« ElőzőTovább »
The canons were published in convocation, A. D. 1603, and issued, with his majesty's authority, under the great seal, being ratified by the king, for himself, his heirs, and successors. Not having been ratified by parliament, they do not proprio vigore bind the laity, (Middleton v. Crofts, 2 Atk. 605; Stra. 1036,) but all the clergy are bound by them, whenever the bishops shall see fit to enforce them, but not otherwise. (2 Atk. 158, 26, 605; 2 Salk. 673; 1 Salk. 134; Carth. 485; 1 Lev. 436.) The canons, in many instances, are only declaratory of the law, as what shall be its execution, and not always introductory of the offence. (Crompton v. Butler, Hagg. C. R. I. p. 464.) What is expressly required by the canons is not repealed by disuse; the court is to see whether it is necessary for the purposes of justice in the particular case. (Herbert v. Herbert, Phill. R. ii. p. 443.)
CANONS. “Private clergymen do not seem to be bound to what their superiors in the church do not seem to expect or require of them; or which at least they do forbear, by mutual consent, to enforce.” the ordinaries or other spiritual judges, whose business it is to enforce discipline and rule, do appear by a general and avowed neglect of putting the canons in force," they may be supposed “to agree and consent to their non-observance. (Bp. Mant.)
CHANCELS, so called a cancellis, from the lattice work partition betwixt the choir and the body of the church, so framed as to separate the one from the other, but not to intercept the sight. (1 Burn. E. L. 342.) A grant by a lay impropriator of part of the chancel to A. and his heirs and assigns, is not valid in law. And it is inconsistent either with the duty of the ordinary or the rector, to alienate any part of the chancel. (Clifford v. Wicks, 1 Barn. and Ald. 498.)
CHANCELS. (Greater or lesser.) It is a groundless notion with impropriators, that they have the same right in the great chancel which a nobleman has in a lesser. These lesser chancels are supposed to have been erected for the sole use of these noble persons. Whereas the great chancels are for the use of clergy and people. (Clifford v. Wicks, ut supra.)
CHANCELS. (Burying in.) Lanfranc, archbishop of Canterbury, seems to have been the first to sanction vaults in chancels, and under the very altars, when he had rebuilt the church at Canterbury in the year 1075. (Ken. Par. Ant. 592.)
CHAPELS, Proprietary, are anomalies unknown to the constitution, and to the ecclesiastical establishment of the Church of England, and can possess no parochial rights. (Moysey v. Hillcoat, Hagg. R. ii. p. 46.) Prima facie all parochial duties are committed to and imposed upon the parish incumbent, and all fees and emoluments arising therefrom belong to him ; and such right can only be granted to a chapel, or its officiating minister, by composition with the patron, incumbent, and ordinary : quære, whether not also with a composition to future incumbents. (Ibid. p. 48.) 51 CHAPEL, of Ease, or one built for the ease of the parishioners who dwell too far from the church, and is served by a curate, provided at the charge of the incumbent. (Line v. Harris, Lees' Rep. i. p. 156.) Of common right the incumbent has the nomination of a minister to a chapel of ease within his parish. (ibid. p. 146.) Such chapel cannot
be consecrated without the consent of the incumbent. (Carr. v. Marsh, Phill. R. ii. p. 201.) The performance of baptism, marriage, and burials, in a chapel, existing from time immemorial, might possibly be presumptive evidence of consecration and of a composition; aliter, as to the chapel, the origin of which is ascertained. (Moysey v. Hillcoat, Hagg. R. ii
. p. 50.) The herbage of a chapel-yard, and the lopping of trees in it, by law belong to the incumbent. If a person be proceeded against for cutting down timber, under 35 Ed. I., it must be by indictment at common law. (Cox v. Ricraft, Lee's R. ii.
373.) CHANCELLOR, as now understood, includes the two offices of " official principal,” and “vicar general.” He is an ordinary. The proper work
“official” is, to hear causes between party and party, concerning wills, legacies, marriages, and the like, which are matters of temporal cognizance, but have been granted to the ecclesiastical court by the commission of princes. The proper work of a “vicar general” is, the exercise and administration of jurisdiction purely spiritual, by the authority and under the direction of the bishop; as visitation, correction of nuisances, granting institutions, and the like, with a general inspection of men and things, in order to the preserving of discipline and good government in the church. (Mant. xx. n. e.) CHURCHWARDENS. Their election is, generally, regulated by the
The parishioners, however, may have a right, by immemorial custom, of electing both. (Commissioners on jurisdiction of Ecclesiastical Courts, p. 118.)
