{"collection":"scripture-revelation","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_40606/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_40606","id":"gutenberg_40606","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/40606","summary":null,"tags":["Canon law","Category: History - British","Category: Law & Criminology","Category: Religion/Spirituality","Clergy -- Legal status, laws, etc. -- Great Britain","Ecclesiastical law -- Great Britain"],"text":"Transcriber's Notes:\n\nIn this version, the oe ligature has been replaced by the two\nletters, e.g. dioececis.\n\nText enclosed by underscores is in italics (_italics_).\n\nText enclosed by equal signs is in bold face (=bold=).\n\nThe original text contained Greek letters which have been\ntransliterated in this version and enclosed in asterisks,\ne.g. *paroikia*.\n\nMinor punctuation errors in the original text have been corrected\nin this version.\n\n\n\n\n              Handbooks for the Clergy\n\n                     EDITED BY\n\n              ARTHUR W. ROBINSON, B.D.\n\n             VICAR OF ALLHALLOWS BARKING\n                     BY THE TOWER\n\n\n\n\n                THE LEGAL POSITION OF\n                     THE CLERGY\n\n\n\n\n                THE LEGAL POSITION OF\n                     THE CLERGY\n\n\n                         BY\n\n\n                  P. V. SMITH, LL.D.\n\n        CHANCELLOR OF THE DIOCESE OF MANCHESTER\n\n    AUTHOR OF \"THE LAW OF CHURCHWARDENS AND SIDESMEN\n            IN THE TWENTIETH CENTURY,\" ETC.\n\n\n                LONGMANS, GREEN, AND CO.\n\n               39 PATERNOSTER ROW, LONDON\n\n                   NEW YORK AND BOMBAY\n\n                          1905\n\n\n                   _All rights reserved_\n\n\n\n\nPREFACE\n\n\nIn the following pages an endeavour has been made to give a succinct\nsketch of the legal position of the parish clergy of the Church of\nEngland in respect both of spiritualities and of temporalities. The\nbook, being intended for their use, does not touch upon the subject of\nordination by which they acquired the status of deacons or priests. Nor\ndoes it deal with the episcopate or the non-parochial clergy, except so\nfar as these subjects are connected with the parochial system.\n\nLike all other human arrangements, our English Church law is, of course,\nfar from being ideally perfect. It may be safely affirmed that there has\nnever been either a Church or a State in which the law has actually been\nwhat it ideally ought to have been. It is important to recognise the\ndifference between the two positions; for there has sometimes been a\ndisposition on the part of individuals to confuse them, and to treat\nwhat they consider to be the ideal law, as if it were the actual law,\nand as if, as such, it demanded their loyal obedience. Such an attitude,\nwhether in ecclesiastical or civil matters, is anarchical in its\ntendency; for it sets up private judgment instead of the constituted\nauthority as the criterion of what ought or ought not to be done. It can\nonly be justified where the actual law is absolutely inconsistent with\nthe fundamental principles of morality or of Christian truth. The object\nof the present treatise is to state succinctly what the law is,--not\nwhat it ought to be; and no opinion is expressed or suggestion offered\nas to points in which amendment would be proper or expedient.\n\nWithin the limited compass of the book it is obviously impossible to\nenter into details; and the reader who desires information as to these\nwill find them in the authorities to which reference is made. It must\nalso be borne in mind that the general law on the subject of buildings,\nproperty, and pecuniary rights is, in various places, modified by\nspecial local enactments or customs. These can only be ascertained on\nthe spot, or by consulting the Acts of Parliament in which they are\nembodied or recorded.\n\nOne other word of caution is desirable. In explaining the legal position\nof the parochial clergy, it is, of course, necessary to indicate the\nexact limits of their rights. If they venture beyond these limits, they\nare manifestly in the wrong. But no community, either ecclesiastical or\ncivil, could maintain its well-being, or even its coherence, if every\nindividual were on all occasions to take advantage of the full tether\nof his legal rights. It will frequently be wise and proper for the\nclergy, in their relations with their ecclesiastical superiors or with\nthe lay officials and other laity of the parish, not to adopt the most\nuncompromising attitude which the letter of the law permits to them. The\ndictates of love and of Christian forbearance, and of consideration for\nthe claims of others, as well as of expediency, will not warrant the\ninfringement by an individual of the ordinances of either the Church or\nthe State. But they will more than justify him in refraining from taking\nup a position of defiance which these ordinances may strictly entitle\nhim to assume.\n\n                                                          P. V. SMITH.\n\n_Easter, 1905_.\n\n\n\n\n                             CONTENTS\n\n   LIST OF ABBREVIATIONS                                pages xxi-xxiv\n\n\n                             CHAPTER I\n\n                      GENERAL LEGAL POSITION\n\n    1. Spiritual, ecclesiastical, and civil status of the clergy. 2.\n    Sources of Church law. 3. Written and unwritten law--Foreign\n    Canon law--Pre-Reformation Canons--Acts of Parliament--Canons of\n    1603--Canons of 1640--Other canons. 4. Decisions of Church\n    courts--Distinction between judicial and legislative action. 5.\n    Legal status of the ancient Parish--Rector or Parson--Patronage\n    or Advowson--Vicar--Perpetual curate. 6. Dissolution of the\n    Monasteries--Impropriate rectories--New churches and\n    ecclesiastical parishes--Assistant parochial clergy--Titular\n    vicars--Incumbent--Curate. 7. Minister in charge--Lecturer. 8.\n    Status of clergy ordained elsewhere than in England or Ireland,\n    or ordained for service in the colonies or foreign\n    countries--Scottish clergy. 9. Benefices--Beneficed and\n    unbeneficed clergy. 10. Bishops, their relation to the\n    clergy--Suffragan bishops--Chancellors. 11. Archdeacons. 12.\n    Rural Deans. 13. Judicial procedure--Church Discipline Act,\n    1840--Public Worship Regulation Act, 1874--Clergy Discipline\n    Act, 1892. 14. Abstinence of Clergy from secular pursuits. 15.\n    Civil exemptions--Municipal and Parliamentary qualifications and\n    disqualifications. 16. Restrictions as to labour, business, and\n    trade--Lawful exceptions--Penalties for unlawful trading. 17.\n    Protection in performance of religious rites--Act against\n    brawling. 18. Indelibility of Orders--Relinquishment of clerical\n    status                                                  pages 1-24\n\n\n                           CHAPTER II\n\n                        BENEFICED CLERGY\n\n    1. Admission by bishop on presentation of patron--Lapse to\n    bishop, archbishop, or Crown. 2. Transfers of advowsons or\n    rights of presentation--Next presentations--Power of patron to\n    present himself--Restrictions under Benefices Act, 1898. 3.\n    Qualification for admission--Grounds for refusal by\n    bishop--Testimony as to fitness. 4. Procedure in case of refusal\n    by bishop. 5. Publication of notice of intended admission. 6.\n    Mode of admission--Institution--Licence--Collation--Declarations\n    of assent and against simony--Oaths of allegiance and canonical\n    obedience--Reading of Thirty-nine Articles. 7. Effect of\n    admission--Induction. 8. Fees on admission. 9. Cure of\n    Souls--Duties laid down in Ordination Service--Residence--Divine\n    service--Marriages--Burials--Private ministrations. 10.\n    Exclusive right of administration--Superior right of\n    bishop--Modern comity as between town parishes. 11. Private\n    ministrations--Service in unconsecrated buildings--Meetings for\n    worship. 12. Private chapels--Chapels of\n    institutions--Unconsecrated proprietary chapels. 13. Formation\n    of new parishes--Approval or otherwise of incumbent. 14. Holding\n    of two benefices. 15. Neglect of duty--Commission of\n    inquiry--Procedure on adverse report of Commission. 16.\n    Residence on benefice--Forfeitures for non-residence--Bishop's\n    licence of non-residence--Grounds for licence. 17. Monition,\n    sequestration, and avoidance of benefice for non-residence. 18.\n    Performance of duties where incumbent is non-resident. 19.\n    Restrictions on interfering with duties during period of\n    non-residence. 20. Reckoning of time as to residence. 21.\n    Vacation of benefice by death, resignation, admission to other\n    preferment, or deprivation. 22. Resignation; unconditional\n    except upon an exchange--Engagement to resign illegal except\n    under Clergy Resignation Bonds Act, 1828--Corrupt resignations\n    and exchanges--Pensions under Incumbents Resignation Acts. 23.\n    Vacation of benefice on admission to other preferment. 24.\n    Deprivation _ipso facto_--Declaration of vacancy by bishop on\n    conviction of incumbent in certain cases--Sentences of\n    deprivation under Acts of 1840 and 1892                 pages 25-54\n\n\n                             CHAPTER III\n\n                         UNBENEFICED CLERGY\n\n    1. Classes of unbeneficed clergy--Bishop's licence--Declaration\n    of assent--Examination and admission by bishop--Discretion of\n    bishop--Revocation of licence. 2. Curates or ministers in\n    charge--(_a_) On vacancy of benefice--(_b_) On sequestration of\n    benefice for incumbent's bankruptcy or debt--(_c_) On\n    incumbent's non-residence--(_d_) On incumbent's neglect of\n    duties--(_e_) On formation of Peel district. 3. Assistant\n    curates--Stipend--Notice to quit or relinquish\n    curacy--Discretion of incumbent as to employment--Appointment\n    where duties are inadequately performed; or where circumstances\n    of parish require it. 4. Performance of duty by other\n    clergy--Discretion of incumbent--Licence of bishop--Production\n    of licence and entry of names of preachers in a book. 5.\n    Lecturers and preachers--Performance of other ministerial duties\n                                                            pages 55-64\n\n\n                             CHAPTER IV\n\n                        LAITY OF THE PARISH\n\n    1. Relations between incumbent and lay officials. 2. The\n    vestry--Constitution, meetings, and voting in ancient parishes,\n    and in new parishes--Vestries Act, 1818--Present\n    functions--Select vestries. 3. Churchwardens--Election in\n    ancient and new parishes--Admission. 4. Parson's or vicar's and\n    people's wardens--Duties: (_a_) Care of fabric and ornaments of\n    the church and of the churchyard--(_b_) Seating of\n    parishioners--(_c_) Provision of requisites for service--(_d_)\n    Maintenance of order in church and churchyard--(_e_) Collection\n    and concurrence in disposal of offertory money--(_f_) Charge of\n    church and benefice during vacancy, if appointed\n    sequestrators--Restrictions on powers. 5. Sidesmen. 6. Church\n    trustees. 7. Parish clerk--Appointment and removal. 8. Sexton.\n    9. Beadle. 10. Organist and choristers. 11. Officiating of lay\n    readers and other laymen. 12. Other lay work--Visiting of poor\n    and sick--Sunday schools--Church elementary schools. 13.\n    Parochial church councils                               pages 65-79\n\n\n                             CHAPTER V\n\n                          DIVINE SERVICE\n\n    1. Duty of clergy as to uniformity of service--Divergence by\n    lawful authority--Liberty under Act of 1872. 2. Morning and\n    Evening Prayer--Litany--Bishop may order two full services, and\n    a third service, with sermon. 3. Notices during Divine\n    service--Notices on church door--Banns. 4. Offertory--Other\n    collections in a church or chapel--Duty of incumbent as to money\n    entrusted to him. 5. Questions as to the legality of various\n    church ornaments, vestments, and ceremonies--Legal decisions as\n    to (_A_) Stone Holy Table--Crucifix--Cross--Candlesticks--\n    Flower-vases--Pictures--Sculptures--Credence table--Second Holy\n    Table-- Chancel gates--Baldacchino--Voice of parishioners in\n    vestry--(_B_) Attire of clergy at Holy\n    Communion--Surplice--Hood--Albe--Vestment or\n    chasuble--Tunicle--Stole--Chaplain's scarf--Biretta--Black\n    gown--(_C_) Incense--Processions with lighted candles--Lighted\n    candles at Holy Communion--Mixed chalice--Wafers--Agnus Dei and\n    other hymns--Position of minister--Genuflexions--Elevation--Sign\n    of the Cross--Ablutions--Reservation. 6. Baptism not to be\n    refused--Time for the ceremony--Private baptism in urgent\n    cases--Godparents--Reception in church after private\n    baptism--Conditional baptism--Immersion or affusion--Notice to\n    bishop in cases of adult baptism--Deacon may baptize--Lay\n    baptism. 7. Times for and notice of Holy Communion--Communion\n    not to be unlawfully refused--Who are to be repelled from\n    it--Procedure in such cases--Jenkins _v_. Cook--Persons coming\n    from other parishes--Persons attending dissenting places of\n    worship--Persons baptized in another communion and not\n    confirmed. 8. Sermons and homilies--Provisions of rubrics,\n    Canons, and Acts of Parliament. 9. Catechising. 10. Churching of\n    women                                                   pages 80-99\n\n\n                             CHAPTER VI\n\n                              MARRIAGE\n\n    1. Duty of minister to solemnise marriage between persons\n    legally competent--Unlawful solemnisation, when a\n    felony--Marriage, when void. 2. Original places for banns and\n    marriages--Churches of new parishes--Licences for banns and\n    marriages in chapels--Parishes having no regular services in\n    parish church--Where parish church is being rebuilt or\n    repaired--No reconsecration necessary where church is rebuilt or\n    enlarged and position of Holy Table altered. 3. Persons legally\n    competent to intermarry--Religion or absence of religion of the\n    parties no ground for refusal to solemnise marriage. 4.\n    _Minimum_ age--Consent of parents or guardians in case of\n    unions--Marriage without consent, in absence of notice--Marriage\n    below lawful age. 5. Marriage of lunatic or _non compos_, void.\n    6. Absence, unheard of, for seven years--Relief from punishment\n    for bigamy--Invalidity of remarriage. 7 Divorce abroad--Divorce\n    in England under Act of 1857--Remarriage of divorced persons. 8.\n    Marriage of foreigners--Requirements of laws of foreign\n    States--Precautions to be observed. 9. Prohibited degrees of\n    kindred and affinity. 10. Publication of banns--Time and\n    form--Seven days' notice--Publication and marriage without\n    notice and due inquiry--Publication where parties dwell in\n    different parishes or districts--Where one dwells in Scotland,\n    or in Ireland--What constitutes dwelling--Correct names to be\n    published--Status need not be published--Publication to be from\n    book and signed--Forbidding of banns. 11. Marriage, with consent\n    of minister, on registrar's certificate--Not permitted on\n    registrar's licence. 12. Marriage on licence of bishop or\n    Archbishop of Canterbury--Grant of bishop's licence--Previous\n    affidavit before surrogate--Duty of minister on production of\n    licence--Names in licence--Grant of licence a favour and not a\n    right. 13. Marriage, where and when to be solemnised--Priest or\n    deacon may marry--Penalty for solemnising marriage at improper\n    place or time. 14. Reading of service after marriage at a\n    registry office--Second solemnisation of marriage. 15. Fees for\n    banns, certificate of banns, and marriage. 16. Marriage register\n    books--Certificate of marriage. 17. Presumption of marriage of\n    persons coming to Holy Communion--Proof of no marriage--Validity\n    of marriage governed by law of place of solemnisation--Capacity\n    to contract marriage governed by law of domicile---Marriage\n    between British subjects in a foreign country or on board ship\n                                                          pages 100-120\n\n\n                             CHAPTER VII\n\n                               BURIAL\n\n    1. Right of burial by clergyman of the parish where death\n    occurs--Bells to be rung--Burial in case of death in another\n    parish--Relief in case interment is refused--No right to\n    particular hour or spot of burial--Incumbent or churchwardens\n    cannot sell or grant grave-spaces in perpetuity or brick\n    graves--Reservation of exclusive right of burial on grant of\n    addition to churchyard--Faculty for exclusive grave space in\n    other cases--Burial of non-parishioners not dying within the\n    parish. 2. Burial of bodies cast up by the sea or tidal or\n    navigable water. 3. Burial of person dying unbaptized or\n    excommunicate and of _felo de se_--Burial of child of dissenter\n    or person who has received lay baptism--Interment cannot be\n    required without convenient warning. 4. Bringing of corpse into\n    church and burial under church. 5. Fees--Prepayment not\n    enforceable--Customary amount--On burial of\n    non-parishioners--Tables of fees--Special fees for brick graves,\n    iron coffins, and other extras--Fees and rights of burial where\n    new ecclesiastical parish has its own burial ground. 6. Use of\n    Burial Service in unconsecrated ground--Use of special\n    form--Permission of burial without Church rites and with or\n    without some other service on notice under Act of 1880--Day and\n    time for burial--Fee. 7. Delivery of registrar's certificate of\n    death or order of coroner at funeral. 8. Fees on interments in\n    cemeteries under Cemeteries Clauses Act, 1847. 9. Burial\n    Acts--Consecrated and unconsecrated parts of burial\n    grounds--Chapels--Fees of incumbents, clerks, and sextons--Sale\n    of rights to vaults and monuments--Burial Act, 1900--Tables of\n    fees--Restrictions on future fees to incumbents, churchwardens,\n    and sextons--Commutation of fees. 10. Cremation--Burial of\n    cremated remains. 11. Faculty for removal of body from one\n    unconsecrated place of interment to another--Licence of Home\n    Secretary for removal in other cases                  pages 121-134\n\n\n                             CHAPTER VIII\n\n                        PRIVATE MINISTRATIONS\n\n    1. Visitation and Communion of the Sick---Canon 67--Order for\n    the Visitation--Confession and absolution of the\n    sick--Regulations as to Communion. 2. Preparation for\n    Confirmation. 3. Spiritual advice and\n    comfort--Confession--Absolution. 4. Ordinary visitation and\n    intercourse                                           pages 135-140\n\n\n                             CHAPTER IX\n\n                           TEMPORALITIES\n\n    1. Possessions and revenues of benefices of ancient parishes and\n    new ecclesiastical parishes. 2. Incumbent a corporation\n    sole--Restrictions on his acquisition and holding of landed\n    property--Licence in mortmain--Mortmain and Charitable Uses\n    Acts--School Sites Acts--Inability to hold as a corporation land\n    upon trusts. 3. Freehold of church and churchyard of ancient\n    parish in rector--Chancel repairable by rector--Enforcement of\n    repairs--Possession and custody of church in incumbent and\n    churchwardens--Right of incumbent to keys and control of organ\n    and bells--Canon 88--Right of rector to profits of soil of\n    churchyard--Felling of trees in churchyard--Freehold of church\n    and churchyard of new parish in incumbent--Exemption from rates\n    and contributions to making new streets--Removal of part of\n    church as a dangerous structure. 4. Rights of bishop and\n    parishioners in church and churchyard--Power of incumbent as to\n    ordinary tombstone sand inscriptions in churchyard--Glass shades\n    for wreaths--Appeal to consistory and higher courts--Faculties\n    for monuments in church and other alterations and additions in\n    church and churchyard--Application by incumbent and\n    churchwardens after resolution of vestry--Consent of rector to\n    alteration in chancel--Faculty for vault or space for exclusive\n    burial--Removal of earth or bones from churchyard, or other\n    desecration--Faculty for diversion of ancient footpath through\n    churchyard, and for throwing part of churchyard into\n    highway--Restoration of wall wilfully thrown down--Easement of\n    light and air over churchyard--Laying out of closed churchyard\n    as a garden and removal of gravestones--Restrictions as to\n    building on closed or disused burial-grounds. 5. Glebe,\n    rectorial and vicarial--Exemption from tithe--Waste--Cultivation\n    of glebe--Cutting down of trees--Opening and working of mines\n    and quarries and gravel pits. 6. Statutory facilities for\n    parsonage houses and other buildings and repair of\n    chancels--Gilbert Acts--Loans by, and mortgages to Queen Anne's\n    Bounty--Purchase of land--Building and improving of farm\n    buildings and labourers' dwellings--Gifts and bequests of\n    parsonage houses and glebe--Sale and exchange of parsonage\n    houses and glebe. 7. Letting of parsonage house where incumbent\n    has licence to reside elsewhere. 8. Farming or letting of\n    glebe--Agricultural, building, and mining leases. 9. Repair of\n    parsonage house and glebe buildings--Ecclesiastical\n    Dilapidations Act, 1871. 10. Diocesan surveyors--Proceedings\n    (_a_) on vacancies in benefices and (_b_) in other\n    cases--Exemption from liability for five years after certificate\n    of surveyor. 11. (_a_) Inspection and report by surveyor on a\n    vacancy--Objections to report--Order of bishop--Debt from late\n    incumbent, or his estate, to new incumbent--Payment of amount\n    recovered to Queen Anne's Bounty--Loan of amount not\n    recovered--Balance to be paid by new incumbent--Dilapidation\n    Account--Liability where a vacancy occurs between inspection of\n    buildings and certificate of completion of works. 12. (_b_)\n    Inspection of buildings on complaint of archdeacon, rural dean,\n    or patron, or on request of incumbent--Inspection after and\n    during sequestration of benefice--Report--Objections--Decision\n    of bishop--Loans--Dilapidation Account--Execution of\n    repairs---Charge of cost on income in case of benefice under\n    sequestration--Vacancy before execution of works--Liability of\n    sequestrator spending excessive amount on repairs. 13. Payment\n    of money out of dilapidation account on certificate of\n    surveyor--Liability and duty of incumbent--Rebuilding or\n    remodelling instead of repairing. 14. Insurance of parsonage\n    house, glebe buildings, and chancel against fire--Production of\n    receipts for premiums at visitations--Payment and application of\n    insurance money and reinstatement of buildings in the event of\n    fire--Sequestration of benefice to raise any requisite balance.\n    15. Exemption from Act of 1871 of buildings let on lease under\n    which tenant is liable--Inspection by surveyor. 16. Faculty or\n    consent of bishop and patron to alterations in\n    buildings--Liability of incumbent for alterations not so\n    sanctioned--Power of bishop to authorise removal of unnecessary\n    buildings--Movable sheds or garden frames. 17. Vacation of\n    benefice--Cesser of rights of former incumbent--Right of widow\n    to two months' residence in parsonage house--Inspection of\n    premises pending settlement of\n    dilapidations--Emblements--Apportionment of rents, tithe\n    rentcharge, and other income. 18. Tithe commutation rentcharge\n    under Act of 1836 and amending Acts--Assessment in lieu of great\n    or rectorial tithes and small or vicarial tithes--Extraordinary\n    tithe rentcharge in respect of hop and other gardens and\n    orchards--Act of 1886--Assessment of tithe rentcharge with\n    regard to prices of wheat, barley, and oats--Variation according\n    to septennial average prices. 19. Payment of tithe rentcharge\n    and recovery by distress on appointment of receiver--Recovery\n    from railway company. 20. Dues (i.) ordinary and (ii.)\n    special--Variety by law and custom--Payments on the customary\n    four offering days--Easter offerings--Rights of vicar of new\n    ecclesiastical parish. 21. Mortuaries. 22. Dues for special\n    services or concessions. 23. Pew rents under special or general\n    Acts of Parliament--Under Church Building and New Parishes\n    Acts--Recovery of pew rents. 24. First fruits and\n    tenths--Exemption of small benefices--Number of benefices\n    remaining liable. 25. Income or property tax--On parsonage\n    house, glebe lands, and tithe rentcharge--On landed property in\n    occupation of incumbent--On other stipend, fees, perquisites,\n    and profits--Legal deductions--Test as to whether receipts are\n    or are not liable to tax--Voluntary contributions to minister in\n    respect of his office--Grants from Curates' Augmentation\n    Fund--Grants from Queen Victoria Clergy Fund          pages 141-168\n\n\n    INDEX                                                 pages 169-174\n\n\n\n\n                       LIST OF ABBREVIATIONS\n\n\n    _A. C._                 Law Reports (House of Lords and Privy\n                              Council) 1891 onwards.\n\n    _A. & E._               Adolphus & Ellis's Reports (King's Bench)\n                             1834-41.\n\n    _Add._                  Addam's Reports (Ecclesiastical) 1822-6.\n\n    _Ambl._                 Ambler's Reports (Chancery) 1737-83.\n\n    _App. Ca._              Law Reports (House of Lords and Privy\n                             Council) 1875-90.\n\n    _Atk._                  Atkyn's Reports (Chancery) 1735-54.\n\n    _Ayl. Par._             Ayliffe's _Parergon Juris Canonici\n                             Anglicani_, 1726.\n\n    _B. & C._               Barnewall & Cresswell's Reports (King's\n                             Bench) 1822-30.\n\n    _B. & Ad._              Barnewall & Adolphus' Reports (King's Bench)\n                             1830-34.\n\n    _B. & Ald._             Barnewall & Alderson's Reports (King's\n                             Bench) 1818-22.\n\n    _B. & Sm._              Best & Smith's Reports (Queen's Bench)\n                             1861-70.\n\n    _Beav._                 Beavan's Reports (Chancery) 1838-66.\n\n    _Bl. Comm._             Blackstone's Commentaries on the Laws of\n                             England.\n\n    _Burn._                 Burn's Ecclesiastical Law, 4 vols.\n\n    _Canon._                One of the Constitutions and Canons\n                             Ecclesiastical agreed upon in the Canterbury\n                             Convocation begun in 1603.\n\n    _C. B._                 Common Bench Reports, 1845-56.\n\n    _C. B. N. S._           Common Bench Reports, New Series, 1856-65.\n\n    _C. & K._               Carrington & Kirwan's Reports (Nisi Prius)\n                             1843-1853.\n\n    _C. P. D._              Law Reports (Common Pleas Division) 1875-80.\n\n    _Ch._                   Law Reports, Chancery Division, 1891\n                             onwards.\n\n    _Ch. D._                Law Reports, Chancery Division, 1875-90.\n\n    _Cl. & F._              Clark & Finnelly's Reports (House of Lords)\n                             1831-46.\n\n    _Clarke, Proxis_        Francis Clarke's _Proxis in Curiis\n                             Ecclesiasticis,_ 1666, 1684.\n\n    _Co. Inst._             Coke's Institutes of the Laws of England,\n                             Second Part.\n\n    _Co. Litt._             Coke upon Littleton (with notes by Hargrave\n                             and Butler).\n\n    _Co. Rep._              Coke's Reports, 1598-1616.\n\n    _Com. Dig._             Comyn's Digest.\n\n    _Cowp._                 Cowper's Reports (King's Bench) 1774-78.\n\n    _Cripps._               Cripps's Law relating to the Church and\n                             Clergy, 6th ed., 1886.\n\n    _Cro. Jac._             Croke's Reports (temp. James I.) 1603-1625.\n\n    _Curt._                 Curteis's Ecclesiastical Reports, 1834-44.\n\n    _Degge._                Sir Simon Degge's Parson's Counsellor.\n\n    _Dr. & Sm._             Drewry & Smale's Reports (Chancery)\n                             1859-65.\n\n    _E. & B._               Ellis & Blackburn's Reports (Queen's Bench)\n                             1854-8.\n\n    _Eccl. & Adm._          Ecclesiastical & Admiralty Reports (Spinks)\n                             1853-5.\n\n    _El. & El._             Ellis & Ellis' Reports (Queen's Bench)\n                             1858-61.\n\n    _Ex._                   Exchequer Reports, 1847-56.\n\n    _Ex. D._                Law Reports (Exchequer Division) 1875-1880.\n\n    _Geary_                 Geary's Law of Marriage and Family\n                             Relations (A. & C. Black, 1892).\n\n    _Gibs. Cod._            Gibson's _Codex Juris Ecclesiastici\n                             Anglicani_.\n\n    _Hag. Cons._            Haggard's Consistory Reports, 1729-1821.\n\n    _Hag. Eccl._            Haggard's Ecclesiastical Reports, 1827-1832.\n\n    _H. & C._               Hurlstone & Coltman's Reports (Exchequer)\n                             1862-66.\n\n    _H. L. C._              House of Lords Cases, 1847-66.\n\n    _Hob._                  Hobart's Reports, 1611-20.\n\n    _Ir. Ch. Rep. App._     Irish Chancery Reports (Appendix).\n\n    _J. & H._               Johnson & Hemming's Reports (Chancery)\n                             1859-62.\n\n    _J. P._                 Justice of the Peace, 1837 onwards.\n\n    _Johns._                John Johnson's Clergyman's Vade Mecum,\n                             6th ed., 1731.\n\n    _Jur._                  Jurist (Reports) 1837-54.\n\n    _Jur. N. S._            Jurist, New Series (Reports) 1855-66.\n\n    _K. B._                 Law Reports (King's Bench) 1901 onwards.\n\n    _L. J. (Ch., C.P.,_     Law Journal 1823-31; New Series 1832 onwards\n    _ Ex. Q.B.)_             (Chancery, Common Pleas, Exchequer, Queen's\n                              Bench).\n\n    _L. J. Eccl._           Ditto (Ecclesiastical Cases).\n\n    _L. J. M. C._           Ditto (Magistrates' Cases).\n\n    _L. J. P. M. & A._      Ditto (Probate, Matrimonial, and Admiralty\n                             Cases).\n\n    _L. R. A. & E._         Law Reports, 1865-75 (Admiralty and\n                             Ecclesiastical).\n\n    _L. R. C. P. Ex. Q. B._ Ditto (Common Law).\n\n    _L. R. Ch._             Ditto (Chancery Appeals).\n\n    _L. R. Eq._             Ditto (Equity).\n\n    _L. R. H. L._           Ditto (House of Lords).\n\n    _L. R. H. L. Sc._       Ditto (Scotch and Divorce Appeals).\n\n    _L. R. P. C._           Ditto (Privy Council).\n\n    _L. T. N. S._           Law Times (New Series) Reports,\n                             1859 onwards.\n\n    _M. & S._               Maule & Selwyn's Reports (King's Bench)\n                             1813-17.\n\n    _M. & W._               Meeson & Welsby's Reports (Exchequer)\n                             1836-47.\n\n    _Marsh._                Marshall's Reports (Common Pleas) 1813-1816.\n\n    _Mer._                  Merivale's Reports (Chancery) 1815-17.\n\n    _Moo. P. C._            Moore's Privy Council Reports, 1836-62.\n\n    _Moo. P. C. N. S._      Ditto, New Series, 1862-73.\n\n    _N. R._                 New Reports (Equity and Common Law) 1862-65.\n\n    _Not. of Ca._           Notes of Cases (Ecclesiastical and Maritime)\n                             1841-50.\n\n    _P._                    Law Reports, Probate Division, 1891 onwards.\n\n    _P. D._                 Law Reports, Probate Division, 1875-90.\n\n    _Phill._                Phillimore's Reports (Ecclesiastical)\n                             1809-1821.\n\n    _Phill. Eccl. Law_      Phillimore's Ecclesiastical Law of the\n                             Church of England, 2 vols., 2nd ed., 1895.\n\n    _P. Wms._               Peere Williams' Reports (Chancery)\n                             1695-1735.\n\n    _Q. B._                 Queen's Bench Reports (Adolphus & Ellis)\n                             1841-52.\n\n    _Q. B._                 Law Reports (Queen's Bench) 1891-1900.\n\n    _Q. B. D._              Law Reports (Queen's Bench Division)\n                             1875-1890.\n\n    _Rob. Eccl._            Robertson's Reports (Ecclesiastical)\n                             1844-1853.\n\n    _Sc. L. R._             Scottish Law Reporter, 1865 onwards.\n\n    _Sm. Churchw._          Smith's Law of Churchwardens and Sidesmen\n                             in the Twentieth Century (Wells, Gardner,\n                             & Co., 2s.).\n\n    _Str._                  Strange's Reports, 1715-47.\n\n    _Strype's Annals_       John Strype's Annals of the Reformation (ed.\n                             1824) 4 vols.\n\n    _Sw. & Tr._             Swabey & Tristram's Reports (Probate and\n                             Divorce) 1858-65.\n\n    _Taun._                 Taunton's Reports (Common Pleas) 1807-1819.\n\n    _Times Law Rep._        Times Law Reports, 1884 onwards.\n\n    _T. R._                 Durnford & East's Term Reports (King's\n                             Bench) 1785-1800.\n\n    _Trist. Cons. Judgm._   Tristram's Consistory Judgments, 1872-90.\n\n    _Ventr._                Ventris' Reports (King's Bench) 1668-91.\n\n    _Ves._                  Vesey Junior's Reports (Chancery) 1789-1816.\n\n    _Wats._                 Watson's Clergyman's Law, 4th ed., 1747.\n\n    _Willes_                Willes Reports (Common Pleas) 1737-58.\n\n    _Wils._                 Wilson's Reports (Common Law) 1743-74.\n\n    _W. R._                 Weekly Reporter, 1853 onwards.\n\n    _Yo. & Jer._            Younge & Jervis's Reports (Exchequer)\n                             1826-30.\n\n\n\n\n                          CHAPTER I\n\n                   GENERAL LEGAL POSITION\n\n\n1. In every country where a Christian Church is permitted to exist, the\npower and authority of her clergy to exercise their functions will rest\nupon a triple basis and be subject to twofold restrictions and\nlimitations. In the first place, (i.) they derive their spiritual\nauthority from their ordination, and this authority is independent of\nthe particular Church to which they belong. But, in the next place, they\nare bound on the one hand (ii.) to obey the regulations of the Church of\nwhich they are the ministers, and must also, on the other hand, (iii.)\nconform to the laws of the country in which they labour. For they can\nonly actively exercise their functions by the licence or permission of\nthe ruling power of that country, and subject to any conditions which it\nmay choose to impose. These principles apply equally whether the Church\nis what we call established or not. The only difference is that if the\nChurch is established, her own regulations are part of the law of the\nland; whereas, if she is not established, the law of the land sanctions\nor suffers the existence of these regulations as a private contract or\narrangement between the ministers and other members of the Church. But\neven in the case of an established Church, her ministers will obviously\nbe restricted in the exercise of their functions by civil regulations\nwhich do not form part of the ecclesiastical law. Thus there may be\nnothing in the law of his Church to prevent a clergyman from holding a\nreligious service or preaching in a crowded thoroughfare. But in England\nand other civilised countries any attempt to do so would be checked by\nthe existing laws against the obstruction of highways. In the following\npages no attempt will be made to point out the non-ecclesiastical laws\nand limitations to which a parish priest is subject. For though they\nnecessarily affect himself and his spiritual work, they do so only\nindirectly. They touch him not as a minister or even as a Christian, but\nas a citizen; and they touch his spiritual work only in so far as that\nwork has a material and civil element.\n\n2. Confining then our attention to the ecclesiastical law under which\nthe parish priest holds his position and acts in this country, we note\nin the first place, that the Church being here established, this\necclesiastical law is equally the law of the Church and the law of the\nState. This is true whatever be its origin, and however it came into\nforce; and it has always had this double aspect, since (with the\nexception of the brief interval of the Commonwealth--a period which is\nnot recognised in our jurisprudence as having had any legal existence)\nthere never has been a time in our history when the Church of England\nhas not been the Established Church of the nation. Portions of our\nChurch system and Church law have had an exclusively ecclesiastical\norigin, by canon or otherwise, and have been adopted or acquiesced in by\nthe State. Further portions have been created by the joint or concurrent\naction of the Church and the State. Other portions again have been due\nto the sole action of the civil legislature, which has received the\ntacit assent of the Church but has never been confirmed by any formal\necclesiastical ratification. From whichever of these three sources any\nparticular point of our Church law may have been derived, its validity\nand obligation is the same. It binds the Church and her ministers and\nmembers irrespectively of its origin, and is at present in force unless\nit has either been formally repealed or become obsolete and fallen into\ndesuetude.