, 1316. sale of, by governors of Queen Anne's Bounty, 1655. power of ecclesiastical commissioners as to, 1673. gifts of sites for, 1679. in Ireland, 1757. RESIGNATION, Bishops Resignation Act, 82. of bishops, ib. of deans and canons, 191. power of bishop to direct inquiry into incapacity of dean or canon, ib. of benefices, 385. to whom to be made, ib. whether in person, 386. absolute and not conditional, ib. ordinary may accept or refuse, 387, 868. in what time lapse incurred, 388. fee for instrument of, ib. corrupt, 388, 861. provisions of 34 & 35 Vict. c. 44, re- specting, 389, 1025. commissioners to inquire and report, ib. notice of intention to issue commis- sion, 390. limitation of pension to retiring in- cumbent, ib. who to consent to deed of, 391. by lunatic, 393. patron to present to resigned benefice, ib. pension to be charged on benefice, ib. pension to cease in certain circum- stances, 394. RESIGNATION — continued. resignation bonds, 389, 866, 870. engagement to resign benefice, when made valid by statute, 873. relationship of parties, ib. persons so agreeing not liable to penalty, ib. such presentations valid, 874. deed to be deposited with registrar, ib. copy of, evidence, ib. to be void unless the person be pre- sented within six months, ib. act not to extend to presentations by crown, 874, 875. in case of pensions on, annual value of benefice after deduction of rates and taxes to be ascertained, 1377. RESPONSIVE ALLEGATION, 962, 963. RESTORATION, THE, 809. REYNOLDS, ABP., constitutions of, 94, 100, 102, 248, 1052, 1418. RHEIMS, council of (1094).. 856. RING, episcopal, 49. marriage, 631. investiture of king by, 820. RIOT DAMAGES ACT. See Table op Statutes, 49 & 50 Vict. c. 38. RIPON, diocese of, 26. cathedral of, 189. consistory court of, 1001. RITES, 706. RITUAL, 482. necessity of, 702. distinction between mutable and im- mutable ceremonies, ib. bishop, authority as to, 704. law of the Church of England as to, 705. structure of Prayer Book, ib. rites and ceremonies, distinctionbetween, 706. sources of, in England, ib. construction of rubrics as to, ib. common law of the church as to, 707. construction of the advertisements, 713, 714. judgments of Arches Court as to, 707 — 716, 718. judgments of Privy Council as to, 716, 717, 719. list of modern cases on, 766. INDEX. 1871 RITUAL COMMISSION, THE, 749. report of, 1541. RIVES, DR., opinion of, 39, 40. ROCHESTER, diocese of, 25. consistory court of, 1001, ROCHET, 712, 729, 730. ROGATION DAYS, 807, 808. ROLT, SIR J., opinion of, 1563. ROMAN CATHOLIC RELIEF ACT. See Table of Statutes, 10 Geo. 4, c. 7. ROME, CHURCH OF, separation of, from Eastern Church, 2. number of sacraments in, 483. use of oil by, in confirmation, 515. practice of, as to church music, 764. appeals to, 946, 947, 968, 1111. encroachments of, in this realm, 1109. opposed by statutes of provisors, 1110. tribute of first fruits imposed by, 1355. in Lower Canada, 1791. late position of, with regard to English Church, 1817. form of admitting converts from, 1818. ROOTS, tithe of, 1150. ROYAL MARRIAGE ACT, THE. See Table of Statutes, 12 Geo. 3, c. 11. ROYAL OFFERINGS, 1242. ROYAL VISITATION, 1062. RUBRICS, concerning ornaments of churches and ministers, 49. in baptismal services, 486—488, 495, 516. in confirmation service, 518, 521. in communion service, 521, 523 — 527, 529. in order for visitation of the sick, 542. in marriage service, 581, 588, 631. in service for churching of women, 645, 646. in office of communion of the sick, 649. as to ritual, construction of, 707 — 709, 723. as to vestments, 711, 712, 719. as to feasts and fasts, 805, 806. as to burial of persons excommunicate, 1089. as to Easter offerings, 1243. as to chancel, 1402. RUGBY SCHOOL, 1619, 1626. RURAL DEANS, antiquity of office of, 208. appointment of, ib. oath of office, 209. holding rural chapters by, 209, 210. attendance of, at bishop's visitation, 211. judicial authority of, ib. their continuance in office, 212. their disuse, ib. modern position of, 213. right of, in election of surveyor of dila- pidations, 1265. may request inspection of buildings of benefice, 1266. complaint by, of want of repairs, 1268. SACRAMENTS, 482. meaning of the term, 483. number of, ib. doctrine of the Church of England as to, ib. demanding money for, 1084. See Baptism ; Lord's Suppee, The. SACRISTA, 1516. SACRISTAN, 1516. SAFFRON, tithe of, 1150. SAINTS' DAYS. See Holydays. SALISBURY, diocese of, 25. consistory court of, 1001. SANCROFT, ABP., 82, 353. SANCTUARY, violation of a, 1084. privilege of, abolished, 1387. SARDICA, council of, 125. SARUM MISSAL, THE, 705, 710. SAVONAROLA, 1528. SAVOY CONFERENCE, THE, 511,710, 748. SCANDALUM MAGNATUM, 62. SCHISMATICS, 830, 831. SCHOOLS, leases of lands let to. 1310. exempt from payment of first fruits, 1361. chapels to, 1 161, 1626, 1630. origin and d liferent