Where the incumbent has the right to nominate one, the curate, in his absence, stands in his place, and may make the presentment; (2 Stra. 246) but where the incumbent is under the sentence of deprivation, the right to choose both results to the parishioners. (Carth 118.) The mode of election is first by a show of hands, and if this be not acquiesced in, then by a recourse to a poll. (Anthong v. Seager, 1 Hag. Can. 10.) Where the original notice for convening a meeting to elect church wardens stated that such meeting would be held in the church, and if a poll were demanded, would be adjourned to a specified place, it was held that the chairman might make such adjournment, though against the sense of the majority ; but where business at a meeting is in progress, without such notice, the meeting, and not the chairman, has the power to adjourn. (R. v. Archdeacon
(R. v. Archdeacon of Chester, 1 Add. and Ell. 342.) As to the mode of election, see R. v. Bishop of Winchester, 7 East. 573; 4 B. and C. 449. Closing the vestry doors to exclude voters is illegal. When elected, the ordinary cannot refuse to swear them. When two sets appear, each bearing a colourable title, both must be sworn. (5 Nev. and Mann. 494, 3. Add. and Ell. 615.) No fee can be demanded for administering the oath. (1 Salk. 330.) Churchwardens cannot interfere in the administration of divine service, their duty being one of observation and complaint only. (1 Hag. Con. 170.) When a strange minister is about to preach, on his presenting his letters of orders, their duty ceases, they cannot prevent him. They have the keys of the belfry, and are to take care that the bells be not rung without proper cause. (Canon lxxxviii. See above, article Bells.) They have only the custody of the church under the minister; if he refuse access to the church on fitting occasions, complaint must be made to a higher
authority. (3 Hag. 173.) They cannot obstruct or prohibit the form of singing, for even if the minister introduces any irregularity, they cannot interfere, their duty is to complain to the ordinary of his conduct. But if anything like grossly offensive conduct arising from natural infirmity or irregular habits were to arise, they may be justified in interfering, and indeed so would any private person. (1 Hag. Con. 174.) As soon as a church warden ceases to inhabit the parish, his place must be supplied. (1 Hag. Con. 383.) Churchwardens, without consent of vestry, cannot dispose of any goods belonging to the church. (Wats. c. 39 ; 1 Burn. E. L. 376.) The usual mode of removing a churchwarden is by complaint to the ordinary. (Prid. 71.) They may also be proceeded against in the ecclesiastical court, for neglect of duty. (1 Sid. 281.)
CHURCHYARD. The freehold is in the minister, whether he be rector or vicar, (Cro. Jac. 307; Hob. 69; 1 Curt. 260), or perpetual curate, according as the cure of souls belongs to one or other of these ecclesias
“The soil and freehold of the church and churchyard belong to the parson.” (2 Cro. 367; Com. Dig. Articl. Eglise, Geo. 1.) Generally speaking, no person has a right to erect a headstone, monument, or other memorial, in the church or churchyard, without the consent of the parson, Nor, when one is erected, has the parson a right to remove a tombstone in a churchyard, the property of which remains in the person
who erected it. (3 Bing. 139.) The freehold of the churchyard being in the minister, the feed and trees growing in it also belong to him.
A rector may cut down timber for the repairs of the parsonage or chancel, but not for any common purpose. He may cut timber for repairing pews that belong to the rectory, and is also entitled to votes for repairing the buildings of the parsonage. (2 Atk. 207.) If there be both rector and vicar, it may be doubted to which of them the trees or grass of the churchyard belongs. But it seems they shall belong to the rector, unless in the endowment of the vicarage it shall be otherwise assigned. (Lindw. 267.) But if the rector be a layman, the vicar has the right. (See above.) No one can make a private door into the churchyard without consent of the minister, whose freehold it is, and a faculty also from the bishop. (1 Burn's E. L.; Cade v. Newnham, 3 Phill. 90.) Neither the churchwardens nor the rector can make a new path without a faculty. (Walter v. Montague and Lamprell, 3 Phill. 90.)
Case touching Churchyard, &c. QUESTIONS :
1. In whom, by the law of England, is the freehold of the churchyard vested in those parishes where the incumbent minister is vicar or perpetual curate ?
2. Has any person the right to erect a headstone in the churchyard without the consent of the incumbent minister, whether rector, vicar, or perpetual 'curate ; and is there any difference in this respect between a parish having a lay impropriator (who is owner of the great tithes, or a part of them,) and a vicar who is the incumbent minister, as in Carisbrooke, and a parish where the incumbent minister is also the rector ?
1. I am of opinion that “the soil and freehold of the church and churchyard belong to the parson," (2 Cro. 367, Com. Dig. title Eglise,
Geo. I.); and I think the parson is the rector, vicar, or perpetual curate, according as the cure of souls belongs to one or other of these ecclesiastical
persons. 2. Whether in some places there may be a custom, or, as to some families or persons, a prescription to erect a headstone, monument, or memorial, I cannot undertake to say ; but, generally, I am of opinion that any person has not a right to erect such memorial as
think proper, (or I think any memorial,) without the consent of the
parson, whether rector, vicar, or perpetual curate, and for this purpose I think there is no difference between the case of a rector and a vicar (the great tithes, or part of them, being in a lay impropriator), or a perpetual curate. Temple, Jan. 16, 1839.
FREDERIK POLLOCK. Communicated to the editor of the Evening Mail by Rev. J. B. Atkinson, perpetual curate of Cowes, and rector of Kingstone. Jan. 21 to Jan. 23, 1839.
