Handbooks for the Clergy
EDITED BY
ARTHUR W. ROBINSON, B.D.
VICAR OF ALLHALLOWS BARKING
BY THE TOWER
THE LEGAL POSITION OF
THE CLERGY
THE LEGAL POSITION OF
THE CLERGY
BY
P. V. SMITH, LL.D.
CHANCELLOR OF THE DIOCESE OF MANCHESTER
AUTHOR OF "THE LAW OF CHURCHWARDENS AND SIDESMEN
IN THE TWENTIETH CENTURY," ETC.
LONGMANS, GREEN, AND CO.
39 PATERNOSTER ROW, LONDON
NEW YORK AND BOMBAY
1905
All rights reserved
PREFACE
In the following pages an endeavour has been made to give a succinct sketch of the legal position of the parish clergy of the Church of England in respect both of spiritualities and of temporalities. The book, being intended for their use, does not touch upon the subject of ordination by which they acquired the status of deacons or priests. Nor does it deal with the episcopate or the non-parochial clergy, except so far as these subjects are connected with the parochial system.
Like all other human arrangements, our English Church law is, of course, far from being ideally perfect. It may be safely affirmed that there has never been either a Church or a State in which the law has actually been what it ideally ought to have been. It is important to recognise the difference between the two positions; for there has sometimes been a disposition on the part of individuals to confuse them, and to treat what they consider to be the ideal law, as if it were the actual law, and as if, as such, it demanded their loyal obedience. Such an attitude, whether in ecclesiastical or civil matters, is anarchical in its tendency; for it sets up private judgment instead of the constituted authority as the criterion of what ought or ought not to be done. It can only be justified where the actual law is absolutely inconsistent with the fundamental principles of morality or of Christian truth. The object of the present treatise is to state succinctly what the law is,—not what it ought to be; and no opinion is expressed or suggestion offered as to points in which amendment would be proper or expedient.
Within the limited compass of the book it is obviously impossible to enter into details; and the reader who desires information as to these will find them in the authorities to which reference is made. It must also be borne in mind that the general law on the subject of buildings, property, and pecuniary rights is, in various places, modified by special local enactments or customs. These can only be ascertained on the spot, or by consulting the Acts of Parliament in which they are embodied or recorded.
One other word of caution is desirable. In explaining the legal position of the parochial clergy, it is, of course, necessary to indicate the exact limits of their rights. If they venture beyond these limits, they are manifestly in the wrong. But no community, either ecclesiastical or civil, could maintain its well-being, or even its coherence, if every individual were on all occasions to take advantage of the full tether of his legal rights. It will frequently be wise and proper for the clergy, in their relations with their ecclesiastical superiors or with the lay officials and other laity of the parish, not to adopt the most uncompromising attitude which the letter of the law permits to them. The dictates of love and of Christian forbearance, and of consideration for the claims of others, as well as of expediency, will not warrant the infringement by an individual of the ordinances of either the Church or the State. But they will more than justify him in refraining from taking up a position of defiance which these ordinances may strictly entitle him to assume.
P. V. SMITH.
Easter, 1905.
CONTENTS
List of Abbreviationspages xxi-xiv
CHAPTER I
General Legal Position
1.Spiritual, ecclesiastical, and civil status of the clergy. 2. Sources of Church law. 3. Written and unwritten law—Foreign Canon law—Pre-Reformation Canons—Acts of Parliament—Canons of 1603—Canons of 1640—Other canons. 4. Decisions of Church courts—Distinction between judicial and legislative action. 5. Legal status of the ancient Parish—Rector or Parson—Patronage or Advowson—Vicar—Perpetual curate. 6. Dissolution of the Monasteries—Impropriate rectories—New churches and ecclesiastical parishes—Assistant parochial clergy—Titular vicars—Incumbent—Curate. 7. Minister in charge—Lecturer. 8. Status of clergy ordained elsewhere than in England or Ireland, or ordained for service in the colonies or foreign countries—Scottish clergy. 9. Benefices—Beneficed and unbeneficed clergy.
CHAPTER II
Beneficed Clergy
1. Admission by bishop on presentation of patron—Lapse to bishop, archbishop, or Crown. 2. Transfers of advowsons or rights of presentation—Next presentations—Power of patron to present himself—Restrictions under Benefices Act, 1898. 3. Qualification for admission—Grounds for refusal by bishop—Testimony as to fitness. 4. Procedure in case of refusal by bishop. 5. Publication of notice of intended admission. 6. Mode of admission—Institution—Licence—Collation—Declarations of assent and against simony—Oaths of allegiance and canonical obedience—Reading of Thirty-nine Articles. 7. Effect of admission—Induction. 8. Fees on admission. 9. Cure of Souls—Duties laid down in Ordination Service—Residence—Divine service—Marriages—Burials—Private ministrations. 10. Exclusive right of administration—Superior right of bishop—Modern comity as between town parishes. 11. Private ministrations—Service in unconsecrated buildings—Meetings for worship. 12. Private chapels—Chapels of institutions—Unconsecrated proprietary chapels. 13. Formation of new parishes—Approval or otherwise of incumbent. 14. Holding of two benefices. 15. Neglect of duty—Commission of inquiry—Procedure on adverse report of Commission. 16. Residence on benefice—Forfeitures for non-residence—Bishop's licence of non-residence—Grounds for licence. 17. Monition, sequestration, and avoidance of benefice for non-residence. 18. Performance of duties where incumbent is non-resident. 19. Restrictions on interfering with duties during period of non-residence. 20. Reckoning of time as to residence.