kinds of, 1615. Anglican, 1616. after twelfth century, ib. of ecclesiastical cognizance in England, 1617. free, ib. 1872 INDEX. SCHOOLS — continued. endowed, 1617. grammar, ib. foundation of grammar, 1618. relation of, to colleges, ib. grants of sites for, ib. for sons of tradesmen and theological colleges, 1618. law as to education in grammar, ib. ecclesiastical jurisdiction over grammar, 1619. certain schools to he grammar schools and masters subject to ordinary, 1621. court of chancery may give powers of visitation to bishop, ib. saving rights of ordinary, ib. visitation articles, ib. articles for teaching without licence, ib. ordinary may refuse licence, 1621, 1622. whether deprivation for teaching with- out licence, 1622. when curates may have licence to teach, ib. inhibitions to schoolmasters, ib. beneficed clergy may keep, ib. governors of, to subscribe Thirty-nine Articles and Prayer Book, 1623. as to Roman Catholics in, 1624. position of dissenters in grammar schools, ib admission of children of dissenters, to, ib. power of trustees to admit children of certain denominations, to, 1625. dissenters trustees of, ib. recent legislation, ib. Public Schools Act, 1626. Endowed Schools Act, 1627. religious education in day schools, 1628. _ in boarding schools, ib. governing body not disqualified for religious opinions, 1629. masters not required to be in holy orders, ib. excepted from provisions as to reli- gion, ib. abolition of jurisdiction of ordinary, over, 1630. claims of cathedral, 1630. school chapels not under parochial jurisdiction, 1630. elementary, 1632. regulations for conduct of, ib. school boards, ib. inspection of voluntary, 1633. parliamentary grant for, ib. united to national society, 1625, 1747. SCHOOLMASTER, power of dean and chapter to remove, 130. licence of, 1622. power of Eccles. Comm. to increase stipend of, 1668. SCIRE EACIAS, writ of, 1098. SCOTLAND, marriages in, 553. SCOTLAND, CHURCH IN, formerly under jurisdiction of York, 32. bishop of St. Andrews created arch- bishop and metropolitan of, ib. statutes respecting, 117. act for settling government of, 1760. statutes affecting episcopal church in, ib. whether persons admitted to holy orders in, may hold benefices in England, 1762. discipline of, ib. canons of, 1765. primus of, the, 1766. number of sees in, ib. bishopric of Gibraltar conferred on Scotch bishop, ib. representative church council of, ib. bishops and clergy of, ib. first bishop in the United States con- secrated by, 1768, 1771. foundation of bishopric of St. John's, Kaffraria, by, ib. Presbyterian Church established, 1760. SCOTT, SIR W., 200. SCREEN IN CHANCEL, 1402. SEA, form of prayer to be used at, 462. SEABURY, BP., 1771. SEATS, CHURCH, in churches of united parishes, 405, 415. origin of distinct property in, 1424. no payment for pews, ib. parishioner a right to, ib. parishioners when to repair, ib. non-parishioners no right to, 1425. ordinary to dispose of, ib. in cathedrals, ib. in the nave, 1426. churchwarden's power to dispose of, 1426, 1483. appropriation of, 1427. reparation necessary to make a title, ib. may be prescribed for as belonging to house, 1428. claimant must repair, ib. evidence of possession, ib. when repair of, must be proved, 1429. right to, not an easement within Pre- scription Act, 1430. cannot be claimed as belonging to land, ib. not to go to a man and his heirs, ib. priority in, maybe prescribed for, 1431. apportionment of, ib. faculties for, 1431, 1432. in chancel, 1432—1434. INDEX. 1873 SEATS, CHURCH— continued. of impropriator in chancel, 1432. of vicar, 1433. pulled down, 1434, 1435. power to punish illegal erection of, 1435. possessory right to, ib. . right to, where triable, 1436. suit for perturbation of seat, 1?436. under Church Bunding Acts, 1719. And see Pews. SECRETARY OF BISHOP, fees of, 357, 388, 944, 1274. nature of office of, 944. has no vested rights, 945. returns by, ib. SEES OF BISHOPS. ^Bishopric. SELBORNE, LORD, opinions of, 219, 1195, 1196. SELECT VESTRY, 1500—1503. SENTENCE, by canon law, 965. must be in writing, ib. given in presence of both parties, 966. either definitive or interlocutory, ib. execution of, ib. appeal from, 967. under Clergy Discipline Act (1892), 1041. SENTENCES OF SCRIPTURE, on church walls, 727. SEQUESTRARI FACIAS, "WRIT OF, 1077. SEQUESTRATION ACT, THE. See Table of Statutes, 34 & 35 Vict, c. 45. SEQUESTRATION, on benefice becoming void, 375. management of profits of, ib., 376. power of bishop to assign stipend of curate of sequestered benefice, 377. an ecclesiastical censure, 838. process by, 1005. appeal against, 1006, 1009, 1076. benefice sequestrated for one year to become void, 1008. under 1 & 2 Vict. c. 106, to have pri- ority, 1009. when not to issue after monition, 1010. with suspension, 1073. when writ of, issues, 1074. as a punishment, 1075. during vacancy