The Legal Position of the Clergy Part 5

2. The vestry in an ancient parish consists of the ratepayers who are inhabitants of the parish or who, though not residents therein, are rated for the relief of the poor in respect of the parish, and of occupiers of hereditaments so rated. A meeting of the vestry is called by the inc.u.mbent and churchwardens by a notice in print or writing, and signed by the inc.u.mbent or a churchwarden or overseer, and affixed on or near the doors of all the churches and chapels in the parish in which the service of the Church is performed, on some Sunday at least three clear days before the meeting is to be held.[133] The inc.u.mbent is _ex officio_ chairman of every vestry meeting. In case of his absence, or of there being no inc.u.mbent, the members of the vestry present elect one of themselves as chairman. In case of an equality of votes the chairman, as such, has a casting vote in addition to his previous right to vote as a member of the vestry.[134] In the event of a poll being demanded, it is taken by open voting, and the members of the vestry have from one to six votes, according to the amount of their a.s.sessment, those a.s.sessed at an annual value of under 50 having one vote, and those a.s.sessed at 50 and upwards having one vote for every complete 25 of their a.s.sessment up to 150; all at or above that figure having six votes and no more. In a new ecclesiastical parish or district a meeting in the nature of a vestry is composed of the same persons as would, if the parish or district were an ancient parish, be ent.i.tled to vote in the vestry thereof. But the Vestries Act, 1818,[135] only applies to ancient parishes. Consequently there is no plural voting in the quasi-vestry of a new parish, nor need the notice summoning a vestry meeting be given on a Sunday three clear days before the meeting.[136] But in other respects a vestry or a meeting in the nature of a vestry in a new parish is regulated by the same procedure as in an ancient parish. Since the abolition of compulsory church rates in 1868, and the transfer of their secular duties to other bodies, the functions of these vestries or meetings, whether in old or in new parishes, have been for the most part confined to the election of churchwardens and the approval, or the contrary, of applications for faculties.[137] In some places under a local Act or by the adoption of the Vestries Act, 1831,[138] the functions of the vestry are exercised by a select vestry consisting of a limited number of householders elected by the paris.h.i.+oners.

3. With regard to churchwardens, the general law as to their appointment in ancient parishes is declared by the 89th and 90th Canons. They are to be chosen, if possible, by the joint consent of the minister and paris.h.i.+oners. But if these cannot agree upon the choice, the minister is to choose one and the paris.h.i.+oners another. A stipendiary curate being at the time in charge of the cure stands in the place of the inc.u.mbent in the choice of churchwardens.[139] The election is to be annual, in Easter week; but the same persons are re-eligible for any number of years. By custom, however, there may be only one churchwarden or more than two; and, as is the case in the City of London, both may by custom be elected by the paris.h.i.+oners, or by the lord of the manor, or one by the inc.u.mbent and the other by the outgoing churchwardens. The election ordinarily takes place at the Easter vestry, but an election at another time is valid.[140] The election of both churchwardens is the act of the whole vestry, whether the minister and paris.h.i.+oners agree in their choice, or the minister chooses one and the paris.h.i.+oners the other. In the latter alternative, therefore, the vote of the minister is exhausted in choosing his own warden, and he cannot also vote as a paris.h.i.+oner in the election of the other warden; though if there is an equality of votes in this election, he apparently can, as chairman of the vestry, decide it by a casting vote.[141] In the case of all churches built under the Church Building or New Parishes Acts, except those which have no district attached to them, two churchwardens are to be annually chosen at Eastertide, one by the minister and the other by the persons ent.i.tled to attend and vote at a meeting in the nature of a vestry for the parish or district attached to the church.[142] If the church has no district attached to it, the choice of the second warden is vested in the pewrenters, or, if there are no rented pews, the minister selects both wardens.[143] Churchwardens, after their appointment, have no legal right to exercise their office until they have been admitted by the archdeacon at his visitation, or by the bishop or his chancellor during the years of episcopal visitation, when the archdeacon is inhibited and cannot act. Till then, their predecessors remain in office, notwithstanding that their year has expired, and their successors have been appointed.[144]