\n\n3. Again, like our civil law, our ecclesiastical law is in part written\nand in part unwritten or customary. Foreign canon or conciliar law or\npapal law is only binding in England so far as it has been received by\nimmemorial custom, and has thus become part of our unwritten law, or\nhas been incorporated into our written law by the ratification of an Act\nof Parliament, or a canon or constitution of our own Church; and the\nbinding force of the English Pre-Reformation canons, ordinances, and\nprovincial constitutions stands on the same footing. For the Commission\nauthorised by the Act for the Submission of the Clergy of 1533 to\nexamine the English canons and constitutions, and, with the king's\nassent, declare which of them should be in force and which should be\nabrogated, was never appointed, although the time for its appointment\nwas extended by Acts of 1535 and 1543, and the scope of its inquiry was\nextended by the latter Act so as to include foreign canons and\nordinances.[1] Consequently the only written Church law is to be found\nin Acts of Parliament and the Prayer-Book,[2] and in Post-Reformation\ncanons, which, however, except so far as they are confirmed by Act of\nParliament, or declare the unwritten law of the Church, are only binding\non the clergy.[3] Of these the chief are those known as the Canons of\n1603, which were agreed upon at the sitting of the Canterbury\nConvocation begun in that year, and were separately passed two years\nafterwards by the York Convocation. Many portions of them are, however,\nnow obsolete; and Canon 36 and the last words of Canon 102 have been\nsuperseded by new canons made in 1865-66 and 1888. The Canons of 1640\nwere passed after the dissolution of Parliament, which, according to the\ncustom of the realm, put an end also to the existence of Convocation,\nand they have no legal force.[4]\n\n4. Much discussion has arisen upon a fourth source of Church law,\nnamely, the decisions of our ecclesiastical courts. It is important to\ndraw a clear distinction between legislative and judicial functions. A\ncourt, whether ecclesiastical or civil, has nothing to do with enacting\nlaws. Its province is confined to interpreting them, when their meaning\nis obscure or disputed. No doubt, in the course of this interpretation,\nit will sometimes make law by deciding in a particular way a point on\nwhich the legislature has left the matter in doubt, and has not itself\nclearly laid down the law. Many questions affecting the clergy and the\nChurch have, in fact, been thus determined by our civil as well as by\nour ecclesiastical tribunals. But if one of our civil courts, in\ninterpreting the civil law, delivers a decision which does not commend\nitself to the common sense of the nation, it is recognised that the\nremedy lies not in altering the constitution of the court and\nendeavouring to obtain a fresh legal decision which shall upset the\nother, but in obtaining an Act of Parliament expressly overruling the\nunsatisfactory decision. If this is not done, the law may have been\ntechnically judge-made, but it is acquiesced in and assented to by\nParliament and the nation. The same principle applies to the decisions\nof ecclesiastical courts. The natural way of getting rid of an obnoxious\ndecision is not by fresh adjudication, but by legislation. Until it has\nbeen reversed by one or other of these means, the decision of a court,\nwhich _de facto_ possesses ecclesiastical jurisdiction, is binding upon\nthe Church as part of her law for the time being. We have somewhat lost\nsight of this principle, owing to the extreme difficulty of obtaining\nany definition or alteration of Church law by a legislative process.\nBut the true remedy lies in a healthy revival of the exercise of\necclesiastical legislation, and not in an endeavour to make the\necclesiastical judicature, whether as now existing or after a reform of\nthe courts, discharge legislative functions which are wholly outside its\nproper province.\n\n5. The legal position of the parochial clergy depends for its ultimate\norigin upon the legal status of the ancient _Parish_. The word is the\nEnglish form of the Greek *paroikia* (habitation), and the Latin\n_parochia_, an expression originally synonymous with diocese (Gr.\n*dioik\u00easis*, _i.e._ administration; Lat. _dioecesis_, used of a\ndistrict or part of a province in the Roman Empire), and applied to the\nterritory assigned to the jurisdiction of a bishop, which was served by\nhim and a college of clergy under him. But under Archbishop Theodore\n(668-690) or shortly after his time the process was begun of encouraging\nthe lords of manors and great landowners to build churches for\nthemselves and their dependants, and devote the tithes of their manors\nor estates to the maintenance of divine worship in these churches, and\nthe performance of religious duties among the residents on the estates.\nThis process was gradually extended throughout the country, and,\nwherever it was adopted, the tithes were assigned either to the priest\nfor the time being in charge of the church, who was in that case called\nthe _rector_ (governor of the church) or _parson_ (Lat. _persona_)[5] or\nto a monastery, the members of which were then expected to serve the\nchurch. The manor or estate, including any detached and outlying\nportions, became the parish of the church, and developed into a\nterritorial unit not only for ecclesiastical but also for many civil\npurposes. Where the church was served by a single rector, the landowner\nwho had endowed it and his successors after him were given in return the\nright of nominating to the bishop a clerk in Holy Orders to become\nrector of the church, or, in other words, they acquired the _patronage_\nor _advowson_[6] of the benefice. The frequent cases of neglect in the\nservice of the parish, where a monastery was rector, led, in the\nthirteenth century, to the requirement that in such cases a succession\nof individual priests should be appointed to discharge the duty, with a\ndefinite portion of the endowments of the benefice as their stipend for\nso doing. As a rule the great tithes, being those of corn, grain, hay,\nand wood, were reserved to the monastery, and were in consequence\nstyled rectorial tithes, while the officiating priest, who was styled a\n_vicar_, was endowed with the remaining or small tithes, which\nconsequently were called vicarial. But in a few instances the\nofficiating priest, instead of becoming entitled to the small tithes,\nonly received a fixed monetary stipend. Where this occurred, he was\ncalled a _perpetual curate_. It was the rule that rectories, whether in\nthe hands of a monastery or a succession of individual priests, should\nbe endowed not only with the tithes of the parish, but also with a house\nand lands, which are called glebe; and sometimes these houses and lands,\nor a part of the lands, were assigned towards the stipend of the vicar.\n\n6. Towards the close of Henry VIII.'s reign the monasteries were\ndissolved, and their rectories and the rectorial tithes of the parishes\nand other endowments attached thereto, and the right of nominating\nvicars or perpetual curates to the parishes passed, with the rest of the\nmonastic property, in some cases into the hands of the Crown or of\nprivate individuals who received grants of them from the Crown, while in\nother cases they went to the endowment of episcopal sees or of colleges,\nhospitals, or other public institutions. Whichever happened, the rectory\nand rectorial tithes became thenceforth _impropriate_, and the vicar or\nperpetual curate was left with the vicarial tithes and other endowments,\nor a stipend, as the case might be, to serve the parish as the beneficed\nparish priest. Later on, and particularly during the nineteenth century,\nthe growth of the population and the rapid increase of our urban\ncentres, owing to the steady migration from the villages to the towns,\nhas rendered the building of new churches and the creation of new\necclesiastical areas a matter of pressing importance; and the same\ncauses have necessitated the employment in the larger parishes of\nadditional clergy, whether stipendiary or voluntary. In some cases an\nold parish has been divided into distinct and separate parishes, each of\nwhich has received a portion of the old church endowments, and has\nbecome a rectory, vicarage, or perpetual curacy, according to the\n_status_ of the old parish;[7] or a vicarage has been converted into a\nrectory upon a surrender of the rectorial tithes by the impropriator.[8]\nBut, as a rule, new ecclesiastical districts or parishes have been\nformed and churches built without resorting to the old endowments; and\nthe Church Building and New Parishes Acts provided that the ministers\nput in charge of these new districts or parishes and churches should be\nperpetual curates, and should, like the old rectors, vicars, and\nperpetual curates, be corporations, with perpetual succession.[9] But\nin 1868 it was enacted that the incumbent of every parish and new\necclesiastical parish, who was authorised to publish banns, and\nsolemnise marriages, churchings, and baptisms in his church, and was not\na rector, should, for the purpose of designation only, be styled a\nvicar, and his benefice should for the same purpose be styled a\nvicarage.[10] The modern generic title, which includes every beneficed\nparish priest, is _incumbent_. The proper and ancient term for rectors,\nvicars, and all other parochial clergy, whether beneficed or\nunbeneficed, is _curate_, as having the cure of souls within the\nparish.[11] But in modern practice this term, when used by itself, is\ngenerally applied to the unbeneficed or assistant curates in a parish.\n\n7. Two other classes of parochial clergy remain to be mentioned. Where,\nfor any reason, the incumbent is for a prolonged period disabled from\nperforming the duties of his office, a substitute will be appointed\nunder the designation of Minister in Charge. Again, in some parishes,\nlectureships have been endowed, and are held by a lecturer, who, in\nrespect of his duties as such, is independent of the incumbent.\n\n8. Under the Colonial Clergy Act, 1874, a priest or deacon (i.) not\nordained by an English or Irish or Scottish bishop, or a bishop acting\non the request and under the commission of an English bishop, or (ii.)\nordained for service out of the British dominions or for service in the\ncolonies by either of the two archbishops or the Bishop of London,[12]\n(_a_) cannot, unless he holds or has held preferment or a curacy in\nEngland, officiate in any church or chapel in England without the\nwritten permission of the archbishop of the province, and without making\nand subscribing a declaration similar to the Declaration of Assent\nprescribed by the Clerical Subscription Act, 1865;[13] and (_b_) is not\nentitled to be admitted to any preferment or to act as curate in England\nwithout the previous consent in writing of the bishop of the diocese.\nBut a person who holds preferment or a curacy in an English diocese\nunder the Act of 1874, and who has held preferment or acted as curate\nfor a period or periods exceeding in the aggregate two years, may, with\nthe written consent of the bishop, request from the archbishop of the\nprovince a licence to exercise his clerical office according to the\nprovisions of the Act; and this licence, if issued by the archbishop and\nregistered in the provincial registry, will place him in the same\nposition as if he had been ordained for service in England by an English\nbishop.[14] Moreover, a clergyman ordained by a bishop of the Scottish\nEpiscopal Church, unless he holds or has previously held preferment in\nEngland or Ireland, (_a_) is liable to a penalty if he officiates in\nEngland more than once within three months without notification to the\nbishop of the diocese, or if he officiates contrary to an injunction of\nthe bishop; and (_b_) is not entitled to be admitted to any preferment\nin England without the bishop's consent, which he may withhold without\nassigning any reason; and (_c_) before being admitted or licensed to any\npreferment or curacy in England, must make and subscribe before the\nbishop of the diocese, the Declaration of Assent prescribed by the\nClerical Subscription Act, 1865.[15]\n\n9. All rectories, vicarages, and perpetual curacies, whether ancient or\nestablished under the Church Building and New Parishes Acts, or under\nany special Act of Parliament, fall within the term _benefice_, and are\nof freehold tenure. The term is also applied to non-parochial\necclesiastical offices of a like tenure, such as a deanery, canonry, and\narchdeaconry. But in the present treatise, which deals only with the\nparochial clergy, it will be used exclusively of the above-named\nparochial benefices (which are in popular language called _livings_);\nand the clergy who hold these benefices will be called beneficed clergy\nor incumbents. The other parochial clergy will be referred to as\nunbeneficed clergy or curates. The legal position of the unbeneficed\nclergy as regards status and property is so different from that of\nincumbents that it will be convenient to treat of them separately. But\nthe spiritual duties of the two classes, and the discipline to which\nthey are amenable, are similar and can be discussed together. They are\nalike subject to the same superior ecclesiastical officials and to the\nsame judicial proceedings; and their civil privileges and disabilities\nin respect of their clerical office are identical. By virtue of their\nposition as parochial clergy they are brought into certain relations\nwith the bishop of the diocese, the archdeacon of the archdeaconry, and\nthe rural dean of the deanery in which their parish is situate.\n\n10. The bishop is not only the ruler and administrator, but also the\nchief pastor of the whole of his diocese. As such, he, assisted by his\nchaplain, has the right whenever he pleases, without the consent of the\nincumbent, to conduct service or preach in the church of any parish in\nsuch lawful manner as he thinks proper. This right extends to\nconsecrating a church within the parish[16] and, of course, to holding\nordinations and confirmations. Moreover, he can require from the clergy\nall reasonable information respecting their parish and parishioners.\nThey owe to him canonical obedience,[17] and deference in matters which\ndo not fall within the limits of obedience. With the exception that his\nwithdrawal of a licence from a curate is subject to an appeal to the\narchbishop, he possesses absolute control over the unbeneficed clergy in\nhis diocese, having the right to inhibit them from officiating within\nit. But he has no such power over the beneficed clergy in respect of\ntheir services in their own church and other matters involved in the\ncure of souls attaching to their benefice. In respect of these matters,\ntheir office being a freehold for life, they are independent of him\nexcept in such particulars and to such extent as the law has expressly\nprescribed, and they can only be constrained by him against their will\nthrough the instrumentality of legal proceedings. But, equally with the\nunbeneficed clergy of the diocese, it is their duty to attend the\nbishop's triennial visitations; and their absence without sufficient\ncause renders them liable to ecclesiastical censure and punishment.\nMoreover, as will be noticed in the course of this treatise, the bishop\nhas been given, by express enactments, divers powers in relation to both\nbeneficed and unbeneficed clergy on matters of detail, subject in many\ncases to an appeal to the archbishop of the province. By law and custom\npart of the administrative functions of the bishop and almost the whole\nof his judicial functions are discharged by his chancellor, who is at\nonce his vicar-general and the official principal of his consistory\ncourt. Suffragan bishops, where they are appointed, have no independent\nauthority or jurisdiction, but simply so much as the diocesan bishop, in\nhis discretion, from time to time delegates to them.\n\n11. The archdeacon is in his archdeaconry next in point of dignity after\nthe bishop and the suffragans (if any) and the chancellor of the\ndiocese.[18] He is sometimes called _oculus episcopi_, being the\nbishop's vicar, charged with the duty of inspecting that portion of the\ndiocese which is under his charge and of reporting to the bishop\nanything which is amiss. Besides this general supervision, he holds an\nannual visitation of his archdeaconry, and admits the churchwardens and\nsidesmen, except in years of episcopal visitation, when he is inhibited\nfrom performing his functions, and these are exercised instead by the\nbishop in person, or, as regards the admission of churchwardens and\nsidesmen, by the chancellor.[19] At his annual visitation, and at other\ntimes, as occasion arises, it is the business of the archdeacon to\nsatisfy himself that churches, and especially chancels, are in a proper\ncondition, and to require that any necessary repairs be executed; to\ntake note of the ornaments and utensils of churches, and to ascertain\nthat the services and offices of the Church are everywhere duly\nperformed and administered. The clergy are bound to assist the\narchdeacon in his inspection and inquiries and to attend his\nvisitations.[20] Various duties assigned to him by statute are noticed\nin subsequent chapters.\n\n12. Rural deans have within their deaneries the same functions and\npowers of inspection and report as an archdeacon in his archdeaconry. It\nis their duty to hold from time to time chapters consisting of the\nbeneficed clergy of the deanery or their curates as proxies for them. In\nthe present day these chapters are usually attended not only by the\nincumbents but also by all the licensed unbeneficed clergy of the\ndeanery.[21]\n\n13. Judicial procedure in the case of clerical offences is regulated by\nthree statutes of the last century: (i.) The Church Discipline Act,\n1840,[22] provides that on a complaint or the existence of evil report\nagainst a clergyman the bishop may, with the consent of the parties, at\nonce pronounce sentence, and, in the absence of such consent, may, if he\nthinks fit, issue a commission of inquiry. If the commission reports\nthat there is _prim\u00e2 facie_ ground for proceedings, the bishop may\neither try the case in person with assessors, or else send it by\nletters of request direct to the provincial court. The latter course has\nin practice been generally adopted, and an appeal may be carried to the\nJudicial Committee of the Privy Council. (ii.) The Public Worship\nRegulation Act, 1874,[23] introduced an alternative procedure in matters\nof ornament and ritual. On the representation of the archdeacon or a\nchurchwarden or any three parishioners, the bishop, unless he is of\nopinion that no proceedings should be taken upon it, is to require the\nparties to state whether they are willing to submit to his directions in\nthe matter, and if they assent he is to hear the case and pronounce\njudgment as he thinks proper, and no appeal is to lie from his judgment.\nBut if they decline to submit the case to the bishop, it is to be heard\nby the judge appointed under the Act, who is in fact the same person as\nthe judge of the two provincial courts, and an appeal lies from his\ndecision to the Judicial Committee. (iii.) The Clergy Discipline Act,\n1892,[24] prescribed a new mode of dealing with offences against\nmorality. In certain cases where the offence is proved by a conviction\nand sentence or an order of a temporal court, the offending clergyman is\nto be incapable of holding preferment, and the bishop is to declare\nvacant any preferment which he holds without any further trial. But in\nall other cases proceedings are to be taken in the consistory court\nbefore the chancellor of the diocese, with the addition of four\nassessors to try any question of fact, if either party demands them.\nEither party may appeal against the judgment of the consistory court on\na question of law, and the accused clergyman may, with the leave of the\nappellate court, appeal on a question of fact. The appeal may at the\noption of the appellant be either to the provincial court or to the\nJudicial Committee of the Privy Council, but if it is made to the\nprovincial court the decision of that court is final. The net result of\nthe three Acts is that (i.) offences of the clergy in respect of\nmorality can only be dealt with under the Act of 1892; (ii.) proceedings\nfor offences in respect of ritual and the ornaments of the church or the\nminister may be taken either under the Act of 1840 or under that of\n1874; and (iii.) offences in respect of doctrine, as well as all other\noffences which do not come under (i.) or (ii.), must be dealt with under\nthe Act of 1840.\n\n14. Priests, at their ordination, are reminded of their duty to forsake\nand set aside, as much as possible, all worldly cares and studies, and\nare exhorted to apply themselves wholly to their sacred office, and draw\nall their cares and studies that way; and they promise, among other\nthings, to lay aside the study of the world and the flesh. No similar\nexpressions occur in the form for the making of deacons; but our law\nrecognises no distinction between the two orders of clergy in respect\nof their civil privileges and disabilities.\n\n15. A clergyman, whether priest or deacon, is not compellable to serve\non a jury, though it is not illegal for him to do so. He may be\nappointed a justice of the peace or guardian of the poor, may be a\nmember of a parish or district council, and may act as chairman,\nalderman, or councillor of a county council, and as mayor, alderman, or\ncouncillor of any of the Metropolitan boroughs. But he is disqualified\nfrom being mayor, alderman, or councillor of any other municipal\nborough;[25] and he cannot be elected a member of the House of\nCommons;[26] though, if he is a peer, he may sit in the House of Lords.\n\n16. Canon 75 not only forbids ecclesiastical persons to resort, except\nfor their honest necessities, to taverns or alehouses, or to board or\nlodge therein, or to spend their time in drinking or riot or playing at\ndice, cards, or tables, or any other unlawful games, but also prohibits\nthem from engaging in any base or servile labour. And a clergyman who\nholds any cathedral preferment, benefice, curacy, or lectureship, or is\nlicensed or is otherwise allowed to perform the duties of any\necclesiastical office, is subject to certain specific legal restrictions\nas to engaging in business or trade. (_a_) He may not acquire for\noccupation, use, or cultivation more than eighty acres of land without\nthe written permission of the bishop, which must be restricted to a\nspecified number of years not exceeding seven. (_b_) He may not engage\nin any trade or dealing for profit except where it is carried on by more\nthan six partners, or by a company, or where the concern, or a share in\nit, has devolved on him under a will or settlement, or by inheritance or\nmarriage or bankruptcy; and in none of the excepted cases may he act as\na director or managing partner, or carry on the concern in person. These\nrestrictions, however, do not extend to keeping a school or seminary, or\nbeing employed as a schoolmaster or tutor, or being concerned in\neducation for profit, or buying or selling or otherwise acting in\nrelation to such school, seminary, or employment. Nor of course do they\nprevent an incumbent from farming, if he pleases, his own glebe lands.\nNor do they interfere with the sale, even at an enhanced price, of goods\nwhich a clergyman actually buys for the use of his household, but\nafterwards does not want to keep, nor with the sale of books to or\nthrough a bookseller or publisher. He may also be a manager, director,\npartner, or shareholder in any benefit society, or fire or life\nassurance society, and may sell minerals from mines on his own lands,\nand also (provided he do not do so in person at a market or other public\nsale) may buy and resell for profit cattle, corn, and other things\nrequired for the occupation, cultivation, and improvement of glebe or\nother lands lawfully held by him. The penalties for unlawfully trading\nare, for the first offence, suspension for not exceeding one year, for\nthe second offence suspension for a longer period, and for the third\noffence deprivation _ab officio et beneficio_.[27]\n\n17. Both clergymen and other ministers of religion are specially\nprotected in the performance of religious rites, including rites of\nburial, in a church or other place of worship, or a churchyard or\nburial-place. It is a misdemeanour punishable by imprisonment with or\nwithout hard labour, to offer violence to them or arrest them upon any\ncivil process while engaged in or going to or returning from the\nperformance of these rites, or to obstruct or endeavour to obstruct them\nin the performance.[28] The maintenance of order in a church or other\nplace of worship, whether Divine service is being performed or not, and\nin a churchyard or burial-place, is also provided for by the Act\nagainst brawling passed in 1860.[29]\n\n18. A clergyman cannot divest himself of his orders;[30] and Canon 76\nprohibited him from forsaking his calling or conducting himself as a\nlayman under pain of excommunication. But now, by statute, after\nresigning all preferments held by him, he can surrender all clerical\nrights and powers, and free himself from all clerical disabilities, if\nhe executes a deed of relinquishment in the prescribed form, and causes\nit to be enrolled in the Central Office of the Supreme Court of\nJudicature, and delivers an office copy of the enrolment to the bishop\nof the diocese in which he last held preferment, or (if he has never\nheld preferment) in which he resides, and gives notice of having done so\nto the archbishop of the province in which the diocese is situate. And a\nclergyman who takes this course is relieved from all censures or other\nproceedings for so doing, but is rendered incapable of afterwards\nofficiating or acting as a minister of the Church of England or taking\nor holding any preferment therein.[31]\n\n\n                          Footnotes\n\n[1] 1 Bl. Comm. 14, 79-83, and n. (11) by J. T. Coleridge (afterwards\nJudge) in 16th ed. (1825); (1533) 25 Hen. 8, c. 19, ss. 1-3; c. 21\n(preamble); (1535) 27 Hen. 8, c. 15; (1543) 35 Hen. 8, c. 16.\n\n[2] _i.e._ \"The Book of Common Prayer and Administration of the\nSacraments and other Rites and Ceremonies of the Church, according to\nthe use of the Church of England, together with the Psalter or Psalms of\nDavid, pointed as they are to be sung or said in Churches, and the Form\nor Manner of making, ordaining, and consecrating of Bishops, Priests,\nand Deacons,\" which is annexed to the Act of Uniformity of 1662 (14 Cha.\n2, c. 4). Similarly the Thirty-Nine Articles of Religion are enjoined on\nthe clergy by (1571) 13 Eliz. c. 12, the Clerical Subscription Act, 1865\n(28 & 29 Vict. c. 122), and the Canon made in 1865 and ratified by the\nCrown in 1866.\n\n[3] Middleton _v._ Crofts (1736) 2 Str. 1056; 2 Atk. 650; Bp. of Exeter\n_v._ Marshall (1868) L. R. 3 H. L. 17.\n\n[4] Gibs. Cod. 956. The Act of 1661 (13 Cha. 2, st. 1, c. 12), which\nrestored the ecclesiastical jurisdiction of archbishops, bishops, and\nother spiritual judges and officers, contained a proviso that nothing\ntherein contained should extend to confirm \"the canons made in the year\n1640, nor any of them, nor any other ecclesiastical laws or canons not\nformerly confirmed, allowed, or enacted by Parliament or by the\nestablished laws of the land as they stood in the year of our Lord\n1639.\"\n\n[5] So called \"because by his person the church, which is an invisible\nbody, is represented: and he is in himself a body corporate in order to\nprotect and defend the rights of the church (which he personates) by a\nperpetual succession.\" 1 Bl. Comm. 384. The term _parson_ is often\npopularly, but incorrectly, applied to vicars and other clergymen.\n\n[6] The owner of this right was called the _patronus_ or _advocatus_ on\naccount of his duty to patronise, advocate, or defend the privileges of\nthe church and benefice. Hence his right to nominate the rector was\nstyled _advocatio_ or advowson.\n\n[7] (1818) 58 Geo. 3, c. 45, ss. 16-19.\n\n[8] (1822) 3 Geo. 4, c. 72, ss. 13, 14.\n\n[9] (1818) 58 Geo. 3, c. 45, s. 25; (1831) 1 & 2 Will. 4, c. 38, s. 12;\n(1839) 2 & 3 Vict. c. 49, ss. 2, 8; (1845) 8 & 9 Vict. c. 70, ss. 9, 17.\nThe churches provided under the Church Building Acts and New Parishes\nActs may be classified as follows: i. Church of a distinct and separate\nparish formed under the Church Building Act, 1818 (58 Geo. 3, c. 45, s.\n76); ii. Church of a district parish formed under 58 Geo. 3, c. 45, s.\n21; iii. Church or chapel of a consolidated chapelry formed under the\nChurch Building Act, 1819 (59 Geo. 3, c. 134, s. 6); iv. Church or\nchapel of a district chapelry formed under 59 Geo. 3, c. 134, s. 16; v.\nChurch or chapel built or appropriated under the Church Building Act,\n1831 (1 & 2 Will. 4, c. 38, s. 2), with or without a particular district\nformed under s. 10 of that Act; vi. Chapel of ease constituted the\nchurch of a separate spiritual parish under 1 & 2 Will. 4, c. 38, s. 23;\nvii. Church of a Peel parish formed under the New Parishes Act, 1843 (6\n& 7 Vict. c. 37, s. 15); viii. Church of a new parish formed under the\nNew Parishes Act, 1856 (19 & 20 Vict. c. 104, ss. 1, 2); ix. Church of a\ndistrict parish, consolidated district chapelry, or particular district,\nwhich under 19 & 20 Vict. c. 104, s. 14, has become a separate\necclesiastical parish in consequence of the Ecclesiastical Commissioners\nhaving authorised in such church the publication of banns and the\nsolemnisation of marriages, churchings, and baptisms; x. Church, without\na district, built on a site the conveyance of which has been accepted by\nthe Ecclesiastical Commissioners (8 & 9 Vict. c. 70, s. 7).\n\n[10] 31 & 32 Vict. c. 117, s. 2. Under the Parish of Manchester Division\nAct, 1850 (13 & 14 Vict. c. 41, s. 2), the benefice of every new parish\nwithin the area of the ancient parish of Manchester is a rectory.\n\n[11] See the Prayer for the Clergy and People in Morning and Evening\nPrayer and the Prayer for the Church Militant.\n\n[12] (1784) 24 Geo. 3, sess. 2, c. 35, s. 1; (1819) 59 Geo. 3, c. 60, s.\n1.\n\n[13] 28 & 29 Vict. c. 122, s. 4. See ch. ii. \u00a7 6 (i.) below.\n\n[14] (1874) 37 & 38 Vict. c. 77.\n\n[15] (1864) 27 & 28 Vict. c. 94. See (1865) 28 & 29 Vict. c. 122, s. 4;\nch. ii. \u00a7 6 (i.) below.\n\n[16] Bp. of Winchester _v._ Rugg (1868) L. R. 2 P. C. 223, 230.\n\n[17] As to this, see ch. ii. \u00a7 6 (iv.) and note.\n\n[18] Ayl. Par. 95. The Dean of the Cathedral has an independent position\nand dignity in respect of the Cathedral Church, which is outside the\ngeneral diocesan and archidiaconal jurisdiction; _Ib._\n\n[19] Reg. _v._ Sowter (1901) 1 K. B. 66; rev., 396.\n\n[20] Phill. Eccl. Law, Pt. i. ch. v. pp. 194-207; Pt. iv. ch. xi. \u00a73,\npp. 1051-1054; 1 Burn, 93-97. According to a table of fees settled under\nthe authority of the Act 30 & 31 Vict. c. 135, and published in the\n_London Gazette_ of March 19, 1869, the fees to be paid by each parish\nat either an episcopal or an archidiaconal visitation are 18s.; viz. 2s.\nto the chancellor or archdeacon (as the case may be), 12s. 6d. to the\nregistrar, and 3s. 6d. to the apparitor.\n\n[21] Ayl. Par. 205; Gibs. Cod. 971-973; 2 Burn, 119-125; Dansey's _Hor\u00e6\nDecanic\u00e6 Rurales_ (2nd ed., 1844), Pts. iv, v.\n\n[22] 3 & 4 Vict. c. 86.\n\n[23] 37 & 38 Vict. c. 85.\n\n[24] 55 & 56 Vict. c. 32.\n\n[25] Cripps, 67, 68; (1882) 45 & 46 Vict. c. 50, ss. 12 (1) (_b_), 14\n(3); (1888) 51 & 52 Vict. c. 41, s. 2 (2) (_a_); (1899) 62 & 63 Vict. c.\n14, s. 2 (4), (5).\n\n[26] (1801) 41 Geo. 3 (U. K.), c. 63.\n\n[27] (1838) 1 & 2 Vict. c. 106, ss. 28, 31; (1841) 4 & 5 Vict. c. 14.\n\n[28] (1861) 24 & 25 Vict. c. 100 (Offences against the Person), s. 36.\n\n[29] 23 & 24 Vict. c. 32.\n\n[30] Barnes _v._ Shore (1846) 8 Q. B. 640; 1 Rob. Eccl. 382.\n\n[31] 33 & 34 Vict. c. 91 (The Clerical Disabilities Act, 1870).\n\n\n\n\n                        CHAPTER II\n\n                    BENEFICED CLERGY\n\n\n1. In the case of all benefices, admission is granted by the bishop, as\nprimarily charged with the cure of souls throughout his diocese; but,\nunless there is good legal reason to the contrary, he is bound to admit\nthe clerk who is presented by the patron of the benefice, if the\npresentation is made within six calendar months after the benefice\nbecame vacant. If that period passes without a presentation being made,\nthe right of appointment lapses to the bishop. If he does not appoint\nwithin a further like period, it goes to the archbishop of the province,\nand if he fails to appoint within another period of six calendar months,\nit devolves finally on the Crown.[32] The period for lapse dates from\nthe day of the vacation of the benefice if it occurred by death or\nacceptance of another living.[33] But if the vacancy was created by\nresignation or deprivation or avoidance of the benefice for\nnon-residence, or if a clerk who is presented is rejected for want of\nability or moral character, the period will only begin to run from the\ntime when notice of the fact is given by the bishop to the patron,[34]\nexcept in the case of an ecclesiastical patron who (unless the case\ncomes under the Benefices Act, 1898, ss. 2, 3) is not entitled to such\nnotice.[35] Moreover, in reckoning the period for lapse, no account is\nto be taken, in the case of the first and second presentations by a\npatron in respect of the same vacancy, of the time between a\npresentation and the bishop's refusal to admit the presentee, or of the\nperiod between that refusal and a decision of a court upon it, nor, in\nthe case of a collation by the bishop, of the time between the service\nof the prescribed notice on the churchwardens and the expiration of a\nmonth from that service.[36]\n\n2. The original connection of advowsons or rights of presentation with\nmanors or estates[37] led to their passing by devolution or devise on\ndeath, or by gift or sale during life, to the heir of the patron, or to\na devisee, donee, or purchaser of the manor or estate; and it soon\nbecame recognised in law that they could be alienated by themselves like\nany other property, apart from the manors to which they were originally\nappendant. Moreover, until 1899 the law allowed a patron to grant or\nsell the right of next presentation, or the right of presentation during\nhis lifetime, or any other limited interest in the patronage, reserving\nthe fee-simple of the advowson to himself. By an Act of 1713,[38] a\nclergyman was prohibited from purchasing a next presentation and then\npresenting himself; but this has been held not to prevent him from\npresenting himself after purchasing an estate in fee, or even an estate\nfor life in the advowson.[39] And if the benefice is vacant at the time\nof the transfer, the transfer does not carry with it the right to\npresent a clerk to fill up the existing vacancy.[40] This, however, was,\nuntil 1899, frequently got over by an agreement that the transferor\nshould present such clerk as the transferee might nominate. But the\nBenefices Act, 1898,[41] introduced several salutary restrictions on the\ntransfer of advowsons. Under sect. 1 of that Act:--\n\n(_a_) A transfer of an advowson (otherwise than on marriage, death, or\nbankruptcy, or on the appointment of a new trustee) is invalid unless it\n(i.) transfers the whole interest of the transferor in the advowson\n(except that he may reserve to himself a life interest in making a\nfamily settlement, and the equity of redemption in making a mortgage);\n(ii.) is made more than twelve months after the last filling up of the\nbenefice; and (iii.) is registered in the diocesan registry within one\nmonth after its date, or such extended period as the bishop may under\nspecial circumstances permit.\n\n(_b_) The advowson must not be put up to auction unless sold with a\nmanor or not less than 100 acres of land belonging to the same owner in\nthe same or an adjoining parish.\n\n(_c_) Subsection (3) of the same section also makes invalid any\nagreement to exercise patronage in favour of or on the nomination of a\nparticular person, and also, in connection with the transfer of an\nadvowson, any agreement (i.) to retransfer the advowson; (ii.) to\npostpone payment of any part of the purchase money, or to pay interest\nuntil a vacancy in the living, or for more than three months; (iv.) to\nmake any payment in respect of the date at which the vacancy may occur;\nor (v.) that the living shall be resigned in favour of any person. If\nthe patron of a benefice is a Roman Catholic, the University of Oxford\nor of Cambridge has the right to present.[42] A Jew who owns an advowson\nmay present; but if a Jew holds an office under the Crown to which a\nright of presentation is attached, the right passes to the Archbishop of\nCanterbury.