of benefice, 1075, 1483. where none will accept benefice, ib. in case of outlawry, ib. for debt, ib. in case of transferred portions of dio- cese, 1076. nature of writ, ib. SEQUESTRATION— continued. under present bankruptcy act, 1076. case in which later takes precedence of earlier, 1077. issued in the order in which writs are delivered, ib. priority of, of judgment creditors over assignee of bankrupt incumbent, 1078. sequestered benefice liable for dilapi- dations, 1080. under 1 & 2 Vict. c. 106, and under the Sequestration Act, 1081. presentation to benefice under, ib. where party contumacious, 1104. repairs and dilapidations of benefice under, 1266, 1267, 1276. inspection by survevor of benefice under, 1266. payment of money to governors enforced by, 1273. SEQUESTRATOR, duty of, 375, 1078. may sue in his own name, 375, 1075. curate paid by, 376, 1077. bond of, 1078. to what entitled, 1079. amenable to ecclesiastical judge, ib. suits in equity against, ib. application to temporal courts by, 1080. dilapidation moneys paid by, 1266. SERMONS, 478, 632, 757, 789, 790, 1053. And see Pee aching. SERVICES, shortened form of, 756, 757. separation of, ib. in Welsh tongue, 762. See Public Worship. SETTLED LAND ACT. Sec Table of Statutes, 45 & 46 Vict. c. 3S. SEWERS RATE, 1378. SEXTON, duty on licence of, 450. in cemeteries, 682. fees of, 1251. nature of office of, 1516. mandamus for, 1 6 1 7 . women may be, ib. quo warranto, 1518. when office full and right to elect doubt- ful, ib. appointment of, ib. general law as to, ib. under Church Building Acts, 1719. SHAVERS, office of, 106. SHEFFIELD NOTARIES, 951. SHELDON, AB1\, 15:52. 1538. 1874 INDEX. SHERIFF, catmot levy on ecclesiastical goods, 476. exempt from serving as churchwarden, 1467. SHERLOCK, BP., 885. SHIPS, on foreign stations, marriages on, 628. SHREWSBURY, SCHOOL, 1626. SHROUDS, stealing of, 689. SICK, visitation of the, 458, 482, 549, 648. communion of the, 648, 649. SIDESMEN, who, 1463. how appointed, ib. oath of, 1479. declaration in lieu of, ib. See Churchwardens. SIGNIFICAVIT, form of, 1101. causes of offence to be specified in, 1093. SIMONY, in promotion to orders, 108. clergyman may not purchase next pre- sentation, 271, 881. oath against, 351, 858. by canon law, 854 — 858. declaration against, 859. by 31 Eliz. c. 6. .860. corrupt institution, ib. corrupt resignation, ib. corrupt ordination, ib. simoniacal presentations void, 860, 875. sale of advowsons, 861 — 866. resignation bonds, 866. penalties for, 876, 1082. punishable in ecclesiastical court, 878. statutes of Will. 3 and Anne respecting, 881. clergyman may not sell next presenta- tion, 882. See Benefice ; Presentation ; Resignation. SINECURE, origin of, 225, 381. no sinecure where one incumbent, 382. possession of, how obtained, ib. not within statutes of pluralities, ib. suppression of sinecure rectories, 383. endowments of, vested in ecclesiastical commissioners, ib. annexation of, to cures of souls, 384, 1692. resignation of a, 387. SIXTUS IV., POPE, 32. SMALL TITHES, 1148. SOCIETIES, CHURCH, church building, 1739. qualification of members, 1740. general court of, ib. orders, &c, of the committee, ib. rules to be observed by, in selecting parishes, 1740, 1741. for the Propagation of the Gospel, 1741. election of officers, ib. charter of, 1741, 1771. meetings of, 1742. members of, ib. subscriptions to, ib. accounts of, ib. supplemental charter of, 1743. bye-laws of, 1745. received Canadian Clergy Reserve Funds, 1791. national, 1625. schools united to, ib., 1745. charter of, 1625. regulations of, 1747. trust deed for schools united to, ib. for Promoting Christian Knowledge, ib. corporation of the Church House, ib. charter of, 1748. Church Missionary Society, 1771. SODOR AND MAN, diocese of, 26, 27. bishop of, 85, 1784. consistory court of, 1001. provisions as to, in leasing statutes, 1328. SOLICITORS, may act as proctors, 939. SON, whether may be presented to a benefice next to his father, 311. SOUL-SHOT, THE, 685. SOUTHWELL, creation of bishopric of, 29, 189. consistory court of, 1001. SPARROW, BP., 647. SPEAKER, THE, in absence of chaplain reads prayers, 457. SPECIAL LICENCE, for marriage, 612, 613, 637. SPIRE, CHURCH, repair of, 725. SPIRITUALITIES, of bishoprics in the time of vacation, 62. SPOLIATION, when grantable, 360. SPORTS, how far permitted on Sunday, 799. book of, 800. INDEX. 