4. The two churchwardens are sometimes distinguished as the parson's or vicar's warden and the people's warden. But there is no legal precedence or seniority between the two, and though chosen differently their duties are identical.[145] These may be enumerated as follows: (_a_) The care of the fabric of the church, with its ornaments and furniture, and of the churchyard; and the duty of keeping them in proper repair and condition and of adequately insuring against fire so far as funds are in hand for the purpose, except, as regards the chancel, where the rector is liable for its repair.[146] They have no proprietary rights in the church or its fixtures or in the churchyard, but the movable articles in the church, including the bells and bell-ropes, and sums of money given to the church, belong to them as a corporation for that purpose.[147]

(_b_) The seating of the paris.h.i.+oners and other churchgoers in the church, including the chancel, subject, however, as regards the chancel of an old parish church, to the right of the rector, whether spiritual or lay, and his family, to the chief seat, and to his disposal of the other chancel seats if the bishop or churchwardens take no action respecting them. In this duty the churchwardens act as the officers of the bishop, and are subject to his control if any complaint is made against them. Neither the vestry nor the inc.u.mbent, nor any individual paris.h.i.+oner, can interfere with their discretion in the matter, except by appealing to the bishop. (_c_) The provision at the expense of the parish of sacramental bread and wine and a surplice for the minister, as required by Canons 20 and 58. (_d_) The maintenance of order in the church and churchyard during Divine service. (_e_) The collection of the money at the offertory, and concurrence with the minister in its disposal to pious and charitable uses. (_f_) The charge of the church and benefice and of providing for the cure of souls during a vacancy in the living, if, as is usually the case, they are appointed sequestrators, but not otherwise.[148] Churchwardens can neither add to, alter, or remove any part of the church or its fittings without a faculty, nor can they interfere with the clergyman in his ministrations unless his conduct is such as to be riotous, violent, or indecent within the meaning of the Act of 1860 against brawling.[149] The rights and duties of the inc.u.mbent on the one hand, and of the churchwardens on the other, in respect of the church and churchyard and the money and property of the Church, are so interlaced, that on many points friction cannot be avoided without that harmonious co-operation which should always exist between them, or, if this is unfortunately impossible, at any rate without mutual forbearance and concession.

5. The 90th Canon directs that the minister and paris.h.i.+oners in every parish, if they can agree, shall yearly in Easter week choose two or three or more discreet persons as sidemen (or, as they are now called, sidesmen) to a.s.sist the churchwardens in performing the duties of their office. If no agreement is come to, they are to be appointed by the bishop. This Canon only applies to ancient parishes, and therefore sidesmen appointed, as is frequently the case, in new ecclesiastical parishes have, strictly speaking, no legal status. They are, however, frequently treated as if they possessed it, and in these, as well as in ancient parishes, a.s.sist the churchwardens in seating the people and taking the collections in church. No practical harm is likely to result from this unless they undertook such a duty as, for instance, the forcible ejection of a person misbehaving in church, in which case their right to do so might be called in question.

6. In addition to the churchwardens a body of Church trustees may now be appointed in any parish to accept contributions and hold funds for certain defined ecclesiastical purposes.[150] They are to consist of the inc.u.mbent and two householders or owners or occupiers of land in the parish, chosen in the first instance and on the happening of a vacancy, one by the patron and the other by the bishop, the inc.u.mbent being chairman. They are a body corporate under the name of the Church Trustees of the parish in which they are appointed, with perpetual succession and a common seal, and power to sue and be sued in their corporate name. As circ.u.mstances from time to time require, they may pay over funds in their hands to the churchwardens to be applied to the defined ecclesiastical purposes of the parish generally or to one or more of them specifically, due regard being had to any particular directions of the donors. Funds not so paid over may be invested in government or real securities and acc.u.mulated, with a view to the capital or income being applied at a subsequent time. At least once a year the trustees must lay before the vestry all accounts and particulars of their receipts and expenditure during the preceding year, and of the balance of funds in their hands.[151]

