Philip Vernon Smith

1. In every country where a Christian Church is permitted to exist, the power and authority of her clergy to exercise their functions will rest upon a triple basis and be subject to twofold restrictions and limitations. In the first place, (i.) they derive their spiritual authority from their ordination, and this authority is independent of the particular Church to which they belong. But, in the next place, they are bound on the one hand (ii.) to obey the regulations of the Church of which they are the ministers, and must also, on the other hand, (iii.) conform to the laws of the country in which they labour. For they can only actively exercise their functions by the licence or permission of the ruling power of that country, and subject to any conditions which it may choose to impose. These principles apply equally whether the Church is what we call established or not. The only difference is that if the Church is established, her own regulations are part of the law of the land; whereas, if she is not established, the law of the land sanctions or suffers the existence of these regulations as a private contract or arrangement between the ministers and other members of the Church. But even in the case of an established Church, her ministers will obviously be restricted in the exercise of their functions by civil regulations which do not form part of the ecclesiastical law. Thus there may be nothing in the law of his Church to prevent a clergyman from holding a religious service or preaching in a crowded thoroughfare. But in England and other civilised countries any attempt to do so would be checked by the existing laws against the obstruction of highways. In the following pages no attempt will be made to point out the non-ecclesiastical laws and limitations to which a parish priest is subject. For though they necessarily affect himself and his spiritual work, they do so only indirectly. They touch him not as a minister or even as a Christian, but as a citizen; and they touch his spiritual work only in so far as that work has a material and civil element.

2. Confining then our attention to the ecclesiastical law under which the parish priest holds his position and acts in this country, we note in the first place, that the Church being here established, this ecclesiastical law is equally the law of the Church and the law of the State. This is true whatever be its origin, and however it came into force; and it has always had this double aspect, since (with the exception of the brief interval of the Commonwealth—a period which is not recognised in our jurisprudence as having had any legal existence) there never has been a time in our history when the Church of England has not been the Established Church of the nation. Portions of our Church system and Church law have had an exclusively ecclesiastical origin, by canon or otherwise, and have been adopted or acquiesced in by the State. Further portions have been created by the joint or concurrent action of the Church and the State. Other portions again have been due to the sole action of the civil legislature, which has received the tacit assent of the Church but has never been confirmed by any formal ecclesiastical ratification. From whichever of these three sources any particular point of our Church law may have been derived, its validity and obligation is the same. It binds the Church and her ministers and members irrespectively of its origin, and is at present in force unless it has either been formally repealed or become obsolete and fallen into desuetude.

3. Again, like our civil law, our ecclesiastical law is in part written and in part unwritten or customary. Foreign canon or conciliar law or papal law is only binding in England so far as it has been received by immemorial custom, and has thus become part of our unwritten law, or has been incorporated into our written law by the ratification of an Act of Parliament, or a canon or constitution of our own Church; and the binding force of the English Pre-Reformation canons, ordinances, and provincial constitutions stands on the same footing. For the Commission authorised by the Act for the Submission of the Clergy of 1533 to examine the English canons and constitutions, and, with the king's assent, declare which of them should be in force and which should be abrogated, was never appointed, although the time for its appointment was extended by Acts of 1535 and 1543, and the scope of its inquiry was extended by the latter Act so as to include foreign canons and ordinances.[1] Consequently the only written Church law is to be found in Acts of Parliament and the Prayer-Book,[2] and in Post-Reformation canons, which, however, except so far as they are confirmed by Act of Parliament, or declare the unwritten law of the Church, are only binding on the clergy.[3] Of these the chief are those known as the Canons of 1603, which were agreed upon at the sitting of the Canterbury Convocation begun in that year, and were separately passed two years afterwards by the York Convocation. Many portions of them are, however, now obsolete; and Canon 36 and the last words of Canon 102 have been superseded by new canons made in 1865-66 and 1888. The Canons of 1640 were passed after the dissolution of Parliament, which, according to the custom of the realm, put an end also to the existence of Convocation, and they have no legal force.[4]