1875 STAMFORD, dean of, 214. STAMP ACT, 65. duties imposed by, on letters-patent for the election of a bishop or arch- bishop, 65. on appointment to any benefice or per- petual curacy, abolished, 314. licence of stipendiary curate exempt from, 443. on licence to lecturer, reader, chaplain, parish clerk, &c, 449. on extracts from parish registers, 505. on admission of notary, 950. on licence for temporary place of wor- ship, 1727. And see Table of Statutes, 54 & 55 Vict. c. 89. STATUTE LAW REVISION ACTS. See Table of Statutes, 36 & 37 Vict, c. 91 ; and 50 & 51 Vict. c. 69. STEPHEN IV., POPE, 1524. STEPHEN, KING, 1295. STIGAND, ABP. OE CANTERBURY, 1110. STILLBORN CHILDREN, burial of, 873. STILLINGFLEET, BP., 800. STIPENDIARY CURATES, declaration of, 423. ineligible to convocation, 1547. See Curate. STIPENDIARY PRIESTS, who, 248. STOLES, 718. STOWELL, LORD, judgments of, 220, 227, 228, 550—553, 556, 557, 622, 626, 651—654, 676, 677, 692, 694, 738, 764, 1261, 1386, 1464. STRATFORD, ABP., constitution of, 106, 210. 356, 841, 1052, 1060, 1061, 1076, 1088, 1406, 1450, 1452. ST. ALBANS, creation of bishopric of, 28, 56, 189, 1142. consistory court of, 1001. ST. ANDREW'S, bishop of, created archbishop and metro- politan of Scotland, 32. ST. ASAPH, diocese of, 26, 27, 55, 325. consistory court of, 1001. ST. BARTHOLOMEW'S HOSPITAL, 1589, 1592. ST. BEES' COLLEGE, 1619. ST. BOTOLPH'S, ALDGATE, tithe in parish of, 1231, 1237. ST. BURIAN'S, CORNWALL. 215, 253, 1672. ST. DAVID'S, bishop of, case of. See Table of Cases. cathedral of, 138. provision for chapter of, 173. diocese of, 26, 325. consistory court of, 1001. college of, at Lampeter, 1619. ST. GEORGE'S CHAPEL, WIND- SOR, a collegiate church, 175. dean of, 214. exempt from payment of first fruits, 1361. ST. JOHN'S WESTMINSTER, annexed to canonry, 181, 215. ST. KATHERINE'S HOSPITAL, 1593. ST. MARGARET'S, WESTMINSTER, annexed to canonry, 181, 215. ST. PAUL'S, visitations of, 167. special act for minor canons in, 188. burials in, 659. school of, 1619. ST. THOMAS'S HOSPITAL, 1589, 1592. SUBDEACON, 87, 89. SUB-DEAN, how appointed, 132. peculiar position of, at Chichester, ib. SUBMISSION, ACT OF. See Tabus of Statutes, 25 Hen. 8, c. 19. SUDBURY, ABP., constitution of, 424. SUFFRAGAN BISHOPS. whether archbishop may deprive his. 00. origin of, 76, 77. sees of, 77. nomination of, 78. consecration of, ib. power of, ib. residence of, 79. may hold two livings, ib. recognized hy canons, \f>. consecration of, in (1870), ib. new sees for, 80. seats of, in lower house of oon vocation, 1543. SUICIDES, burial of, 670, 671. 1876 INDEX. SUITS, who may be parties to, 956. mode of conducting, 959. See Procedure. SUMMONED OR SUMNER, 952. SUNDAY, two services on, may be enforced in certain cases, 763. due observance of, 794. statute of 29 Car. 2, c. 7, respecting, ib. cases on this act, 795. fairs and markets on, 798. sports on, 799. houses of entertainment open on, 801. whether process to be served on, 802. robberies on, 803. bills of exchange falling due on, ib. rules for the metropolis on, ib. discharge from prison on, ib. statutes as to closing public houses on, ib. ■ factories and workshops, ib. exemption from penalties for working on, for Jews, 804. See Public Worship. SUNDAY OBSERVATION PROSE- CUTION ACT. See Table of Sta- tutes, 34 & 35 Vict. c. 87. SUNK ISLAND CHURCH FUND, 1675. SUPER-ALTAR, 724, 732. SUPERINSTITUTION, 358. SUPERSEDEAS, writ of, 1098. SUPREMACY, KING'S, by common law, 6. by statute, ib. by canons, 7. by Thirty-nine Articles, 8. definition of, ib. penalty of denying, ib. oath of allegiance respecting, 9, 36, 37, 40, 352. canon as to impugners of, 828. SURGEONS, 1635. SURPLICE, 711—714, 717, 718, 720, 730, 756. SURPLICE FEES, 1250, 1374. SURROGATE, oath of office of, 610, 915. appointment of, 915. authority of, cannot exceed that of principal, ib. SURVEYORS, of dilapidations, to be elected by arch- deacons and rural deans, 207. their appointment, 1265. SURVEYORS — continued. of dilapidations, to be elected, &c. — cont. payment of, 1265, 1274. report of, 1266, 1271, 1275. special certificate of, 1274. provision in case of death of, 1278. appointment of, under leasing statutes, 1322. SUSPENSION, an ecclesiastical censure, 838. two kinds of, 1072. by whom may be pronounced, ib. parishioners suspended " ab ingressu ecclesise," ib. when to be inflicted, ib. previous admonition necessary, 1073. intermediate profits between charge and acquittal, ib. for contempt, ib. accompanied by sequestration, ib. suspended clerk cannot maintain action for profits, 1074. under Clergy Discipline Act (1892), ib. for disobedience to privy council, 1075. SUSSEX, DUKE OF, marriage of, 580. claim of son of, ib. SUTTON'S HOSPITAL, 1589, 1618. SWABEY, DR., opinions of, 446, 655, 1431. SWEARING, how punishable, 832. SYNODICAL ACT, what, 1551. SYNODS. See Councils. SYRA AND TENOS, ABP. OF, 1817. TABLE OF DEGREES, 566—568, 727. TABLE OF LESSONS, 783. TABLE OF LESSONS ACT. See Table of Statutes, 34 & 35 Vict. c. 37. TANNER, BP., 1453. TARES, tithe of, 1150. TAUNTON, ARCHDEACON OF, trial of, 532. TAXES, of parsonage houses, curates residing in, to pay, 436. first fruits and tenths, 1355. land tax, 1364. redemption of, ib. power of corporations and trustees to contract for, 1365. who may contract for, ib. INDEX. 