7. The appointment and duties of the parish clerk vary in old and new parishes, and depend in some cases on custom. In old parishes the office is a freehold, and the right of appointment usually rests with the inc.u.mbent, who can exercise it even when the living is sequestrated owing to his bankruptcy; but in case of his being under suspension, it devolves on the curate in charge. The right, however, may by custom belong to the paris.h.i.+oners in vestry. An old writer compared the parish clerk to a bat, as being half-bird, half-beast, or half-clerical and half-lay, though he considered that his clerical wings outbalanced his lay body. But it is now held that the office is temporal, and not spiritual.[152] A person in holy orders may, however, with the consent of the bishop, be appointed parish clerk under the Lecturers and Parish Clerks Act, 1844, and, if so appointed, he is removable in the same way as a stipendiary curate. The same Act provides for the suspension or removal by the archdeacon, of a parish clerk not in holy orders, who has been guilty of neglect or misbehaviour in his office, or of misconduct which renders him unfit to hold it.[153] In all new ecclesiastical parishes, on the other hand, the appointment of the clerk rests with the inc.u.mbent, and, in the case of churches and chapels provided under the Church Building Acts of 1818 and 1819, is made annually; while in the case of those provided under the New Parishes Acts of 1843, 1844, and 1856, the clerk does not vacate his office at the end of each year, but may at any time be removed by the inc.u.mbent, with the consent of the bishop, for misconduct.[154]

8. There is no universal rule as to the appointment, duties, and tenures of office of the s.e.xton or sacristan. Where, in accordance with the etymology of his name, his duties are confined to the custody of the sacred vessels and vestments, the care and cleaning of the church, the opening and closing of the doors, and the ringing of the bells, his appointment, in the absence of a contrary practice, will naturally rest with the churchwardens. Where, on the contrary, he has only to do with the churchyard and grave-digging, his appointment will be presumed to be in the hands of the inc.u.mbent. If, however, he is charged with both sets of functions, the inc.u.mbent and the churchwardens jointly will be presumed to have the right of appointing him. On the other hand, in some few ancient parishes he is elected by the vestry. The office may be held by a woman, and in some places is a freehold for life; but usually it is held during pleasure, and the power of removal rests in the same hands as that of the appointment.[155] In new ecclesiastical parishes the s.e.xton is to be appointed by the inc.u.mbent, and, with the consent of the bishop, is removable by him for misconduct.[156]

9. Another old parochial office was that of beadle--the bidder, crier, or messenger of the parish--whose duty was to attend in that capacity on the inc.u.mbent, churchwardens, and vestry. His position and duties were rather civil than ecclesiastical, but the vestry could sanction his salary being paid out of the church rate. He was also frequently employed to keep order in the church and churchyard during Divine service; and the Church Building Act, 1831, enumerates the payment of the salaries of beadles and pew-openers as well as of the clerk, as one of the expenses incidental to the performance of Divine service, to be paid out of the rents of pews in churches built under that Act.[157]

10. The organist and choristers, and any other lay officials beyond those already mentioned, who may be employed in or about the church or churchyard, are under the exclusive control and direction of the inc.u.mbent, and, as a rule, are appointed by him. But in some parishes the organist is, or was, when paid out of the church rate, selected by the vestry. Whether he is appointed by them or by the inc.u.mbent, his office is not a freehold; but he as well as the other officials now under consideration may be dismissed from office on proper notice, the length of which should be laid down at the time of appointment. If no time is then fixed, the proper length of notice may, in case of dispute, be a very difficult question to decide. It will depend in part on the terms of the engagement, and of the salary. If the salary be so much per month, probably one month's notice of dismissal would suffice. Not less than three months' notice would be requisite if the salary is so much per quarter; while if the salary is an annual sum, even this notice might perhaps be insufficient. Whatever be the mode of appointment and terms of the engagement of the organist, the inc.u.mbent has, within the bounds of legality, and so far as he does not voluntarily surrender it, the absolute right to control the use of the organ and the performance of music in the church, both during Divine service and at other times.[158] But, unless he is prepared to defray the cost out of his own pocket, this right must, of course, in practice, be limited by the extent to which the paris.h.i.+oners or congregation are willing to give the necessary financial support to his arrangements.