[43]\n\n3. Every clerk in priest's orders, who has not relinquished the rights\nand privileges attaching to those orders under the Clerical Disabilities\nAct, 1870,[44] or become incapable of holding preferment under the\nClergy Discipline Act, 1892,[45] is qualified to be appointed to a\nbenefice. But, unless he has been so ordained by a bishop of the Church\nof England or of the Church of Ireland, or by a commissary of an English\nbishop under 15 & 16 Vict. c. 52, he is subject to the provisions of the\nColonial Clergy Act, 1874,[46] or, if ordained in Scotland, of the\nEpiscopal Church (Scotland) Act, 1864,[47] as to the previous consent or\nlicence of the archbishop of the province or bishop of the diocese; and\na clerk ordained priest as an alien or for service in the colonies under\nthe Ordination of Aliens Act, 1784, or the Ordinations for Colonies Act,\n1819, is subject to the same provisions.[48] The bishop may, however,\nindependently of the Benefices Act, 1898, refuse to admit him on the\nground of insufficient learning,[49] or of vicious conduct, heresy, or\noffences against ecclesiastical law in matters of ritual--anything, in\nshort, which, if it occurred after admission, might be a ground for\ndepriving him of the benefice.[50] And, under sect. 2 of that Act, the\nbishop may do so, (_a_) if at the date of the vacancy not more than a\nyear has elapsed since a transfer within the purview of sect. 1[51] of\nthe right of patronage of the benefice, unless the transfer is proved\nnot to have been effected in view of the probability of a vacancy within\nthe year; or (_b_) if not more than three years have elapsed since the\npresentee was ordained deacon; or (_c_) if the presentee is unfit owing\nto physical or mental infirmity, serious pecuniary embarrassment, grave\nmisconduct, or neglect of duty in an ecclesiastical office, evil life,\nor scandal caused by his moral conduct since ordination; or (_d_) if he\nhas, with reference to the presentation, been knowingly party or privy\nto a transaction or agreement invalid under the Act.[51] The 39th Canon\nlays down that a bishop shall not institute to a benefice a clergyman\nwho has been ordained by another bishop, without production of his\nletters of orders and a sufficient testimony of his former good life and\nbehaviour if the bishop requires it,[52] and his appearing on due\nexamination to be worthy of his ministry. What this examination covers\nis not clearly definable; but it has not such a wide scope as the\nexamination contemplated in Canon 48, which does not apply to presentees\nto livings.[53] Under the 95th Canon a bishop is allowed twenty-eight\ndays for inquiry as to the fitness of a presentee; but this is merely\ndirectory, and he is not precluded from continuing the inquiry after\ntheir expiration.[54]\n\n4. If a bishop refuses to admit a presentee on a ground specified in\nsect. 2 of the Act of 1898, or on account of any other unfitness or\ndisqualification sufficient in law, not having reference to doctrine or\nritual, he is to signify in writing his refusal, and the ground for it,\nto the patron and the presentee; and either of them may within one month\nthereafter require that the matter be heard by a court consisting of the\narchbishop of the province (or if it was the archbishop who refused to\nadmit, the archbishop of the other province) and a judge of the Supreme\nCourt, nominated by the Lord Chancellor. The judge is to decide all\nquestions of law and fact, and if the judge finds that there is no fact\nsufficient in law to constitute unfitness or disqualification, the\narchbishop is to direct the admission of the presentee. But if the judge\nfinds that such fact does exist, the archbishop is to decide whether the\npresentee is actually in consequence unfit to serve the benefice, and\nadjudge whether admission ought under the circumstances to be refused.\nIn either case his judgment is to be final.[55] When the bishop has\nrefused to admit a presentee, the patron cannot present him again in\nrespect of the same vacancy.[56] If the bishop refuses to admit the\npresentee of a clerical patron and the refusal is upheld by the court,\nthe patron has the same right of further presentation as if he were a\nlay patron.[57] If a bishop refuses to admit a presentee on the ground\nof doctrine or ritual, the old alternative remedies remain, either (_a_)\nof a suit of _duplex querela_ by the presentee in the ecclesiastical\ncourt of the province, or (_b_) of an action of _quare impedit_ by the\npatron in the High Court of Justice.[58]\n\n5. Before the bishop admits a clerk to a vacant benefice, he must send\nto the churchwardens in a registered letter a formal notice of his\nintention so to do, with a statement of the ecclesiastical preferments\nwhich the clerk has held, and a direction that the notice is to be fixed\nfor one month on the principal door or notice-board of the church; after\nwhich it is to be returned to the bishop with a certificate, signed by\nthe churchwardens, that the direction has been complied with.[59] The\nobject of this proceeding is to give to the parishioners the opportunity\nof communicating to the bishop the existence of any fact known to them\nwhich would constitute a valid and legal ground for the bishop to refuse\nthe presentee.\n\n6. The bishop admits a presentee by formal institution in the case of a\nrectory or vicarage (the presentee kneeling before him), and by licence\nin the case of a perpetual curacy. In the case of admission to the\nbenefices of new ecclesiastical parishes, which though by law perpetual\ncuracies, are titular vicarages,[60] the practice varies. Admission by\nlicence is the correct course; but by the desire of the presentee\nhimself institution is sometimes granted. Where the bishop is himself\nthe patron, he cannot present, and therefore admits by collation, which\ncorresponds to the two processes of presentation and institution.[61]\nBefore institution, collation, or admission by licence, the clerk makes\ntwo declarations and takes two oaths.[62]\n\n(i.) A declaration of assent, namely--\n\n    I assent to the Thirty-nine Articles of Religion, and to the\n    Book of Common Prayer, and of the ordering of Bishops, Priests,\n    and Deacons. I believe the Doctrine of the Church of England as\n    therein set forth, to be agreeable to the Word of God; and in\n    Public Prayer and Administration of the Sacraments I will use\n    the Form in the said Book prescribed and none other, except so\n    far as shall be ordered by lawful authority.[63]\n\n(ii.) A declaration against simony, namely--\n\n    I, A. B., hereby solemnly and sincerely declare in reference to\n    the presentation made of me to the rectory (or vicarage, &c.)\n    of ---- as follows:\n\n    1. I have not received the presentation of the said rectory (or\n    vicarage, &c.) in consideration of any sum of money, reward,\n    gift, profit, or benefit directly or indirectly given or\n    promised by me, or by any person to my knowledge or with my\n    consent, to any person whatsoever; and I will not at any time\n    hereafter perform or satisfy any payment, contract, or promise\n    made in respect of that presentation by any person without my\n    knowledge or consent.\n\n    2. I have not entered, nor, to the best of my knowledge and\n    belief, has any person entered, into any bond, covenant, or\n    other assurance or engagement, otherwise than as allowed by\n    sections one and two of the Clergy Resignation Bonds Act,\n    1828,[64] that I should at any time resign the said rectory (or\n    vicarage, &c.).\n\n    3. I have not by myself, nor, to my knowledge, has any person on\n    my behalf, for any sum of money, reward, gift, profit, or\n    advantage, or for or by means of any promise, agreement, grant,\n    bond, covenant, or other assurance of or for any sum of money,\n    reward, gift, profit, or benefit whatsoever, directly or\n    indirectly procured the now existing avoidance of the said\n    rectory (or vicarage, &c.)\n\n    4. I have not, with respect to the said presentation, been party\n    or privy to any agreement which is invalid under section one,\n    subsection three, of the Benefices Act, 1898.[65]\n\n(iii.) The oath of allegiance, namely--\n\n    I, A. B., do swear that I will be faithful and bear true\n    allegiance to His Majesty King Edward the Seventh, His Heirs and\n    Successors according to Law. So help me GOD he oath of canonical\n    obedience, namely--\n\n    I, A. B., do swear that I will perform true and canonical\n    obedience to the Bishop of C. and his successors in all things\n    lawful and honest. So help me GOD.[66]\n\nMoreover, on the first Lord's Day on which he officiates in church in\nhis benefice, or such other Lord's Day as the ordinary allows, he is to\nread publicly the Thirty-nine Articles, and make the declaration of\nassent, adding after \"Articles of Religion,\" the words, \"which I have\nnow read before you.\"[67]\n\n7. A clerk who has been admitted to a benefice by either institution,\ncollation, or licence is thereby invested with the cure of souls of the\nparish, and with the right to the temporalities; and, in the case of\nadmission by licence, nothing more is requisite to place him in full\nenjoyment of the benefice. But, in the case of institution or collation,\nthe further process of induction is necessary to invest him with the\nactual possession of its temporalities. The bishop issues his mandate\nfor the purpose to the archdeacon or some other person, who, in\nobedience thereto, goes to the church, and, placing the clerk's hand\nupon the key or ring of the door, inducts him into the real, actual, and\ncorporal possession of the church, with all its rights, profits, and\nappurtenances.[68]\n\n8. The following fees in connection with the admission to benefices were\nsettled in June 1895, under the Acts 1 & 2 Vict. c. 106, and 30 & 31\nVict. c. 135:[69]\n\nKey for Column Z below.\n\n A: Collation to a benefice\n B: Institution to a benefice\n C: Licence to a perpetual curacy\n D: Induction to a benefice (whether of one parish, or of two or more\n        united parishes)\n\n -+-----------+----------+----------+----------------------------------+\n  |           |Registrar |          |                                  |\n  |Vicar      |or other  |Secretary |During existing vested interests. |\n  |General    |Officer   |of Arch-  +----------+-----------+-----------+\n Z|or         |by usage  |bishop    |          |           | Record    |\n  |Chancellor.|performing|or Bishop.|Apparitor | Sealer.   | Keeper.   |\n  |           |the duty. |          |          |           |           |\n -+-----------+----------+----------+----------+-----------+-----------|\n  |\u00a3 _s.  d._ |\u00a3 _s.  d._|\u00a3 _s.  d._|\u00a3 _s.  d._|\u00a3 _s.  d._ |\u00a3 _s.  d._ |\n A|   16   8  |2  2    4 |4  4    0 |   3    6 |   4    6  |    4   6  |\n B|   16   8  |2  2    4 |4  4    0 |   3    6 |   4    6  |    2   6  |\n  |           |          |          |          |           |           |\n C|    9   4  |1 15    8 |2  2    0 |          |   1    0  |    1   0  |\n  +-----------+----------+          |          |           |           |\n  |Arch-      |Arch-     |          |          |           |           |\n  |deacon's   |deacon's  |          |          |           |           |\n  |Official.  |Registrar.|          |          |           |           |\n  +-----------+----------+          |          |           |           |\n  |\u00a3 _s.  d._ |\u00a3 _s.  d._|          |          |           |           |\n D|   10   0  |   13   0 |          |   1    0 |   1    0  |    2   6  |\n -+-----------+----------+----------+----------+-----------+-----------|\n\n9. Admission to a benefice confers the right and imposes the duty of the\ncure (Lat. _cura_) or care of souls within the parish attached to the\nbenefice. The nature of this duty can be gathered from the Form of\nOrdering of Priests, the rubrics and provisions of the Book of Common\nPrayer, and the Canons of 1603. Every clergyman, at the time of his\nordination as priest, solemnly promises (_a_) so to minister the\ndoctrine and sacraments and the discipline of Christ as the Lord has\ncommanded, and as the Church and Realm of England have received the\nsame, and to teach the people committed to his cure and charge with all\ndiligence to keep and observe the same; (_b_) to be ready to banish and\ndrive away all erroneous and strange doctrines contrary to God's Word,\nand to use both public and private exhortations, as well to the sick as\nto the whole, within his cure, as need requires and occasion is given;\n(_c_) to be diligent in prayers and in reading of the Holy Scriptures,\nand in such studies as help to the knowledge of the same, laying aside\nthe study of the world and the flesh; (_d_) to frame and fashion himself\nand his family according to the doctrine of Christ, and to make both\nhimself and them wholesome examples and patterns to the flock of Christ;\n(_e_) to maintain and set forward quietness, peace, and love among all\nChristian people, and especially among those committed to his charge;\nand (_f_) reverently to obey his ordinary and other chief ministers,\nfollowing with a glad mind and will their godly admonitions, and\nsubmitting himself to their godly judgments. While the cure of souls\nthus embraces the general care of the spiritual and moral welfare of the\npeople, it includes the following particulars, which will be separately\nconsidered: (i.) Residence; (ii.) Performance of Divine Service,\nincluding the Administration of the Sacraments, Preaching and\nCatechising; (iii.) Solemnisation of Marriage; (iv.) Burial of the Dead;\nand (v.) Private Ministrations, including the Visitation of the Sick.\n\n10. Speaking generally, and with the exceptions and under the\nrestrictions to be presently mentioned, the incumbent and clergymen\npermitted by him have the sole right of ministering within his parish;\nand a clergyman who intrudes and performs any clerical function in it\nwithout his permission, commits an ecclesiastical offence.[70] But the\nbishop, as the chief pastor, has the right to officiate in any church\nand parish within his diocese whenever he pleases. And an incumbent\ncannot authorise another clergyman to officiate in his church or parish\nwithout the licence of the bishop; but this rule has been held not\napplicable in its absolute strictness to merely occasional and isolated\nacts of ministration.[71] The few cases in which two or more incumbents\nhave had the cure of souls within the same parish, have been dealt with\nby recent legislation.[72] The 28th and 57th Canons prohibited the\npractice of persons leaving their own parish church and communicating or\ncausing their children to be baptized elsewhere. But this prohibition is\nnot now in force; and by a general understanding and comity, especially\nin towns subdivided into several ecclesiastical parishes, not only do\nChurch people frequent at will the particular church which they prefer,\nbut the incumbent of that church pays spiritual visits in sickness and\nat other times to regular members of his congregation who reside in\nanother parish.\n\n11. The ministrations of the incumbent himself are restricted by Canon\n71, under which, except where a person is prevented from going to church\nby infirmity or sickness, no minister may preach or administer the Holy\nCommunion in any private house in which there is not a chapel dedicated\nand allowed by the ecclesiastical law of the realm, nor, where there is\nsuch a chapel, in any other place but the chapel, and even there only\nseldom on Sundays and holy-days in order that the lord or master of the\nhouse and his family may at other times resort to their own parish\nchurch and there receive the Holy Communion at least once every year. An\nincumbent can perform Divine service in any consecrated building in his\nparish without a licence from the bishop; but, strictly speaking, he\nrequires the bishop's licence to authorise him to do so in any\nunconsecrated building, whether within or outside his parish, or\nanywhere in another diocese; and a bishop can inhibit an incumbent of\nhis diocese from officiating within the diocese elsewhere than in the\nconsecrated buildings within his own parish. If an incumbent\ntransgresses in any of these respects he is liable to be sued for an\necclesiastical offence.[73] Moreover, strangely enough, the Acts which\nlegalised the worship of Dissenters not only withdrew them from the care\nof the incumbent of the parish but also restricted his action among\nChurch people. For these Acts prohibited any meeting for Protestant\nreligious worship of more than twenty persons, besides the family and\nservants of the house where it was held, except at a place duly\ncertified for the purpose.[74] But in 1855 it was enacted that these\nprohibitions should not apply to any assembly for religious worship\neither (_a_) conducted by the incumbent or curate in charge of the\nparish or any person authorised by him, or (_b_) meeting in private\npremises, or (_c_) meeting occasionally in a building not usually\nappropriated to religious worship.[75]\n\n12. There are also special cases in which the right of an incumbent to\nofficiate and exercise the cure of souls is actually superseded in\nfavour of a chaplain appointed without his consent. Where a nobleman has\na chapel within or attached to his residence he has the right to appoint\na chaplain to serve it.[76] The chapels of public and endowed schools\nunder the Acts of 1868 and 1869 are free from the jurisdiction and\ncontrol of the incumbent of the parish in which they are situate.[77]\nMoreover, a bishop may license a clergyman to administer the Lord's\nSupper and perform services other than the solemnisation of marriage,\nand, subject to the direction of the ordinary, to dispose of the\noffertory and collections, in the chapel of any college, school,\nhospital, asylum, or public or charitable institution within his\ndiocese; and where this is done, the institution and chapel are\nwithdrawn from the cure of souls and control of the incumbent of the\nparish.[78] During the eighteenth and first part of the nineteenth\ncentury, before the Church Building and New Parishes Acts had afforded\nfacilities for creating new parishes, unconsecrated proprietary chapels\nwere built in various places, with the consent of the bishop of the\ndiocese and incumbent of the parish, to meet the wants of overgrown town\npopulations. These chapels can only be served by ministers acting under\nthe licence of the bishop, (which he can at any time revoke),[79] and\nwith the consent of the incumbent, which, though he cannot himself\nrevoke it, is not binding on his successors.[80] Unless the incumbent\nwaives the right to the alms collected in the chapel, they must be\naccounted for to him. The chapel is private property, and no one can\nclaim to attend it as of right.[81]\n\n13. The right to the cure of souls in a parish naturally carries with it\nthe right of the incumbent to a voice in the erection of a new church in\nthe parish and the severance of any portion of the parish from his\nbenefice and its formation into a new ecclesiastical district or parish.\nThe various modes in which these objects may be effected are mentioned\nin the note to Ch. I. \u00a7 6 above. The enactments on the subject provide\nopportunities for the incumbents of the existing parishes, which would\nbe affected by any contemplated action in the matter, to lay their views\nand objections, if any, before the bishop and the Ecclesiastical\nCommissioners; but their views need not necessarily be accepted and\ntheir objections may be overruled.\n\n14. An incumbent cannot hold more than one benefice at the same time,\nexcept that upon a certificate of the bishop as to the facts, and with a\nlicence or dispensation from the archbishop of the province (from the\nrefusal of which there is an appeal to the King in Council), he may hold\na second, the church of which is within four miles of that of the first\nby the nearest road, if the annual value of one of the benefices does\nnot exceed the net sum of \u00a3200, after deducting rates, taxes, tenths,\ndues, and permanent charges, but not the stipend of a curate. But where\nthe population of one of the parishes is over 3000, the joint holding\nwill only be lawful if that of the other is under 500.[82]\n\n15. The bishop is invested with certain specific powers in case of the\ninadequate performance of the ecclesiastical duties of a benefice,\nincluding not only the regular and due performance of Divine service on\nSundays and holy days at the usual hours, but also all such duties as\nthe incumbent is bound by law to perform, or the performance of which\nwas solemnly promised by him at his ordination,[83] and the performance\nof which has been required of him in writing by the bishop; and\nincluding also, in the four Welsh dioceses and the county of Monmouth,\nsuch ministrations in Welsh as the bishop directs to be performed by\nhim, not being more than one service in Welsh on every Sunday in any\nchurch, and without interfering with due provision for the\nEnglish-speaking portion of the people. If the bishop has reason to\nbelieve that these duties are inadequately performed by an incumbent, he\nmay issue a commission of inquiry to four commissioners, viz. the\narchdeacon or rural dean of the archdeaconry or deanery in which the\nbenefice is situate; the canon residentiary, prebendary, or honorary\ncanon of the cathedral church of the diocese elected triennially for the\npurpose by the dean and chapter; the beneficed clergyman elected\ntriennially for the purpose by and out of the beneficed clergy of the\narchdeaconry; and a lay justice of the peace of the county nominated on\nthe requisition of the bishop by the chairman of quarter sessions or\nlord-lieutenant of the county; and the incumbent may, if he desires, add\na beneficed clergyman of the diocese or a justice of the peace as a\nfifth commissioner. If the commissioners or a majority of them report\nthat the duties are inadequately performed, the procedure may be\ndifferent, according as they do or do not add that this is due to the\nnegligence of the incumbent. If they do not report negligence, the\nbishop has only power to require the incumbent to nominate one or more\ncurates to perform or assist in performing the duties, and to make the\nappointment himself if the incumbent fails to do so, subject to an\nappeal to the archbishop.[84] But if they report negligence, the bishop\nmay make the appointment without previously requiring the incumbent to\nnominate, and may inhibit the incumbent from performing all or any of\nthe duties, subject to an appeal by him to the tribunal constituted by\nthe Benefices Act, 1898.[85] Evidence given before the commissioners is\nprivileged.[86]\n\n16. An incumbent is ordinarily bound to reside in his benefice, or in\none of them if he holds two, or in the parsonage or vicarage house (if\nany);[87] and, even though he keeps a curate, it is his duty, unless\nexcused for some valid reason by the bishop, to read the prayers and\nadminister the sacraments at least once a month.[88] If he is absent in\nany year more than 90 days altogether, he is liable to forfeit, by way\nof penalty, one-third; if more than 180 days, one-half; if more than 240\ndays, two-thirds; and, if for the whole time, three-fourths of the\nyear's income of the benefice; unless he has the bishop's licence, or if\nthe bishop has refused it, the archbishop's licence, for\nnon-residence.[89] This licence may be granted on account of (i.)\nmental or physical infirmity; (ii.) the dangerous illness of the\nincumbent's wife or child residing with him (but in that case for six\nmonths only, renewable from time to time by leave of the archbishop on\nthe recommendation of the bishop); (iii.) the absence or unfitness of a\nhouse of residence; (iv.) the occupation by the incumbent of a house of\nhis own in the parish, provided he keeps the house of residence in good\nrepair.[90] Exceptions are made in favour of incumbents holding certain\nofficial positions;[91] and the bishop, with the sanction of the\narchbishop, may grant a licence to reside outside the benefice, where he\nthinks it expedient so to do. A licence for non-residence is only valid\nuntil the 31st of December in the year next after that in which it was\ngranted; and it may at any time be revoked, subject, in the case of a\nbishop's licence, to an appeal to the archbishop.[92]\n\n17. In lieu of or after proceeding for pecuniary penalties, the bishop\nmay issue a monition and order requiring a non-resident incumbent to\nreside on and perform the duties of his benefice, and in case of\nnon-compliance with the order may, subject to an appeal to the\narchbishop, sequester the revenues of the benefice until residence is\nresumed, and direct their application in payment of the penalties, the\nexpenses of the monition and sequestration, the repair and upkeep of\nthe chancel, house of residence, and other property of the benefice, the\nsatisfaction of any creditor's sequestration, and the augmentation or\nimprovement of the benefice or its property, allowing, if he pleases, a\ncertain proportion to the incumbent.[93] If a benefice continues for a\nyear under sequestration for non-residence or an incumbent incurs two\nsequestrations for non-residence within two years, and is not relieved\nin respect of either on appeal, it becomes void as if the incumbent were\ndead.[94]\n\n18. The law also makes provision for the performance of the\necclesiastical duties of a benefice by curates in the case of an\nincumbent who does not reside thereon for nine months in each year and\ndoes not with the consent of the bishop perform the ecclesiastical\nduties while residing on another benefice of which he is the incumbent,\nor while holding a licence not to reside on the benefice or not to\nreside in the parsonage house thereof.[95]\n\n19. Incumbents who are non-resident with the bishop's licence cannot\nwithout the bishop's permission resume the duties of their benefice\nbefore the expiration of their licence; nor can they, if non-resident\nfor more than twelve months, interfere during that period with the\ncurate entrusted with those duties by the bishop.[96]\n\n20. In reckoning the periods prescribed by law as to non-residence, a\nmonth is a calendar month, except where it is to be made up of an\naggregate of lesser periods, in which case thirty days are to be deemed\na month. A year is to be reckoned as commencing on January 1, and ending\non the following December 31, both inclusive.[97]\n\n21. An incumbent vacates his benefice by (i.) death, (ii.) resignation,\n(iii.) admission to other preferment which he cannot by law hold\ntherewith, or (iv.) deprivation.\n\n22. Resignation must be tendered to the bishop, and unless made in view\nof an exchange must be unconditional. It should be made either in person\nor by a deed attested by two witnesses. The presence and attestation of\na notary in addition are usual but are not essential. The resignation\nmay be made at the request of the bishop to avoid scandal and legal\nproceedings, and he may agree to postpone the declaration of the vacancy\nto a fixed date in the future in order to enable the incumbent to\nreceive the tithe rentcharge accruing before that date. Its acceptance\nby the bishop need not be signified in any particular form or even in\nwriting, and is implied if the resignation was tendered at the bishop's\nrequest. It cannot be revoked after its acceptance by the bishop.\nWhether it can, under any circumstances, be revoked previously to\nacceptance by him is not clear.[98] If, however, it is made for the\npurpose of an exchange, it does not take effect unless the exchange is\ncarried out; so that if either of the exchanging incumbents dies before\nbeing inducted to his new living, both resignations are void, as well as\nthe institution and induction of the other to the deceased's old living,\nif that has taken place.[99] The Benefices Act, 1898, precludes an\nincumbent, when he is presented, from entering into any engagement for\nresigning the benefice except under the Clergy Resignation Bonds Act,\n1828, sects. 1, 2, which allow such an engagement with a view to the\nappointment to the benefice, when resigned, of a single specified\nindividual whomsoever, or of one of two specified individuals, each of\nwhom is by blood or marriage an uncle, son, grandson, brother, nephew,\nor great-nephew of the person or one of the persons entitled in equity\nto the patronage of the benefice, or of a married woman whose husband is\nin her right the patron or one of the patrons.[100] The corrupt taking\nof any pension money or other benefit for the resignation or exchange of\na benefice is prohibited by 31 Eliz. c. 6, s. 7. But under the\nIncumbents Resignation Acts, 1871 and 1887, a pension may be awarded out\nof the revenue of the benefice to an incumbent who, after a continuous\nholding of the benefice for not less than seven years, retires therefrom\non the ground of incapacity to perform the duties by reason of permanent\nmental or bodily infirmity. The bishop, if he thinks fit, on the\nrepresentation of the incumbent, appoints a commission to inquire and\nreport as to the expediency of the resignation, and, if the majority of\nthe commissioners consider it expedient, as to the amount of the\npension; which must not exceed one-third of the net annual value of the\nbenefice, exclusive of the house of residence. If the patron refuses\nconsent to the resignation, the question of its acceptance is to be\ndecided by the archbishop. If the incumbent is a lunatic, found such by\ninquisition or certificate of a master of lunacy, the resignation may be\ncarried out in his name by the committee of his estate; but no provision\nexists for effecting the resignation of an incumbent of unsound mind,\nnot so found. If any part of the income of the benefice is derived from\ntithe rentcharge or glebe lands, the pension is to vary like the tithe\nrentcharge with the corn averages; but it will not otherwise be affected\nby a change in the value of the benefice.[101] It will cease if the\npensioner relinquishes the rights and privileges of holy orders under\nthe Clerical Disabilities Act, 1870, or is admitted to another benefice;\nand if he undertakes clerical duties for a remuneration elsewhere than\nin the benefice which he resigned, the bishop may decide that his\npension shall cease or be diminished altogether or for a limited time;\nand the archbishop, on appeal, may confirm, annul, or vary the bishop's\ndecision.[102] A sum due from the retiring incumbent to his successor\nfor dilapidations may be deducted out of the pension, so that the\ndeductions do not without the bishop's consent exceed in any year\none-half of the pension; but no other debt can be set off against\nit.[103]\n\n23. Except in the case already mentioned of an incompleted\nexchange,[104] an incumbent _ipso facto_ vacates his benefice on\nadmission to another preferment which cannot at law be held with\nit.[105]\n\n24. Deprivation is either (_a_) by operation of law or (_b_) by\nsentence. (_a_) It takes place _ipso facto_ (i.) if the presentation or\nadmission to the benefice has been simoniacal, or if a person who has\nbeen corruptly ordained is admitted to the benefice within seven years\nafterwards;[106] (ii.) if the incumbent is convicted a third time of a\nbreach of the provisions of the Acts of Uniformity as to using the Book\nof Common Prayer and no other, and as to not preaching in derogation\nthereof;[107] (iii.) if the incumbent wilfully omits to read publicly\nthe Thirty-nine Articles and his declaration of assent after his\nadmission to the benefice;[108] (iv.) if the benefice continues a whole\nyear under sequestration for disobedience to the bishop's monition or\norder requiring the incumbent to reside on the benefice, or if he incurs\ntwo such sequestrations within two years, and is not relieved as to\neither of them on appeal;[109] (v.) if an inhibition for enforcing\nobedience by the incumbent to a monition or order under the Public\nWorship Regulation Act, 1874, remains in force for more than three\nyears, or a second inhibition for the same purpose is issued within\nthree years from the relaxation of a former inhibition, and the bishop\ndoes not intervene;[110] or (vi.) in the case of an incumbent presented\nor collated since 1898, if within a year after his admission his\nbenefice is sequestrated on his bankruptcy or in aid of an execution\nagainst his property, or if such a sequestration, issued after that\nperiod, continues for a year, or if he incurs two such sequestrations\nwithin two years, unless the bishop otherwise directs.[111] Moreover\n(vii.) the bishop is to declare a benefice vacant if the incumbent is\nconvicted of treason or felony or, on indictment, of a misdemeanour, and\nis sentenced to imprisonment with hard labour or any greater punishment,\nor he has a bastardy order made against him, or in a divorce or\nmatrimonial cause he is either found to have committed adultery or an\norder for judicial separation is made against him; but if, after being\nso convicted, he receives a free pardon from the Crown before the\nbenefice is filled up, he is to be reinstated in it.[112] (_b_) Sentence\nof deprivation is pronounced in suitable cases in proceedings against an\nincumbent for a serious offence against morality under the Clergy\nDiscipline Act, 1892, or for an offence in respect of doctrine or ritual\nor other matter of ecclesiastical cognisance under the Church Discipline\nAct, 1840.[113]\n\n\n                          Footnotes\n\n[32] Wats. ch. xii. pp. 109-120; Gibs. Cod. 768-770.\n\n[33] Wats. ch. ii. pp. 5, 6; Gibs. Cod. 769.\n\n[34] Wats, ch ii. p. 6; Gibs. Cod. 769; (1571) 13 Eliz. c. 12, s. 7;\n(1838) 1 & 2 Vict. c. 106, s. 108.\n\n[35] 2 Burn, 357.\n\n[36] Benefices Act, 1898 (61 & 62 Vict. c. 48), s. 5. Comp. \u00a7\u00a7 4, 5\nbelow.\n\n[37] See ch. i. \u00a7 5.\n\n[38] 13 Ann. c. 11 (12 Ann. st. 2, c. 12), s. 2.\n\n[39] Walsh _v._ Bp. of Lincoln (1875) L. R. 10 C. P. 518.\n\n[40] Alston _v._ Atlay (1837) 7 A. & E. 289.\n\n[41] 61 & 62 Vict. c. 48.\n\n[42] (1605) 3 Ja. 1, c. 5, ss. 19-21; (1688) 1 Will. & Mar. sess. 1, c.\n26; (1898) 61 & 62 Vict. c. 48, s. 7.\n\n[43] (1858) 21 & 22 Vict. c. 49, s. 4.\n\n[44] 33 & 34 Vict. c. 91.\n\n[45] 55 & 56 Vict. c. 32, ss. 1, 6.\n\n[46] 37 & 38 Vict. c. 77. See ch. i. \u00a7 8.\n\n[47] 27 & 28 Vict. c. 94. See ch. i. \u00a7 8.\n\n[48] 24 Geo. 3, sess. 2, c. 35; 59 Geo. 3, c. 60; 37 & 38 Vict. c. 77,\ns. 9.\n\n[49] Willis _v._ Bp. of Oxford (1877) 2 P. D. 192. This includes, in the\nfour Welsh dioceses, inability to preach, administer the sacraments,\nperform other pastoral duties, and converse in Welsh, subject to an\nappeal to the archbishop; (1838) 1 & 2 Vict. c. 106, s. 104; Marquis of\nAbergavenny _v._ Bp. of Llandaff (1888) 20 Q. B. D. 460.\n\n[50] Ayl. Par. 39-42; Heywood _v._ Bp. of Manchester (1884) 12 Q. B. D.\n404.\n\n[51] See \u00a7 2 above.\n\n[52] The \"sufficient testimony\" consists, by long-established practice,\nof a testimonial by three beneficed clergymen, countersigned by the\nbishops of their dioceses if they are not beneficed in the diocese of\nthe bishop to whom the testimonial is given, that the presentee has been\npersonally known to them for three years last past; that they have had\nopportunities of observing his conduct, and during the whole of that\ntime they verily believe that he has lived piously, soberly, and\nhonestly, and that they have not heard anything to the contrary thereof,\nnor that he has at any time held, written, or taught anything contrary\nto the doctrine or discipline of the Church, and that they believe him\nto be, as to his moral conduct, a person worthy to be admitted to the\nbenefice.\n\n[53] Bp. of Exeter _v._ Marshall (1868) L. R. 3 H. L. 17.\n\n[54] Gorham _v._ Bp. of Exeter (1849) 2 Rob. Eccl. 1; 13 Jur. 238.\n\n[55] (1898) 61 & 62 Vict. c. 48, s. 3.\n\n[56] _Ib._ s. 6 (1).\n\n[57] _Ib._ s. 6 (2).\n\n[58] Ayl. Par. 233-5.\n\n[59] Benefices Act, 1898 (61 & 62 Vict. c. 48), s. 2 (2); Benefices\nRules, 1898, ru. 11, 12, sch. form (7).\n\n[60] (1868) 31 & 32 Vict. c. 117.\n\n[61] Gibs. Cod. 813.\n\n[62] 28 & 29 Vict. c. 122 (Clerical Subscription Act, 1865), ss. 1, 5,\n12; 31 & 32 Vict. c. 72 (Promissory Oaths Act, 1868), ss. 2, 8, 9, 14;\n61 & 62 Vict. c. 48 (Benefices Act, 1898), s. 1 (4) sch.\n\n[63] This may be the authority of the King in Council, under which the\nnames of the sovereign and members of the Royal Family are changed in\nthe prayers for them (Gibs. Cod. 280), and other forms are from time to\ntime prescribed; or that of the archbishop or bishop, so far as they\nhave power in the matter. See below, ch. v. \u00a7 1.\n\n[64] See below, \u00a722.\n\n[65] See above, \u00a72 (_c_).\n\n[66] Clarke Proxis, tit. xci.; Gibs. Cod. 810. This oath does not mean\nthat the clerk will obey all the commands of the bishop against which\nthere is no law, but that he will obey all such commands as the bishop\nby law is authorised to impose; Long _v._ Bp. of Capetown (1863) 1 Moo.\nP. C. N. S. 411, at p. 465.\n\n[67] (1865) 28 & 29 Vict. c. 122, s. 7.\n\n[68] Johns, vol. i. p. 84; Wats. ch. xv. p. 155, sq.\n\n[69] _London Gazette_, July 2, 1895.\n\n[70] Duke of Portland _v._ Bingham (1792) 1 Hag. Cons. 157, 161; Carr\n_v._ Marsh (1814) 2 Phill. 