1877 TAXES — continued. land tax — continued. what consideration paid for redemp- tion of, 1366. governors of Queen Anne's Bounty may redeem, ib. trust-money mav be used to redeem, 1367. power to sell or mortgage or charge land for redemption of, 1368. on glebe of college livings, ib. redemption of, where rector is patron, 1369. ■when redeemed by bishops, 1370= by reversioners, ib. purchase of, by governors of Queen Anne's Bounty, ib. gifts of, redeemed for augmentation of living, 1371. sales by rectors and vicars to redeem, ib. discharge of small livings from, ib. surplus stock arising from sale of, 1372. TAYLOR, BP. JEREMY, 529, 531. TEMPLARS, THE, exempt from tithe, 1153. TEMPLE, DR., BP. OF EXETER. See Table of Cases. TEMPORALITIES OF BISHOPRICS, statutes providing for transfer of, in cer- tain cases to care of ecclesiastical commissioners, 23, 1663 — 1665. in time of vacation, 64, 279. TENANTS, in taH, 266, 301, 1207. in fee, 270, 301, 1207. by courtesy, 277, 286. in dower, 277, 287. by statute merchant, 277, 293. joint tenants, 285, 287—291. in common, 287. at rack rent, cannot redeem land tax, 1365. TEN COMMANDMENTS, table of, to be set up in churches, 723, 727. TENISON, ABP., 1539, 1544. TENTHS. See First Feuits. TERRIER, 1122. TESTES SYNODALES, 1055, 1463, 1478. TESTIMONIAL, for orders, 116. THEODORE. ABP. OF CANTER- BURY, 1527. THEODOSIUS THE ELDER, 1525. THEODOSIUS THE YOUNGER. 1525. THEOLOGICAL COLLEGES, 1618. THESIGER, SIR F., 1544. THIRTY-NINE ARTICLES. See Ae- ticxes of Religion. THURLOW, LORD, 869. TILLOTSON, ABP., 1050, 1539. TIMBER, felling of, 1258. money arising from sale of, 1314. may be cut to redeem land tax, 136S. TIPPETS, 718, 721. TITHE COMMUTATION ACTS. See Table of Statutes, 6 & 7 Will. 4, c. 71 ; 7 Will. 4 ; 1 Vict. c. 69 ; 1 & 2 Vict. c. 64 ; 2 & 3 Vict. c. 62 ; 3 & 4 Vict. c. 15 ; 5 & 6 Vict. c. 54 ; 9 & 10 Vict. c. 73 ; 23 ft 24 Vict. c. 93 ; 49 & 50 Vict. c. 54 ; 54 & 55 Vict. c. 8. TITHES, summary of history of, 1147. different kind9 of , 1148. prsedial, ib. mixt, ib. personal, ib., 1188. great, what, ib. small, what, ib. restrained to proper parish, ib. portion of, in another parish, ib. in extra-parochial places, 1149. of what things payable, 1150. things that renew yearly, ib. things of substance of the earth, 1 150. things " ferae naturse," 1151. things tame, ib. for barren land, 1151, 1163. exemptions from, forest land, 1151. park, ib. glebo land, 1152. of abbey land, 1152. 1153. catalogue of monasteries dissolved, 1154—1158. how the religious were discharged from payment of, 1 1. ">'.). recovery of, before OOQunnl it ion, ib. incumbent bound to demand, ib. who to bo sued, ib. recoverable in ecclesiastical courts, 1160. owed by Quakers, 11 CO, 1217. modus decimandi, 1160. London and local tithes, ib. 1878 INDEX. TITHES— continued. Tithe Commutation Acts, 1161. principle of, ib. features of, 1162. leases and agreements made after commutation of tithes into rent- charge, 1163. rent- charge substituted for tithe, ib. valuers to apportion rent -charge, ib. commissioners may ascertain value where no previous agreement made, 1164. value of, to be calculated upon an average of seven years, ib. to be valued without deduction for rates, 1165. form of apportionment, ib. power to alter apportionment, 1166 — 1169. rent- charge may be re -apportioned and re -distributed, 1167. consent of landowners not required where lands not charged, 1168. rent-charge to be valued according to average price of corn, 1169. prices at which conversion from money into corn to be made, ib. confirmation of instrument of appor- tionment, 1170. transcripts of the award sent to re- gistrar, ib. confirmed agreements not questioned, ib. supplemental apportionment of rent- charge, 1171. separate district for special lands, ib. custody of instrument of apportion- ment, 1172. map may be detached, 1173. renewal of defaced copy, ib. lands discharged from tithes and rent- charge paid in lieu, ib. land not to be sold for rent-charge, 1174. fixed rent-charge substituted for con- tingent, 1175. provisions as to crown lands, 1176. provisions as to ecclesiastical commis- sioners, 1177. power to sell tithe barns, ib. expenses of commutation, ib. on Lammas lands, commons in gross, &c, 1177—1181. fruit and hop plantations, 1181. how tithe of, to be valued, ib. provision for charge of culture of, 1182. dividing tithe of, ib. where newly cultivated, charged ad- ditional sum, ib. orchards displanted, relieved from, 1182, 1183. no extraordinary charge for first year, ib. district within which extraordinary charges payable, 1183. power of commissioners to inspect, ib. TITHES — continued. fruit and hop plantations — continued. Extraordinary Tithe Redemption Act. > 1184. limitation of charge, ib. capital value of extraordinary charge, ib. redemption of charge, 1186. exemption of small gardens and tene- ments, 