11. The old rank of reader, which was formerly one of the minor orders, was temporarily revived after the Reformation to supplement the lack of clergy, and seems to have been continued in some remote districts till the close of the eighteenth century.[159] It has in recent times been resuscitated as a lay office.[160] Moreover, the practice has of late years increased of the lessons being read in church by laymen at the request of the inc.u.mbent, without the express sanction of the bishop.

But an inc.u.mbent ought not, without that sanction, to permit a layman to take any other part in any service in a consecrated building. The officiating of a layman in an unconsecrated building does not stand quite on the same footing; but, as a matter of Church order and regularity, the approval of it by the bishop should be procured, through the layman being expressly authorised as a lay reader, or in some other manner, especially if the building is licensed for Divine wors.h.i.+p. All such laymen must, of course, act with the consent, and under the direction, of the inc.u.mbent of the parish.

12. Laymen and women engaged in less formal kinds of parochial work (among which is the visiting of the poor and sick contemplated by Canon 13 as one of their occupations on Sundays and other holy days) are responsible to the inc.u.mbent alone, and should act with his permission and under his directions. The Sunday schools, with their superintendents and teachers, are under his sole control. His powers with regard to the religious instruction given in any Church elementary school in the parish depend upon the terms of the trust-deed or scheme (if any) regulating the school, and upon the subsection in the Education Act, 1902, that religious instruction given in a public elementary school not provided by the local authority shall, as regards its character, be in accordance with the provisions (if any) of the trust-deed relating thereto, and shall be under the control of the managers; provided that nothing in the subsection is to affect any provision in a trust-deed for reference to the bishop or superior ecclesiastical or other denominational authority, so far as such provision gives to the bishop or authority the power of deciding whether the character of the religious instruction is or is not in accordance with the provisions of the trust deed.[161]

13. Parochial church councils, where they exist, like rurideca.n.a.l and diocesan conferences, rest at present on a purely voluntary basis.

Whatever, therefore, may be their advantages, and however desirable may be their incorporation into our regular Church system, the parish clergy stand as yet in no legal relation to them.

Footnotes

[133] (1818) 58 Geo. 3, c. 69; (1837) 7 Will. 4 & 1 Vict. c. 45; (1869) 32 & 33 Vict. c. 41, ss. 7, 19; Dawe _v._ Williams (1824) 2 Add. 130, 139; Ormerod _v._ Chadwick (1847) 16 M. & W. 367; 16 L. J. M. C. 143; Burnley _v._ Methley Overseers (1859) 1 El. & El. 789; Rand _v._ Green (1860), 6 Jur. N. S. 303; 9 C. B. N. S. 470; 30 L. J. C. P. 80.

[134] (1818) 58 Geo. 3, c. 69, s. 2; Wilson _v._ M'Math (1819) 3 Phill.

67; 2 B. & Ald. 241; Reg. _v._ D'Oyly (1840) 12 A. & E. 139; 4 Jur.

1056; R. _v._ Bp. of Salisbury (1901) 1 K. B. 573, 579, aff. 2 K. B.

225.

[135] 58 Geo. 3, c. 69 (commonly called Sturges Bourne's Act).

[136] Reg. _v._ Barrow (1869) L. R. 4 Q. B. 577.

[137] See -- 3, and ch. v. -- 5 (A), ix. -- 4.

[138] 1 & 2 Will. 4, c. 60.

[139] Hubbard _v._ Penrice (1746) 2 Str. 1245.

[140] b.u.t.t _v._ Fellowes (1843) 3 Curt. 680.

[141] Stoughton _v._ Reynolds (1736) 2 Str. 1045; R. _v._ Bp. of Salisbury (1901) 1 K. B. 573; aff. 2 K. B. 225.