4. Much discussion has arisen upon a fourth source of Church law, namely, the decisions of our ecclesiastical courts. It is important to draw a clear distinction between legislative and judicial functions. A court, whether ecclesiastical or civil, has nothing to do with enacting laws. Its province is confined to interpreting them, when their meaning is obscure or disputed. No doubt, in the course of this interpretation, it will sometimes make law by deciding in a particular way a point on which the legislature has left the matter in doubt, and has not itself clearly laid down the law. Many questions affecting the clergy and the Church have, in fact, been thus determined by our civil as well as by our ecclesiastical tribunals. But if one of our civil courts, in interpreting the civil law, delivers a decision which does not commend itself to the common sense of the nation, it is recognised that the remedy lies not in altering the constitution of the court and endeavouring to obtain a fresh legal decision which shall upset the other, but in obtaining an Act of Parliament expressly over-ruling the unsatisfactory decision. If this is not done, the law may have been technically judge-made, but it is acquiesced in and assented to by Parliament and the nation. The same principle applies to the decisions of ecclesiastical courts. The natural way of getting rid of an obnoxious decision is not by fresh adjudication, but by legislation. Until it has been reversed by one or other of these means, the decision of a court, which de facto possesses ecclesiastical jurisdiction, is binding upon the Church as part of her law for the time being. We have somewhat lost sight of this principle, owing to the extreme difficulty of obtaining any definition or alteration of Church law by a legislative process. But the true remedy lies in a healthy revival of the exercise of ecclesiastical legislation, and not in an endeavour to make the ecclesiastical judicature, whether as now existing or after a reform of the courts, discharge legislative functions which are wholly outside its proper province.

5. The legal position of the parochial clergy depends for its ultimate origin upon the legal status of the ancient Parish. The word is the English form of the Greek pa?????a (habitation), and the Latin parochia, an expression originally synonymous with diocese (Gr. d?????s??, i.e. administration; Lat. dioecesis, used of a district or part of a province in the Roman Empire), and applied to the territory assigned to the jurisdiction of a bishop, which was served by him and a college of clergy under him. But under Archbishop Theodore (668-690) or shortly after his time the process was begun of encouraging the lords of manors and great landowners to build churches for themselves and their dependants, and devote the tithes of their manors or estates to the maintenance of divine worship in these churches, and the performance of religious duties among the residents on the estates. This process was gradually extended throughout the country, and, wherever it was adopted, the tithes were assigned either to the priest for the time being in charge of the church, who was in that case called the rector (governor of the church) or parson (Lat. persona)[5] or to a monastery, the members of which were then expected to serve the church. The manor or estate, including any detached and outlying portions, became the parish of the church, and developed into a territorial unit not only for ecclesiastical but also for many civil purposes. Where the church was served by a single rector, the landowner who had endowed it and his successors after him were given in return the right of nominating to the bishop a clerk in Holy Orders to become rector of the church, or, in other words, they acquired the patronage or advowson[6] of the benefice. The frequent cases of neglect in the service of the parish, where a monastery was rector, led, in the thirteenth century, to the requirement that in such cases a succession of individual priests should be appointed to discharge the duty, with a definite portion of the endowments of the benefice as their stipend for so doing. As a rule the great tithes, being those of corn, grain, hay, and wood, were reserved to the monastery, and were in consequence styled rectorial tithes, while the officiating priest, who was styled a vicar, was endowed with the remaining or small tithes, which consequently were called vicarial. But in a few instances the officiating priest, instead of becoming entitled to the small tithes, only received a fixed monetary stipend. Where this occurred, he was called a perpetual curate. It was the rule that rectories, whether in the hands of a monastery or a succession of individual priests, should be endowed not only with the tithes of the parish, but also with a house and lands, which are called glebe; and sometimes these houses and lands, or a part of the lands, were assigned towards the stipend of the vicar.