198, 206; Farnworth _v._ Bp. of Chester\n(1825) 4 B. & C. 555, 568; Bliss _v._ Woods (1831) 3 Hag. Eccl. 486,\n501-512; Nesbitt _v._ Wallace (1901) P. 354.\n\n[71] Canon 48; Yates _v._ Chambers (1824) 2 Add. 177, 191.\n\n[72] (1839) 2 & 3 Vict. c. 30; (1840) 3 & 4 Vict, c. 113, s. 72; (1869)\n32 & 33 Vict. c. 94, s. 4.\n\n[73] Cripps, 580; Moysey _v._ Hillcoat (1828) 2 Hag. Eccl. 30, 46; Bp.\nof Down _v._ Miller (1861) 11 Ir. Ch. Rep. App. i., ix.; 5 L. T. N. S.\n30; Kitson _v._ Drury (1865) 11 Jur. N. S. 272.\n\n[74] (1688) 1 Will. & Mar. sess. 1, c. 18; (1812) 52 Geo. 3, c. 155.\n\n[75] 18 & 19 Vict. c. 86 (Liberty of Religious Worship Act).\n\n[76] Degge, 188 (pt. i. ch. 12).\n\n[77] 31 & 32 Vict. c. 118, s. 31; 32 & 33 Vict. c. 56, s. 53.\n\n[78] 34 & 35 Vict. c. 66 (Private Chapels Act, 1871).\n\n[79] Hodgson _v._ Dillon (1840) 2 Curt. 388.\n\n[80] Richards _v._ Fincher (1874) L. R. 4 A. & E. 255.\n\n[81] Bosanquet _v._ Heath (1860) 9 W. R. 35; 3 L. T. N. S. 290.\n\n[82] (1838) 1 & 2 Vict. c. 106, ss. 4, 6, 7, 9, 10; (1850) 13 & 14 Vict.\nc. 98, ss. 1-4; (1885) 48 & 49 Vict. c. 54, s. 14.\n\n[83] See \u00a7 9 above.\n\n[84] (1838) 1 & 2 Vict. c. 106, ss. 77, 85-87, 105; (1885) 48 & 49 Vict.\nc. 54, ss. 1-8.\n\n[85] 61 & 62 Vict. c. 48, s. 9.\n\n[86] Barratt _v._ Kearns (1905) 1 K. B. 504.\n\n[87] Gibs. Cod. 885; (1838) 1 & 2 Vict. c. 106, ss. 32, 34, 35; Bluck\n_v._ Rackham (1845-6) 1 Rob. Eccl. 367; 5 Moo. P. C. 305; 4 Not. of Ca.\n85, 534; 9 Jur. 497; 11 _Ib._ 325; 9 Q. B. 691.\n\n[88] (1662) 14 Cha. 2. c. 4 (Act of Uniformity) s. 5.\n\n[89] (1838) 1 & 2 Vict. c. 106, ss. 32, 42, 114-121.\n\n[90] (1838) 1 & 2 Vict. c. 106, ss. 33, 41-51, 57.\n\n[91] _Ib._ ss. 37-39.\n\n[92] _Ib._ ss. 46, 49.\n\n[93] (1838) 1 & 2 Vict. c. 106, ss. 54-58.\n\n[94] _Ib._ ss. 108, 112, 113.\n\n[95] See below, ch. iii. \u00a7. 2 (_c_).\n\n[96] (1885) 48 & 49 Vict. c. 54, s. 12.\n\n[97] (1838) 1 & 2 Vict. c. 106, ss. 120, 121.\n\n[98] Reichel _v._ Bp. of Oxford (1887) 35 Ch. D. 48; aff. (1889) 14 App.\nCa. 259; comp. _Ib._ 665.\n\n[99] Gibs. Cod. 821; Wats. ch. iv. p. 28; Colt _v._ Bp. of Coventry and\nLichfield (1612) Hob. 140, 152.\n\n[100] 9 Geo. 4, c. 94; 61 & 62 Vict. c. 48, s. 1 (4), sch.\n\n[101] Robinson _v._ Dand (1886) 17 Q. B. D. 341.\n\n[102] (1871) 34 & 35 Vict. c. 44; (1887) 50 & 51 Vict. c. 23; Maning\n_v._ Hardy (1904) 20 Times Law Rep. 776.\n\n[103] Gathercole _v._ Smith (1881) 17 Ch. D. 1; 7 Q. B. D. 626; (1887)\n50 & 51 Vict. c. 23. s. 6.\n\n[104] \u00a7 22 above.\n\n[105] (1838) 1 & 2 Vict. c. 106, s. 11; (1850) 13 & 14 Vict. c. 98, s.\n7.\n\n[106] (1589) 31 Eliz. c. 6, ss. 4-6, 9.\n\n[107] (1559) 1 Eliz. c. 2, s. 2; (1662) 14 Cha. 2, c. 4, s. 20.\n\n[108] (1662) 14 Cha. 2, c. 4, ss. 2, 38; (1865) 28 & 29 Vict. c. 122, s.\n7. See \u00a7 6 above.\n\n[109] (1838) 1 & 2 Vict. c. 106, ss. 58, 120.\n\n[110] 37 & 38 Vict. c. 85, s. 13.\n\n[111] 61 & 62 Vict. c. 48 (Benefices Act, 1898), s. 10.\n\n[112] (1870) 33 & 34 Vict. c. 23, s. 2; (1892) 55 & 56 Vict. c. 32\n(Clergy Discipline), s. 1.\n\n[113] 3 & 4 Vict. c. 86; 55 & 56 Vict. c. 32.\n\n\n\n\n                           CHAPTER III\n\n                       UNBENEFICED CLERGY\n\n\n1. The unbeneficed clergy engaged in parochial work may be divided into\n(i.) curates or ministers in charge; (ii.) assistant licensed curates;\n(iii.) unlicensed assistants; and (iv.) lecturers or preachers. An\nunbeneficed clergyman has no recognised legal status unless he obtains a\nlicence from the bishop of the diocese, for which the fee is 10s.[114]\nAt the time of being licensed (unless, having been ordained the same\nday, he has already done so) he must make and subscribe the Declaration\nof Assent prescribed by the Clerical Subscription Act, 1865; and on the\nfirst Lord's Day on which he officiates in the parish to which he is\nlicensed he must publicly repeat the same declaration in the presence of\nthe congregation during Divine service.[115] Canon 48 requires that\nbefore a curate or minister is permitted to serve in any place he must\nbe examined and admitted by the bishop, having respect to the greatness\nof the cure and the meetness of the party. Nor, if he removes from one\ndiocese to another, is he to be admitted to serve without the testimony\nof the bishop of that from which he came, as to his honesty, ability,\nand conformity to the ecclesiastical laws of the Church of England. But\nthis Canon gave no absolute right to stipendiary curates to be admitted\nto serve after examination and upon good episcopal testimony. They\nmight, notwithstanding, \"be placed and displaced at the bishop's\ndiscretion without any process at law.\" He is under no obligation to\ngrant a licence to a curate, and cannot be compelled to do so.[116] It\nis now, however, enacted, with respect to the removal of curates, that\nthe bishop, after giving him sufficient opportunity of showing reason to\nthe contrary, may summarily revoke the licence granted to any curate and\nremove him for any cause which appears good and reasonable to the\nbishop. But the curate may within one month after service upon him of\nthe revocation appeal to the archbishop of the province, who may confirm\nor annul the revocation as he thinks proper.[117]\n\n2. Curates or ministers in charge are appointed in a variety of cases.\n(_a_) If a benefice is vacant, the sequestration of it is granted by the\nbishop to the churchwardens or some one or more other persons; and\nsubject to the direction of the bishop, if he gives any, the\nsequestrators are charged with the selection of the person or persons to\nserve the cure during the vacancy, and the bishop may assign to him or\nthem a stipend not greater in the case of each than at the rate of \u00a3200\nper annum, and so that the aggregate amount assigned do not exceed the\nnet annual income of the benefice. The sequestrators pay the costs of\nserving the cure out of the revenue of the benefice, and account for the\nbalance to the succeeding incumbent, upon whom on the other hand any\ndeficiency falls if these costs exceed the net revenue received by the\nsequestrators.[118] (_b_) Where under the bankruptcy of the incumbent,\nor under a judgment recovered against him, a benefice remains under\nsequestration for six months, the bishop from the expiration of the six\nmonths till the close of the sequestration is to take order for the\nservices in the church of the benefice, and may appoint and license for\nthe purpose one or more curates or additional curates to reside in and\nserve the parish, subject to revocation at any time, and with such\nstipends out of the revenue of the benefice as he thinks fit within\ncertain prescribed limits according to the population of the parish, and\nnot exceeding in the whole two-thirds of the annual value of the\nbenefice.[119] (_c_) Where an incumbent is absent from his benefice for\na period or periods exceeding altogether three months in any one\ncalendar year, he must leave a curate or curates licensed or approved by\nthe bishop to perform the ecclesiastical duties of the benefice. If he\nfails to do so, or if after the death, resignation, or removal of any\nsuch curate he does not within one month notify the fact to the bishop,\nor does not within four months nominate another proper curate to the\nbishop, the bishop may appoint and license a proper curate, with\ndirections as to residence and with a stipend according to a prescribed\nscale, varying with the value of the benefice and the population of the\nparish and the grounds of the non-residence of the incumbent. A curate\nwho is appointed to serve in a benefice on which the incumbent does not\nreside during four months in the year is to be required by the bishop to\nreside within the parish, or within three miles of the church of the\nbenefice, if no convenient residence can be procured within the parish,\nexcept in cases of necessity approved by the bishop. If the population\nof the benefice exceeds 2000, the bishop may require the incumbent to\nnominate two or more curates, and, if this is not done, may himself\nappoint them. A scale of curates' stipends where the incumbent is\nnon-resident is provided by law, varying according to the annual value\nof the benefice and other circumstances, and the bishop may direct that\nthe curate shall reside in the parsonage house.[120] (_d_) Where a\ncommission appointed to inquire into the matter has reported that the\necclesiastical duties of a benefice are inadequately performed owing to\nthe negligence of the incumbent, the bishop may either require the\nincumbent to nominate a curate or curates with sufficient stipend to be\nlicensed to perform or assist in performing the duties, or may himself\nappoint a curate or curates to perform all or any of the duties, subject\nto an appeal to the court constituted under the Benefices Act,\n1898.[121] A minister in charge has the rights and powers of an\nincumbent in certain particulars, such as the choice of a churchwarden,\nand, if the benefice is vacant, but not if the incumbent is bankrupt,\nthe appointment of the parish clerk.[122] (_e_) Where under the New\nParishes Act, 1843, what is called a Peel district is constituted, and a\nminister is licensed to it by the bishop, he occupies a somewhat\nambiguous position during the interval before it becomes a separate\necclesiastical parish upon the consecration of a church within its\narea. He is in many respects in the position of a perpetual curate,\nbeing a corporation sole, subject to the jurisdiction of the bishop and\narchdeacon, and independent of the incumbent of the parish so far as his\nlicence extends. But he has no power to take marriages or burials, and\nthe inhabitants of the district retain their ecclesiastical position as\nparishioners of the parish out of which the district is formed.[123]\n\n3. Assistant unbeneficed clergy are contemplated by the canons, in which\nthey are styled curates; and with the licence of the bishop any\nincumbent may employ one or more curates to assist him in serving the\nparish. A curate frequently comes in the first instance on probation\nwithout being licensed, and his tenure of office is then entirely\ndependent on the will of the incumbent.[124] But after he is licensed it\nbecomes more secure; and, in the meantime, if a difficulty occurred\nabout the remuneration for his services, the law would give it to him\nupon a _quantum meruit_. In order to obtain a licence, the curate must\npresent to the bishop a declaration by the incumbent undertaking to pay\nto him a specified annual sum as his stipend and a declaration of his\nown intention to receive the whole of that stipend; and the licence\nwill specify the amount of the stipend.[125] Any dispute between an\nincumbent and a curate respecting the curate's stipend is to be decided\nby the bishop, who may enforce payment of it by monition and\nsequestration of the benefice.[126] If the benefice becomes vacant, a\ncurate must quit upon six weeks' notice from the new incumbent, if given\nwithin six months from the date of admission to the benefice. But in\nother cases, unless the bishop revokes his licence (see \u00a7 1 above), a\ncurate can only be required to quit after six months' notice given by\nthe incumbent with the previous written permission of the bishop, or of\nthe archbishop, if the bishop refuses it and the archbishop grants it\nupon an appeal to him within one month after the bishop's refusal. On\nthe other hand, unless he obtains the express written consent of the\nbishop, a curate before relinquishing a curacy to which he has been\nlicensed must give three months' notice of his intention to the\nincumbent and the bishop, upon pain of forfeiting to the incumbent, as a\ndebt retainable out of his stipend or recoverable at law, such sum not\nexceeding half a year's stipend as the bishop may in writing\ndirect.[127] Ordinarily, an incumbent who is himself resident and\nperforming the duties of his cure has complete discretion whether he\nwill employ any, and, if so, how many curates, and what duties shall\nfrom time to time be performed by any whom he employs. But, besides the\ncases of the incumbent's non-residence and negligence in the performance\nof duties noticed above (\u00a7 2 (_c_), (_d_)), the bishop has power, if a\ncommission issued by him reports that the duties of a benefice are\ninadequately performed, to require the incumbent, although himself\nengaged in performing them, to nominate an assistant curate or curates;\nand, if he fails to do so within three months, the bishop may himself\nappoint one or more, as the case may require, with a stipend\nproportionate to the value of the benefice and the population of the\nparish. The incumbent has an appeal to the archbishop, who may confirm\nor amend the bishop's action.[128] Moreover, where the annual value of a\nbenefice exceeds \u00a3500, and either the population amounts to 3000, or\nthere is a second church or chapel with a hamlet containing 400 persons,\nthe bishop may require the incumbent to nominate an assistant curate,\nand, on his failing to do so within three months, may himself appoint\none with a stipend not exceeding \u00a3150; subject to a similar appeal to\nthe archbishop as in the case where the duties have been inadequately\nperformed.[129]\n\n4. An incumbent has an absolute discretion as to permitting or refusing\nany other clergyman, not being licensed as a curate to the parish, to\nofficiate within his parish, with this qualification, that he has no\nright to permit any clergyman to officiate in his parish who by law is\ndebarred from taking duty in the diocese. With regard to this, no\nunbeneficed clergyman has, strictly speaking, a right to officiate\npublicly in a diocese, either in church or elsewhere, without the\nlicence or consent of the bishop, and his doing so is an ecclesiastical\noffence.[130] But if the bishop has not actually inhibited him from\nofficiating, a clergyman may take merely temporary duty without\nobtaining the formal licence of the bishop.[131] If, without being\neither beneficed or licensed to a curacy in the diocese, he frequently\ntakes duty therein, he should obtain a general licence from the bishop\nfor the purpose. Canons 50 and 52 direct incumbents and churchwardens\nnot to suffer any one to preach in their churches without showing his\nlicence to preach, and require the names of strangers who preach with\nthe date of their preaching and the name of the bishop by whom they were\nlicensed, to be entered in a book for the information of the bishop of\nthe diocese.\n\n5. In some parishes provision has been made for the election or\nappointment of lecturers or preachers for the sole purpose of delivering\nlectures or preaching sermons. In any such parish the bishop, if he\nthinks fit, with the assent of the incumbent, may require the lecturer\nor preacher to perform other ministerial duties as assistant curate or\notherwise, and may vary the duties from time to time. If the duties so\nprescribed are not performed, the defaulter may be removed from his\noffice.[132]\n\n\n                          Footnotes\n\n[114] (1838) 1 & 2 Vict. c. 106, s. 82. For the stamp duty on licences,\nand exemptions therefrom, see (1891) 54 & 55 Vict. c. 39, sch.\n\"Licence.\"\n\n[115] 28 & 29 Vict. c. 122, ss. 1, 8; see ch. ii. \u00a7 6 (i.).\n\n[116] Johns, vol. i. p. 95; see Ex parte Carlyon (1903) _Times_, Dec.\n19; s.c. nom. R. _v._ Bp. of Liverpool (1904) _Times_, May 4.\n\n[117] (1838) 1 & 2 Vict. c. 106, s. 98; Poole _v._ Bp. of London (1859)\n5 Jur. N. S. 522; (1861) 14 Moo. P. C. 262; 7 Jur. N. S. 347.\n\n[118] (1536) 28 Hen. 8, c. 11; (1838) 1 & 2 Vict. c. 106, ss. 99-101;\nDakins _v._ Seaman (1842) 9 M. & W. 777; (1885) 48 & 49 Vict. c. 54, s.\n10.\n\n[119] 34 & 35 Vict. c. 45 (Sequestration Act, 1871).\n\n[120] Canon 47; (1838) 1 & 2 Vict. c. 106, ss. 75, 76, 81-98, 120-122,\n130; (1885) 48 & 49 Vict. c. 54, s. 9.\n\n[121] See ch. ii. \u00a7 15; (1838) 1 & 2 Vict. c. 106, ss. 77, 85-87, 105;\n(1885) 48 & 49 Vict. c. 54, ss. 1-3; (1898) 61 & 62 Vict. c. 48, s. 9.\n\n[122] Hubbard _v._ Penrice (1746) 2 Str. 1245; Reg. _v._ Allen (1872) L.\nR. 8 Q. B. 69; Pinder _v._ Barr (1854) 4 E. & B. 105; Lawrence _v._\nEdwards (1891) 1 Ch. 144; 2 Ch. 72.\n\n[123] 6 & 7 Vict. c. 37, ss. 11-14.\n\n[124] Martyn _v._ Hind (1776) 2 Cowp. 437, 440.\n\n[125] (1865) 28 & 29 Vict. c. 122, ss. 3, 6.\n\n[126] (1838) 1 & 2 Vict. c. 106, s. 83.\n\n[127] (1838) 1 & 2 Vict. c. 106, ss. 95, 97. The notices require no\nspecial formalities; Tanner _v._ Scrivener (1888) 13 P. D. 128.\n\n[128] (1838) 1 & 2 Vict. c. 106, s. 77; (1885) 48 & 49 Vict. c. 54, ss.\n2-8.\n\n[129] (1885) 48 & 49 Vict. c. 54, s. 13.\n\n[130] Trebec _v._ Keith (1742) 2 Atk. 498; Barnes _v_. Shore (1846) 1\nRob. Eccl. 382; Freeland _v._ Neale (1848) _Ib._ 643. As to beneficed\nclergy, see above, ch. ii. \u00a7 11.\n\n[131] Gates _v._ Chambers (1824) 2 Add. 177.\n\n[132] 7 & 8 Vict. c. 59 (Lecturers and Parish Clerks Act, 1844), ss. 1,\n6.\n\n\n\n\n                          CHAPTER IV\n\n                    LAITY OF THE PARISH\n\n\n1. There is no general law as to the relations between an incumbent and\nthe lay officers of a parish. They vary in ancient and in new\necclesiastical parishes, and in particular places are modified by\ncustom.\n\n2. The vestry in an ancient parish consists of the ratepayers who are\ninhabitants of the parish or who, though not residents therein, are\nrated for the relief of the poor in respect of the parish, and of\noccupiers of hereditaments so rated. A meeting of the vestry is called\nby the incumbent and churchwardens by a notice in print or writing, and\nsigned by the incumbent or a churchwarden or overseer, and affixed on or\nnear the doors of all the churches and chapels in the parish in which\nthe service of the Church is performed, on some Sunday at least three\nclear days before the meeting is to be held.[133] The incumbent is _ex\nofficio_ chairman of every vestry meeting. In case of his absence, or of\nthere being no incumbent, the members of the vestry present elect one\nof themselves as chairman. In case of an equality of votes the chairman,\nas such, has a casting vote in addition to his previous right to vote as\na member of the vestry.[134] In the event of a poll being demanded, it\nis taken by open voting, and the members of the vestry have from one to\nsix votes, according to the amount of their assessment, those assessed\nat an annual value of under \u00a350 having one vote, and those assessed at\n\u00a350 and upwards having one vote for every complete \u00a325 of their\nassessment up to \u00a3150; all at or above that figure having six votes and\nno more. In a new ecclesiastical parish or district a meeting in the\nnature of a vestry is composed of the same persons as would, if the\nparish or district were an ancient parish, be entitled to vote in the\nvestry thereof. But the Vestries Act, 1818,[135] only applies to ancient\nparishes. Consequently there is no plural voting in the quasi-vestry of\na new parish, nor need the notice summoning a vestry meeting be given on\na Sunday three clear days before the meeting.[136] But in other respects\na vestry or a meeting in the nature of a vestry in a new parish is\nregulated by the same procedure as in an ancient parish. Since the\nabolition of compulsory church rates in 1868, and the transfer of their\nsecular duties to other bodies, the functions of these vestries or\nmeetings, whether in old or in new parishes, have been for the most part\nconfined to the election of churchwardens and the approval, or the\ncontrary, of applications for faculties.[137] In some places under a\nlocal Act or by the adoption of the Vestries Act, 1831,[138] the\nfunctions of the vestry are exercised by a select vestry consisting of a\nlimited number of householders elected by the parishioners.\n\n3. With regard to churchwardens, the general law as to their appointment\nin ancient parishes is declared by the 89th and 90th Canons. They are to\nbe chosen, if possible, by the joint consent of the minister and\nparishioners. But if these cannot agree upon the choice, the minister is\nto choose one and the parishioners another. A stipendiary curate being\nat the time in charge of the cure stands in the place of the incumbent\nin the choice of churchwardens.[139] The election is to be annual, in\nEaster week; but the same persons are re-eligible for any number of\nyears. By custom, however, there may be only one churchwarden or more\nthan two; and, as is the case in the City of London, both may by custom\nbe elected by the parishioners, or by the lord of the manor, or one by\nthe incumbent and the other by the outgoing churchwardens. The election\nordinarily takes place at the Easter vestry, but an election at another\ntime is valid.[140] The election of both churchwardens is the act of the\nwhole vestry, whether the minister and parishioners agree in their\nchoice, or the minister chooses one and the parishioners the other. In\nthe latter alternative, therefore, the vote of the minister is exhausted\nin choosing his own warden, and he cannot also vote as a parishioner in\nthe election of the other warden; though if there is an equality of\nvotes in this election, he apparently can, as chairman of the vestry,\ndecide it by a casting vote.[141] In the case of all churches built\nunder the Church Building or New Parishes Acts, except those which have\nno district attached to them, two churchwardens are to be annually\nchosen at Eastertide, one by the minister and the other by the persons\nentitled to attend and vote at a meeting in the nature of a vestry for\nthe parish or district attached to the church.[142] If the church has no\ndistrict attached to it, the choice of the second warden is vested in\nthe pewrenters, or, if there are no rented pews, the minister selects\nboth wardens.[143] Churchwardens, after their appointment, have no legal\nright to exercise their office until they have been admitted by the\narchdeacon at his visitation, or by the bishop or his chancellor during\nthe years of episcopal visitation, when the archdeacon is inhibited and\ncannot act. Till then, their predecessors remain in office,\nnotwithstanding that their year has expired, and their successors have\nbeen appointed.[144]\n\n4. The two churchwardens are sometimes distinguished as the parson's or\nvicar's warden and the people's warden. But there is no legal precedence\nor seniority between the two, and though chosen differently their duties\nare identical.[145] These may be enumerated as follows: (_a_) The care\nof the fabric of the church, with its ornaments and furniture, and of\nthe churchyard; and the duty of keeping them in proper repair and\ncondition and of adequately insuring against fire so far as funds are in\nhand for the purpose, except, as regards the chancel, where the rector\nis liable for its repair.[146] They have no proprietary rights in the\nchurch or its fixtures or in the churchyard, but the movable articles in\nthe church, including the bells and bell-ropes, and sums of money given\nto the church, belong to them as a corporation for that purpose.[147]\n(_b_) The seating of the parishioners and other churchgoers in the\nchurch, including the chancel, subject, however, as regards the chancel\nof an old parish church, to the right of the rector, whether spiritual\nor lay, and his family, to the chief seat, and to his disposal of the\nother chancel seats if the bishop or churchwardens take no action\nrespecting them. In this duty the churchwardens act as the officers of\nthe bishop, and are subject to his control if any complaint is made\nagainst them. Neither the vestry nor the incumbent, nor any individual\nparishioner, can interfere with their discretion in the matter, except\nby appealing to the bishop. (_c_) The provision at the expense of the\nparish of sacramental bread and wine and a surplice for the minister, as\nrequired by Canons 20 and 58. (_d_) The maintenance of order in the\nchurch and churchyard during Divine service. (_e_) The collection of the\nmoney at the offertory, and concurrence with the minister in its\ndisposal to pious and charitable uses. (_f_) The charge of the church\nand benefice and of providing for the cure of souls during a vacancy in\nthe living, if, as is usually the case, they are appointed\nsequestrators, but not otherwise.[148] Churchwardens can neither add to,\nalter, or remove any part of the church or its fittings without a\nfaculty, nor can they interfere with the clergyman in his ministrations\nunless his conduct is such as to be riotous, violent, or indecent within\nthe meaning of the Act of 1860 against brawling.[149] The rights and\nduties of the incumbent on the one hand, and of the churchwardens on the\nother, in respect of the church and churchyard and the money and\nproperty of the Church, are so interlaced, that on many points friction\ncannot be avoided without that harmonious co-operation which should\nalways exist between them, or, if this is unfortunately impossible, at\nany rate without mutual forbearance and concession.\n\n5. The 90th Canon directs that the minister and parishioners in every\nparish, if they can agree, shall yearly in Easter week choose two or\nthree or more discreet persons as sidemen (or, as they are now called,\nsidesmen) to assist the churchwardens in performing the duties of their\noffice. If no agreement is come to, they are to be appointed by the\nbishop. This Canon only applies to ancient parishes, and therefore\nsidesmen appointed, as is frequently the case, in new ecclesiastical\nparishes have, strictly speaking, no legal status. They are, however,\nfrequently treated as if they possessed it, and in these, as well as in\nancient parishes, assist the churchwardens in seating the people and\ntaking the collections in church. No practical harm is likely to result\nfrom this unless they undertook such a duty as, for instance, the\nforcible ejection of a person misbehaving in church, in which case their\nright to do so might be called in question.\n\n6. In addition to the churchwardens a body of Church trustees may now be\nappointed in any parish to accept contributions and hold funds for\ncertain defined ecclesiastical purposes.[150] They are to consist of the\nincumbent and two householders or owners or occupiers of land in the\nparish, chosen in the first instance and on the happening of a vacancy,\none by the patron and the other by the bishop, the incumbent being\nchairman. They are a body corporate under the name of the Church\nTrustees of the parish in which they are appointed, with perpetual\nsuccession and a common seal, and power to sue and be sued in their\ncorporate name. As circumstances from time to time require, they may\npay over funds in their hands to the churchwardens to be applied to the\ndefined ecclesiastical purposes of the parish generally or to one or\nmore of them specifically, due regard being had to any particular\ndirections of the donors. Funds not so paid over may be invested in\ngovernment or real securities and accumulated, with a view to the\ncapital or income being applied at a subsequent time. At least once a\nyear the trustees must lay before the vestry all accounts and\nparticulars of their receipts and expenditure during the preceding year,\nand of the balance of funds in their hands.[151]\n\n7. The appointment and duties of the parish clerk vary in old and new\nparishes, and depend in some cases on custom. In old parishes the office\nis a freehold, and the right of appointment usually rests with the\nincumbent, who can exercise it even when the living is sequestrated\nowing to his bankruptcy; but in case of his being under suspension, it\ndevolves on the curate in charge. The right, however, may by custom\nbelong to the parishioners in vestry. An old writer compared the parish\nclerk to a bat, as being half-bird, half-beast, or half-clerical and\nhalf-lay, though he considered that his clerical wings outbalanced his\nlay body. But it is now held that the office is temporal, and not\nspiritual.[152] A person in holy orders may, however, with the consent\nof the bishop, be appointed parish clerk under the Lecturers and Parish\nClerks Act, 1844, and, if so appointed, he is removable in the same way\nas a stipendiary curate. The same Act provides for the suspension or\nremoval by the archdeacon, of a parish clerk not in holy orders, who has\nbeen guilty of neglect or misbehaviour in his office, or of misconduct\nwhich renders him unfit to hold it.[153] In all new ecclesiastical\nparishes, on the other hand, the appointment of the clerk rests with the\nincumbent, and, in the case of churches and chapels provided under the\nChurch Building Acts of 1818 and 1819, is made annually; while in the\ncase of those provided under the New Parishes Acts of 1843, 1844, and\n1856, the clerk does not vacate his office at the end of each year, but\nmay at any time be removed by the incumbent, with the consent of the\nbishop, for misconduct.[154]\n\n8. There is no universal rule as to the appointment, duties, and tenures\nof office of the sexton or sacristan. Where, in accordance with the\netymology of his name, his duties are confined to the custody of the\nsacred vessels and vestments, the care and cleaning of the church, the\nopening and closing of the doors, and the ringing of the bells, his\nappointment, in the absence of a contrary practice, will naturally rest\nwith the churchwardens. Where, on the contrary, he has only to do with\nthe churchyard and grave-digging, his appointment will be presumed to be\nin the hands of the incumbent. If, however, he is charged with both sets\nof functions, the incumbent and the churchwardens jointly will be\npresumed to have the right of appointing him. On the other hand, in some\nfew ancient parishes he is elected by the vestry. The office may be held\nby a woman, and in some places is a freehold for life; but usually it is\nheld during pleasure, and the power of removal rests in the same hands\nas that of the appointment.[155] In new ecclesiastical parishes the\nsexton is to be appointed by the incumbent, and, with the consent of the\nbishop, is removable by him for misconduct.[156]\n\n9. Another old parochial office was that of beadle--the bidder, crier,\nor messenger of the parish--whose duty was to attend in that capacity on\nthe incumbent, churchwardens, and vestry. His position and duties were\nrather civil than ecclesiastical, but the vestry could sanction his\nsalary being paid out of the church rate. He was also frequently\nemployed to keep order in the church and churchyard during Divine\nservice; and the Church Building Act, 1831, enumerates the payment of\nthe salaries of beadles and pew-openers as well as of the clerk, as one\nof the expenses incidental to the performance of Divine service, to be\npaid out of the rents of pews in churches built under that Act.[157]\n\n10. The organist and choristers, and any other lay officials beyond\nthose already mentioned, who may be employed in or about the church or\nchurchyard, are under the exclusive control and direction of the\nincumbent, and, as a rule, are appointed by him. But in some parishes\nthe organist is, or was, when paid out of the church rate, selected by\nthe vestry. Whether he is appointed by them or by the incumbent, his\noffice is not a freehold; but he as well as the other officials now\nunder consideration may be dismissed from office on proper notice, the\nlength of which should be laid down at the time of appointment. If no\ntime is then fixed, the proper length of notice may, in case of dispute,\nbe a very difficult question to decide. It will depend in part on the\nterms of the engagement, and of the salary. If the salary be so much per\nmonth, probably one month's notice of dismissal would suffice. Not less\nthan three months' notice would be requisite if the salary is so much\nper quarter; while if the salary is an annual sum, even this notice\nmight perhaps be insufficient. Whatever be the mode of appointment and\nterms of the engagement of the organist, the incumbent has, within the\nbounds of legality, and so far as he does not voluntarily surrender it,\nthe absolute right to control the use of the organ and the performance\nof music in the church, both during Divine service and at other\ntimes.[158] But, unless he is prepared to defray the cost out of his own\npocket, this right must, of course, in practice, be limited by the\nextent to which the parishioners or congregation are willing to give the\nnecessary financial support to his arrangements.\n\n11. The old rank of reader, which was formerly one of the minor orders,\nwas temporarily revived after the Reformation to supplement the lack of\nclergy, and seems to have been continued in some remote districts till\nthe close of the eighteenth century.[159] It has in recent times been\nresuscitated as a lay office.[160] Moreover, the practice has of late\nyears increased of the lessons being read in church by laymen at the\nrequest of the incumbent, without the express sanction of the bishop.\nBut an incumbent ought not, without that sanction, to permit a layman to\ntake any other part in any service in a consecrated building. The\nofficiating of a layman in an unconsecrated building does not stand\nquite on the same footing; but, as a matter of Church order and\nregularity, the approval of it by the bishop should be procured, through\nthe layman being expressly authorised as a lay reader, or in some other\nmanner, especially if the building is licensed for Divine worship. All\nsuch laymen must, of course, act with the consent, and under the\ndirection, of the incumbent of the parish.\n\n12. Laymen and women engaged in less formal kinds of parochial work\n(among which is the visiting of the poor and sick contemplated by Canon\n13 as one of their occupations on Sundays and other holy days) are\nresponsible to the incumbent alone, and should act with his permission\nand under his directions. The Sunday schools, with their superintendents\nand teachers, are under his sole control. His powers with regard to the\nreligious instruction given in any Church elementary school in the\nparish depend upon the terms of the trust-deed or scheme (if any)\nregulating the school, and upon the subsection in the Education Act,\n1902, that religious instruction given in a public elementary school not\nprovided by the local authority shall, as regards its character, be in\naccordance with the provisions (if any) of the trust-deed relating\nthereto, and shall be under the control of the managers; provided that\nnothing in the subsection is to affect any provision in a trust-deed for\nreference to the bishop or superior ecclesiastical or other\ndenominational authority, so far as such provision gives to the bishop\nor authority the power of deciding whether the character of the\nreligious instruction is or is not in accordance with the provisions of\nthe trust deed.[161]\n\n13. Parochial church councils, where they exist, like ruridecanal and\ndiocesan conferences, rest at present on a purely voluntary basis.\nWhatever, therefore, may be their advantages, and however desirable may\nbe their incorporation into our regular Church system, the parish clergy\nstand as yet in no legal relation to them.\n\n\n                          Footnotes\n\n[133] (1818) 58 Geo. 3, c. 69; (1837) 7 Will. 4 & 1 Vict. c. 45; (1869)\n32 & 33 Vict. c. 41, ss. 7, 19; Dawe _v._ Williams (1824) 2 Add. 130,\n139; Ormerod _v._ Chadwick (1847) 16 M. & W. 367; 16 L. J. M. C. 143;\nBurnley _v._ Methley Overseers (1859) 1 El. & El. 789; Rand _v._ Green\n(1860), 6 Jur. N. S. 303; 9 C. B. N. S. 470; 30 L. J. C. P. 80.\n\n[134] (1818) 58 Geo. 3, c. 69, s. 2; Wilson _v._ M'Math (1819) 3 Phill.\n67; 2 B. & Ald. 241; Reg. _v._ D'Oyly (1840) 12 A. & E. 139; 4 Jur.\n1056; R. _v._ Bp. of Salisbury (1901) 1 K. B. 573, 579, aff. 2 K. B.\n225.\n\n[135] 58 Geo. 3, c. 69 (commonly called Sturges Bourne's Act).\n\n[136] Reg. _v._ Barrow (1869) L. R. 4 Q. B. 577.\n\n[137] See \u00a7 3, and ch. v. \u00a7 5 (A), ix. \u00a7 4.\n\n[138] 1 & 2 Will. 4, c. 60.\n\n[139] Hubbard _v._ Penrice (1746) 2 Str. 1245.\n\n[140] Butt _v._ Fellowes (1843) 3 Curt. 680.\n\n[141] Stoughton _v._ Reynolds (1736) 2 Str. 1045; R. _v._ Bp. of\nSalisbury (1901) 1 K. B. 573; aff. 2 K. B. 225.\n\n[142] (1818) 58 Geo. 3, c. 45, s. 75; (1838) 1 & 2 Will. 4, c. 38, s.\n25; (1843) 6 & 7 Vict. c. 37, s. 17; (1845) 8 & 9 Vict. c. 70, ss. 6, 7;\n(1856) 19 & 20 Vict. c. 104, ss. 14, 15.\n\n[143] (1838) 1 & 2 Will. c. 38, s. 16; (1845) 8 & 9 Vict. c. 70, s. 7.\n\n[144] Canon 118; Bray _v._ Somer (1862) 2 B. & Sm. 374: 8 Jur. N. S.\n716; Bremner _v._ Hull (1866) L. R. 1 C. P. 748; Reg. _v._ Sowter (1901)\n1 K. B. 66; rev. _Ib._ 396. For further particulars as to the\nqualifications and election of churchwardens of ancient parish churches\nand the churches enumerated in the note to ch. i. \u00a7 6 above, see Sm.\nChurchw. 22-43.\n\n[145] Sm. Churchw. 34, 59-64.\n\n[146] Stat. 13 Edw. 1 (_Circumspecte agatis_); Canon 85; ch. ix. \u00a7 3\nbelow.\n\n[147] Att.-Gen. _v._ Ruper (1722) 2 P. Wms. 125.\n\n[148] Sm. Churchw. pt. iii. ch. i.-iii.; pp. 50-84.\n\n[149] 23 & 24 Vict. c. 32. A clergyman can be proceeded against for\nbrawling either under that Act or in the Church courts as an\necclesiastical offender.\n\n[150] Viz. \"the building, rebuilding, enlargement, and repair of any\nchurch or chapel, and any purpose to which by common or ecclesiastical\nlaw a church rate is applicable.