[142] (1818) 58 Geo. 3, c. 45, s. 75; (1838) 1 & 2 Will. 4, c. 38, s.

25; (1843) 6 & 7 Vict. c. 37, s. 17; (1845) 8 & 9 Vict. c. 70, ss. 6, 7; (1856) 19 & 20 Vict. c. 104, ss. 14, 15.

[143] (1838) 1 & 2 Will. c. 38, s. 16; (1845) 8 & 9 Vict. c. 70, s. 7.

[144] Canon 118; Bray _v._ Somer (1862) 2 B. & Sm. 374: 8 Jur. N. S.

716; Bremner _v._ Hull (1866) L. R. 1 C. P. 748; Reg. _v._ Sowter (1901) 1 K. B. 66; rev. _Ib._ 396. For further particulars as to the qualifications and election of churchwardens of ancient parish churches and the churches enumerated in the note to ch. i. -- 6 above, see Sm.

Churchw. 22-43.

[145] Sm. Churchw. 34, 59-64.

[146] Stat. 13 Edw. 1 (_Circ.u.mspecte agatis_); Canon 85; ch. ix. -- 3 below.

[147] Att.-Gen. _v._ Ruper (1722) 2 P. Wms. 125.

[148] Sm. Churchw. pt. iii. ch. i.-iii.; pp. 50-84.

[149] 23 & 24 Vict. c. 32. A clergyman can be proceeded against for brawling either under that Act or in the Church courts as an ecclesiastical offender.

[150] Viz. "the building, rebuilding, enlargement, and repair of any church or chapel, and any purpose to which by common or ecclesiastical law a church rate is applicable." (1868) 31 & 32 Vict. c. 109, s. 9.

Besides necessary church repairs, sacramental bread and wine, and other articles needed for Divine service, a church rate could, with the consent of a majority of the vestry, be applied to provide an organ and other church furniture, and to pay the salaries of organist, pew-openers, and other lay officials, but not the stipend of the inc.u.mbent or a curate. 1 Burn, 388 _a_, _b_.

[151] (1868) 31 & 32 Vict. c. 109, s. 9.

[152] Canon 91; The Parish Clerk's Case (1610) 13 Co. Rep. 70; Pinder _v._ Barr (1854) 4 E. & B. 105; Lawrence _v._ Edwards (1891) 1 Ch. 144; 2 Ch. 72.

[153] 7 & 8 Vict. c. 59.

[154] (1819) 59 Geo. 3, c. 134, s. 29; (1856) 19 & 20 Vict. c. 104, s.

9; Reg. _v._ Ossett (1851) 16 Q. B. 975; Jackson _v._ Courtenay (1857) 8 E. & B. 8.

[155] Ile's Case (1671) 1 Ventr. 153; R. _v._ Thame (Churchwardens) (1719) 1 Str. 115; Olive _v._ Ingram (1739) 2 Str. 1114; R. _v._ Taunton St. James (Churchwardens) (1776) 1 Cowp. 413; R. _v._ Minister, &c., of Stoke Damerel (1836) 5 A. & E. 584, 590, sq.; Cansfield _v._ Blenkinsop (1849) 4 Ex. 234.

[156] (1856) 19 & 20 Vict. c. 104, s. 9.

[157] 1 & 2 Will. 4, c. 38, s. 16.

[158] Wyndham _v._ Cole (1875) 1 P. D. 130.

[159] 3 Burn, 452; Strype's Annals, vol. i. ch. xiii., x.x.x. pp. 178-81, 345, sq.; (ed. 1824, pp. 265-69, 514-16); Martyn _v._ Hind (1776) 2 Cowp. 437, 438-39, 444.

[160] Particulars as to readers and their powers and functions in consecrated buildings and elsewhere will be found in another Handbook of the present Series: _Lay Work and the Office of Reader_, by Dr.

Yeatman-Biggs, afterwards made Bishop of Worcester.

[161] 2 Edw. 7, c. 42, s. 7 (6).