6. Towards the close of Henry VIII.'s reign the monasteries were dissolved, and their rectories and the rectorial tithes of the parishes and other endowments attached thereto, and the right of nominating vicars or perpetual curates to the parishes passed, with the rest of the monastic property, in some cases into the hands of the Crown or of private individuals who received grants of them from the Crown, while in other cases they went to the endowment of episcopal sees or of colleges, hospitals, or other public institutions. Whichever happened, the rectory and rectorial tithes became thenceforth impropriate, and the vicar or perpetual curate was left with the vicarial tithes and other endowments, or a stipend, as the case might be, to serve the parish as the beneficed parish priest. Later on, and particularly during the nineteenth century, the growth of the population and the rapid increase of our urban centres, owing to the steady migration from the villages to the towns, has rendered the building of new churches and the creation of new ecclesiastical areas a matter of pressing importance; and the same causes have necessitated the employment in the larger parishes of additional clergy, whether stipendiary or voluntary. In some cases an old parish has been divided into distinct and separate parishes, each of which has received a portion of the old church endowments, and has become a rectory, vicarage, or perpetual curacy, according to the status of the old parish;[7] or a vicarage has been converted into a rectory upon a surrender of the rectorial tithes by the impropriator.[8] But, as a rule, new ecclesiastical districts or parishes have been formed and churches built without resorting to the old endowments; and the Church Building and New Parishes Acts provided that the ministers put in charge of these new districts or parishes and churches should be perpetual curates, and should, like the old rectors, vicars, and perpetual curates, be corporations, with perpetual succession.[9] But in 1868 it was enacted that the incumbent of every parish and new ecclesiastical parish, who was authorised to publish banns, and solemnise marriages, churchings, and baptisms in his church, and was not a rector, should, for the purpose of designation only, be styled a vicar, and his benefice should for the same purpose be styled a vicarage.[10] The modern generic title, which includes every beneficed parish priest, is incumbent. The proper and ancient term for rectors, vicars, and all other parochial clergy, whether beneficed or unbeneficed, is curate, as having the cure of souls within the parish.[11] But in modern practice this term, when used by itself, is generally applied to the unbeneficed or assistant curates in a parish.

7. Two other classes of parochial clergy remain to be mentioned. Where, for any reason, the incumbent is for a prolonged period disabled from performing the duties of his office, a substitute will be appointed under the designation of Minister in Charge. Again, in some parishes, lectureships have been endowed, and are held by a lecturer, who, in respect of his duties as such, is independent of the incumbent.

8. Under the Colonial Clergy Act, 1874, a priest or deacon (i.) not ordained by an English or Irish or Scottish bishop, or a bishop acting on the request and under the commission of an English bishop, or (ii.) ordained for service out of the British dominions or for service in the colonies by either of the two archbishops or the Bishop of London,[12] (a) cannot, unless he holds or has held preferment or a curacy in England, officiate in any church or chapel in England without the written permission of the archbishop of the province, and without making and subscribing a declaration similar to the Declaration of Assent prescribed by the Clerical Subscription Act, 1865;[13] and (b) is not entitled to be admitted to any preferment or to act as curate in England without the previous consent in writing of the bishop of the diocese. But a person who holds preferment or a curacy in an English diocese under the Act of 1874, and who has held preferment or acted as curate for a period or periods exceeding in the aggregate two years, may, with the written consent of the bishop, request from the archbishop of the province a licence to exercise his clerical office according to the provisions of the Act; and this licence, if issued by the archbishop and registered in the provincial registry, will place him in the same position as if he had been ordained for service in England by an English bishop.[14] Moreover, a clergyman ordained by a bishop of the Scottish Episcopal Church, unless he holds or has previously held preferment in England or Ireland, (a) is liable to a penalty if he officiates in England more than once within three months without notification to the bishop of the diocese, or if he officiates contrary to an injunction of the bishop; and (b) is not entitled to be admitted to any preferment in England without the bishop's consent, which he may withhold without assigning any reason; and (c) before being admitted or licensed to any preferment or curacy in England, must make and subscribe before the bishop of the diocese, the Declaration of Assent prescribed by the Clerical Subscription Act, 1865.[15]

9. All rectories, vicarages, and perpetual curacies, whether ancient or established under the Church Building and New Parishes Acts, or under any special Act of Parliament, fall within the term benefice, and are of freehold tenure. The term is also applied to non-parochial ecclesiastical offices of a like tenure, such as a deanery, canonry, and archdeaconry. But in the present treatise, which deals only with the parochial clergy, it will be used exclusively of the above-named parochial benefices (which are in popular language called livings); and the clergy who hold these benefices will be called beneficed clergy or incumbents. The other parochial clergy will be referred to as unbeneficed clergy or curates. The legal position of the unbeneficed clergy as regards status and property is so different from that of incumbents that it will be convenient to treat of them separately. But the spiritual duties of the two classes, and the discipline to which they are amenable, are similar and can be discussed together. They are alike subject to the same superior ecclesiastical officials and to the same judicial proceedings; and their civil privileges and disabilities in respect of their clerical office are identical. By virtue of their position as parochial clergy they are brought into certain relations with the bishop of the diocese, the archdeacon of the archdeaconry, and the rural dean of the deanery in which their parish is situate.