\" (1868) 31 & 32 Vict. c. 109, s. 9.\nBesides necessary church repairs, sacramental bread and wine, and other\narticles needed for Divine service, a church rate could, with the\nconsent of a majority of the vestry, be applied to provide an organ and\nother church furniture, and to pay the salaries of organist,\npew-openers, and other lay officials, but not the stipend of the\nincumbent or a curate. 1 Burn, 388 _a_, _b_.\n\n[151] (1868) 31 & 32 Vict. c. 109, s. 9.\n\n[152] Canon 91; The Parish Clerk's Case (1610) 13 Co. Rep. 70; Pinder\n_v._ Barr (1854) 4 E. & B. 105; Lawrence _v._ Edwards (1891) 1 Ch. 144;\n2 Ch. 72.\n\n[153] 7 & 8 Vict. c. 59.\n\n[154] (1819) 59 Geo. 3, c. 134, s. 29; (1856) 19 & 20 Vict. c. 104, s.\n9; Reg. _v._ Ossett (1851) 16 Q. B. 975; Jackson _v._ Courtenay (1857) 8\nE. & B. 8.\n\n[155] Ile's Case (1671) 1 Ventr. 153; R. _v._ Thame (Churchwardens)\n(1719) 1 Str. 115; Olive _v._ Ingram (1739) 2 Str. 1114; R. _v._ Taunton\nSt. James (Churchwardens) (1776) 1 Cowp. 413; R. _v._ Minister, &c., of\nStoke Damerel (1836) 5 A. & E. 584, 590, sq.; Cansfield _v._ Blenkinsop\n(1849) 4 Ex. 234.\n\n[156] (1856) 19 & 20 Vict. c. 104, s. 9.\n\n[157] 1 & 2 Will. 4, c. 38, s. 16.\n\n[158] Wyndham _v._ Cole (1875) 1 P. D. 130.\n\n[159] 3 Burn, 452; Strype's Annals, vol. i. ch. xiii., XXX. pp. 178-81,\n345, sq.; (ed. 1824, pp. 265-69, 514-16); Martyn _v._ Hind (1776) 2\nCowp. 437, 438-39, 444.\n\n[160] Particulars as to readers and their powers and functions in\nconsecrated buildings and elsewhere will be found in another Handbook of\nthe present Series: _Lay Work and the Office of Reader_, by Dr.\nYeatman-Biggs, afterwards made Bishop of Worcester.\n\n[161] 2 Edw. 7, c. 42, s. 7 (6).\n\n\n\n\n                          CHAPTER V\n\n                       DIVINE SERVICE\n\n\n1. Every deacon and priest before his ordination, and, as mentioned\nabove, every incumbent, before he is admitted to his benefice, and every\nstipendiary curate, on entering upon his curacy, declares that in public\nprayer and administration of the sacraments he will use the form\nprescribed in the Book of Common Prayer and none other except so far as\nordered by lawful authority.[162] This uniform use is enjoined by the\nActs of Uniformity and the Prayer Book itself, which has legal force as\npart of the Act of 1662, and by the 14th Canon, except so far as\nmodifications are permitted under the Act of Uniformity Amendment Act of\n1872, which, like the Act of 1662, was passed at the instance of\nConvocation.[163] No clergyman, therefore, may alter, add to, or\ndiminish the form of worship therein prescribed, including the\nlessons.[164] The expression \"lawful authority\" occurs in the Act of\n1662, which directs that in those portions of the Prayer Book which\nrelate to the King, Queen, or Royal progeny the names shall be altered\nfrom time to time as occasion requires according to the direction of\nlawful authority. This is explained by Bishop Gibson to mean, according\nto practice, the authority of the Sovereign in Council.[165] The\narchbishops and bishops have no authority, combined or singly, to order\nmodifications of or additions to the forms of Divine service, except to\nthe extent permitted by the Act of 1872. The Preface to the Prayer Book\n\"Concerning the Service of the Church\" expressly contemplates that in\nlieu of diversity of use in different dioceses and parts of the realm,\nall shall henceforth have but one use. The only function of the prelates\nwhich it recognises in the matter is the power of the bishop to set at\nrest any doubts which may arise as to the construction of the Prayer\nBook and the proper practice thereunder, with liberty to him, if he is\nhimself in doubt, to refer to the archbishop. But the Act of 1872\npermits (_a_) the use, upon a special occasion approved by the ordinary,\nof a special form of service approved by him, and containing nothing\nexcept anthems or hymns, which does not form part of the Holy Scriptures\nor Book of Common Prayer, and also (_b_) the use, on any Sunday or holy\nday, as supplementary to the services prescribed by the Prayer Book, of\nan additional form of service, approved by the ordinary as to its form\nand mode of use, and containing no portion of the Communion Service and\nnothing except anthems or hymns which does not form part of the Holy\nScriptures or Book of Common Prayer. The same Act authorises the use of\na shortened order for Morning or Evening Prayer on any day except\nSunday, Christmas Day, Ash Wednesday, Good Friday, and Ascension Day;\nand the use of the Morning Prayer, the Litany, and the Communion\nService, in varying order as separate services,[166] and the saying of\nthe Litany after the third collect in Evening Prayer, without prejudice\nto any legal powers vested in the ordinary, and either with or without a\nsermon, lecture, or homily; and also the preaching of a sermon without\nbeing preceded by a service appointed by the Prayer Book, provided that\nit be preceded by a service authorised by the Act, or by a collect from\nthe Prayer Book with or without the Lord's Prayer.\n\n2. The Prayer Book contains an \"Order for Morning and Evening Prayer\ndaily to be said and used throughout the year\"; and under the prefatory\nheading \"Concerning the Service of the Church,\" it is directed that all\npriests and deacons are to say daily the Morning and Evening Prayer\neither privately or openly, not being let by sickness or some other\nurgent cause. And the curate who ministers in a parish church, being at\nhome and not being otherwise reasonably hindered, is to say the same in\nthe church, after summoning the people by a bell to come and hear God's\nword and pray with him. A bishop, however, has no power to enforce daily\nservices;[167] and daily service has been held not to be requisite under\na trust to perform the service \"in strict and literal accordance with\nthe order of the Book of Common Prayer.\"[168] But the Act of Uniformity\nof 1662, s. 1, expressly enacts that the morning and evening prayers\ncontained in that Book shall, on every Lord's Day, and on all other days\nand occasions, and at the times therein appointed, be openly read by\nevery minister or curate in every church, chapel, or other place of\npublic worship.[169] And the 14th and 15th Canons direct that the Common\nPrayer shall be said or sung distinctly and reverently upon such days as\nare appointed to be kept holy by the Prayer Book and their eves, and\nthat the Litany shall be said or sung when and as prescribed in the\nPrayer Book; and in particular on Wednesdays and Fridays weekly, though\nthey be not holy days, the minister at the accustomed hours of service\nis to resort to the church and say the Litany after warning the people\nby tolling a bell. A later enactment empowers the bishop, at his\ndiscretion, to order two full services (each, if he so directs, to\ninclude a sermon or lecture) on every Sunday throughout the year or any\npart of the year in the church or chapel of any benefice, whatever its\nannual value or population, and also in certain cases where a benefice\nis composed of more than one parish or chapelry, in the church or chapel\nof each of them.[170] And where he considers that the population\nrequires it, he may direct the celebration on Sundays and the great\nfestivals of a third service, being either the Morning or Evening\nService with a third sermon, and for the performance of this third\nservice may insist on a curate being nominated, whose salary is to be\nprovided by the pews being specially let for the service or by\nsubscription.[171] It is rarely necessary in the present day to put in\nforce these powers, since in most parishes the number of services\nconsiderably exceeds the legal _minimum_.\n\n3. Under the rubrics following the Nicene Creed and at the beginning of\nthe Marriage Service, as modified by the Parish Notices Act, 1837,[172]\nthe minister is alone authorised to give out notices during Divine\nservice; and he may not publish either during or after Divine service\nnotices of proceedings in ecclesiastical courts, or of vestry meetings,\nor of any other matter except banns of matrimony, announcements of the\nCommunion, and of holy days and fasting days during the ensuing week,\nand of anything else prescribed by the Prayer Book or enjoined by the\nKing or the ordinary. Other notices must be put up at or near the church\ndoor. Banns are to be published at the time of Morning Service (or of\nEvening Service if there is no Morning Service) immediately after the\nSecond Lesson. Other lawful notices are to be given at the close of the\nNicene Creed.\n\n4. The only rubrical provision for the collection of money during Divine\nservice is at the time when the offertory sentences are read, whether a\nCommunion follows or not. The money is then to be received by the\ndeacons, churchwardens, or other fit person,[173] and is to be disposed\nof to such pious and charitable uses as the minister and churchwardens\nthink fit; wherein if they disagree, it is to be disposed of as the\nordinary shall appoint. Money collected at other times during Divine\nservice ought to be brought up to the minister to be placed on the Holy\nTable, like the offertory money; but, unlike this, it is under the sole\ncontrol and disposal of the incumbent; unless it is collected for church\nexpenses or repairs for which the churchwardens are responsible, in\nwhich case it should be handed over to them.[174] And if the purpose for\nwhich the collection is made is announced beforehand, there is, of\ncourse, a legal as well as moral obligation to apply the money collected\nto that purpose. Offertory alms collected in a chapel are at the\ndisposal of the incumbent and wardens of the parish church.[175]\n\n5. Questions arose during the last century as to (_A_) the legality of\ncertain ornaments of the Church, (_B_) the dress of the clergy, and\n(_C_) ceremonies in connection with Divine service, and especially with\nthe Holy Communion; having regard, among other considerations, to the\nOrnaments Rubric in the Prayer Book. According to the legal decisions on\nthese questions:[176] (_A_) The Holy Table must be of wood and,\naccording to Canon 82, should be covered during Divine service with a\ncarpet of silk or other decent stuff, and with a fair linen cloth at the\ntime of the ministration.[177] A crucifix, except as a mere\narchitectural decoration or as part of an historical representation of\nthe Crucifixion, is illegal; but a cross is legal, provided it be not\nupon or in actual or apparent contact or connection with the Holy\nTable.[178] Candlesticks and vases of flowers are legal even in such\ncontact or connection,[179] and so are pictures or sculptures of an\nhistorical or allegorical character, whether in a reredos or elsewhere\nin the church, except those known as the Stations of the Cross, which\nhave been held liable to superstitious abuse.[180] The legality of\nisolated figures, whether painted or sculptured, depends on whether from\ntheir character and position there is no likelihood of their being\nsuperstitiously reverenced.[181] A credence table is legal and\nproper.[182] A second Holy Table is only legal if placed in a part of\nthe church closed in, by lattice work or otherwise, as a separate place\nof worship for services attended by few worshippers.[183] Chancel gates\nare permitted, if required for the protection of the chancel when the\nchurch is accessible for private prayer; but they must be always kept\nopen during Divine service.[184] The erection of a baldacchino or canopy\nover the Holy Table is not permissible.[185] But the introduction of\nlegal ornaments and additions into a church will not ordinarily be\nsanctioned without the approval of the parishioners, expressed by a\nresolution of the vestry.[186] (_B_) The legal attire of the ministering\nclergy at the Holy Communion, as well as in other ministrations, has\nbeen decided to be that laid down by the Advertisements of 1566, which\nare followed in Canons 24, 25, and 58, and prescribe the wearing of a\nsurplice with the proper hood of the university degree (if any); except\nthat in cathedral and collegiate churches the celebrant and gospeller\nand epistler shall wear copes. The rubric of the First Prayer Book of\nEdward VI., had directed that the celebrant should wear a white albe\nplain with a vestment (_i.e._ a chasuble) or cope, and any assistant\npriests or deacons should wear albes with tunicles.[187] Stoles, as\ndistinguished from the scarves of chaplains, have no legal\nauthority.[188] A biretta (the foreign form of a college cap) must not\nbe worn during the Communion Service.[189] In preaching (except,\npossibly, during the Communion Office) the surplice or the black gown\nare equally legal.[190] (_C_) The ceremonial use of incense and\nprocessions with lighted candles are illegal,[191] but a celebration of\nHoly Communion with two lighted candles on or above the table is\npermissible.[192] The administration of the mixed chalice is legal, but\nthe wine and water must not be ceremonially mixed during the\nservice.[192] Wafers, not consisting of bread \"such as is usual to be\neaten,\" have been held illegal.[193] The singing of the Agnus Dei or of\nany other hymns during the administration of the elements is\npermissible.[194] A minister may stand either on the north or the west\nside of the table during the service; but not so as to hide the manual\nacts from the people.[192] He must not kneel or bow before the elements\nduring the Prayer of Consecration, or elevate them above his head during\nadministration; nor may he use the sign of the cross during the\nabsolution or benediction.[195] Ablutions of the paten and chalice\nafter the benediction, being no part of the service, are not\nillegal.[196] Reservation of any parts of the consecrated elements at\nthe close of the Communion Service is illegal.[197]\n\n6. No minister is to refuse or delay to christen according to the form\nof the Book of Common Prayer any child brought to him to the church for\nthat purpose on a Sunday or holy day, after notice given to him\novernight or in the morning before the beginning of Morning Prayer. The\nceremony should take place immediately after the second lesson at either\nMorning or Evening Prayer. The congregation can then testify the\nreceiving of the newly baptized into the number of Christ's Church, and\nall present are reminded of their own profession made to God in their\nbaptism. But if necessity requires, children may be baptized on any\nother day.[198] The law is the same as regards children of Church people\nand of Dissenters, and as regards legitimate and illegitimate children.\nIf a minister is duly informed of the weakness and danger of death of an\nunbaptized infant in the parish, and is desired to go and baptize him,\nhe must not refuse or so delay that the infant dies through his fault\nunbaptized.[199] But in every other case a male child must have two\ngodfathers and one godmother, and a female child one godfather and two\ngodmothers; and a minister will, of course, not admit as a sponsor a\nperson notoriously leading an immoral life or otherwise manifestly unfit\nfor the office. Godparents must have received the Holy Communion, and a\nfather cannot be godfather for his own child.[200] In 1865 the\nCanterbury Convocation, with the Royal licence, framed a new canon\nrepealing this prohibition; but the canon was never ratified by the\nCrown, nor was any similar canon passed by the York Convocation. The\nForm for the ministration of Private Baptism in houses contains a\nservice for the public reception in church, as one of the flock of true\nChristian people, of a child who, in case of emergency, has been\nbaptized at home, and also a formula of conditional baptism to be\nsubstituted for the words of actual baptism in cases where there is a\ndoubt whether the essential parts of the Sacrament were observed in the\nprivate performance of the ceremony. The rubrics direct immersion in the\ncase of the public baptism of infants, if the godparents certify that\nthe child can endure it, and affusion, if they certify that the child is\nweak. Naturally, affusion alone is directed in the case of private\nbaptism. In the case of the baptism of adults, immersion or affusion are\ndirected as alternatives, the discretion being left with the minister\nand not with the godparents. The rubric directs that, before adult\npersons are to receive baptism, not less than one week's previous\nnotice shall be given to the bishop, or a person appointed by him, by\nthe parents or some other discreet persons, in order that due care may\nbe taken for their examination as to their knowledge of the principles\nof the Christian religion, and that they may be exhorted to prepare with\nprayers and fasting for the reception of that holy Sacrament. The\nbaptismal services throughout contemplate the performance of the\nceremony by a priest; but in the Form of Making of Deacons a deacon is\nexpressly authorised to baptize infants in the absence of the priest.\nLay baptism is valid in case of emergency; but, of course, a layman is\nnot at liberty to use the baptismal service.\n\n7. The Holy Communion is to be administered in every parish church and\nchapel so often and at such times as that every parishioner may\ncommunicate at least twice in the year (whereof the feast of Easter\nshall be one).[201] Warning is to be given to the parishioners \"publicly\nin church at Morning Prayer\" on the Sunday before every time of\nadministering the Holy Communion,[202] and the present rubric requires\nthat so many as intend to be partakers of the Sacrament shall signify\ntheir names to the curate, meaning the incumbent, at least some time the\nday before. In the First Prayer Book of Edward VI. this rubric ran: \"So\nmany as intend to be partakers of the Holy Communion shall signify\ntheir names to the curate overnight or else in the morning afore the\nbeginning of Matins or immediately after.\"[203] The incumbent must not\ndeny the Sacrament, without lawful cause, to any person that devoutly\nand humbly desires to receive it.[204] But he is directed both by the\nCanons and by the rubric to repel from Communion, until repentance, open\nand notorious evil livers, and those who have wronged their neighbours\nby word or deed so as to offend the congregation, and those between whom\nhe perceives malice and hatred to reign. The Canons add to the list\ncommon and notorious depravers of the Book of Common Prayer, or the\nOrdering of Bishops and Priests, or the Thirty-nine Articles, or\ndepravers of the sovereign authority of the King in causes\necclesiastical, and those who refuse to kneel when receiving the\nCommunion or to be present at public prayers according to the order of\nthe Church of England. When any one is so repelled, the incumbent must\nreport the matter to the ordinary within fourteen days, or sooner if\nrequired by the offending person or by the ordinary himself, and must\nobey his order and direction in reference to it. The rubric directs that\nthe ordinary shall proceed against the offender according to the Canon,\nthat is to say, by such ecclesiastical censures and punishments as can\nbe inflicted.[205] In Jenkins _v._ Cook[206] the meaning of a \"common\nand notorious depraver of the Book of Common Prayer\" was discussed, and\nthe Judicial Committee of the Privy Council held that it did not include\na person who omitted certain parts of the Bible from his family reading\nbecause he held them, in their generally received sense, to be\nincompatible with religion or decency. But while they assumed that being\na depraver of the Prayer Book would be as valid a cause for denying\nCommunion as being an open and notorious evil liver, they did not\nactually decide whether the Canons, which do not as such bind the laity,\ncan of their own authority prescribe causes, sufficient or lawful, for\ndenying Communion within the meaning of the Act of 1547.[207] It would\nnot be expedient in the present day for an incumbent, under Canons 28\nand 57, to refuse the Communion to persons merely because they came from\noutside his parish to communicate in his church instead of in their own\nparish church. Nor can he lawfully refuse it to a person who\noccasionally attends or even communicates in a dissenting place of\nworship.[208] The question of admitting to Communion persons who have\nbeen baptized in another communion or Christian body, and have not been\nconfirmed in the Church of England, is one of more difficulty. The\nrubrics in the Communion Office itself are silent on the subject. But\nthe exhortation at the close of the Public Baptism of Infants directs\nthat the child shall be brought to the bishop to be confirmed without\ndelay after a sufficient course of instruction. The rubric at the close\nof the Baptismal Service for Adults declares the expediency of every\nperson so baptized being confirmed by the bishop with all convenient\nspeed after baptism, that so he may be admitted to the Communion; and\nthe rubric at the end of the Order of Confirmation prescribes that there\nshall none be admitted to the Communion until such time as he be\nconfirmed, or be ready and desirous to be confirmed. These rubrics must\nbe read together, and are clearly framed with a view to persons baptized\nin the Church of England. In fact the Prayer Book nowhere contemplates\nthe case of a person who, having been validly baptized in another\ncommunion or body, afterwards joins the Church of England, or the case\nof a person belonging to some other communion who, while temporarily\nresident in England, desires, without forsaking his own communion, to\ncommunicate with his fellow Christians of our Church. As the rubrics\nstand, such persons, unless and until actually confirmed, have no right\nto require a clergyman to admit them to Communion, and he commits no\nlegal offence by refusing to do so. On the other hand, a considerable\nnumber of such persons do, as a matter of fact, communicate in our\nChurch without having been confirmed or being desirous to be confirmed;\nand a clergyman who admits them, in the absence of any direction of the\nbishop to the contrary,[209] may be acting in a wise and Christian\nmanner.\n\n8. The rubrics of the Communion Office prescribe that a sermon or one of\nthe authorised homilies shall follow the Nicene Creed whenever that\nportion of the office is used, whether a Communion actually takes place\nafterwards or not. And the 45th Canon enjoins the preaching of one\nsermon every Sunday of the year. The power of the bishop to require a\nsecond and even, in certain cases, a third sermon has already been\nnoticed.[210] But, inasmuch as the Prayer Book contains no direction\nthat sermons shall follow Matins or Evensong, such sermons may be\nregarded as in the nature of separate or additional services. The 55th\nCanon prescribes that all sermons, lectures, and homilies shall be\npreceded by what is called the Bidding Prayer and the Lord's Prayer. But\nthis rule is not in practice observed in the case of sermons in the\nmiddle of the Communion Service or immediately following some other\nservice. Under the Act of Uniformity Amendment Act of 1872, Morning and\nEvening Prayer, the Litany, and Holy Communion may any of them be used\nwith or without the preaching of a sermon or lecture or the reading of a\nhomily; and a sermon or lecture may be preceded either by one of the\nservices appointed by the Prayer Book or by a service authorised by that\nAct, or by a Collect taken from the Prayer Book, with or without the\nLord's Prayer.[211]\n\n9. Regular catechising is enjoined both by the Canons and by the Prayer\nBook. But the direction in the 59th Canon, that it shall take place for\nhalf-an-hour or more before Evening Prayer, is superseded by the rubric\nat the end of the Catechism, which requires the incumbent of every\nparish diligently upon Sundays and holy days, after the second lesson\nat Evening Prayer, openly in the church to instruct and examine so many\nchildren of his parish sent to him as he shall think convenient, in some\npart of the Catechism.\n\n10. The Churching of Women is regulated by the rubrics at the\ncommencement and close of the service for the occasion in the Prayer\nBook. It is contemplated as the first service in which a woman takes\npart after recovery from childbirth; but no specific time is prescribed\nfor it beyond the recommendation that she should receive the Holy\nCommunion if there be a Communion. In former times a woman was not to be\nchurched after an illegitimate birth unless she had previously done\npenance or acknowledged her fault before the congregation at the time of\nher churching. Since penance has fallen into disuse, a clergyman must\nexercise his own discretion in such cases; but he will, of course,\nneither church nor admit to Communion a woman who impenitently continues\na sinful life. The rubric directs that \"accustomed offerings\" shall be\noffered at a churching, but their amount is not regulated by any general\nor well-established rule.[212]\n\n\n                              Footnotes\n\n[162] Ch. ii. \u00a7 6 (i.); ch. iii. \u00a7 1; (1865) 28 & 29 Vict. c. 122, ss.\n1, 4-8.\n\n[163] (1559) 1 Eliz. c. 2; (1662) 14 Cha. 2, c. 4; (1872) 35 & 36 Vict.\nc. 35; Westerton _v._ Liddell (1857) Moore's Special Report, 187; Martin\n_v._ Mackonockie (1868) L. R. 2 P. C. 365, at p. 383; 38 L. J. Eccl. 1,\nat p. 11.\n\n[164] Newbery _v._ Goodwin (1811) 1 Phill. 282.\n\n[165] Gibs. Cod. 280; see note to ch. ii. \u00a7 6 (i.) above.\n\n[166] As to the normal order independently of the Act, see the Rubrics\nand note to \u00a7 7 below.\n\n[167] Cripps, 576.\n\n[168] _Re_ Hartshill Endowment (1861) 30 Beav. 130.\n\n[169] This applies only to a church served by a distinct minister, and\nnot where there are two churches in one parish. But even in such a case\nthe incumbent has no right wholly to close one church and hold all the\nSunday services in the other; Rugg _v._ Bp. of Winchester (1868) L. R. 2\nP. C. 223; 38 L. J. Eccl. 23.\n\n[170] (1838) 1 & 2 Vict. c. 106, s. 80.\n\n[171] (1818) 58 Geo. 3, c. 45, ss. 65, 66.\n\n[172] 7 Will, 4 & 1 Vict. c. 45.\n\n[173] The appointment of such person rests with the incumbent or\nprincipal officiating minister; a clergyman in priest's orders is not a\n\"fit\" person to collect the offertory money. Cope _v._ Barber (1872) L.\nR. 7 C. P. 393.\n\n[174] Sm. Churchw. 80; Reg. _v._ O'Neill (1867) 31 J. P. 742; Howell\n_v._ Holdroyd (1897) P. 198. An incumbent often takes sole charge not\nonly of money collected in church but of money collected by appeals\nwithin and outside the parish. He should in all such cases lodge it at a\nbank on a separate account, and notify in his appeal that this will be\ndone. He cannot otherwise reasonably expect to be entrusted with money\nby strangers; and if the money is mixed with his own, it may be\ndifficult or impossible to disentangle it in the event of his sudden\nillness and death.\n\n[175] Moysey _v._ Hillcoat (1828) 2 Hag. Eccl. 30, at p. 56.\n\n[176] As stated in ch. i. \u00a7 4, these decisions are part of our Church\nlaw, until reversed or altered by future judicial decisions or by\nlegislation. As intimated in the Preface, no opinion is here expressed\nas to their correctness, or as to what the law ought to be on the points\nwith which they deal. It has been questioned whether in the Ornaments\nRubric and in the Act of Uniformity of 1559 (1 Eliz. c. 2), from which\nit is derived, the mention of such ornaments as were in the Church by\nauthority of Parliament in the second year of Edward VI. refers to the\nornaments sanctioned by the First Prayer Book of Edward VI., the use of\nwhich was enjoined by the Act of Uniformity of 1549 (2 & 3 Edw. 6, c.\n1), or to those previously in use. It may be observed that this Act is\nreferred to as made in the second year of the reign in the later Act of\nUniformity of 1552 (5 & 6 Edw. 6, c. 1, s. 4), and the Book itself is\nassociated with that year in the 36th Article. In the Bp. of\nWinchester's Case (1596) 2 Co. Rep. 40 a, the Payment of Tithes Act of\nthe same session (2 & 3 Edw. 6, c. 13) is referred to as made in the\nParliament holden in the second year of Edward VI. See also Westerton\n_v._ Liddell (1857) Moore's Special Report, 156, 160; Martin _v._\nMackonockie (1868) L. R. 2 P. C. 365, at p. 390; Elphinstone _v._\nPurchas (1870) L. R. 3 A. & E. 66, 94.\n\n[177] Faulkner _v._ Litchfield (1845) 1 Rob. Eccl. 184; Westerton _v._\nLiddell (1857) Moore's Special Report, 176-185. A variety of embroidered\ncloths is permissible; _Ib._188. But the decision in _Re_ St. Luke's,\nChelsea (1904) P. 257, that marble is \"stuff\" within Canon 82, seems\nopen to question.\n\n[178] Phill. Eccl. Law, 733-5; Liddell _v._ Beal (1860) 14 Moo. P. C. 1,\n14; Durst _v._ Masters (1876) 1 P. D. 373; Ridsdale _v._ Clifton (1877)\n2 P. D. 276; Bradford _v._ Fry (1878) 4 P. D. 93, 106; _Re_ St.\nMatthias, Richmond (1897) P. 70; _Re_ St. Ethelburga (1900) P. 80; _Re_\nSt. John Baptist, Paignton (1905) P. 111.\n\n[179] Liddell _v._ Beal, _ubi sup._; Elphinstone _v._ Purchas (1870) L.\nR. 3 A. & E. 66.\n\n[180] Boyd _v._ Phillpotts (1874) L. R. 4 A. & E. 297; (1875) 6 P. C.\n435; Hughes _v._ Edwards (1877) 2 P. D. 361; _Re_ St. Mark, Marylebone\n(1898) P. 115; Davey _v._ Hinde (1901) P. 95; (1903) P. 221.\n\n[181] _Re_ St. Lawrence, Pittington (1880) 5 P. D. 131; _Re_ St. John,\nPendlebury (1895) P. 178.\n\n[182] Westerton _v._ Liddell (1857) Moore's Special Report 187,8;\noverruling Faulkner _v._ Litchfield (1845) 1 Rob. Eccl. 184.\n\n[183] _Re_ Holy Trinity, Stroud Green (1887) 12 P. D. 199; _Re_ St.\nMark, Marylebone (1898) P. 115.\n\n[184] _Re_ St. Agnes, Toxteth Park (1885) 11 P. D. 1; _Re_ St. John\nBaptist, Timberhill (1895) P. 71.\n\n[185] White _v._ Bowron (1873) L. R. 4 A. & E. 207; 43 L. J. Eccl. 7.\n\n[186] Groves _v._ Rector of Hornsey (1793) 1 Hag. Cons. 188; Clayton\n_v._ Deane (1849) 7 Not. of Ca. 46, 53; Vicar of Tottenham _v._ Venn\n(1874) L. R. 4 A. & E. 221; Peek _v._ Trower (1881) 7 P. D. 21; Nickalls\n_v._ Briscoe (1892) P. 269. See also note (1) on p. 146 below.\n\n[187] Ridsdale _v._ Clifton (1877) 2 P. D. 276. See note (1) on p. 87.\n\n[188] Elphinstone _v._ Purchas (1870) L. R. 3 A. & E. 66.\n\n[189] Enraght's case (1881) L. R. 6 Q. B. D. 376; (1882) 7 A. C. 240.\n\n[190] _Re_ Robinson: Wright _v._ Tugwell (1897) 1 Ch. 85.\n\n[191] Sumner _v._ Wix (1870) L. R. 3 A. & E. 58; The Archbishops on\nIncense and Lights in Processions: Hearing at Lambeth (1899) _Times_,\nAug. 1 (also published by Macmillan & Co., 1899, price 1s.)\n\n[192] Read _v._ Bishop of Lincoln (1891) P. 9; (1892) A. C. 644.\n\n[193] Ridsdale _v._ Clifton (1877) 2 P. D. 276. The First Prayer Book of\n1549 prescribed unleavened wafers, but directed that each must be\ndivided and distributed in two or more pieces, in order, no doubt, that\nthe symbolism indicated in 1 Cor. x. 17 might not be wholly lost.\n\n[194] Read _v._ Bishop of Lincoln, _ubi sup._ The legality of the usual\nhymns and music has been long recognised; Hutchins _v._ Denziloe (1792)\n1 Hag. Cons. 170.\n\n[195] Martin _v._ Mackonockie (1868) L. R. 2 P. C. 365; (1869) L. R. 3\nP. C. 52; Read _v._ Bishop of Lincoln, _ubi sup._\n\n[196] Read _v._ Bishop of Lincoln, _ubi sup._\n\n[197] Archbishops' Hearing at Lambeth (1900) _Times_, May 2. See ch.\nviii. \u00a7 1.\n\n[198] Canon 68; Prayer Book Rubric.\n\n[199] Canon 69.\n\n[200] Canon 29.\n\n[201] Canon 21; Prayer Book Rubric.\n\n[202] Canon 22.\n\n[203] This rubric, with the substitution of \"Morning Prayer\" for\n\"Matins,\" was repeated in the Prayer Books of 1552 and 1559. On the\nother hand, in our present Prayer Book, where the allusion to Morning\nPrayer is omitted from the rubric, the intention that it shall, in the\nordinary course, precede the Holy Communion is indicated by the fact\nthat Matt. xxvi. and John xviii. have been removed from the Gospels for\nPalm Sunday and Good Friday, where they had previously stood with the\nsucceeding passages which form our present Gospels for those days, and\nhave been made the Second Lessons at Morning Prayer. In the earlier\nPrayer Books no special second lessons were assigned for those two days.\nBut as to the use of Morning Prayer, the Litany, and the Holy Communion\ntogether, or in varying order as separate services, see now \u00a7 1 above.\nThe Prayer Book does not seem to contemplate Communion more than once in\nthe day. Where the Office is used oftener, it must be repeated entire on\neach occasion.\n\n[204] (1547) 1 Edw. 6, c. 1, s. 8.\n\n[205] Canons 26, 27, 109; Prayer Book Rubric.\n\n[206] (1875) L. R. 4 A. & E. 463, rev. on app. (1876) 1 P. D. 80.\n\n[207] See p. 94 above, and note (2) on that page.\n\n[208] Swayne _v._ Benson (1889) 6 Times Law Rep. 7.\n\n[209] The passage in the statement _Concerning the Service of the\nChurch_ at the beginning of the Prayer Book, respecting the bishop\ntaking order for the appeasing of doubts concerning the manner of\nunderstanding and carrying out the contents of the Book, might apply to\nthe treatment of such persons.\n\n[210] \u00a7 2 above.\n\n[211] 35 & 36 Vict. c. 35, ss. 5, 6.\n\n[212] Phill. Eccl. Law, Pt. iii. ch. viii. pp. 645-7.\n\n\n\n\n                           CHAPTER VI\n\n                            MARRIAGE\n\n\n1. With the exceptions mentioned in \u00a77 below, the incumbent or minister\nof the church of an ancient or new ecclesiastical parish, or of a church\nor chapel specially authorised for the publication of banns and\nsolemnisation of marriages, is bound, in the case of persons who are\nlegally competent to be married in that church or chapel, to publish or\npermit the publication of banns and solemnise or permit the\nsolemnisation of marriage, either after due publication of banns or\nunder a licence from the bishop or the Archbishop of Canterbury, and he\nmay consent to the solemnisation of the marriage upon a proper\nregistrar's certificate. If he improperly refuses publication of banns\nor solemnisation of marriage, it is an ecclesiastical offence for which\nhe is liable to be punished under the Clergy Discipline Act, 1840, but\nit is a question whether he would be liable to a civil action or an\nindictment for the refusal.[213] On the other hand, a clergyman who\nknowingly and wilfully solemnises a marriage in an unauthorised building\nor outside the lawful hours (unless under special licence from the\nArchbishop of Canterbury), or without due publication of banns (unless\nunder licence from him or from the bishop, or upon a proper registrar's\ncertificate), will be guilty of felony; and a marriage solemnised with\nthe knowledge of the parties thereto elsewhere than in an authorised\nbuilding or without publication of banns or the registrar's certificate,\nunless with a sufficient licence, will be void.[214]\n\n2. The ancient parish churches were the original places for the\npublication of banns and solemnisation of marriages;[215] but the\nchurches of new ecclesiastical parishes now stand upon the same footing\nin that respect as those of ancient parishes; and where a portion of an\nancient parish has been formed into a new ecclesiastical parish,\nresidents in the new parish are not deemed for those purposes to be\nwithin the old parish.[216] Moreover, if, besides the church, there is a\npublic chapel in a parish, and the bishop thinks it necessary so to do\nfor the convenience of the inhabitants, he may grant a licence, with\nsuch qualifications as he may deem fit, for banns and marriages in the\nchapel, in the case of residence within a district specified in the\nlicence; subject to an appeal on the part of either patron or incumbent\nto the archbishop of the province, who may confirm, revoke, or vary the\nlicence. But the licence will not preclude residents in the district\nfrom having their banns published and marriages solemnised in the parish\nchurch, if they prefer this course.[217] In the case of parishes having\nno parish church in which Divine service is usually performed every\nSunday, and in the case of extra-parochial places, the church or chapel\nof an adjoining parish or chapel may be resorted to for banns and\nmarriages.[218] But the bishop may license for banns and marriages in\nextra-parochial places and chapelries any church or chapel situate\nwithin their limits.[219] Where the church of a parish is pulled down or\ndisused for Divine service owing to being rebuilt or repaired, the\npublication of banns and solemnisation of marriages may take place in\nany building within the parish licensed by the bishop for the\nperformance of Divine service during the rebuilding or repair of the\nchurch, or if there is no such building, then in the church of an\nadjoining parish; or, if there is a consecrated chapel within the\nparish, the bishop may direct that they shall take place within that\nchapel, and may, with the consent of the incumbent, give directions\nrespecting the fees. Licences for marriages in the church of the parish\nare to be construed as licences for marriages in the building, church,\nor chapel in which they may be temporarily solemnised.[220] Where a\nchurch has been rebuilt, repaired, or enlarged, and the position of the\nHoly Table altered, the validity of marriages and other ceremonies is\nnot affected by the fact, if such is the case, of there having been no\nre-consecration.