CLERK. (Clergyman.) Proceedings against a clergyman must now be conducted according to 3 & 4 Vict. c. 86. A clergyman suspended from administration of his office for a fortnight, for words spoken during divine service ; the defence that they were justifiable as reproofs not held as sustainable. (0. I. P. Cox v. Goodday, Hagg. C. R. ii. p. 138.) A clergyman, however, may call upon the church wardens to interfere, in case of any improper conduct during divine service. Preaching doctrines contrary to the articles of religion is a grievous offence, for which a clergyman may be proceeded against under the statute 13 Eliz. c. 12. (0. I. P. Bishop v. Stone, Hugg. C. R. i. p. 424.). A clergyman may be suspended for making alterations in, or omitting any part of, the divine service. (0. I. P. Newberry v. Goodwin, Phill. R. i. p. 282.) A clergyman may be punished by the ecclesiastical courts for publishing banns of marriage between persons not parishioners, nor resident in his parish, and for marrying such persons; the authority of those courts not being taken away by the marriage act, even in cases where the conduct of the minister may have been such as to render him liable to an indictment and conviction of felony. (Wynn v. Davies and Wheeler, 1 Curt. 69; 2 Wils. 79; W. Jones, 257 ; 6 Ves. 421.)
CLERK, (Parish.) If nominated by the incumbent, he is a spiritual officer, (Barton v. Ashton and Gray, Lee's R. i. 350); if by the parishioners, he is a temporal officer. (ibid.) The appointment of the clerk is with the minister, unless the parish have claim by custom, such custom, however, must be proved to exist in order to deprive the incumbent of his right to appoint the clerk of the parish, for the court will not intend such custom. (Salk. 468.) The qualifications for a clerk are specified in Canon xci. It is not necessary that the clerk be licensed. (2 Roll. Abr. 286.) A parish clerk may appoint a deputy. (Str. 942; 2 Lee, 587.). A parish clerk holds his appointment for life, that is, if he demean himself properly in the discharge of his duties. An office quam diu se bene gesserit, confers on the holder all the privileges of a freehold office, amongst others, the right of voting at county elections, if his profits arising out of land amount to 40s. per annum. A parole
appointment by the parson is sufficient. If a clerk misconduct himself in his office, he may be deprived by the same authority that appointed him to the office. (1 Ventr. 148; 1 Burr. 367; 8 T. R. 209.) But though the minister may have a power of removing him on good and sufficient cause, he can never be the sole judge, and remove him ad libitum, without being subject to the control of the court. (R. v. Warren, Cowp. 370.) A proceeding against a parish clerk for deprivation ought to be plenary and by articles. (Barton v. Ashton and Gray, Lee's R. i. p. 350.) Articles against a parish clerk for immoral conduct and neglect of duty, admitted. (Ibid, 533.) If an incumbent proceed to deprive a parish clerk appointed by himself, he must be careful to proceed regularly. Thus he should summon him to answer the charge made against him. (3 Dowl. 327, and R. v. Gaskin, 8 T. R. 209.) Affidavits stating that a clerk has been guilty of divers acts of intoxication, without specifying a single instance, or without stating that he was unable, through intoxication, to discharge his duties, were held insufficient to justify a removal, and a mandamus to restore was granted. (R. v. Neale, 4 Nev. and Mann.) A parish clerk may sue in a court Christian for his fees, which are called largitiones charitivæ.
(2 Roll. Rep. 71; Vin. Abr. “ Parish Clerk,” 4.) It has been said that the course for the clerk to take would be to bring his action on the case against the churchwardens, for neglecting to make a rate and levying it; or if it had been levied, that they had not paid it. (3 Salk. 87; 6 Mod. 252.)
COMMISSARY, is he that is limited by the bishop to some certain place of the diocese to assist him, and in most cases hath the authority of official principal and vicar general within his limits. As the authority of commissaries is restrained to some certain part of the diocese, so is it also restrained to some certain case of jurisdiction, limited unto them by the bishop. (Mant, xx.)
CONSANGUINITY AND AFFINITY. The statutes that mention the degrees within which marriage is prohibited, and the table of degrees, set forth by authority in 1563, required by the Canon xcix. to be hung up in churches, and frequently annexed to the larger edition of the book of Common Prayer, are founded upon the prohibitions recorded in the xviiith chapter of Leviticus.
CONSTITUTIONS, (Ecclesiastical,) were drawn up by the convocation in the province of Canterbury, and licensed by the king, in the reign of James, A.D. 1603. (Grant.)
CORPSE, (Disinterment of.) A corpse once buried cannot legally be taken up to be deposited in another place, without a license from the ordinary. (Gibs. 454.) But in the case of a violent death, the coroner may order the body to be disinterred, if it has been buried before he has had an opportunity of taking a view for the purposes of his inquest. (See also Lynn's Case, 2 T. R. 733.)
CORPSE. (Taking into Church,) is discretionary with the minister, but the service must be read in either case.
The omission of any part is a dereliction of duty.
CURATE, in its ordinary sense, signifies a clerk not instituted to the cure of souls, but exercising the spiritual office under the rector or vicar. (1 H. Bl. 424.) Every curate is to quit his curacy, (s. 95), and the