1188. personal, house and mineral tithes, ib. act not to extend to Easter offerings, ib. power after award to make parochial agreement for Easter offerings and tithes of fish and minerals, 1190. fish in ponds, ib. deer and rabbits, ib. oysters, ib. fish in rivers and in sea, 1190 — 1193. other personal tithes, 1191, 1192. tithes in London and Canterbury, 1192, 1193. restrictions imposed by Tithe Com- mutation Act, ib. on trade profits, 1192. on houses, ib. things of substance of the earth not tithable, ib. incidents to rent-charges and tithes, 1194—1196. tithes in lay hands, 1194. limitation of recovery of, ib. rent-charge subjected to same incum- brances, as before 6 & 7 Will. 4, c. 71. .1196. tithes and rent -charges exchanged for land, ib. what land may be given, ib. agreement to operate as conveyance, 1197. owners of lands chargeable may give land instead, 1197—1199. lands taken by ecclesiastical tithe owners, 1198. corporations, &c. may convey lands, 1199. redemption of rent-charge, 1200. power to landlords to redeem, where amount does not exceed 151. , ib. payment of consideration moneys, 1201. rent- charges under 20s. may be re- deemed, ib. extraordinary charge not to be affected, ib. in cases where land is divided, 1202. redemption of tithe under 41 & 42 Vict. c. 93. .ib. power to redeem rent -charge erro- neously apportioned, 1203. where land by reason of error in boundary is not in parish, 1203, 1204. provision where land made chargeable for more than one parish, 1204. where land taken for public purposes rent-charge to be redeemed, ib. INDEX. TITHES— continued. redemption of rent-charge — continued. compulsory redemption, 1205. refusal to receive redemption money, 1205. consideration money paid to governors, 1206. expenses of redemption, ib. redemption of extraordinary tithe - charge, 1207. merger of rent- charges, ib. who may declare rent merged, 1207, 1209. on merger, charges thereof to be charges on lands, 1207. power of apportioning charges on tithes merged, 1208. tithes may be merged in copyholds, 1210. tithe of glebe may be merged, ib. former mode of recovering rent-charges, 1212. power to distrain when twenty- one days in arrear, ib. no action for damages for non- culti- vation, 1213. no action for rent-charge against owner or occupier, 1214. power to let land taken under writ of possession, ib. remedy for enforcing payment, ib. recovery of tithe-rent charged on railway land, 1215. relations between tenant and landlord respecting, 1216. recovery under Tithe Act ( 1 8 9 1 ) . . 1 2 1 7 . liability of owner to pay tithe rent- charge, ib. recovery through County Court, ib. procedure, ib. lands occupied rent free, 1220. rates due from tithe owner, 1222. tithes in city of London, 1223, 1231, 1237. excepted from general statutes, 1223. constitutions of Abp. Arundel and Bp. Niger, ib. decree respecting, 1225. churches united after fire of London, 1229—1231. corn rents under local acts, 1231. may be converted into rent -charge, 1232. how average to be calculated, ib. commissioners to apportion rent- charge, 1233. power of appeal, ib. comptroller of corn returns to furnish information, 1233, 1234. rent-charges awarded in lieu of corn- rents, 1234. the tithe commission, 1236. amalgamation of, with other commis- sion, ib. fees for expenses of, ib. powers of, transferred to Board of Agriculture, 1237. 1879 TITLE, to holv orders, 96, 1610. form of, 116. TOLEDO, council of, (681).. 22, 58, 195, 1524. TOLERATION ACT, THE. See Table of Statutes, 1 Will. & Mar. c. 18. TOLLS, clergy, when exempt from, 442, 443, 477. TOMBSTONE. See Monument. TOURS, council of, 212. TOWELS, 729, 730. TOWER OF LONDON, chaplain of, 458. church of, 253. TRAITORS, burial of, 667. TRAJAN, EMPEROR, 764. TRANSLATION, of bishops, 47, 51. TRANSUBSTANTIATION, doctrine of, 520. TRAVELLERS, parishioners of every parish, 521. TREES, in churchyard, 1407. TRENT, council of (1545).. 88, 97, 166, 195, 555, 705, 706, 1528, 1529. TRIBUNAL. See Discipline. TROPER, what, 728, 729. TRULLO, quini-sextan council, held in, 1527. TRURO CHAPTER ACT. 8m Table of Statutes, 41 & 42 Vict. c. 11. TRURO, creation of bishopric of, 28, 56. cathedral of, 28, 189, 190. provisions for exchange of patronage in diocese of, 2 7 6 , consistory court of, 1001. TRUSTEES, presentations by. 279 — 281. of advowsons. 279, 2S0. church trustees, 1504. TUNIC, 728, 730. 