[221]\n\n3. Persons are legally competent to intermarry who (_a_) are of a legal\nage to contract marriage, (_b_) are of sound mind, (_c_) have not at the\ntime a wife or husband living with whom they have contracted a marriage\nwhich is recognised by English law and has not been declared void or\nbeen dissolved by a divorce a _vinculo_ recognised by English law, and\n(_d_) are not within the prohibited degrees of consanguinity or\naffinity. A Christian and a non-Christian may be married in church, as\nwell as Christians of different denominations; and a clergyman cannot\nmake religion or absence of religion a ground for refusing to perform\nthe ceremony.[222]\n\n4. The _minimum_ legal age for contracting marriage is fourteen for the\nhusband and twelve for the wife. In the case of minors the consent of\nparents or guardians is necessary to their marriage after banns. In the\ncase of the marriage by licence of a minor who is not a widower or\nwidow, the consent to the marriage must be obtained from the father if\nliving, and if he is dead, from some one guardian of the minor (if any).\nThe mother, whether still a widow or remarried, is by law a guardian of\nthe minor unless she has been removed from the office by the High Court\nof Justice. If she has been so removed and she remains a widow, and\nthere is no guardian in existence, her consent to the marriage is\nnecessary. Where no requisite consenting party is in existence, the\nmarriage may be solemnised without consent. If the father, mother, or\nother guardian is of unsound mind, or abroad, or unreasonably withholds\nconsent, the Lord Chancellor or some other Chancery judge may on\npetition make declaration that the marriage is proper, which will\nsupersede the necessity for the consent.[223] This consent of parents is\nnot required in the case of a minor who is illegitimate.[224] A\nclergyman is not punishable who, without notice of the fact, solemnises\nthe marriage of a party under the lawful age, or the marriage of a minor\nwithout the consent of parent or guardian; and the marriage of a minor\nabove the marriageable age without such consent, if it actually takes\nplace, is valid, and cannot be made void.[225] But the marriage of a\nperson under the lawful age can be declared void by him or her on\nattaining that age. If, however, he or she then consents to the union,\nno remarriage is necessary.[226]\n\n5. The marriage of a person who is a lunatic or of unsound mind is void,\nsince such a person is not capable of consenting to the ceremony.[227]\nOn the same principle, if a person is forced to go through the ceremony\nagainst his or her will, it is no marriage and void.[228]\n\n6. Where a married person is absent and unheard of for seven years, a\npresumption of death arises, and the other party marrying again after\nthe lapse of that time is not punishable for bigamy.[229] But the\nremarriage will of course be void if it subsequently appears that the\nabsent party was actually alive at the time when it was solemnised.\n\n7. A divorce decreed by a competent Christian tribunal between persons\ndomiciled in the country where it is obtained is regarded as valid in\nEngland, if valid according to the law of that country.[230] But if a\nperson domiciled in England obtains a divorce in another country to\nwhich he has gone for the purpose, that divorce will not be recognised\nas legal here.[231] If persons obtain a dissolution of marriage by a\njudicial decree in England, the Divorce Act, 1857, authorises them to\nmarry again after the time for appealing against the decree has expired,\nor after the marriage has, on appeal, been declared to be dissolved, in\nlike manner as if the marriage had been dissolved by death. A person\ndivorced in England has, therefore, a legal right to require his or her\nbanns to be published and marriage to be solemnised in church in like\nmanner as if he or she were a widower or widow, with the exception that\nno clergyman is by law bound to marry a person whose marriage has been\ndissolved on account of the person's own adultery; but in case of his\nrefusal to do so he must permit any other clergyman willing to perform\nthe ceremony to use his church for the purpose.[232] In the banns in\nsuch cases the person has to be described, if at all (see \u00a7 10), as\n\"unmarried.\" In the case of a person whose divorce elsewhere than in\nEngland is valid according to English law, it would seem that although\nhe or she can legally remarry in England, yet a clergyman is under no\nlegal obligation to publish the banns or perform the ceremony or permit\nit to be performed in his church. The practice as to granting marriage\nlicences in the case of divorced persons varies in different\ndioceses.[233]\n\n8. Although marriages duly solemnised in England according to English\nlaw between foreigners, or between a foreigner and a British subject,\nare valid throughout the British Empire, these marriages will not\nnecessarily be valid in countries to which the foreigners belong, unless\nthe legal requirements of these countries are complied with. Under\narrangements made with France and Belgium, the French Consul and the\nBelgian Minister respectively will, on application, ascertain in any\nparticular case that the legal requirements of their country have been\ncomplied with, and will furnish a certificate to that effect. No similar\narrangement has as yet been made with any other foreign State. The\nfollowing instructions have therefore been issued in the diocese of\nLondon, and may, with advantage, be observed elsewhere, namely:--(_a_)\nWhere both parties to an intended marriage are foreigners, or one of\nthem is a foreigner of any nationality except French or Belgian, or is a\nforeigner without a permanent residence in England, the marriage should\nin all cases be by licence, which will only be granted if the chancellor\nof the diocese is satisfied that the law of the country, to which the\nforeigners concerned belong, is complied with.[234] (_b_) Where a\nforeigner of French or Belgian nationality, whose permanent residence is\nin England, is a party to an intended marriage after banns with an\nEnglish subject, the incumbent of the parish should require before\nsolemnising it the production of a certificate from the French Consul or\nBelgian Minister, as the case may be, that all the legal requirements\nnecessary to the recognition of the marriage as valid in France or\nBelgium have been complied with.\n\n9. Marriages of persons within the prohibited degrees of kindred and\naffinity specified in the Table set forth by the authority of Archbishop\nParker in the year 1563 are unlawful and void.[235] The degrees include\nillegitimate as well as legitimate relatives and connections; but an\nillegitimate _liaison_ with a woman or a man does not make her or him a\nwife or a husband within the meaning of the Table. Thus a man cannot\nmarry his wife's illegitimate daughter or her half-sister, whether\nlegitimate or illegitimate; but he can marry the daughter or sister of a\nwoman with whom he has had unlawful connection.[236]\n\n10. Under the Marriage Act, 1823, which slightly differs in language\nfrom Canon 62 and the rubrics in the Prayer Book, banns must be\npublished on three Sundays (without an alternative of holy-days), and\nafter the second lesson (instead of after the Nicene Creed) in morning\nservice or in evening service if there is no morning service,[237]\naccording to the form of words prescribed by the rubric. A slight\ndeviation from this form will not invalidate the publication. A\nclergyman is not obliged to publish banns, unless the parties, at least\nseven days before the time required for the first publication, deliver\nor cause to be delivered to him a notice in writing bearing the date of\nthe delivery, and setting forth their true Christian names and surnames,\nand the house or houses of their respective abodes within the parish or\nother district over which his authority as to banns and marriages\nextends, and the time during which they have respectively dwelt or\nlodged therein.[238] It is not imperative upon him to require this seven\ndays' notice, nor is he punishable for publishing the banns without it,\nor previously to its expiration. But he is liable to ecclesiastical\ncensure if he dispenses with it, and, without due inquiry, publishes\nbanns between persons not entitled to have their banns published, and\nthen proceeds to marry such persons, even though his action was not\nknowing and wilful.[239] Where the parties dwell in different parishes\nor other definite districts for banns and marriages, the banns must be\npublished in the church or chapel of both parishes or districts.[240] If\none of the parties resides in Scotland, his or her banns may be\npublished there according to Scottish law or custom, in contemplation of\na marriage in England, after publication of the banns of the other party\nhere.[241] And if one of the parties resides in England and the other in\nIreland, the banns may be published in each country according to the law\nor custom prevailing there, although it may differ from the manner\nrequired in that part of the United Kingdom in which the marriage is to\nbe solemnised.[242] A person dwells where he eats, drinks, and sleeps.\nHe can only be said to dwell at the place where he temporarily sojourns\nif he has no permanent abode. But he may dwell in more than one place,\nif he has a permanent abode in each.[243] The true Christian names and\nsurnames, in which the banns are to be published, mean the full\nChristian name and surname of each party, and the omission of part of\nthe Christian name, no less than the substitution of a wrong name, by\nthe fraud of both parties, will render the marriage void. But where a\nparty has abandoned his baptismal and family names and is known by\nrepute by different names, his banns ought to be published in his\nacquired names; and publication in his original names, if intended to\ndeceive, will be improper, and will invalidate the marriage.[244] There\nis no legal requirement that the status of the parties should be\npublished, and the description of the woman as a widow, when she was, in\nfact, a spinster, is not an undue publication.[245] The banns must be\npublished from a book and not from loose papers, and after publication\nmust be signed by the officiating minister or some person under his\ndirection.[246] If, in the case of a minor, a parent or guardian openly\nforbids the banns at the time of their publication by declaring or\ncausing to be declared his or her dissent to the marriage, the\npublication will be void, and no marriage can be lawfully solemnised\nupon it.[247] No other forbidding of the banns will render the\npublication void. It can, at the utmost, only furnish a ground for\ncaution and inquiry as to further proceeding with the matter.\n\n11. On the production and delivery of a certificate of the\nsuperintendent registrar of births, deaths, and marriages of the\ndistrict in which a church or chapel is situate, that due notice of an\nintended marriage in that church or chapel has been given, and also, if\none of the parties resides in another district, of a similar certificate\nof the superintendent registrar of that district, the marriage may be\nsolemnised in such church or chapel, with the consent of the minister\nthereof, but not otherwise, in like manner as after due publication of\nbanns. But a superintendent registrar cannot grant a licence for a\nmarriage in a church or chapel of the Church of England.[248]\n\n12. A marriage may be solemnised, without banns or registrar's\ncertificate, under a licence of the bishop of the diocese or the\nArchbishop of Canterbury for that purpose. A bishop's licence is granted\nby the chancellor of the diocese, through the diocesan registry, for the\nmarriage of the parties in the church or chapelry of the parish in which\none of the parties has dwelt for fifteen days immediately preceding. The\nlicence, and also the form of affidavit leading to it, together with all\ninformation on the subject, can be obtained either direct from the\ndiocesan registry or through a clergyman who is a chancellor's\nsurrogate. Before it is issued, an affidavit must be made before a\nsurrogate by one of the parties to the intended marriage that there is\nno legal impediment to it, and that one of the parties has for fifteen\ndays immediately preceding the issue of the licence had his or her usual\nplace of abode in the parish or other district for banns and marriages,\nin the church or chapel of which the marriage is to be solemnised.[249]\nAn ordinary or special licence can also be granted by the Archbishop of\nCanterbury. His ordinary licence is issued under the same conditions and\nhas the same effect as a bishop's licence. But his special licence may\nauthorise the parties to be married in any church and at any time,\nirrespectively of their places of residence and of the canonical hours.\nOn production of a licence for a marriage in a specified church, it is\nthe duty of the incumbent to perform the ceremony, unless he knows that\nthe licence has been fraudulently obtained; and it is not his business\nto ascertain that one of the parties has actually resided within the\nparish.[250] The requirement as to correctness of the names of the\nparties is not so strict in the case of a licence as in the case of\nbanns; and the suppression in the affidavit leading to the licence of\npart of the name of one of the parties for the purpose of concealment\nhas been held not to invalidate the marriage.[251] The grant of a\nmarriage licence is a matter of favour and not of right.[252]\n\n13. The marriage must be solemnised in the church or chapel, or one of\nthe churches or chapels, in which the banns have been published, or in\nthe church or chapel named in the registrar's certificate or in the\nmarriage licence, within due time after the requisite preliminary\nformalities have been gone through. It should not be solemnised on the\nsame day as the last publication of the banns; but if it does not take\nplace within three months after the complete publication of banns or\ngrant of the licence (as the case may be), it is not to be solemnised\nuntil after the banns have been duly republished on three Sundays, or a\nnew licence has been duly obtained.[253] Similarly if a marriage\nintended to be sanctioned by a registrar's certificate does not take\nplace within three calendar months after notice has been entered by the\nsuperintendent registrar, it is not to be solemnised until a new notice\nhas been given and the entry duly made, and a certificate thereof given,\nas required by the Marriage Act, 1836.[254] Except under the authority\nof a special licence, it must be solemnised between the hours of eight\nin the forenoon and three in the afternoon, but the incumbent may\nappoint his own time for it within those hours.[255] It may be\nsolemnised by either a priest or a deacon,[256] but a clergyman cannot\nsolemnise his own marriage.[257] By canon and statute it must not take\nplace in a private place, but in a church or chapel, and in time of\nDivine service, and before at least two witnesses. But the canonical\nregulation as to marriages being solemnised during Divine service is\nnow, by custom, universally disregarded; and even a marriage celebrated\nin the vestry of a church and in the presence of one witness only has\nbeen held to be valid, though such a precedent ought not to be\nfollowed.[258] A clergyman who knowingly and wilfully solemnises a\nmarriage elsewhere than in a church or chapel where banns may be\nlawfully published, or at any other time than between eight in the\nforenoon and three in the afternoon (unless by special licence from the\nArchbishop of Canterbury), or without due publication of banns, unless\nunder a marriage licence or on a registrar's certificate, is guilty of\nfelony and punishable accordingly.[259]\n\n14. On production of a certificate of marriage at a registry office, and\npayment of the customary fees (if any), a clergyman may, if he sees fit,\nread or celebrate the marriage service over the parties in his church;\nbut this is not to invalidate the previous marriage, nor is the reading\nor celebration to be entered as a marriage in the parish register.[260]\nThere have, however, been cases of a subsequent marriage in church, not\nonly after a marriage before a registrar, but also after a marriage out\nof England, the wife's maiden name being used on the occasion.[261]\n\n15. The right to fees for publication of banns, giving a certificate of\nbanns where the marriage takes place in the other church in which they\nwere published, and the marriage itself, can only depend in ancient\nparishes upon custom, presumed to date from time immemorial. A claim to\na marriage fee of 13s. (10s. for the rector and 3s. for the clerk) was\ndisallowed on the ground that the amount was unreasonably large and\ncould not have been paid in the time of Richard I.[262] In new\necclesiastical parishes a claim for these fees can only be enforced if\nthey have been set out in a table of fees settled by the Church Building\nCommissioners or their successors, the Ecclesiastical Commissioners,\nunder the Church Building Act, 1819, or by the chancellor of the diocese\nunder the new Parishes Acts, 1843 and 1856.[263]\n\n16. Marriage register books in duplicate are furnished by the\nRegistrar-General to the incumbent of every church or chapel in which\nmarriages may be solemnised; and it is the duty of every clergyman who\nsolemnises a marriage to enter immediately afterwards in duplicate in\ntwo of the books the prescribed particulars of the marriage; and the\nentry is to be signed by him and by the parties married and by two\nwitnesses. An incumbent is to allow searches in all marriage register\nbooks in his custody at a fee of 1s. for one year and 6d. for every\nadditional year to which the search extends, and 2s. 6d. for a\ncertificate (besides 1d. for the stamp). In every January and succeeding\nthird month he must send in to the superintendent registrar of births,\ndeaths, and marriages for the district, either directly or through a\nsubordinate registrar, a certified copy of all the entries made by him\nsince his last return, and will receive 6d. for every such entry. And\nwhenever a register book is filled, he is to send one copy to the same\nregistrar and keep the other copy with the registers of baptisms and\nburials of his parish or chapelry.[264]\n\n17. If persons residing in the parish present themselves for Holy\nCommunion as married, a clergyman has no right, (_a_) in the absence of\nany ground for suspicion to the contrary, to demand proof of their\nmarriage before admitting them, or (_b_) to refuse to admit them on a\nmere suspicion that they are not married and therefore living in sin. If\nhe refuses them Communion, he must be prepared to show either (_a_) that\nthey actually are not married, or (_b_) that he had good grounds for\nbelieving this to be the case. He is bound to recognise as man and wife\npersons who have been duly married according to the law affecting them\nat the time of the marriage, whether ecclesiastically or civilly, and\nwhether in this country or elsewhere; provided that the law was\nChristian and monogamous; for a marriage according to a law, custom, or\nrite which contemplates polygamous unions is void in our law.[265] If\nthere is any doubt as to the validity of their marriage, he will always\nbe on the safe side in adopting the affirmative view and acting upon the\nassumption of their being validly married. In the absence of evidence to\nthe contrary, the law will presume a valid marriage from the fact of\nlong reputation and cohabitation as man and wife, without actual proof\nof the ceremony having taken place.[266] A marriage is legally valid if\nperformed according to the mode and with the formalities required by the\nlaw of the place where it is solemnised.[267] But the capacity of the\nparties to contract marriage is governed by the law of their domicile;\nand therefore persons domiciled in this country between whom a marriage\nwould be illegal here, cannot contract a lawful marriage by going for\nthe purpose into another country where such a marriage is legal, and\nthere going through the ceremony.[268] Under the English common law a\nmarriage between British subjects in a foreign country or on board ship,\nwhere no statute law binding upon them imposes any further formalities,\nis recognised as valid in this country if solemnised without banns or\nlicence in the presence of a clergyman of the Church of England, whether\npriest or deacon (not being one of the parties to it).[269] A marriage\nbetween British subjects may also be solemnised outside the United\nKingdom in accordance with the regulations of the Foreign Marriage Act,\n1892 (55 & 56 Vict. c. 23), before a person authorised thereunder to act\nas a marriage officer, as it might have been before that Act under the\nActs thereby repealed.\n\n\n                           Footnotes\n\n[213] Davis _v._ Black (1841) 1 Q. B. 900; Reg. _v._ James (1850) 3 C. &\nK. 167.\n\n[214] (1823) 4 Geo. 4, c. 76, ss. 21, 22.\n\n[215] _Ib._ s. 2.\n\n[216] (1818) 58 Geo. 3, c. 45, ss. 27-29; (1819) 59 Geo. 3, c. 134, ss.\n6, 16, 17; (1830) 11 Geo. 4 & 1 Will. 4, c. 18, s. 3; (1843) 6 & 7 Vict.\nc. 37, s. 15; (1844) 7 & 8 Vict. c. 56; (1845) 8 & 9 Vict. c. 70, s. 10;\n(1856) 19 & 20 Vict. c. 104, s. 11; Tuckniss _v._ Alexander (1863) 32 L.\nJ. Ch. 794; 11 W. R. 938; Fuller _v._ Alford (1883) 10 Q. B. D. 418.\n\n[217] (1836) 6 & 7 Will. 4, c. 85, ss. 26-34; (1837) 7 Will. 4 & 1 Vict.\nc. 22, ss. 33, 34; _Re_ St. George's Proprietary Chapel (1890) Tristr.\nCons. Judg. 134.\n\n[218] (1823) 4 Geo. 4, c. 76, s. 23.\n\n[219] _Ib._ ss. 3-5; (1857) 20 Vict. c. 19, s. 9; (1860) 23 & 24 Vict.\nc. 24.\n\n[220] (1823) 4 Geo. 4, c. 76, s. 13; (1824) 5 Geo. 4, c. 32; (1830) 11\nGeo. 4 & 1 Will. 4, c. 18, s. 2.\n\n[221] (1867) 30 & 31 Vict. c. 133, s. 12.\n\n[222] Jones _v._ Robinson (1815) 2 Phill. 285; Reg. _v._ James (1850) 3\nC. & K. 167.\n\n[223] Canons 62, 100, 104; (1823) 4 Geo. 4, c. 76, ss. 8, 16, 17, read\nwith (1886) 49 & 50 Vict. c. 27, ss. 2, 4, 6, 7.\n\n[224] Horner _v._ Liddiard (1799) 1 Hag. Cons. 337.\n\n[225] (1826) 4 Geo. 4, c. 76, ss. 8, 23.\n\n[226] Co. Litt. 79 a. b. n. (1).\n\n[227] (1811) 51 Geo. 3, c. 37. A lunatic cannot marry until he has been\njudicially declared sane; _Ib._\n\n[228] Scott _v._ Sebright (1886) 12 P. D. 21; Geary, 23-27.\n\n[229] (1861) 24 & 25 Vict. c. 100, s. 57.\n\n[230] Harvey _v._ Farnie (1882) 8 App. Ca. 43.\n\n[231] Dolphin _v._ Robins (1859) 7 H. L. C. 390; Briggs _v._ Briggs\n(1880) 5 P. D. 163.\n\n[232] (1857) 20 & 21 Vict. c. 85, ss. 57, 58; (1868) 31 & 32 Vict. c.\n77. s. 4.\n\n[233] As to marriage licences, see \u00a7 12 below.\n\n[234] For an epitome of the foreign requirements for the validity of\nmarriages in Europe and North and South America, see A Summary of\nForeign Marriage Law, by Canon Glendinning Nash, 1903, published by the\nS.P.C.K., price 6d.\n\n[235] (1540) 32 Hen. 8, c. 38; Canon 99; (1835) 5 & 6 Will. 4, c. 54. As\nto the Table, see Co. Litt. 235 a. n. (1); 2 Co. Inst. 683; Gibs. Cod.\n411-415; 2 Burn, 439-50; Cardwell's Documentary Annals of the Church of\nEngland, vol. i. pp. 316-20 (no. lxiv); Sherwood _v._ Ray (1837) 1 Moo.\nP. C. 353, note on pp. 355-9.\n\n[236] R. _v._ Brighton (1861) 1 B. & Sm. 447; Wing _v._ Taylor (1861) 2\nSw. & Tr. 278.\n\n[237] 4 Geo. 4, c. 76, s. 2; Wynn _v._ Davies (1835) 1 Curt. 69, at p.\n81.\n\n[238] (1823) 4 Geo. 4, c. 76, s. 7.\n\n[239] Canon 62; (1823) 4 Geo. 4, c. 76, s. 21; Priestley _v._ Lamb\n(1801) 6 Ves. 421; Nicholson _v._ Squire (1809) 16 Ves. 259; Warter _v._\nYorke (1815) 19 Ves. 451; Wynn _v._ Davies (1835) 1 Curt. 69, at pp. 83,\n84.\n\n[240] (1823) 4 Geo. 4, c. 76, s. 2; (1837) 7 Will. 4 & 1 Vict. c. 22, s.\n34; (1860) 23 & 24 Vict. c. 24.\n\n[241] (1886) 49 & 50 Vict. c. 3.\n\n[242] (1899) 62 & 63 Vict. c. 27.\n\n[243] Macdougall _v._ Paterson (1851) 11 C. B. 755; 21 L. J. C. P. 27;\nAtt.-Gen. _v._ McLean (1863) 1 H. & C. 750; Alexander _v._ Jones (1866)\nL. R. 1 Ex. 133; 35 L. J. Ex. 78.\n\n[244] Tongue _v._ Allen (1835) 1 Curt. 38; (1836) 1 Moo. P. C. 90;\nMidgley _v._ Wood (1860) 30 L. J. P. M. & A. 57; R. _v._ Billingshurst\n(1814) 3 M. & S. 250. Where the woman was an illegitimate child, and had\nthe banns published in the name of her mother, which she had never in\nfact borne, Sir John Dodson, in adjudging the marriage void, said that\nhe had some doubt whether, in the case of an illegitimate child, the\npublication of the banns in the name of its mother, instead of the name\nof notoriety and repute, would necessarily be such an undue publication\nas would nullify the marriage. No doubt the name which a person under\nsuch circumstances had fully acquired was that in which the publication\nof banns should take place; but there might be a case in which, without\nfraudulent intent, and from an innocent misapprehension of what was\ncorrect, the name of the mother might be used instead of that\nsubsequently acquired; Tooth _v._ Barrow (1854) 1 Eccl. & Adm. 371, at\np. 374.\n\n[245] Mayhew _v._ Mayhew (1812) 3 M. & S. 266.\n\n[246] (1823) 4 Geo. 4, c. 76, s. 6.\n\n[247] _Ib._ s. 8.\n\n[248] (1836) 6 & 7 Will. 4, c. 85, ss. 1, 11, 15, 16; (1837) 7 Will. 4 &\n1 Vict. c. 22, s. 36; (1856) 19 & 20 Vict. c. 119, s. 11.\n\n[249] Canons 101-104; (1823) 4 Geo. 4, c. 76, s. 14.\n\n[250] Tuckness _v._ Alexander (1863) 2 Dr. & Sm. 614; 32 L. J. Ch. 794.\n\n[251] Bevan _v._ M'Mahon (1861) 30 L. J. P. M. & A. 61.\n\n[252] Prince of Capua _v._ Count de Ludolf (1836) 30 L. J. P. M. & A. 71\n(n.).\n\n[253] (1823) 4 Geo. 4, c. 76, ss. 9, 19. It is safest to construe this\nperiod as lunar months, _i.e._ twelve weeks; see 2 Bl. Comm. 141; Lacon\n_v._ Hooper (1795) 6 T. R. 224.\n\n[254] 6 & 7 Will. 4, c. 85, s. 15.\n\n[255] (1886) 49 & 50 Vict. c. 14; Canons of 1888.\n\n[256] Wats. ch. xiv. p. 146; Reg. _v._ Millis (1844) 10 Cl. & F. 534,\n859, 860.\n\n[257] Beamish _v._ Beamish (1861) 9 H. L. C. 274.\n\n[258] Canon 62; (1823) 4 Geo. 4, c. 76, s. 28; Wing _v._ Taylor (1861) 2\nSw. & Tr. 278; 7 Jur. N. S. 737.\n\n[259] (1823) 4 Geo. 4, c. 76, s. 21.\n\n[260] (1856) 19 & 20 Vict. c. 119, s. 12.\n\n[261] Phill. Eccl. Law. 629; Piers _v._ Piers (1849) 2 H. L. C. 331; 13\nJur. 569.\n\n[262] Bryant _v._ Foot (1867) L. R. 2 Q. B. 161; aff. (1868) 3 _Ib._\n497.\n\n[263] 59 Geo. 3, c. 134, s. 11; 6 & 7 Vict. c. 37, s. 15; 19 & 20 Vict.\nc. 104, ss. 14, 15.\n\n[264] (1836) 6 & 7 Will. 4. c. 86, ss. 30, 31, 33, 35, 40-44, sch. (C);\n(1837) 7 Will. 4 & 1 Vict. c. 22, ss. 25-29.\n\n[265] Hyde _v._ Hyde (1866) L. R. 1 P. & D. 130; _Re_ Bethell (1888) 38\nCh. D. 220.\n\n[266] Goodman _v._ Goodman (1859) 28 L. J. Ch. 745; The Breadalbane Case\n(1867) L. R. 1 H. L. Sc. 182; Geary, 140-142.\n\n[267] Ruding _v._ Smith (1821) 2 Hag. Cons. 371, at pp. 390, 391.\n\n[268] Brook _v._ Brook (1861) 9 H. L. C. 193; 4 L. T. N. S. 93.\n\n[269] Reg. _v._ Millis (1844) 10 Cl. & F. 534; 8 Jur. 917; Culling _v._\nCulling (1896) P. 116.\n\n\n\n\n                          CHAPTER VII\n\n                            BURIAL\n\n\n1. Every person dying in this country and not within the exceptions\nmentioned below (\u00a7 3) has a common law right to be buried in the\nchurchyard or burial ground of the parish in which he dies, by the\nclergyman of the parish.[270] Canon 67 prescribes that besides the\npassing bell (see Ch. VIII. \u00a7 1 below) there shall be rung after a\nperson's death no more than one short peal, and one other before the\nburial and one other after the burial. If he dies out of his own parish,\nthe persons who are responsible for his burial may claim that he be\nburied in his own parish.[271] If the clergyman or the persons having\ncharge of the ground refuse interment, the ecclesiastical court is the\nproper tribunal to give relief, and it will compel the interment. The\nHigh Court would also compel it by mandamus.[272] But a parishioner has\nno right to be buried at a particular hour or (except in the case of a\nprivate vault or a prescriptive right to a special spot) in a particular\npart of the churchyard. The incumbent can fix his own time for the\nfuneral, and he and the churchwardens can exercise a discretion as to\nwhere each body shall be buried.[273] And neither incumbent nor\nchurchwardens, nor both together, can make a valid sale or grant to\nindividuals or families of a grave-space in the churchyard for their use\nin perpetuity. Any such attempted transaction is worthless in point of\nlaw. An exclusive right of burial in not more than one-sixth part of\nland given as an addition to a churchyard may be reserved by the donor\nto himself, his heirs, and assigns in perpetuity,[274] but with this\nexception no such exclusive right can be acquired in a spot within a\nchurchyard except by faculty.[275] A person not a parishioner and not\ndying within the parish can only be buried in the parish churchyard,\notherwise than in a private vault, by the favour and with the permission\nof the incumbent and churchwardens,[276] or under a faculty obtained\nfrom the Ecclesiastical Courts.[277]\n\n2. As regards the burial of bodies cast up on the shore of the sea or of\nany tidal or navigable water, the rights and duties are the same as if\nthey were the bodies of parishioners of the parish in which they were\ncast up.[278]\n\n3. Persons are excluded from a right to Christian burial who have not\nbeen baptized, or die excommunicate, or have committed suicide and been\nfound _felo-de-se_.[279] Under the Interments (felo de se) Act,\n1882,[280] the remains of a person on whom a verdict of _felo de se_ has\nbeen passed are to be buried under the direction of the coroner in the\nground in which they would be rightfully interred if there had been no\nsuch verdict, and in one of the ways prescribed or authorised by the\nBurial Laws Amendment Act, 1880.[281] A clergyman has no right to refuse\ninterment with the full Burial Service to the child of a\ndissenter,[282] or a person who has only received lay baptism,[283] or\nhas died in a state of intoxication.[284] But a refusal to bury is no\noffence if the clergyman has not received convenient warning of the\nintended interment.[285]\n\n4. The incumbent may refuse to allow a corpse to be carried into\nchurch;[286] and, in the absence of a faculty or prescriptive right, the\nabsolute discretion as to permitting or refusing burial under the church\nitself rests, in the case of an ancient parish church, with the rector,\nwhether lay or spiritual, as regards the chancel, and with the incumbent\nas regards the rest of the church.[287] This discretion, for sanitary\nreasons, is now practically in abeyance. And no burial is permissible\nbeneath a church built under the Church Building Acts or within twenty\nfeet of its external walls.[288]\n\n5. A clergyman cannot make the burial of a parishioner conditional on\nthe payment of a fee.[289] And, in cases not provided for by some local\nor general statute or by a legally established table of fees, any\nsubsequent right to recover a fee must depend on the immemorial custom\nof the particular parish.[290] But on the burial of non-parishioners\nspecial fees may be previously stipulated for;[291] and the\nchurchwardens may by custom have a right to a portion of the fees for\nthe benefit of the parish or the poor.[292] In the absence of such\ncustom it is reasonable that part of these fees should go to the\nchurchwardens for the benefit of the parish; since the burial of\nnon-parishioners diminishes the space available for the interment of\nparishioners. Except where there is an ancient custom to that effect or\nunder the provisions of the Burial or Cemetery Acts, no fee is payable\nto the incumbent of a parish in which a person dies who is buried in\nanother parish.[293] The Church Building Act, 1819, enabled the Church\nBuilding Commissioners and their successors, the Ecclesiastical\nCommissioners, to fix a table of burial and other fees for a parish with\nthe consent of the bishop and the vestry, and also for any extra\nparochial place or district chapelry or parochial chapelry,[294] but\nthis power is not now usually exercised. The chancellor of the diocese\nis empowered and required to fix the fees for burials and other offices\nin the churchyards and churches of new parishes,[295] and, sitting as\nordinary in the consistory court, he can prescribe the fees to be\ndemanded in an ancient parish for any matter connected with burial which\nis in excess of the bare common law right of burial, as, for instance,\nfor the privilege of being buried in a brick vault or in an iron\ncoffin.[296] Where a new ecclesiastical parish is formed, and has a\nchurchyard or burial ground, either of its own, or in which its\nresidents have a right to be interred, whether provided ecclesiastically\nor by a burial authority, it becomes for the purposes of burial a\ndistinct parish from the mother parish, so that the residents in each\nhave no rights of burial in the churchyard or burial ground of the\nother, and the incumbent of the mother parish has no right to fees in\nrespect of interments in the churchyard or burial ground of the new\nparish.[297]\n\n6. A clergyman may use the Burial Service in unconsecrated ground,[298]\nand in cases where the Burial Service is not permissible, or where the\npersons responsible for the burial request it, he may use instead a\nspecial form prescribed or approved by the ordinary.[299] On receiving\nforty-eight hours' previous notice in writing to that effect from a\nrelative, friend, or legal representative of a deceased person entitled\nto burial in a churchyard or burial ground, the incumbent of the parish\nor chaplain of the ground must permit the interment of the deceased\nwithout the performance of the rites of the Church of England, and\neither without any service at all or with some other Christian and\norderly religious service conducted by a person or persons not in holy\norders of the Church of England. The notice must state the proposed day\nand hour of the interment, which may be varied if inconvenient to the\nperson receiving the notice; and he may, on stated grounds, object\naltogether to its taking place on a Sunday, Good Friday, or Christmas\nDay. On every such interment the incumbent or chaplain is entitled to\nthe same fee, if any, as he would have received if it had been\naccompanied by the Burial Service.[300]\n\n7. When a clergyman performs a funeral service, the certificate of the\nregistrar of having registered or received notice of the death, or\n(where there has been a coroner's inquest) the order of the coroner\nauthorising the burial, is to be delivered to him by the person who\nobtained it; and a clergyman who performs a funeral service without the\ndelivery of such a certificate or order must, within seven days, give\nwritten notice of the fact to the registrar of births and deaths for the\nsub-district in which the death took place; and if he fails to do so, he\nis liable to a penalty not exceeding \u00a310. In the case of a burial under\nthe Act of 1880 (see \u00a7 6 above) the certificate or order is to be\ndelivered to the relative or friend or legal representative of the\ndeceased who has charge of or is responsible for the burial; and a\nsimilar obligation, under a similar penalty, lies on him of giving\nnotice in case no certificate or order is delivered to him.[301]\n\n8. In the case of interments in cemeteries established by special Acts\nwhich incorporate the Cemeteries Clauses Consolidation Act, 1847,[302]\nor contain similar provisions, the incumbent and clerk of the\necclesiastical parish from which any bodies are removed for burial are\nentitled to receive such fees as are prescribed by the special Act. They\nare to be accounted for and paid by the cemetery company\nhalf-yearly.[303]\n\n9. Owing to the insufficiency of existing burial accommodation and the\nimportance of closing churchyards in the centres of large towns, a\nseries of Burial Acts, together with an Act known as the Public Health\n(Interments) Act, 1879,[304] have been passed from 1852 onwards,\nenabling burial boards and other local authorities to provide burial\ngrounds. The Acts contemplate that parts of these grounds shall be\nconsecrated and parts remain unconsecrated, and the earlier Acts\ncontemplated the erection of chapels on each of these parts. But\nquestions having arisen as to the amount of discretion possessed by a\nlocal burial authority with regard to procuring the consecration of any\nand what portion of a burial ground acquired by them, an Act was passed\nin 1900 which, after authorising burial authorities to apply to the\nbishop for the consecration of any part of their burial ground approved\nby the Home Secretary, added that if a burial authority do not so apply\nwithin a reasonable time after being requested to apply, and the Home\nSecretary is satisfied that a reasonable number of persons within the\nburial district desire that a portion of the ground be consecrated, and\nthat the consecration fees have been paid or reasonably secured, he may\nhimself apply to the bishop for the consecration of an approved portion\nof the ground, and the bishop may consecrate it, and the burial\nauthority will be bound to make the necessary arrangements for the\nconsecration.