CHAPTER III
Unbeneficed Clergy
1. Classes of unbeneficed clergy—Bishop's licence—Declaration of assent—Examination and admission by bishop—Discretion of bishop—Revocation of licence. 2. Curates or ministers in charge—(a) On vacancy of benefice—(b) On sequestration of benefice for incumbent's bankruptcy or debt—(c) On incumbent's non-residence—(d) On incumbent's neglect of duties—(e) On formation of Peel district. 3. Assistant curates—Stipend—Notice to quit or relinquish curacy—Discretion of incumbent as to employment—Appointment where duties are inadequately performed; or where circumstances of parish require it. 4. Performance of duty by other clergy—Discretion of incumbent—Licence of bishop—Production of licence and entry of names of preachers in a book. 5. Lecturers and preachers—Performance of other ministerial duties pages 55-64
CHAPTER IV
Laity of the Parish
1. Relations between incumbent and lay officials. 2. The vestry—Constitution, meetings, and voting in ancient parishes, and in new parishes—Vestries Act, 1818—Present functions—Select vestries. 3. Churchwardens—Election in ancient and new parishes—Admission. 4. Parson's or vicar's and people's wardens—Duties: (a) Care of fabric and ornaments of the church and of the churchyard—(b) Seating of parishioners—(c) Provision of requisites for service—(d) Maintenance of order in church and churchyard—(e) Collection and concurrence in disposal of offertory money—(f) Charge of church and benefice during vacancy, if appointed sequestrators—Restrictions on powers. 5. Sidesmen. 6. Church trustees. 7. Parish clerk—Appointment and removal. 8. Sexton. 9. Beadle. 10. Organist and choristers. 11. Officiating of lay readers and other laymen. 12. Other lay work—Visiting of poor and sick—Sunday schools—Church elementary schools. 13. Parochial church councils pages 65-79
CHAPTER V
Divine Service
1. Duty of clergy as to uniformity of
CHAPTER VI
Marriage
1. Duty of minister to solemnise marriage between persons legally competent—Unlawful solemnisation, when a felony—Marriage, when void. 2. Original places for banns and marriages—Churches of new parishes—Licences for banns and marriages in chapels—Parishes having no regular services in parish church—Where parish church is being rebuilt or repaired—No reconsecration necessary where church is rebuilt or enlarged and position of Holy Table altered. 3. Persons legally competent to intermarry—Religion or absence of religion of the parties no ground for refusal to solemnise marriage. 4. Minimum age—Consent of parents or guardians in case of unions—Marriage without consent, in absence of notice—Marriage below lawful age. 5. Marriage of lunatic or non compos, void. 6. Absence, unheard of, for seven years—Relief from punishment for bigamy—Invalidity of remarriage. 7 Divorce abroad—Divorce in England under Act of 1857—Remarriage of divorced persons. 8. Marriage of foreigners—Requirements of laws of foreign States—Precautions to be observed. 9. Prohibited degrees of kindred and affinity. 10. Publication of banns—Time and form—Seven days' notice—Publication and marriage without notice and due inquiry—Publication where parties dwell in different parishes or districts—Where one dwells in Scotland, or in Ireland—What constitutes dwelling—Correct names to be published—Status need not be published—Publication to be from book and signed—Forbidding of banns. 11. Marriage, with consent of minister, on registrar's certificate—Not permitted on registrar's licence. 12. Marriage on licence of bishop or Archbishop of Canterbury—Grant of bishop's licence—Previous affidavit before surrogate—Duty of minister on production of licence—Names in licence—Grant of licence a favour and not a right.
CHAPTER VII
Burial
1. Right of burial by clergyman of the parish where death occurs—Bells to be rung—Burial in case of death in another parish—Relief in case interment is refused—No right to particular hour or spot of burial—Incumbent or churchwardens cannot sell or grant grave-spaces in perpetuity or brick graves—Reservation of exclusive right of burial on grant of addition to churchyard—Faculty for exclusive grave space in other cases—Burial of non-parishioners not dying within the parish. 2. Burial of bodies cast up by the sea or tidal or navigable water. 3. Burial of person dying unbaptized or excommunicate and of felo de se—Burial of child of dissenter or person who has received lay baptism—Interment cannot be required without convenient warning. 4. Bringing of corpse into church and burial under church. 5. Fees—Prepayment not enforceable—Customary amount—On burial of non-parishioners—Tables of fees—Special fees for brick graves, iron coffins, and other extras—Fees and rights of burial where new ecclesiastical parish has its own burial ground. 6. Use of Burial Service in unconsecrated ground—Use of special form—Permission of burial without Church rites and with or without some other service on notice under Act of 1880—Day and time for burial—Fee. 7. Delivery of registrar's certificate of death or order of coroner at funeral. 8. Fees on interments in cemeteries under Cemeteries Clauses Act, 1847. 9. Burial Acts—Consecrated and unconsecrated parts of burial grounds—Chapels—Fees of incumbents, clerks, and sextons—Sale of rights to vaults and monuments—Burial Act, 1900—Tables of fees—Restrictions on future fees to incumbents, churchwardens, and sextons—Commutation of fees. 10. Cremation—Burial of cremated remains. 11. Faculty for removal of body from one unconsecrated place of interment to another—Licence of Home Secretary for removal in other cases pages 121-134
CHAPTER VIII
Private Ministrations
1. Visitation and Communion of the Sick—-Canon 67—Order for the Visitation—Confession and absolution of the sick—Regulations as to Communion. 2. Preparation for Confirmation. 3. Spiritual advice and comfort—Confession—Absolution. 4. Ordinary visitation and intercourse pages 135-140
CHAPTER IX
Temporalities
Indexpages 169-174