1880 INDEX. TUNICLE, 712, 719. TURNIPS, tithe of, 1150, 1159. TWISS, SIR TEA VERS, 42. UNBAPTIZED, burial of the, 669. UNIFORMITY, acts of, 742 — 761. See Table of Statutes, 2 & 3 Edw. 6, c. 1 ; 1 Eliz. c. 2 ; 14 Car. 2, c. 4. UNIFORMITY ACT AMENDMENT ACT. See Table of Statutes, 35 & 36 Vict. c. 35. UNION, of churches and benefices, 396. causes of, ib. may be in futuro, 397. presentation to united benefices, ib. reparations, 398. other payments and duties, ib. effect of, as to pluralities, ib. church united to prebend, ib. how tried, ib. temporary, no union, 399. provisions of old acts and extended, ib. exchange to facilitate, 403. rights of parishioners in united bene- fice, 405. of benefices within the metropolis, ib. UNITED STATES, church in, 118, 1771. bishops in, 1771. UNIVERSITIES, THE, advowsons of papists, statutes giving presentations of , to, 303, 309, 1610. chapels in colleges of, not affected by Uniformity Amendment Act, 757. commissions as to, 1595, 1596, 1609. University of Durham, 1598. origin of Oxford and Cambridge, 1600. faculties and degrees, ib. visitation of, by archbishop, 1605 — 1608. exempt from jurisdiction of Charity Commissioners, 1609. power of, to give licences to preach, 1610. degrees requisite for plurality, ib. power to augment vicarages, 1611. first fruits and tenths, 1614. See Colleges. UNIVERSITY COMMISSIONS, 1594, 1595, 1609. UNIVERSITY TEST ACT. See Table of Statutes, 34 & 35 Vict. c. 26. USES, various in England, 705. USURPATION, what, 345, 346. presentation by, 862. VACATION, temporalities of bishoprics in time of, 23, 64. of benefice by promotion to bishopric, 52. spiritualities of bishoprics in time of, 62. profits of deaneries during, 133, 215. of prebends, 141. of benefice, 373. who shall have profits during, ib. sequestration issued on, 375. management of profits, ib. supply of cure during, 376. stipend of curate, how paid, ib. where profits insufficient, ib. successor when to enter after, 377. sequestrators to account for profits during, ib. rights of lessees, on change of incum- bents, ib. widow of any spiritual person may continue in house two months, 378. sequestration during, 1075. inspection of buildings on, 1270, 1271. VATICAN, council of (1870). .1529. VAULTS, lay rector's rights of, as to, 595. first introduced by Lanfranc, 651. in church or churchyard, 659, 694, 695, 1253, 1423. under Church Building Acts, 1708, 1719. VEIL, worn by women when churched, 645, 646. for Lent, 729. VESTMENTS, of bishops, 49, 711, 712. worn in cathedrals, 135, 137. of ministers, 526, 711—721. VESTRY, duties of, where union of benefices, 408. act for regulation of, 792, 793. not affected by Compulsory Church Rate Abolition Act, 1447. civil duties of, transferred to parish council, 1466. functions of rural, 1492. functions of urban, ib. in divided parish, 1493. definition of, ib. jurisdiction of ecclesiastical court over, ib. place of meeting, 1493, 1494. acts regulating, 1494. three days' notice of, to be given, ib. publication of notice, ib. appointment of chairman, ib. INDEX. 1881 VESTRY — continued. acts regulating- — continued. to have casting" vote, 1494. manner of voting in, 1495. 1496, 1498. non-inhabitants rated to poor may- vote, 1496. non-payment of rates disqualifies from voting in, ib. clerk or agent of corporation may vote, ib. as to plurality of votes, ib. who have votes, 1497. who shall preside at, ib. hindering persons from meeting in, ib. majority conclusive, 1498. general power of president of, 1499. election of churchwardens in, ib. select vestries, 1500. origin of, ib. depend on custom, 1501. under special acts, 1502. in metropolis, ib. church-rates made in open vestry, 1503. power of vestries and like meetings transferred to vestries under sta- tute, ib. VICAR-GENERAL, court of, 41, 42, 922. power of, 932. See Chancellor. VICARS AND VICARAGES, history of appropriation of churches, 217—219. what appropriation is, 219 — 222. endowment of vicarages upon appro- priation, 222. vicarages distinct benefices, 225. patronage of, ib. endowments, 226. vicar entitled by endowment or pre- scription, ib. prescription where endowment lost, ib. trial of endowments, where, 227—230. endowment to be construed favour- ably, 230. augmentation of, 231. dissolution of, 232. presentation of vicar to parsonage, 233. form of endowment of, ib. conversion of, into rectories, 234 — 237. vicar may reside in rectory house, 237. right of, in church and chancel, 237, 695, 1403, 1416. repair of vicarages, 1258, 1264. power of vicar to lease allotments, 1302. redemption of land tax by, 1371. sometimes to repair chancel, 1416. seat of, in chancel, 1433, 1434. VICARS CHORAL, their office, 143. liable for dilapidations, ib. their emoluments, ib. estates of, 16G8. VICTORIA, QUEEN, coronation of, 813—826. VIENNE, council of (1311). .1528. VIGILS, table of, 807. VIIS ET MODIS, form of serving a citation, 985. VI LAICA REMOVENDA, writ of, 1788. - VISITATION, of archbishops, 66, 1605—1608. of metropolitans and bishops, 166. special, of St. Paul's by Archbishop Laud, 167. ordinary, of St. Paul's, 168. deans and chapters subject to, 166 — 172. lawfulness of decorations can be tried at, 172. of cathedral church of York, 168, 879, 880, 1047. origin of, 1045. who shall visit, ib. how often and in what order, ib. general power of visitor, 1046. Dean of