[305] And with regard to chapels, burial authorities are\nempowered to erect at their own cost, on any part of their burial ground\nnot consecrated or set apart for a particular denomination, a chapel for\nthe joint common use of all denominations. They may also, at the request\nand cost of residents within the burial district of a particular\ndenomination, erect and maintain a chapel for the funeral services of\nthat denomination on ground appropriated for their use. If a burial\nauthority fail to do this within a reasonable time after the request has\nbeen made and the cost has been tendered or adequately secured, the Home\nSecretary may, if he thinks fit, order and compel the burial authority\nto erect and maintain the chapel or give facilities for its being\ndone.[306] Where a burial ground has been provided by a local authority\nunder the Burial Acts, the incumbents, clerks and sextons, of the\necclesiastical parishes for which the ground has been provided, had, in\nrespect of the burial of inhabitants of those parishes in the\nconsecrated part of the ground, the same right to fees as they had in\nthe churchyard for which the ground is substituted, or would have had in\nthat churchyard if it had been the parochial burying place for their\nrespective parishes.[307] And the burial authority were empowered to\nsell rights of burial in vaults and permit the erection of monuments,\nwith a reservation of such fees to the incumbent of each parish as he\nwould have been entitled to in the old churchyard, or as might be fixed\nby the vestry of the parish with the approval of the bishop.[308] But\nthe law as to fees in these burial grounds was considerably modified by\nthe Burial Act, 1900. Under this Act (i.) burial authorities are to\nsubmit to the Home Secretary for his approval, either with or without\nmodification, a table of fees to be received by them (of the same amount\nin the consecrated and unconsecrated parts of their burial ground) in\nrespect of services rendered by any minister of religion or sexton; and\nif an authority fails to submit a table, the Home Secretary may himself\nmake one. The fees are to be collected by and payable to the burial\nauthority with their other fees, and are to be paid over to the minister\nor sexton in such manner as may be agreed upon, or as may be directed by\nthe Home Secretary in default of agreement. (ii.) In the ground of a\nburial authority no fee in respect of any right of exclusive burial or\nthe erection of a monument or any matter other than services rendered by\nthe incumbent[309] is to be payable either to the incumbent or to the\nchurchwardens, or any trustees or other persons to which fees were\npreviously payable by law or custom for any parochial purpose or the\ndischarge of any debt or liability, with the following exceptions,\nnamely: (_a_) where on 10th July 1900 fees other than for services\nrendered were paid in a burial ground attached to or used for the\npurposes of a parish, the like fees are to continue payable during the\nincumbency of the then incumbent or during fifteen years from that date,\nwhichever is the longer period, or if they were not paid to the\nincumbent or to a person claiming through him, then during fifteen years\nfrom that date; and the burial authority are to collect and pay them in\nlike manner as fees for services rendered; and (_b_) the Ecclesiastical\nCommissioners may, at the request and with the approval of the incumbent\nor other interested person, agree with a burial authority for a\nperiodical or other payment in commutation of the fees other than for\nservices rendered; and where the fees are paid to an incumbent or a\nperson claiming through him, the Ecclesiastical Commissioners are to\napply the commutation money in the first instance in compensating the\nexisting incumbent, and the residue in augmenting the benefice. (iii.)\nNo fee other than fees payable to a sexton for services rendered by him,\nis to be paid to any clerk or other ecclesiastical officer in respect of\ninterments in the ground of a burial authority; except that a clerk or\nother ecclesiastical officer who, on 10th July 1900, was entitled to\nfees in respect of interments in any such ground, might apply to the\nburial authority for compensation for their abolition, and they were to\npay him such equitable amount of compensation as might be agreed upon or\nbe directed by the Home Secretary in default of agreement. (iv.) The\nforegoing provisions extend to cases where an annual sum had been\nsubstituted for fees under 15 & 16 Vict. c. 85, s. 37.[310]\n\n10. A body may be cremated instead of being buried;[311] and a faculty\nhas been granted for the interment of an urn containing the ashes of a\ncremated body below the floor of a church, in spite of the church and\nchurchyard having been closed for burials under the Burial Acts.[312]\nAnd there is no reason why, upon the committal of cremated ashes to\nconsecrated ground, the Burial Service should not be used as fully as\nover an uncremated body. But the disinterment, for the sake of being\ncremated, of a body which has been once buried is not permitted.[313]\n\n11. A body which has been buried in consecrated ground cannot be\ndisinterred for reinterment elsewhere in consecrated ground, except\nunder the authority of a faculty, which will be granted in proper cases\nupon the petition of the representatives of the deceased, with the\nconsent of the incumbent and churchwardens and a certificate of the\nlocal medical officer of health that the proceeding will not be\ndangerous from a sanitary point of view.[314] And except in the case of\nremoval from one consecrated spot for reinterment in another, a body, or\nthe remains of a body, which has been interred in any place of burial\nmay not be removed without the licence of the Home Secretary and with\nsuch precautions as he may prescribe.[315]\n\n\n                           Footnotes\n\n[270] Com. Dig. tit. Cemetery (B); Gilbert _v._ Buzzard (1821) 2 Hag.\nCons. 333; R. _v._ Coleridge (1819) 2 B. & Ald. 806; R. _v._ Stewart\n(1840) 12 A. & E. 773, 777.\n\n[271] Cripps, 759.\n\n[272] Canon 68; Ex pte. Blackmore (1830) 1 B. & Ad. 122; R. _v._\nColeridge, _ubi sup._\n\n[273] Ex pte. Blackmore (1830) 1 B. & Ad. 122; Fryer _v._ Johnson (1755)\n2 Wils. 28.\n\n[274] (1867) 30 & 31 Vict. c. 133, ss. 9-11; (1868) 31 & 32 Vict. c. 47.\n\n[275] The churchyard is not merely the property of a single departed\ngeneration, but is also the common property of the living and of\ngenerations yet unborn, and is subject only to temporary appropriations.\nAn exclusive title to a portion of it is sometimes given by faculty to\nsome family or individual possessing a good claim to be favoured by such\na distinction. But even a bricked grave, in the absence of a faculty, is\nan aggression upon the common interests of the parishioners, and carries\nthe pretensions of the dead to an extent which violates the rights of\nthe living. Per Sir W. Scott (afterwards Lord Stowell), Gilbert _v._\nBuzzard (1821) 2 Hag. Cons. 333, at p. 353.\n\n[276] Bardin _v._ Calcott (1789) 1 Hag. Cons. 14, 17; Littlewood _v._\nWilliams (1815) 6 Taun. 277; Sm. Churchw. 73.\n\n[277] _Re_ Sargent (1890) 15 P. D. 168.\n\n[278] (1808) 48 Geo. 3, c. 75; (1886) 49 & 50 Vict. c. 20; Sm. Churchw.\n73.\n\n[279] Canon 68 and Prayer Book Rubric.\n\n[280] 45 & 46 Vict. c. 19.\n\n[281] 43 & 44 Vict. c. 41.\n\n[282] Kemp _v._ Wickes (1809) 3 Phill. 264.\n\n[283] Mastin _v._ Escott (1841) 2 Curt. 692; aff. (1842) 4 Moo. P. C.\n104; 6 Jur. 765.\n\n[284] Cooper _v._ Dodd (1850) 14 Jur. 724.\n\n[285] Titchmarsh _v._ Chapman (1843) 7 Jur. 1020; (1844) 8 _Ib._ 626,\n1077; (1845) 9 _Ib._ 159.\n\n[286] 1 Burn, 267.\n\n[287] Frances _v._ Ley (1615) Cro. Jac. 366. But the rector cannot grant\nthe exclusive right to a vault; Bryan _v._ Whistler (1828) 8 B. & C.\n288.\n\n[288] (1818) 58 Geo. 3, c. 45, s. 80.\n\n[289] Gilbert _v._ Buzzard (1821) 2 Hag. Cons. 333.\n\n[290] Andrews _v._ Cawthorne (1745) Willes 536; Gibs. Cod. 453; Spry\n_v._ Marylebone (1839) 2 Curt. 5, 11; Spry _v._ Gallop (1847) 16 M. & W.\n716; Bryant _v._ Foot (1868) 37 L. J. Q. B. 217.\n\n[291] Nevill _v._ Bridger (1874) L. R. 9 Ex. 214; 43 L. J. Ex. 147.\n\n[292] Littlewood _v._ Williams (1815) 6 Taun. 277; 1 Marsh. 589.\n\n[293] Gibs. Cod. 452.\n\n[294] 59 Geo. 3, c. 134, s. 11.\n\n[295] (1843) 6 & 7 Vict. c. 37, s. 15; see (1856) 19 & 20 Vict. c. 104,\nss. 14, 15.\n\n[296] Gilbert _v._ Buzzard (1821) 2 Hag. Cons. 333.\n\n[297] Cronshaw _v._ Wigan Burial Board (1873) L. R. 8 Q. B 217; Hughes\n_v._ Lloyd (1888) 22 Q. B. D. 157.\n\n[298] Burial Laws Amendment Act, 1880 (43 & 44 Vict. c. 41), s. 12.\n\n[299] _Ib._ s. 13.\n\n[300] Burial Laws Amendment Act, 1880 (43 & 44 Vict. c. 41), ss. 1-8.\n\n[301] (1874) 37 & 38 Vict. c. 88, ss. 17, 49; (1880) 43 & 44 Vict. c.\n41, s. 11; (1881) 44 & 45 Vict. c. 2.\n\n[302] 10 & 11 Vict. c. 65.\n\n[303] _Ib._ sects. 52-57; Vaughan _v._ South Metropolitan Cemetery Co.\n(1860) 1 J. & H. 256; 30 L. J. Ch. 265; Bowyer _v._ Stantial (1878) 3\nEx. D. 315.\n\n[304] 42 & 43 Vict. c. 31.\n\n[305] 63 & 64 Vict. c. 15 (Burial), s. 1.\n\n[306] 63 & 64 Vict. c. 15 (Burial), s. 2.\n\n[307] (1852) 15 & 16 Vict. c. 85, s. 32; (1857) 20 & 21 Vict. c. 81, s.\n5; St. Margaret's Rochester Burial Board _v._ Thompson (1871) L. R. 6 C.\nP. 445; Gell _v._ Mayor of Birmingham (1864) 10 L. T. N. S. 497; Day\n_v._ Barnsley Burial Board (1865) 6 N. R. 156; Cronshaw _v._ Wigan\nBurial Board (1873) L. R. 8 Q. B. 217; 42 L. J. Q. B. 137; Ormerod _v._\nBlackburn Burial Board (1873) 21 W. R. 539; White _v._ Norwood Burial\nBoard (1885) 16 Q. B. D. 58; Stewart _v._ West Derby Burial Board (1886)\n34 Ch. D. 314; Wood _v._ Headingley-cum-Burley Burial Board (1892) 1 Q.\nB. 713.\n\n[308] (1852) 15 & 16 Vict. c. 87, s. 33.\n\n[309] This will include services rendered by a clergyman acting for the\nincumbent, as well as by the incumbent himself. See 15 & 16 Vict. c. 85,\ns. 32.\n\n[310] 63 & 64 Vict. c. 15, s. 3.\n\n[311] Reg. _v._ Price (1884) 12 Q. B. D. 247.\n\n[312] _Re_ Kerr (1894) P. 284.\n\n[313] _Re_ Dixon (1892) P. 386.\n\n[314] Gibs. Cod. 454; Reg. _v._ Sharpe (1857) 26 L. J. M. C. 47.\n\n[315] (1857) 20 & 21 Vict. c. 81 (Burial), s. 25.\n\n\n\n\n                            CHAPTER VIII\n\n                       PRIVATE MINISTRATIONS\n\n\n1. The only private ministration for which detailed directions are\nprovided in the Prayer Book (other than Private Baptism, which has been\nalready noticed in Ch. V. \u00a7 6) is the Visitation of the Sick with the\nCommunion of the Sick in appropriate cases. With reference to this the\n67th Canon directs that when any person is dangerously sick in the\nparish, the minister or curate having knowledge thereof shall resort to\nthe sick person (if the disease is not known or reasonably suspected to\nbe infectious) to administer instruction and comfort according to the\norder of the Communion Book if he be no preacher; or if he be a\npreacher, then as he shall think most needful and convenient. And when\nany one is passing out of this life a bell is to be tolled, and the\nminister shall not then be slack to do his duty. The Order for the\nVisitation contains several alternative forms to suit different\ncircumstances. Among these is the provision for confession and\nabsolution. The minister is in all cases to examine the sick person\nwhether he repent him truly of his sins and be in charity with all the\nworld, and is to exhort him to forgive from the bottom of his heart all\nwho have offended him. This direction does not contemplate any\nconfession either particular or general, except so far as profession of\nrepentance involves admission of sins to be repented of. But the\nminister is further to move the sick person to make a special confession\nof his sins if he feel his conscience troubled with any weighty matter;\nand after this confession, if he humbly and heartily desires it, the\npriest is to pronounce a prescribed form of absolution. It appears,\ntherefore, that confession is only contemplated if the sick person's\nconscience is troubled with some weighty matter, and absolution is only\nto be pronounced if (_a_) there has been confession, and (_b_) the sick\nperson desires it. Communion of the sick may take place either along\nwith or apart from the visitation. In either case there must be three,\nor at least two, in addition to the minister, to communicate with him,\nexcept in time of plague or similar contagious illness, when the\nminister may communicate with the sick person alone. In every case he\nmust receive the Communion himself first, and then administer to the\nsick person's friends, and to the sick person last. After a special\nCollect, Epistle, and Gospel, the Order of Holy Communion is to be\nfollowed from the words \"Ye that do truly and earnestly repent you of\nyour sins\" onwards. The Church of England at present permits no\nadministration of any reserved Sacrament to the sick nor any further\nabbreviation of the service.[316] If the sick person is too ill to\nreceive the Communion in the prescribed way, or is otherwise impeded, he\nis to be instructed that, without doing so with his mouth, he eats and\ndrinks the Body and Blood of Christ to his soul's health if he truly\nrepents of his sins, and steadfastly and thankfully believes in the\nredemption wrought by Christ's death on the Cross for him.\n\n2. The Prayer Book requires the incumbent of every parish to bring or\ncertify in writing to the bishop all persons within the parish whom he\nthinks fit to be presented to the bishop for confirmation. No special\nmode of preparation for that rite is prescribed beyond public\ninstruction in the Catechism (see above, Ch. V. \u00a7 9). But this _minimum_\nis rightly in the present day not considered sufficient. Special\nconfirmation classes and private interviews with intending confirmees\nare now almost universal, and form one of the most responsible and\nimportant parts of the pastoral duties of the clergy.\n\n3. Besides the ordinary occasions of Confirmation and Sickness, the\nminister may be called upon to give spiritual advice or comfort to\npersons whom he knows to be living evil lives or to be at enmity with\ntheir neighbours, or who are troubled in conscience about coming to Holy\nCommunion, or generally about their spiritual state. In the first Prayer\nBook of Edward VI. the Exhortation to be said in giving previous notice\nof Holy Communion where the people were negligent in coming to it,\ncontained injunctions to reconciliation and charity among neighbours and\nrestitution of wrongs, without which \"neither the absolution of the\npriest can anything avail them nor the receiving of this holy sacrament\ndoth anything but increase their damnation.\" And it then referred to\nconfession and absolution in these terms:--\n\n    \"And if there be any of you whose conscience is troubled and\n    grieved in anything lacking comfort or counsel, let him come to\n    me or to some other discreet and learned priest taught in the\n    law of God, and confess and open his sin and grief secretly,\n    that he may receive such ghostly counsel, advice, and comfort\n    that his conscience may be relieved, and that of us (as of the\n    ministers of God and of the Church) he may receive comfort and\n    absolution to the satisfaction of his mind and avoiding of all\n    scruple and doubtfulness: requiring such as shall be satisfied\n    with a general confession not to be offended with them that do\n    use, to their further satisfying, the auricular and secret\n    confession to the priest; nor those also which think needful or\n    convenient, for the quietness of their own consciences,\n    particularly to open their sins to the priest, to be offended\n    with them that are satisfied with their humble confession to God\n    and the general confession to the Church: but in all things to\n    follow and keep the rule of charity, and every man to be\n    satisfied with his own conscience, not judging other men's minds\n    or consciences where as he hath no warrant of God's word to the\n    same.\"\n\nIn the present Prayer Book, all allusion to \"auricular\" confession is\nomitted. The minister simply exhorts that if any person cannot by his\nown confession to God, with full purpose of amendment of life and by\nreconciliation with any neighbours whom he may have offended, quiet his\nown conscience with a view to receiving Holy Communion, he should come\nto the incumbent of the parish, or to some other discreet and learned\nminister of God's word, and open his grief, \"that by the ministry of\nGod's holy word he may receive the benefit of absolution together with\nghostly counsel and advice to the quieting of his conscience and\navoiding of all scruple and doubtfulness.\" The procedure is clearly\ncontemplated as exceptional, as respects (_a_) the persons who have\nrecourse to it, (_b_) the occasions on which they do so, and (_c_) the\nsins or stumbling-blocks on which they consult the minister.\n\n4. In addition to these more formal ministrations, a diligent clergyman\nwill pay frequent visits to his parishioners, and hold interviews or\ncorrespondence with them on any questions of intellectual perplexity or\nof practical difficulty in their daily life in reference to which they\nmay desire his counsel or assistance; but his action in these matters is\nnot regulated by law, and lies outside the scope of the present\ntreatise.\n\n\n                           Footnote\n\n[316] Archbishops' Hearing at Lambeth (1900) _Times_, May 2. The Prayer\nBook of 1549 directed that if on the same day there was a celebration in\nchurch, the priest should reserve (at the open Communion) so much of the\nSacrament of the body and blood as should serve the sick person and so\nmany, if any, as should communicate with him, and so soon as convenient\nafter the open Communion should go and minister the same first to any\nappointed to communicate with the sick person, and last of all to the\nsick person himself, after having previously made the general confession\nand added the absolution and the comfortable words of Scripture as in\nthe Communion Office; and after the administration he was to say the\nCollect \"Almighty and everliving God, we most heartily thank,\" &c. But\nif the day were not appointed for the open Communion, then the curate\nshould come and visit the sick person afore noon and celebrate the Holy\nCommunion according to the Order for the Communion of the Sick. But\nthese directions were omitted in 1552, and have not since been restored.\n\n\n\n\n                            CHAPTER IX\n\n                          TEMPORALITIES\n\n\n1. The legal possessions and revenues of the benefice of an ancient\nparish consist of (i.) the church and churchyard (subject to the use of\nboth for the benefit of the people), (ii.) the parsonage house and glebe\nlands and buildings, (iii.) the tithe, (iv.) any modern endowments,\nincluding perpetual annuities granted by the Ecclesiastical\nCommissioners, (v.) ordinary dues and offerings, (vi.) mortuaries, and\n(vii.) fees; and some of these possessions and revenues are also\nattached to the benefice of a new ecclesiastical parish, which has,\nmoreover, in certain cases a further source of revenue in (viii.)\npew-rents.\n\n2. The incumbent for the time being, whether of an ancient or new\nparish, has a freehold interest for his life, if he so long remains\nincumbent, in the possessions of the benefice, and for the purpose of\nholding them is a corporation sole, with a continuous succession in\nhimself and all future incumbents. As such, he is subject to the general\nlaws respecting corporations, and also to those which regulate the\nacquisition and holding of landed property for charitable purposes,\nexcept so far as the law has made special exemptions in his favour.\nAccordingly, except to the extent expressly permitted by statute, he\ncannot in his corporate capacity, with perpetual devolution to his\nsuccessors in office, (_a_) acquire or hold additional landed property\nwithout a licence in mortmain or in a manner inconsistent with the\nprovisions of the Mortmain and Charitable Uses Acts, 1888 and 1891,[317]\nor (_b_) hold landed property upon any trust or for any purpose other\nthan as part of the possessions of the benefice.[318]\n\n3. The rights of an incumbent in the church and churchyard differ\naccording as the benefice is an ancient or a new parish, and in the\nformer case according as it is a rectory or a vicarage. The freehold of\nthe whole church in an ancient parish (except where a chapel or aisle or\na pew belongs to a private individual), and of the churchyard, belongs\nto the rector, whether he be the incumbent or not;[319] and the chancel\nis repairable by him, except where there is a custom for the\nparishioners to keep it in repair. His duty in this respect can be\nenforced by suit in the ecclesiastical court, and the churchwardens\ncannot safely repair the chancel themselves and then sue him for the\ncost.[320] But the incumbent and churchwardens (subject to the rights of\nthe bishop) have the possession and custody of the whole church,\nincluding the chancel, and a lay rector cannot interfere with their\nproper use of it; nor can any person claim to enter it, when not open\nfor Divine service, without their permission.[321] And the incumbent has\nthe paramount right to keep the keys of the church and to control the\nuse of the organ and the ringing of the bells.[322] But ringers are not\nliable to criminal proceedings in the ecclesiastical court for ringing\nthe church bells without his consent, unless it was done against his\nexpress desire.[323] Moreover, Canon 88 contemplates that the\nchurchwardens and sidesmen should have some control over the\nbellringing; for it enjoins upon them not to allow the bells to be rung\nsuperstitiously upon holy-days or eves abrogated by the Prayer Book, nor\nat any other times without good cause to be allowed by the incumbent and\nby themselves. And as regards the churchyard, unless there is a special\nprovision to the contrary in connection with his endowment, a vicar, as\nagainst the rector impropriate, is only entitled to the possession of\nthe churchyard for spiritual purposes. The rector has a right to the\nprofits of the soil, and he or his tenants can depasture it with\nsheep.[324] But a rector is only at liberty to fell the trees in the\nchurchyard when they are required for the repair of the chancel, or when\nthe body of the church requires repair and he voluntarily allows the\nparishioners to use them for the purpose.[325] In new parishes the\nfreehold of the church and churchyard and of the vaults belonging\nthereto is vested in the incumbent, except where it has been vested in\nthe vestry under a local Act and they have not consented to part with\nit.[326] Neither incumbents nor rectors impropriate are liable in\nrespect of the church and churchyard to rates, nor to contributions\ntowards the expense of making and paving new streets.[327] So, too, an\nincumbent was held not liable as owner for expenses incurred by a local\nauthority under a statute in removing a part of the church which had\nbecome a dangerous structure.[328]\n\n4. The rights of the incumbent are, moreover, qualified and controlled\nby the rights of the bishop on the one hand and of the parishioners on\nthe other. He has a general authority from the bishop to decide as to\nallowing or disallowing the erection in the churchyard of tombstones\nwith inscriptions, not being of an unusual character in respect of size\nor otherwise, as well as glass shades for wreaths and other additions to\nthe contents of the churchyard.[329] But any person interested may\nappeal against his decision to the bishop's court, which has power to\ndetermine the matter, subject to appeal to the higher tribunals.[330] He\ncannot, however, authorise the erection of monuments or tablets in the\nchurch itself, nor monuments of abnormal size in the churchyard. These,\nas well as other additions to or alterations in the church or\nchurchyard, require the sanction of a faculty either from the bishop's\nconsistory court or, if there refused, from the provincial court or the\nJudicial Committee of the Privy Council. A faculty for the purpose will,\nin proper cases, be granted on the application of the incumbent and\nchurchwardens supported by a resolution of the vestry.[331] If there is\na rector impropriate, his consent will be necessary to any proposed\nchange in the chancel. As already noticed (Ch. VII. \u00a7 1 above), the\nincumbent cannot validly, on his own authority, sell grave spaces in\nperpetuity in the churchyard; and a faculty will not be granted for a\nvault or space for exclusive burial unless it is clearly improbable that\nit will inconveniently diminish the available ground for the burial of\nthe parishioners.[332] It is an offence on the part of any one to remove\nearth and bones from the churchyard[333] or to desecrate it in any other\nway; but a faculty will in a proper case be granted for diverting the\ncourse of an ancient footpath through a churchyard when necessary for\nthe enlargement of the church;[334] and for throwing a portion of a\nchurchyard, which is not required for interments, into a highway.[335]\nA wall of a churchyard which has been wilfully pulled down does not\nrequire a faculty for its restoration.[336] A faculty has been granted\nto secure for ninety-nine years an easement of light and air to the\nlower windows of an adjoining house through the railings of a\nchurchyard, on payment of an annual rent of \u00a322 to the rector for the\ntime being.[337] Where a churchyard or other burial ground has been\nclosed or is no longer used for burials, a faculty may be obtained for\nlaying it out as a garden with footpaths, and removing the tombstones\nand placing them against the walls of the church or churchyard;[338] but\nthe erection upon it of any building, except for the purpose of\nenlarging a church, chapel, or other place of worship, is unlawful, and\nno faculty can be granted for it.[339]\n\n5. Every ancient church ought of right to have glebe as well as a manse\nor parsonage house attached to it.[340] In a parish where there is an\nimpropriate rectory and a vicarage, glebe may be attached to both or\neither. Rectorial glebe is not liable to pay vicarial tithe to the\nvicar, nor is vicarial glebe liable to rectorial tithe to the\nrector.[341] Since the interest of the incumbent in the house of\nresidence and glebe is limited to his life or tenure of the benefice,\nhe cannot deal with them in a way prejudicial to the rights of the\npatron or of his successors in the incumbency. His powers of selling,\nexchanging, and leasing are strictly defined by statute. He must not\ncommit what is technically called \"waste\"--that is to say, any spoiling\nor destruction of houses, gardens, or other glebe of the benefice, or of\nthe trees thereon, to the detriment of his successors. In cultivating\nthe glebe lands himself, he is not restricted to any particular mode of\ncultivation, nor accountable to his successors for neglect or\nmismanagement.[342] But he must not cut down trees, except so far as\nthey may be required for the repairs of the buildings of the benefice,\nincluding the chancel of the church, if he is the rector and is liable\nto repair it.[343] He may not on his own account open mines, quarries,\nor gravel-pits under or upon the glebe land, nor work those which have\nbeen unlawfully opened; but he may work those which are already lawfully\nopen;[344] and even as regards minerals or gravel unlawfully taken by\nhim, if he is not restrained at the time, his successor cannot maintain\nan action for damage against his representatives after his death.[345]\n\n6. In modern times the provision of parsonage houses and of other\nnecessary buildings on glebe lands, and the repairs of chancels liable\nto be repaired by rectors, have been facilitated by special legislation.\nIn 1777 and 1781 the Gilbert Acts were passed,[346] which, as amended by\nActs of 1826 and 1838,[347] enabled an incumbent, with the consent of\nthe bishop and patron, or, during a vacancy in the living, the bishop,\nto borrow money for the purpose of providing a parsonage house, or\nrebuilding it in case of its having become ruinous, upon the security of\na mortgage of the income of the benefice for thirty-five years. The loan\nwas not to exceed the amount of the gross net income of the benefice,\nand was to be repayable with interest by thirty yearly instalments. The\nGovernors of Queen Anne's Bounty were empowered to lend money for the\npurposes of the Acts; and, in practice, the loans are generally\nobtained from them. A later statute[348] extended these provisions to\nthe purchase of land convenient to be used with the parsonage house or\nexisting glebe land, and to the repair of the chancel in cases where it\nis repairable by the incumbent, and to the building or improving of farm\nhouses or buildings or labourers' dwelling-houses on the glebe land; and\nsubsequent Acts have extended the time for repayment of the loans.[349]\nAnother series of enactments has specially sanctioned gifts and bequests\nfor providing parsonage houses and glebe;[350] and under a third series\nincumbents are empowered to sell the parsonage houses and glebe lands of\nbenefices, or exchange them for others of greater value or more\nconveniently situated, and to acquire new parsonage houses and\nadditional glebe lands.[351]\n\n7. When an incumbent has a licence from the bishop to reside elsewhere\nthan in the parsonage house, he may let the house, subject to an\nobligation on the part of the tenant to give up possession on the bishop\nordering the incumbent to resume residence therein.[352]\n\n8. An incumbent may either himself farm his glebe (see Ch. 1. \u00a7 16\nabove) or let it to tenants. The tenants, however, will have no rights\nagainst his successors unless the leases to them are made in accordance\nwith the statutory provisions for the purpose. These provisions enable\nan incumbent, subject to certain restrictions and with the consent of\nthe bishop and patron, to let the glebe on farming leases for fourteen\nyears or, in some cases, for twenty years,[353] and under special\nconditions to grant leases of it for longer periods for building and\nmining purposes.[354]\n\n9. An incumbent, as having an interest in the parsonage house and other\nbuildings of the benefice only during his incumbency, was always bound\nto keep them in repair for the benefit of his successors.[355] His exact\nliability in this respect and also in respect of insuring against fire\nis now regulated by the Ecclesiastical Dilapidations Act, 1871.[356]\n\n10. Under this Act diocesan surveyors are appointed in every diocese to\ninspect and report as to requisite repairs and to certify as to their\ndue execution. The proceedings vary according as they take place (_a_)\nupon a vacancy in the benefice, or (_b_) at other times. But in either\ncase, after they have taken place, a certificate of the diocesan\nsurveyor that the requisite works have been completed in the parsonage\nhouse and other buildings (including walls and fences, and, in the case\nof a rector liable for its repair, the chancel of the church) will (in\nthe absence of wilful waste or of loss or damage by fire where the\nincumbent has not kept up a sufficient fire insurance) confer exemption\nfrom liability for dilapidations, in respect of those buildings, for the\nnext five years.\n\n11. (_a_) Within three months after a benefice has become vacant,[357]\nunless the late incumbent was for the time being free, in respect of all\nthe buildings of the benefice, from liability to dilapidations, the\ndiocesan surveyor will inspect the buildings or such of them as have not\nbeen included in the exempting certificate, and will report to the\nbishop what works and what sum, if any, are required for making good the\ndilapidations. Either the new incumbent, or the late incumbent or his\nexecutors or administrators, may send to the bishop objections to the\nreport, and the bishop will make an order specifying the repairs to\nwhich the late incumbent or his estate is liable and the cost of them.\nThe amount of the cost thereupon becomes a debt from the late incumbent\nor his estate to the new incumbent and may be recovered as such.[358]\nAny money received in respect of it is to be paid to the Governors of\nQueen Anne's Bounty, and they, with the consent of the bishop and\npatron, may lend on the security of the possessions of the benefice, any\npart of the cost which they have not received from the new incumbent.\nAny additional balance required to make up the total amount of the cost\nof the repairs must be paid to them by the new incumbent, and in case of\nnon-payment may be raised by sequestration of the profits of the\nbenefice. All the sums received or lent by them are to be placed in the\nfirst instance to a dilapidation account. If a vacancy occurs in a\nbenefice between the time of an inspection of the buildings and the\ncertifying of the completion of the works, the former incumbent or his\nestate will be liable for any portion of the cost of the required\nrepairs remaining unpaid by him, as a debt due to the new incumbent. But\nthe new incumbent, whether he recovers that portion or not, will be\nunder the same liability to pay for the outstanding cost of the repairs\nas the former incumbent would have been had he continued to hold the\nbenefice; and any amount which he fails to recover from the former\nincumbent or his estate may with the consent of the bishop and patron be\nlent to him by the Governors of Queen Anne's Bounty on the security of\nthe profits of the benefice.\n\n12. (_b_) On a written complaint of the archdeacon, the rural dean, or\nthe patron, that the buildings of a benefice are dilapidated, or at the\nrequest of the incumbent himself, the bishop, although no vacancy has\noccurred, may direct the diocesan surveyor to inspect the buildings,\nunless, in the case of a complaint on the subject, the incumbent is\nhimself ready to put the buildings in proper repair, and the bishop is\nsatisfied that this is actually done. Such inspection may also be\ndirected within six months after the sequestration of a benefice, and is\nto be renewed in every fifth year while the sequestration continues. The\nsurveyor, in like manner as in the case of a vacancy, will report to the\nbishop the works needed and their probable cost. The incumbent or the\nsequestrator may state objections to the report, and the bishop will\ngive his decision in writing. If the benefice is not under\nsequestration, the Governors of Queen Anne's Bounty may, with the\nconsent of the bishop and patron, lend on the security of the\npossessions of the benefice the whole or any part of the cost of the\nrequired works. The amount of the loan will be placed to a Dilapidation\nAccount, and it will be the duty of the incumbent to execute the\nrequired works in the prescribed manner. If he fails to do so, the cost\nmay be raised by sequestration of the benefice, and the same course will\nbe taken as if that had occurred before the dilapidation proceedings had\ncommenced. In the case of a benefice under sequestration, the cost of\nthe required works is to be a charge on the income of the benefice which\ncomes into the hands of the sequestrator, and out of that income, after\nproviding for the performance of the duties of the benefice, he is to\npay the amount of the cost to the Governors of Queen Anne's Bounty, to\nbe placed by them to a dilapidation account. The proceedings are not to\nbe affected by any vacancy occurring in the benefice before the works\nare executed, except so far as modification may be made in them as the\nresult of the report of the surveyor after his inspection consequent on\nthe vacancy, and except that if the benefice was under sequestration,\nany unexpended amount standing to the dilapidation account of the\nsequestrator is to be carried to the dilapidation account of the new\nincumbent in reduction of the amount payable by the former incumbent or\nhis estate. A sequestrator who spends more on the repairs than is\nauthorised by the surveyor's report is personally liable for the\nexcess.[359]\n\n13. When the surveyor certifies from time to time, until the whole of\nthe repairs have been executed, that a certain sum ought to be paid in\nrespect of the required works, such sum is payable out of the money\nstanding to the dilapidation account, and when all this money is\nexhausted, must be paid by the incumbent himself. It is his duty to\ncause the repairs to be executed, unless with the consent of the bishop\nand patron he decides to rebuild or to alter or remodel any structure.\nIn that case, if the repairs are superseded or rendered unnecessary, the\nmoney standing to the dilapidation account may be applied towards the\ncost of the new work.\n\n14. It is the duty of an incumbent to keep the parsonage house and other\nbuildings of the benefice (including the chancel of the church in the\ncase of a rector liable for its repairs) insured against loss or damage\nby fire to the satisfaction of the Governors of Queen Anne's Bounty, in\nthe joint names of the incumbent and themselves, in at least\nthree-fifths of the value of the buildings; and the receipt for the\ncurrent year's premium in respect of the insurance must be exhibited at\nthe next visitation of the bishop or archdeacon. The money received in\nrespect of any destruction or damage of a building which the insurance\noffice does not cause to be reinstated at its own expense, is to be paid\nto Queen Anne's Bounty, and dealt with in the same manner as money\nstanding to a dilapidation account. If the building cannot be reinstated\nfor the amount for which it was insured, the diocesan surveyor is to\ncertify the additional sum required for the purpose, with the same\nliberty to the incumbent or sequestrator to object and the same final\norder of the bishop as in the case of a report as to dilapidations. The\nprescribed sum is to be paid to Queen Anne's Bounty, if the benefice is\nnot sequestrated, by the incumbent (with power to the bishop, in default\nof payment, to raise the amount by sequestration of the benefice), or,\nif the benefice is under sequestration, by the sequestrator, in the same\nway as dilapidation money is payable by the incumbent or the\nsequestrator, as the case may be; and the money so paid to Queen Anne's\nBounty will be paid out on certificates of the surveyor during the\nprogress of the works, as in the case of dilapidation repairs.[360]\n\n15. The provisions of the Act do not apply to buildings let on lease\nwhere the lessee is liable to insure, rebuild, and repair; but the\ndiocesan surveyor has power to inspect any such buildings.[361]\n\n16. Although there is no positive rule of law on the subject, an\nincumbent should, as a matter of prudence, obtain a faculty, or at any\nrate the written consent of the bishop and patron, before making any\nsubstantial alteration in the parsonage house or other buildings of the\nbenefice. If he fails to do so, he proceeds at the risk of himself and\nhis estate; and if his action is afterwards challenged, it will lie upon\nhim or his executors to prove that it was justifiable.[362] The\nprecaution should never be omitted in the case of removing a building\nwithout erecting another in its place. With regard to any building\nbelonging to or forming part of a parsonage house which appears to be\nunnecessary, the bishop, on the application of the incumbent, and with\nthe written consent of the patron, is expressly empowered to authorise\nits removal; and any net proceeds of the removal will be applied to the\nimprovement of the benefice in such manner as the bishop and patron may\nagree.[363] The foregoing remarks do not apply to structures such as\nmovable sheds or garden frames, which are not regarded in law as affixed\nto the soil and therefore hereditaments like the land on which they\nstand, nor to fancy structures with which the succeeding incumbents\nought not to be burdened.[364]\n\n17. Upon the vacation of a benefice, the incumbent or his estate ceases\nto be entitled to the income and house of residence of the benefice. But\non the death of a married incumbent who was at the time occupying the\nhouse of residence, his widow has a right to remain in occupation for\ntwo months after his death;[365] and in every case, until the question\nof dilapidations is settled, the late incumbent or his executors or\nadministrators may, at reasonable hours, with a surveyor, enter upon the\npremises of the vacated benefice.[366] If the vacancy occurs otherwise\nthan by resignation, the late incumbent or his executors or\nadministrators have a right to emblements, that is to say, to reap and\nenjoy any crops which he sowed before the vacancy occurred but which\nhave not ripened until afterwards.[367] Where, however, the glebe land\nis not cultivated by the incumbent himself, but is let to tenants, the\ncurrent rents are in all cases apportionable between the late incumbent,\nor his estate, and the new incumbent, up to and from the date of the\noccurrence of the vacancy; and the same rule applies to tithe rentcharge\nand to any other income from endowments.[368] Subject to these rights\nand to provision being made out of the revenue of the benefice for the\nservice of the cure during the vacancy,[369] the new incumbent, on his\nadmission, becomes entitled to the temporalities of the benefice as from\nthe date when the vacancy took place.\n\n18. Under the Tithe Act, 1836,[370] and various amending Acts, a tithe\ncommutation rentcharge has now been substituted for all the ancient\ntithes, except tithes of fish or of fishing, personal tithes (other than\nthe tithes of mills), mineral tithes, payments instead of tithes within\nthe City of London, permanent rentcharges or other payments in lieu of\ntithes calculated on the rent or value of houses or lands in a city or\ntown under a custom or private Act, and tithes commuted or extinguished\nunder a previous Act. And any of the excepted tithes and payments, as\nwell as Easter offerings, mortuaries, and surplice fees, could be\nbrought within the operation of the Acts by special provisions inserted\nin the parochial agreements framed under the Acts and approved by the\nTithe Commissioners.[371] Where the rectory is impropriate and there is\na vicarage, the tithe commutation rentcharge payable to the rector has\nbeen assessed in lieu of the rectorial or great tithes, namely, those\non corn, hay and wood, and the rentcharge payable to the vicar has been\nassessed in lieu of the vicarial or small tithes, those on fruits,\nherbs, live stock, poultry, milk, cheese, and eggs. Under the earlier\nActs an extraordinary tithe rentcharge was leviable on lands for the\ntime being cultivated as hop gardens, orchards, fruit plantations, and\nmarket gardens; but this special rentcharge has since been abolished,\nthe lands which had been in practice liable to it having been made\nliable to a fixed additional rentcharge instead.[372] The ordinary tithe\nrentcharge varies with the average prices of wheat, barley, and oats\nduring the preceding seven years. It was originally assessed on the\nfooting that \u00a333, 6s. 8d. would buy 94.96 bushels of wheat, or 168.42\nbushels of barley, or 242.42 bushels of oats; so that \u00a3100 of rentcharge\nwas equivalent to those amounts of the three grains. The actual amount\nof \u00a3100 nominal rentcharge in any year is accordingly the sum which\nwould buy those amounts of the three grains at the septennial average\nprices published in the _London Gazette_ at the beginning of the\nyear.[373]\n\n19. Tithe commutation rentcharge is payable half-yearly by the owner of\nthe land on which it is assessed. If it is in arrear for more than three\nmonths, it may be recovered on application to the county court, (_a_)\nif the owner is in occupation of the land, by distress, or, if there is\nno sufficient distress, by proceedings to obtain possession of the land\nunder section 82 of the Tithe Act, 1836, and (_b_) in other cases, by\nthe appointment of a receiver of the rents and profits of the land.[374]\nSpecial facilities are given for the recovery of tithe rentcharge\npayable in respect of land in the hands of a railway company which is in\narrear for twenty-one days or upwards, by distress upon the goods of the\ncompany on any part of its line.[375]\n\n20. The dues payable to the clergy are of two kinds: (i.) ordinary dues\nand offerings, and (ii.) dues or fees payable for special services or\nspecial concessions. Both kinds vary considerably by law or custom in\ndifferent places, and, as regards the former, an Act of 1548 provides\nthat all persons who by the laws or customs of the realm ought so to do,\nshall yearly pay their offerings to the parson or vicar of the parish in\nwhich they dwell at the accustomed four offering days, or in default\nthereof at the next following Easter. Generally speaking, Easter\nofferings are the only offerings of this description which are still\npayable.[376] They are enjoined by the rubric at the end of the\nCommunion Office and are due of right, and are recoverable under the\nSmall Tithes Recovery Act, 1696,[377] before two justices, subject to an\nappeal to quarter sessions. Their legal amount, in the absence of custom\nto the contrary, is twopence per head, or, in London, fourpence per\nhouse.[378] But these sums were fixed when the value of money and the\nwealth of the country were very different from what they are at present;\nand it is reasonable that voluntary Easter offerings should now be made\non quite another scale. The vicar of a new ecclesiastical parish has the\nsame right to Easter offerings as the incumbent of the ancient parish\nout of which it was carved.[379]\n\n21. Mortuaries or offerings at the time of a person's death are due in\ncertain places by custom, and, where so due, are recoverable in the\necclesiastical courts. But by an Act of 1529, they were limited to 10s.\nas the maximum and to small amounts where the deceased died worth less\nthan \u00a340 in movable goods, none being payable if the deceased was not a\nhouseholder and worth at least ten marks in movable goods, and a penalty\nwas attached to demanding an illegal amount.[380]\n\n22. Dues or fees payable for special services or concessions have\nalready been mentioned in connection with churchings, marriages and\nburials, including in the last mentioned category those payable for the\nfuneral itself, for the grave, and for any tombstone or monument to be\nerected upon it.[381]\n\n23. In some cases the incumbent's stipend depends wholly or in part upon\npew rents. They can only legally be taken where authorised by a special\nor general Act of Parliament. In some churches they have been sanctioned\nby a special Act, which prescribes their application, and the proportion\n(if any) which shall go towards the incumbent's stipend. They are also\nsanctioned in certain cases by the Church Building Acts and New Parishes\nActs. Where pew rents are fixed under these Acts, the incumbent is\nentitled to such portion of them as may be settled in the manner therein\nprescribed;[382] and he can recover that portion from the churchwardens\nby an action at law.[383] An incumbent, who has a vote for a\nparliamentary borough as a resident therein, and who receives for his\nown use part of the pew rents of the church, which is also situate in\nthe borough, but which is his freehold, has a parliamentary vote for the\ncounty as a freeholder, since he does not occupy the church within the\nmeaning of 2 & 3 Will. 4, c. 45, s. 24.[384]\n\n24. The incumbents of certain ancient benefices above the yearly value\nof \u00a350 are liable to the payment to Queen Anne's Bounty of first fruits\nin the first year of their incumbency and tenths in succeeding years.\nThe first fruits are the amount of one year's value of the benefice as\nrecorded in the _valor beneficiorum_ or King's Books compiled in the\nsixteenth century, and the tenths are one-tenth of the same amount. They\nwere originally paid to the Pope, and were annexed by Henry VIII. to the\nCrown, until Queen Anne bestowed them on the Bounty which bears her\nname, to form a fund for the augmentation of poor livings. Where they\nare payable, first fruits are due three months after admission to the\nbenefice, and tenths annually at Christmas. An incumbent is only\nchargeable with the whole of the first fruits if he remains incumbent at\nthe end of two years from the occurrence of the vacancy which he was\nappointed to fill. He is liable to none, or to one-fourth, one-half or\nthree-fourths, if he dies or is removed within the first, second, third,\nor fourth half-year after that event.[385] Two Acts passed in 1706 and\n1707[386] discharged from the payment of first fruits and tenths all\nbenefices which at the time were under the annual value of \u00a350, except\nthat those of which the tenths had been previously granted away by the\nCrown to other parties were still to continue liable to tenths only.\nOther exemptions have been granted in favour of particular benefices at\ndifferent times; and in 1837, out of 10,498 benefices with and without\ncure of souls, only 4898 remained liable to tenths, 4500 of that number\nbeing also liable to first fruits.[387]\n\n25. Income or property tax is payable by an incumbent under schedule (A)\nin respect of his house of residence, glebe lands, and tithe\nrentcharge.[388] In respect of any landed property (other than a house\nof residence) actually occupied by him, income tax is also payable on\none-third of its annual value, except that if he occupies it for the\nsole purpose of husbandry and can show that his profits fell short of\nthat one-third, the tax is payable on the actual amount of the\nprofits.[389] The tax is also payable by him in respect of all other\nstipend, fees, perquisites and profits accruing to him by reason of his\nincumbency. But in estimating these a clergyman or other minister of\nreligion may deduct money paid and expenses incurred wholly,\nexclusively, and necessarily in the performance of his ministerial\nduties. In two Scotch cases these deductions were held to include the\nexpense of visiting members of his congregation, attending church\nmeetings enjoined on him as part of his duty, outlay on stationery, and\ncommunion expenses; but no deduction was allowed in respect of part of\nthe manse used as an office for his clerical business, or for the cost\nof books or for a voluntary contribution made by him towards the stipend\nof an assistant minister.[390] There is sometimes a difficulty in\ndetermining whether sums of money which are granted or given to a\nclergyman, but are not part of his legal or recognised stipend, are\ntaxable perquisites or profits accruing to him by reason of his office\nor not. The true test, namely, whether the gift is made to him in\nrespect of his office or is personal to himself, is not easy to apply in\nparticular instances. In another Scotch case it was held that a\nvoluntary contribution made by parishioners to their minister, and\nreceived by him in respect of the discharge of the duties of his office,\nwas taxable.[391] A grant to a curate by the Curates' Augmentation Fund\nin recognition of upwards of fifteen years' faithful service is not\ntaxable, not being made in respect of performing present duties. But a\ngrant to an incumbent from the Queen Victoria Clergy Fund, being made in\nrespect of the poverty of his benefice, was decided by the Court of\nAppeal to be taxable, although the Divisional Court below had held the\ncontrary.[392]\n\n\n                           Footnotes\n\n[317] 51 & 52 Vict. c. 42; 54 & 55 Vict. c. 73.\n\n[318] Under the School Sites Acts, 1841, 1844 and 1851 (4 & 5 Vict. c.\n38, 7 & 8 Vict. c. 37, 14 & 15 Vict. c. 24), land may under certain\nrestrictions be conveyed to the minister and churchwardens and overseers\nof the poor, or to the ministers and churchwardens, of a parish, for the\npurpose of the education of the poor, and when so conveyed will remain\nvested in them and their successors as if they were a corporate body;\nbut, except where authorised by a special local Act, it cannot be\nconveyed to the incumbent and churchwardens, or to the churchwardens\nalone, in perpetuity for any other purpose. (In the City of London,\nhowever, churchwardens can, by custom, acquire and hold land as a\ncorporation for ecclesiastical or parochial purposes.) The Bodies\nCorporate (Joint Tenancy) Act, 1899 (62 & 63 Vict. c. 20), does not give\nany further power to an incumbent to hold property as a corporation\njointly with another corporation or with individuals upon any\necclesiastical or charitable trusts; since the holding authorised by the\nAct is to be subject to the same conditions and restrictions as attach\nto its holding by a body corporate in severalty; and an incumbent as\nabove mentioned could not, without a licence in mortmain, hold as a\ncorporation by himself any property upon similar trusts, unless\nempowered to do so by express statutory authority.\n\n[319] Jones _v._ Ellis (1828) 2 Yo. & Jer. 265, 266, 273; Batten _v._\nGedye (1889) 41 Ch. D. 507.\n\n[320] Morley _v._ Leacroft (1896) P. 92; Neville _v._ Kirby (1898) P.\n160.\n\n[321] Jarratt _v._ Steele (1820) 3 Phill. 167; Jones _v._ Ellis _ubi\nsup._; Griffin _v._ Dighton (1864) 5 B. & Sm. 93, aff. 108; 33 L. J. Q.\nB. 29, aff. 181.\n\n[322] Harrison _v._ Forbes (1860) 6 Jur. N. S. 1353; Redhead _v._ Wait\n(1862) 6 L. T. N. S. 580.\n\n[323] Daunt _v._ Crocker (1867) L. R. 2 A. & E. 41; 37 L. J. Eccl. 1.\n\n[324] Greenslade _v._ Darby (1868) L. R. 3 Q. B. 421; 9 B. & Sm. 428.\n\n[325] Stat. (_temp incert._) _Ne rector prosternat arbores in\ncemiterio._\n\n[326] (1856) 19 & 20 Vict. c. 104, s. 10.\n\n[327] (1833) 3 & 4 Will. 4, c. 30; Angell _v._ Paddington Vestry (1868)\n9 B. & Sm. 496; L. R. 3 Q. B. 714.\n\n[328] Reg. _v._ Lee (1878) 4 Q. B. D. 75.\n\n[329] M'Gough _v._ Lancaster Burial Board (1888) 21 Q. B. D. 321; 52 J.\nP. 740.\n\n[330] Keet _v._ Smith (1875) L. R. 4 A. & E. 398; rev. (1876) 1 P. D.\n73. The bishop himself decides disputes as to monumental inscriptions on\nstones in the consecrated portion of a burial ground provided under the\nBurial Acts; (1852) 15 & 16 Vict. c. 85, s. 38. As to the consecrated\nparts of cemeteries established by companies under the Cemeteries\nClauses Act, 1847, see 10 & 11 Vict. c. 65, s. 51.\n\n[331] Sm. Churchw. 52-57. A faculty is not necessary for mere repairs or\nredecoration where no alteration is made in the structure or the design,\nnor for trifling additions such as movable seats or hassocks. But a\nchange in the mode of lighting or heating the church ought to be\nsanctioned by faculty. The grant of a faculty, besides ensuring that all\nis done legally and carefully, prevents any ill-feeling being cherished\nin the parish on the score of the alteration having been made without\nthe knowledge or consent of some of the parishioners; since the\napplication for the faculty affords to all who are interested in the\nmatter an opportunity for submitting their views upon it. The regular\nmode of obtaining the approval of the parishioners to it is by a\nresolution of the vestry. But the opinion of the vestry is not\nconclusive; and a distinction will sometimes be made between the votes\nof those members of the vestry who are Church people and those who are\nnot; see note (3) on p. 89 above.\n\n[332] Rosher _v._ Vicar of Northfleet (1825) 3 Add. 14; Pitcher _v._ The\nSame (1825) _Ib._ 15.\n\n[333] Adlam _v._ Colthurst (1867) 36 L. J. Eccl. 14.\n\n[334] Vicar of Tottenham _v._ Venn (1874) L. R. 4 A. & E. 221, 225.\n\n[335] _Re_ Bideford Parish (1900) P. 314.\n\n[336] Rector of St. Stephen's, Wallbrook _v._ Sun Fire Office Trustees\n(1883) Trist. Cons. Judgm. 103.\n\n[337] _Re_ St. Martin's Orgars (1870) _Ib._ 145. Comp. Rector of St.\nStephen's, Wallbrook _v._ Sun Fire Office Trustees, _ubi sup._\n\n[338] _Re_ St. George in the East (1876) 1 P. D. 311.\n\n[339] (1884) 47 & 48 Vict. c. 72; (1887) 50 & 51 Vict. c. 32, s. 4.\n\n[340] Com. Dig. tit. \"Dismes\" (B. 2).\n\n[341] 2 Burn, 302.\n\n[342] Bird _v._ Relph (1833) 4 B. & Ad. 826.\n\n[343] Degge, ch. viii.; Sowerby _v._ Fryer (1869) L. R. 8 Eq. 417. The\nright to cut timber for the purpose of repairs includes the right to\nsell timber at a distance from the site of the repairs and buy other\ntimber with the proceeds of the sale; Wither _v._ Dean of Winchester\n(1817) 3 Mer. 421.\n\n[344] Holden _v._ Weekes (1860) 1 J. & H. 278; Ecclesiastical\nCommissioners _v._ Wodehouse (1895) 1 Ch. 552.\n\n[345] Ross _v._ Adcock (1868) L. R. 3 C. P. 655.\n\n[346] 17 Geo. 3, c. 53; 21 Geo. 3, c. 66.\n\n[347] 7 Geo. 4, c. 66; 1 & 2 Vict. c. 23; 1 & 2 Vict. c. 106, s. 62.\n\n[348] (1865) 28 & 29 Vict. c. 69.\n\n[349] (1881) 44 & 45 Vict. c. 25; (1887) 50 & 51 Vict. c. 8; (1896) 59 &\n60 Vict. c. 13.\n\n[350] (1777) 17 Geo. 3. c. 53, s. 21; (1803) 43 Geo. 3, c. 108; (1811)\n51 Geo. 3, c. 115; (1815) 55 Geo. 3, c. 147, s. 5; (1856) 19 & 20 Vict.\nc. 104, s. 27; (1865) 28 & 29 Vict. c. 69, s. 4. As to the consent of\nthe Board of Agriculture being requisite to a grant of common land, see\n(1899) 62 & 63 Vict. c. 30, s. 22.\n\n[351] (1815) 55 Geo. 3, c. 147; (1816) 56 Geo. 3, c. 52; (1820) 1 Geo.\n4, c. 6; (1825) 6 Geo. 4, c. 8; (1826) 7 Geo. 4, c. 66; (1838) 1 & 2\nVict. c. 23; c. 29; (1839) 2 & 3 Vict. c. 49; (1842) 5 & 6 Vict. c. 54;\n(1846) 9 & 10 Vict. c. 73, s. 22; (1858) 21 & 22 Vict. c. 57; (1860) 23\n& 24 Vict. c. 93, s. 41; (1861) 24 & 25 Vict. c. 105, s. 3; (1865) 28 &\n29 Vict. c. 57; (1888) 51 & 52 Vict. c. 20. See also The Sale of Glebe\nLand Rules 1897 (Weekly Notes (1897) p. 117); Ecclesiastical\nCommissioners _v._ Pinney (1899) 1 Ch. 99; 2 Ch. 729; aff. (1900) 2 Ch.\n737.\n\n[352] (1838) 1 & 2 Vict. c. 106, ss. 59, 60.\n\n[353] (1842) 5 & 6 Vict. c. 27.\n\n[354] (1842) 5 & 6 Vict. c. 108; (1858) 21 & 22 Vict. c. 57; (1861) 24 &\n25 Vict. c. 105; Ecclesiastical Commissioners _v._ Wodehouse (1895) 1\nCh. 552.\n\n[355] Wise _v._ Metcalfe (1829) 10 B. & C. 299; Martin _v._ Roe (1857) 7\nE. & B. 237.\n\n[356] 34 & 35 Vict. c. 43. The Act is amended so far as respects the\nrates of fees thereunder by (1872) 35 & 36 Vict. c. 96; and so far as\nrespects mortgages for loans, by that Act and (1896) 59 & 60 Vict. c. 13\nand the intermediate Acts specified in the schedule thereto, and, in the\ncase of extraordinary tithe redemption, by (1886) 49 & 50 Vict. c. 54,\ns. 12.\n\n[357] The time is not essential, Caldow _v._ Pixell (1877) 2 C. P. D.\n562.\n\n[358] _Re_ Monk: Wayman _v._ Monk (1887) 35 Ch. D. 538. Consequently if\non an incumbent's death the benefice is under sequestration, the\nsequestrator is not liable for the dilapidations; Jones _v._ Dangerfield\n(1875) 1 Ch. 438. On an exchange, the claim for dilapidations may be\nwaived on both sides, with a view to their falling, in the case of each\nbenefice, on the incoming instead of on the outgoing incumbent; Wright\n_v._ Davies (1876) 1 C. P. D. 638.\n\n[359] Kimber _v._ Paravicini (1885) 15 Q. B. D. 222.\n\n[360] (1871) 34 & 35 Vict. c. 43, ss. 54-57.\n\n[361] _Ib._ ss. 58, 59.\n\n[362] Huntley _v._ Russell (1849) 13 Q. B. 572; 13 Jur. 837; 18 L. J. Q.\nB. 239.\n\n[363] (1871) 34 & 35 Vict. c. 43, s. 71.\n\n[364] Huntley _v._ Russell, _ubi sup._; Martin _v._ Roe (1857) 7 E. & B.\n237; 3 Jur. N. S. 465; 26 L. J. Q. B. 129.\n\n[365] (1838) 1 & 2 Vict. c. 106, s. 36.\n\n[366] (1871) 34 & 35 Vict. c. 43, s. 29.\n\n[367] (1536) 28 Hen. 8, c. 11, s. 4; Bulwer _v._ Bulwer (1819) 2 B. &\nAld. 470.\n\n[368] (1738) 11 Geo. 2, c. 19, s. 15; (1834) 4 & 5 Will. 4, c. 22;\n(1836) 6 & 7 Will. 4, c. 71, s. 86; (1870) 33 & 34 Vict. c. 35.\n\n[369] See ch. iii. \u00a7 2 (_a_) above.\n\n[370] 6 & 7 Will. 4, c. 71.\n\n[371] 6 & 7 Will. 4, c. 71, s. 90. The Statutory powers of the Tithe\nCommissioners are now vested in the Board of Agriculture.\n\n[372] (1839) 2 & 3 Vict. c. 62, s. 28; (1860) 23 & 24 Vict. c. 93, ss.\n42, 43; (1886) 49 & 50 Vict. c. 54; (1897) 60 & 61 Vict. c. 23.\n\n[373] (1882) 45 & 46 Vict. c. 37 (Corn Returns).\n\n[374] (1891) 54 & 55 Vict. c. 8.\n\n[375] (1844) 7 & 8 Vict. c. 85, s. 22.\n\n[376] 2 & 3 Edw. 6, c. 13, s. 10 (see (1887) 50 & 51 Vict. c. 59, sch.).\nThe four offering days are Christmas, Easter, Whitsuntide, and the feast\nof the dedication of the parish church; Gibs. Cod. 705.\n\n[377] 7 & 8 Will. 3, c. 6.\n\n[378] Wats. ch. iii. p. 585; Carthew _v._ Edwards (1749) Ambl. 71;\n(1866) L. R. 1 Q. B. 632; Phill. Eccl. Law, Pt. v. ch. iv. \u00a7 2, pp.\n1242-1245.\n\n[379] (1843) 6 & 7 Vict. c. 37, s. 15.\n\n[380] (1285) 13 Edw. 1, st. _Circumspecte agatis_; (1529) 21 Hen. 8, c.\n6; Wats. ch. iiii. pp. 595-598; Phill. Eccl. Law, Pt. iii. ch. x. \u00a7 5,\npp. 685-9.\n\n[381] See above, ch. v. \u00a7 10; ch. vi. \u00a7 15; ch. vii. \u00a7\u00a7 5, 6, 8, 9.\n\n[382] Sm. Churchw. 67-71; (1818) 58 Geo. 3, c. 45, ss. 62-66, 73-79;\n(1819) 59 Geo. 3, c. 134, ss. 6, 26, 27, 30-33; (1822) 3 Geo. 4, c. 72,\nss. 23-25; (1824) 5 Geo. 4, c. 103, ss. 10, 11, 18; (1831) 1 & 2 Will.\n4, c. 38, ss. 4, 5, 22; (1845) 8 & 9 Vict. c. 70, s. 11; (1838) 1 & 2\nVict. c. 107, s. 18; (1856) 19 & 20 Vict. c. 104, ss. 6-8; (1884) 47 &\n48 Vict. c. 65, s. 4.\n\n[383] Lloyd _v._ Burrup (1868) L. R. 4 Ex. 63.\n\n[384] Wolfe _v._ Clerk of Surrey County Council; Reeve _v._ The Same\n(1904) 1 K. B. 439.\n\n[385] (1559) 1 Eliz. c. 4, s. 6; Wats. ch. xv. pp. 174-9; Phill. Eccl.\nLaw, pt. v. ch. viii. pp. 1355-64.\n\n[386] 6 Ann. cc. 24, 54.\n\n[387] Report of Select Committee on First Fruits and Tenths and\nAdministration of Queen Anne's Bounty (presented to the House of Commons\nand ordered to be printed 7th June 1837), p. iv.\n\n[388] In estimating the value of tithe rentcharge, the necessary cost of\ncollection may be deducted, Stevens _v._ Bishop (1887) 19 Q. B. D. 442;\naff. (1888) 20 Q. B. D. 442.\n\n[389] 59 & 60 Vict. c. 28 (Finance Act, 1896) ss. 26, 27.\n\n[390] 16 & 17 Vict. c. 34 (Income Tax Act, 1853) s. 52; Charlton _v._\nInland Revenue Commissioners (1890) 27 Sc. L. R. 647; Lothian _v._\nMacrae (1883) 22 Sc. L. R. 219.\n\n[391] Inland Revenue _v._ Strang (1878) 15 Sc. L. R. 704.\n\n[392] Turner _v._ Cuxon (1888) 22 Q. B. D. 150; Herbert _v._ M'Quade\n(1901) 2 K. B. 761; rev. on app. (1902) 2 K. B. 631.\n\n\n\n\n    INDEX\n\n\n    Ablutions, 91\n\n    Absolution, 135 _sq._, 138-140\n\n    Admission to benefice, 25-37;\n      to curacy, 55;\n      of churchwardens, 69\n\n    Advowson, 8;\n      sale and transfer of, 26-28\n\n    Agnus Dei, 90\n\n    Albe, 89\n\n    Allegiance, oath of, 35\n\n    Apportionment of income on vacancy, 160\n\n    Archbishop, 15, 25, 28, 31 _sq._, 56, 101, 113\n\n    Archdeacon, 17 _sq._, 69, 74, 154\n\n    Articles, Thirty-nine, 34, 36, 53, 87 (n.)\n\n    Authority, lawful, 34, 81\n\n\n    Baldacchino, 89\n\n    Bankruptcy, 57, 58\n\n    Banns, 85, 100, 109-112, 115\n\n    Baptism, 91-93;\n      lay, 93, 123\n\n    Beadle, 75 _sq._\n\n    Bells, 70, 83, 121, 135, 143 _sq._\n\n    Benefice, 14;\n      admission to, 25-37;\n      holding of two, 44, 52\n\n    Beneficed clergy, 14-16, 25-54\n\n    Benefices Act, 26-33, 46\n\n    Bigamy, 105\n\n    Biretta, 89\n\n    Bishop, 15-17, 27, 39, 55 _sq._, 70, 83, 129, 145;\n      suffragan, 16\n\n    Body, cast up by sea, 123;\n      removal of, 133 _sq._, 147\n\n    Brawling, 24, 71\n\n    Brick grave, 122 (n.), 126\n\n    Buildings, 149-159;\n      removal of, 158 _sq._\n\n    Burial, 121-134\n\n    Burial Acts, 128-133;\n      Act of 1880, 123, 126 _sq._;\n      Act of 1900, 129-133\n\n\n    Candles, Candlesticks, 88, 90\n\n    Canons, Canon Law, 3-5\n\n    Canonical obedience, 15, 35\n\n    Catechising, 98 _sq._\n\n    Cemetery, 128, 145 (n.), 147 _sq._\n\n    Ceremonies, 86, 90, 91\n\n    Certificate of surveyor, 152 _sq._;\n      of registrar for marriage, 101, 112-115\n\n    Chalice, mixed, 90\n\n    Chancel, 143-146; seats in, 70;\n      gates, 88\n\n    Chancellor, 16 _sq._, 69, 117, 125 _sq._\n\n    Chapel, private, 42;\n      of school or institution, 42;\n      proprietary, 42 _sq._;\n      of burial-ground, 129 _sq._\n\n    Chasuble, 89\n\n    Choristers, 76\n\n    Church, rights in, 69-71, 142-148;\n      burial under, 124;\n      of new parish, 11, 43, 101\n\n    Church Discipline Act, 18-20, 54\n\n    Church Trustees, 72 _sq._\n\n    Churching, 99\n\n    Churchwardens, 33, 59, 67-71, 85 _sq._, 122 _sq._, 142 (n.)\n\n    Churchyard, 69-71, 142-148\n\n    Clergy, civil privileges and disabilities, 21-24;\n      duties, 20-22, 38 _sq._;\n      ordained for service abroad, 12 _sq._, 29;\n      protection, 22, 24;\n      relinquishment of office, 24;\n      secular occupations, 21-23;\n      unbeneficed, 14, 55-64\n\n    Clergy Discipline Act, 19 _sq._, 54, 100\n\n    Clergy Resignation Bonds Act, 50\n\n    Clerical Disabilities Act, 24\n\n    Clerk, parish, 59, 73 _sq._, 130-132\n\n    Collation, 33-37\n\n    Collection of money, 70 _sq._, 85 _sq._\n\n    Colonial Clergy Act, 12 _sq._, 29\n\n    Commission of inquiry, 18, 45 _sq._, 59\n\n    Communion service, 82, 90 _sq._;\n      administration, 93-97;\n      refusal of, 94-97, 118-120;\n      of sick, 136 _sq._\n\n    Confession, 135 _sq._, 138-140\n\n    Confirmation, 96 _sq._, 137 _sq._\n\n    Consecration, 103;\n      of burial-ground, 128-130\n\n    Conviction, 54\n\n    Cope, 89\n\n    Coroner's order, 127 _sq._\n\n    Corporate status of incumbent, 141 _sq._\n\n    Council (borough, county, district, parish), 21;\n      parochial church, 79\n\n    Courts, ecclesiastical, 5-7\n\n    Credence table, 88\n\n    Cremation, 133\n\n    Cross, 87;\n      sign of, 90\n\n    Crucifix, 87\n\n    Curate, 48, 55-64;\n      assistant, 10, 12, 14, 60-61;\n      in charge, 12, 56-60;\n      perpetual, 9 _sq._\n\n    Curates' Augmentation Fund, 168\n\n    Cure of souls, 38\n\n\n    Dangerous structure, 145\n\n    Deacon, 20 _sq._, 93, 115\n\n    Dean, 17 (n.);\n      rural, 18, 154\n\n    Declaration of assent, 34 _sq._, 55\n\n    Deprivation, 48, 52-54\n\n    Dilapidations, 152-159\n\n    Diocese, _Dioececis_, 7\n\n    Dissenters, 91, 96 _sq._, 103 _sq._, 123, 126 _sq._\n\n    Divorce, 106 _sq._\n\n    Dues, 163 _sq._\n\n\n    Easter offerings, 63 _sq._\n\n    Ecclesiastical Dilapidations Act, 152-160\n\n    Elevation, 90\n\n    Emblements, 160\n\n    Established Church, 1-3\n\n    Exchange, 50, 52\n\n    Excommunicate, burial of, 123\n\n\n    Faculty, 71, 88, 122 _sq._, 133,145-148\n\n    Farming, 22 _sq._, 151\n\n    Fees, 36 _sq._, 55, 117, 124-6, 130-133, 164\n\n    Fire insurance, 69 _sq._, 157\n\n    First fruits, 165 _sq._\n\n    Flower vases, 88\n\n    Foreigner, marriage of, 197 _sq._;\n      ordination of, 12 _sq._, 29\n\n\n    Genuflexions, 90\n\n    Gilbert Acts, 149 _sq._\n\n    Glass shades, 145\n\n    Glebe, 22 _sq._, 148 _sq._, 151 _sq._, 160\n\n    Godparents, 92\n\n    Gown, black, 90\n\n    Grave, private, 122 _sq._, 126, 146\n\n    Guardian of poor, 21;\n      of minor, 104 _sq._\n\n\n    Homily, 97 _sq._\n\n    Hood, 89\n\n    House, parsonage, 148-159\n\n    House of Commons, 21;\n      of Lords, 21\n\n    Hymns, 77, 90, and note\n\n\n    Illegitimate child, baptism of, 91;\n      marriage of, 105, 111 (n.)\n\n    Images, 88\n\n    Immersion, 92\n\n    Incense, 90\n\n    Income Tax, 167 _sq._\n\n    Incumbent, 12;\n      rights and duties of, 38-43, 63 _sq._, 141-168\n\n    Incumbents' Resignation Acts, 51 _sq._\n\n    Induction, 36 _sq._\n\n    Institution, 33-37\n\n    Ireland, banns in, 110;\n      clergy of, 12 _sq._, 29\n\n\n    Judicial decisions, 5-7, 87 (n.);\n      procedure, 18-20\n\n    Jury, exemption from, 21\n\n    Justice of the peace, 21\n\n\n    Keys of Church, 143\n\n\n    Laity, 65-79;\n      baptism by, 93, 123\n\n    Lapse, 25 _sq._\n\n    Leases, of glebe, 151 _sq._;\n      of buildings, 151, 158\n\n    Lecture, Lecturer, 12, 64, 98\n\n    Lecturers and Parish Clerks Act, 64, 74\n\n    Licence, admission by, 33-37;\n      for marriage, 101 _sq._, 113-116;\n      in mortmain, 142;\n      to officiate, 55-64;\n      for unconsecrated building, 41, 43, 102\n\n    Litany, 82, 84\n\n    Lunatic, resignation of, 51;\n      marriage of, 105\n\n\n    Marriage, 100-120;\n      validity of, 101, 118-120\n\n    Mines, 149\n\n    Minister in charge, 12, 56-60\n\n    Minor, marriage of, 104 _sq._\n\n    Money, collection of, 70 _sq._, 85 _sq._\n\n    Monument, 145 _sq._\n\n    Mortmain and Charitable Uses Acts, 142\n\n    Mortuaries, 164\n\n\n    Neglect of duties, 44-46, 59, 62\n\n    Non-parishioner, burial of, 121-123\n\n    Non-residence, 46-49, 58 _sq._, 151\n\n    Notices, 85\n\n\n    Offertory, 70 _sq._, 85 _sq._\n\n    Orders, indelibility of, 24\n\n    Organ, Organist, 76 _sq._, 143\n\n    Ornaments, 86-89;\n      Rubric, 86, 87 (n.)\n\n\n    Parish, _parochia_, 7;\n      new, 10 _sq._, 43, 102, 164\n\n    Parson, 8\n\n    Parsonage house, 148-159\n\n    Patronage, 8, 25-28\n\n    Peel district and parish, 11 (n.), 59 _sq._\n\n    Pension on resignation, 51 _sq._\n\n    Pew, private, 143;\n      rents, 164 _sq._\n\n    Pictures, 88\n\n    Prayer, Morning and Evening, 82-85\n\n    Prayer Book, 34, 80-85;\n      First of Edward VI., 87 (n.), 89, 93 _sq._, 137 (n.), 138 _sq._\n\n    Preaching, 63 _sq._, 97 _sq._.\n\n    Presentation, 25-33;\n      next, 27\n\n    Private ministrations, 40 _sq._, 135-140\n\n    Prohibited degrees, 103, 108 _sq._\n\n    Property Tax, 167 _sq._\n\n    Public Worship Regulation Act, 19 _sq._, 53\n\n\n    Quarries, 149\n\n    Queen Victoria Clergy Fund, 168\n\n\n    Rates, 145\n\n    Reader, 77 _sq._\n\n    Rector, rectory, 8-10, 143-146\n\n    Register of marriages, 117 _sq._\n\n    Registrar, certificate of, 101, 112-115;\n      licence of, 112 _sq._;\n      service after marriage before, 116\n\n    Religious worship, liberty of, 41 _sq._\n\n    Removal of body, 133 _sq._, 147\n\n    Reservation, 91, 137\n\n    Residence, 46-49, 58 _sq._, 151;\n      house of, _see_ Parsonage House;\n      for marriage, 110, 113\n\n    Resignation, 25, 49-52\n\n    Roman Catholic patron, 28\n\n    Rural Dean, 18, 154\n\n\n    Sacristan, _see_ Sexton\n\n    Scarf, 89\n\n    School Sites Acts, 142\n\n    Schools, 78 _sq._\n\n    Scotland, banns in, 110;\n      clergy of, 12 _sq._, 29\n\n    Sculptures, 88\n\n    Seats (_see also_ Pew), 70\n\n    Sequestration, 47 _sq._, 53, 56 _sq._, 71, 154-158\n\n    Sermon, 82, 84, 97 _sq._\n\n    Service, Divine, 80-99\n\n    Sexton, 74 _sq._, 130-132\n\n    Sick, visiting of, 78;\n      Visitation of, 135 _sq._;\n      Communion of, 136 _sq._\n\n    Sidesmen, 71 _sq._\n\n    Simony, 50, 52;\n      declaration against, 34 _sq._\n\n    Stole, 89\n\n    Sturges Bourne's Act, 65-67\n\n    Suicide, 123\n\n    Surplice, 70, 89 _sq._\n\n    Surrogate, 113\n\n    Surveyor, diocesan, 152, 155 _sq._\n\n\n    Table, Holy, 87;\n      second, 88\n\n    Tax, income, 167 _sq._\n\n    Tenths, 165 _sq._\n\n    Testimonials, 30 _sq._, 56\n\n    Tithes, 7-10, 148, 160-162\n\n    Tombstone, 145 _sq._;\n      removal of, 147 _sq._\n\n    Trading, 22 _sq._\n\n    Trustees, Church, 72\n\n    Tunicle, 89\n\n\n    Unbaptized, burial of, 123\n\n    Unbeneficed clergy, 14-16, 55-64\n\n    Unconsecrated buildings, 41-43\n\n    Uniformity, Acts of, 53, 80-84, 87 (n.), 98\n\n\n    Vacancy, 48-54, 56 _sq._, 71, 153 _sq._, 159\n\n    Vault, 122 _sq._, 126, 144, 146\n\n    Vestments, 86, 89 _sq._\n\n    Vestry, 65-67, 89, 146;\n      marriage in, 116\n\n    Vicar, Vicarage, 9, 11, 33\n\n    Visitation, 16, 17, 69;\n      of sick, 135 _sq._\n\n\n    Wafers, 90\n\n    Waste, 148 _sq._\n\n    Welsh language, 44 _sq._\n\n    Widow, occupation of parsonage house by, 159\n\n                          THE END\n\n              Printed by BALLANTYNE, HANSON & Co.\n                     London & Edinburgh\n\n\n\n\n                 =Handbooks for the Clergy=\n\n\n         Edited by the Rev. ARTHUR W. ROBINSON, B.D.,\n\n          Vicar of Allhallows Barking by the Tower.\n\n\n                   _Price 2s. 6d. net._\n\n\n    =THE PERSONAL LIFE OF THE CLERGY.= By the EDITOR.\n\n    =PATRISTIC STUDY.= By the Rev. H. B. SWETE, D.D., Regius\n    Professor of Divinity in the University of Cambridge.\n\n    =THE MINISTRY OF CONVERSION.= By the Rev. A. J. MASON, D.D.,\n    Master of Pembroke College, Cambridge, and Canon of Canterbury.\n\n    =FOREIGN MISSIONS.= By the Right Rev. H. H. MONTGOMERY, D.D.,\n    formerly Bishop of Tasmania, Secretary of the Society for the\n    Propagation of the Gospel in Foreign Parts.\n\n    =THE STUDY OF THE GOSPELS.= By the Very Rev. J. ARMITAGE\n    ROBINSON, D.D., Dean of Westminster.\n\n    =A CHRISTIAN APOLOGETIC.= By the Very Rev. WILFORD L. ROBBINS,\n    Dean of the General Theological Seminary, New York.\n\n    =PASTORAL VISITATION.= By the Rev. H. E. SAVAGE, M.A., Vicar of\n    Halifax.\n\n    =AUTHORITY IN THE CHURCH.= By the Very Rev. T. B. STRONG, D.D.,\n    Dean of Christ Church, Oxford.\n\n    =THE STUDY OF ECCLESIASTICAL HISTORY.= By the Right Rev. W. E.\n    COLLINS, D.D., Bishop of Gibraltar.\n\n    =RELIGION AND SCIENCE.= By the Rev. P. N. WAGGETT, M.A., of the\n    Society of St. John the Evangelist, Cowley.\n\n    =LAY WORK AND THE OFFICE OF READER.= By the Right Rev. HUYSHE\n    YEATMAN-BIGGS, D.D., Bishop of Worcester.\n\n    =CHURCH MUSIC.= By A. MADELEY RICHARDSON, Mus. Doc., Organist\n    of St. Saviour's Collegiate Church, Southwark.\n\n    =INTEMPERANCE.= By the Right Rev. H. H. PEREIRA, D.D., Bishop of\n    Croydon.\n\n    =ELEMENTARY SCHOOLS.= By the Rev. W. FOXLEY NORRIS, M.A., Rector\n    of Barnsley and Hon. Canon of Wakefield.\n\n    =CHARITABLE RELIEF.= By the Rev. CLEMENT F. ROGERS, M.A.\n\n    =THE LEGAL POSITION OF THE CLERGY.= By P. V. SMITH, LL. D.,\n    Chancellor of the Diocese of Manchester.\n\n                    LONGMANS, GREEN, AND CO.\n\n                 LONDON, NEW YORK, AND BOMBAY.\n\n\n\n\n                Oxford Library Of Practical Theology\n\n\nEdited by the Rev. W. C. E. NEWBOLT, M.A., Canon and Chancellor\n of St. Paul's; and the Rev. DARWELL STONE, M.A., Librarian\n of the Pusey House, Oxford.\n\n\n                         _Price 5s. each._\n\n\n    =RELIGION.= By the Rev. W. C. E. NEWBOLT, M.A., Canon and\n    Chancellor of St. Paul's.\n\n    =HOLY BAPTISM.= By the Rev. D. STONE, M.A., Librarian of the\n    Pusey House, Oxford.\n\n    =CONFIRMATION.= By the Right Rev. A. C. A. HALL, D.D., Bishop of\n    Vermont.\n\n    =THE HISTORY OF THE BOOK OF COMMON PRAYER.= By the Rev. LEIGHTON\n    PULLAN, M.A., Fellow of St. John Baptist's College, Oxford.\n\n    =HOLY MATRIMONY.= By the Rev. W. J. KNOX LITTLE, M.A., Canon of\n    Worcester.\n\n    =THE INCARNATION.= By the Rev. H. V. S. 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Eight Lectures delivered\n      before the University of Oxford in 1881. _Crown 8vo. 7s. 6d._\n\n     UNIVERSITY SERMONS ON GOSPEL SUBJECTS. _Sm. 8vo. 2s. 6d._\n\n     PRAYERS FOR USE IN COLLEGE. _16mo. 1s._\n\n\n     Edinburgh: T. and A. CONSTABLE, Printers to His Majesty.","title":"The Legal Position of the Clergy","tradition":"scripture-revelation","translated_text":null,"word_count":57753}