York's case, 1047. triennial visitation by bishop, 211, 1049. inhibition during time of, 1050. court of, ib. archidiaconal visitation, 19S, 1051. how often to take place, 1051. general power of visiting, ib. of parochial libraries, 1053. sermon at, ib. inspection of letters, of orders, licences, &c, at, ib. presentments, by whom made, 1054. whether made on oath, ib. articles of inquiry, 1056. presentments on common fame, ib. presentments, how made, 1057. penalty for not presenting at, 1058. none to be presented twice for suno offence, ib. feos at, 1059. procurations at, ib. anciently by provisions in kind, 1060. converted into money, ib. whether duo when no visitation is made, ib. to bo sued for in spiritual court, 1061. to be paid by rectories impropriate where no vicar endowed, >b. chapel of ruse included in procuration of mother church, ib. churches newly erected rated to, ib. places exempt, ib. 1882 INDEX. VISITATION — continued. royal visitation, 1062. king may visit, ib. ecclesiastical jurisdiction annexed to crown, ib. may assign commissioners to execute it, ib. of colleges, 1604. of the universities, 1605 — 1608. of schools, 1621. VISITATION OF THE SICK, 458, 482, 549, 648. VISITOR, general power of, 1046. of college, 1604. See Visitation. VOLUNTARY JURISDICTION, what, 930. WAFER BREAD, use of, 771. WAKE, ABP., directions of, to bishops, 99, 112, 240. teaching of, on confession, 539. constitution of, 424. WAKEFIELD, creation of bishopric of, 29. consistory court of, 1001. WALDEGRAVE, COUNTESS OF, marriage of, with Duke of Gloucester, 578. WALES, bishoprics in, founded by Prince of, 33. cathedrals and chapters in, 179, 185. English services in, 252, 762. provisions for benefices in, 325, 326. curates in, 427. no mortuaries in, 687. prayer books in, 762. WARBURTON, DR., BISHOP OF GLOUCESTER, 55. WARHAM, ABP., visitation of, 798. WASTE, voluntary and permissive, 1254. general law as to, ib. See Dilapidations. WAY, through church or churchyard, 1409, 1413, 1445. subject to ecclesiastical court, 1445. when not a highway, ib. repair of, ib. when and where can be claimed by pre- scription, ib. visitation inquiries as to, ib. WELSH DIOCESES, service in, 762. WELSH INTERMEDIATE EDUCA- TION ACT. See Table of Statutes, 52 & 53 Vict. c. 40. WEST INDIES. See Colonial Church. WESTMINSTER ABBEY, special provisions for, 188. burials in, 659, 676. WESTMINSTER, COLLEGE OF ST. PETER'S, 750, 814, 1592, 1609, 1618, 1619, 1623, 1626. WESTMINSTER, council of (1178). .554. WETHERSTEAD, ABP., constitution of, 101. WHITGIFT, ABP., 66, 81, 167, 353, 630, 1555. WHITSUN-FARTHINGS, 1244. WHITSUNTIDE, offerings at, 1244. WIDOW OF CLERGYMAN, rights of, as to residence, 378. WILLIAM THE CONQUEROR, 54, 197, 1109. WILLIAM RUFUS, 37, 64, 1110. WILLIAMS, DR., Bishop of Lincoln, Archbishop of York, Chancellor of England, 475. WLNCHELSEA, ABP., constitutions of, 98, 249, 250, 685, 728, 1191, 1406, 1416, 1433. WINCHESTER, diocese of, 25. coUege of, 750, 906, 1592, 1609, 1611, 1618, 1619, 1623, 1626, 1681. consistory court of, 1001. WINCHESTER, BP. OF, chancellor of the Archbishop of Canter- bury, 31. precedence of, 33, 57. power of, as to union of benefices within the metropolis, 405. WINCHESTER HOUSE, sale of, 1146. WINDOWS, PAINTED, images in, 729, 734. INDEX. 1883 WINDSOR, deanery of, 175. college of, 1592. canonries of, 1667. military knights of, ib. WINE, to be provided for the Holy Commun- | ion, 525, 726. remaining after service, 527. WITNESS. designation of, 962. examination of, ib. letters of request to examine, 981. attendance of, at Privy Council, 1023. accused admitted as, 1024. WOMEN, baptisms by, 491. may be sextons, 1517. WOOD, tithe of, 1148, 1150. WOOD, BP. OE LICHEIELD, 73. WOOD, SIR W. PAGE, 1544. WOOL, tithe of, 1150. WORCESTER, diocese of, 26. consistory court of, 1001. WORKHOUSES, statutory provisions respecting, 467. chaplains to, 467 — 469. creed register kept in, 469. WORKSHOPS, work in, on Sundays, 803, 804. WREN, BP., 647, 1390. WRITS, de primo beneficio ecclesiastico habendo, 297. of quare incumbravit, 338. of quare impedit, 338—340. of right, 340. of darrein presentment, 343, 344. of indicavit, 345. WRITS — contln ued. of quare non admisit, 350. de excommunicato capiendo, S31, 1089 — 1093. de lueretico comburendo, 842 — S44. of sequestration, 1007, 1074, 1076. de contumace capiendo, 1070, 1099, 1101, 1105. of levari facias, 1076 — 1078. of sequestrari facias, 1077. of capias, 1092—1094. of deliverance, 1097, 1101. of scire facias, 1098. of supersedeas, ib. of prohibition, 1112. of consultation, 1113. of mandamus, 1119. of habere facias possessionem, 1213. of ad quod.damnum, 1311. of fi. fa. de bonis ecclesiastic-is, 1351. of quo warranto, 1518. de vi laica removenda, 1788. WULERED, ABP. OE CANTERBURY, 1401. WULSTAN, ABP., 1457. 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