10. The bishop is not only the ruler and administrator, but also the chief pastor of the whole of his diocese. As such, he, assisted by his chaplain, has the right whenever he pleases, without the consent of the incumbent, to conduct service or preach in the church of any parish in such lawful manner as he thinks proper. This right extends to consecrating a church within the parish[16] and, of course, to holding ordinations and confirmations. Moreover, he can require from the clergy all reasonable information respecting their parish and parishioners. They owe to him canonical obedience,[17] and deference in matters which do not fall within the limits of obedience. With the exception that his withdrawal of a licence from a curate is subject to an appeal to the archbishop, he possesses absolute control over the unbeneficed clergy in his diocese, having the right to inhibit them from officiating within it. But he has no such power over the beneficed clergy in respect of their services in their own church and other matters involved in the cure of souls attaching to their benefice. In respect of these matters, their office being a freehold for life, they are independent of him except in such particulars and to such extent as the law has expressly prescribed, and they can only be constrained by him against their will through the instrumentality of legal proceedings. But, equally with the unbeneficed clergy of the diocese, it is their duty to attend the bishop's triennial visitations; and their absence without sufficient cause renders them liable to ecclesiastical censure and punishment. Moreover, as will be noticed in the course of this treatise, the bishop has been given, by express enactments, divers powers in relation to both beneficed and unbeneficed clergy on matters of detail, subject in many cases to an appeal to the archbishop of the province. By law and custom part of the administrative functions of the bishop and almost the whole of his judicial functions are discharged by his chancellor, who is at once his vicar-general and the official principal of his consistory court. Suffragan bishops, where they are appointed, have no independent authority or jurisdiction, but simply so much as the diocesan bishop, in his discretion, from time to time delegates to them.

11. The archdeacon is in his archdeaconry next in point of dignity after the bishop and the suffragans (if any) and the chancellor of the diocese.[18] He is sometimes called oculus episcopi, being the bishop's vicar, charged with the duty of inspecting that portion of the diocese which is under his charge and of reporting to the bishop anything which is amiss. Besides this general supervision, he holds an annual visitation of his archdeaconry, and admits the churchwardens and sidesmen, except in years of episcopal visitation, when he is inhibited from performing his functions, and these are exercised instead by the bishop in person, or, as regards the admission of churchwardens and sidesmen, by the chancellor.[19] At his annual visitation, and at other times, as occasion arises, it is the business of the archdeacon to satisfy himself that churches, and especially chancels, are in a proper condition, and to require that any necessary repairs be executed; to take note of the ornaments and utensils of churches, and to ascertain that the services and offices of the Church are everywhere duly performed and administered. The clergy are bound to assist the archdeacon in his inspection and inquiries and to attend his visitations.[20] Various duties assigned to him by statute are noticed in subsequent chapters.

12. Rural deans have within their deaneries the same functions and powers of inspection and report as an archdeacon in his archdeaconry. It is their duty to hold from time to time chapters consisting of the beneficed clergy of the deanery or their curates as proxies for them. In the present day these chapters are usually attended not only by the incumbents but also by all the licensed unbeneficed clergy of the deanery.[21]

13. Judicial procedure in the case of clerical offences is regulated by three statutes of the last century: (i.) The Church Discipline Act, 1840,[22] provides that on a complaint or the existence of evil report against a clergyman the bishop may, with the consent of the parties, at once pronounce sentence, and, in the absence of such consent, may, if he thinks fit, issue a commission of inquiry. If the commission reports that there is prim facie ground for proceedings, the bishop may either try the case in person with assessors, or else send it by letters of request direct to the provincial court. The latter course has in practice been generally adopted, and an appeal may be carried to the Judicial Committee of the Privy Council. (ii.) The Public Worship Regulation Act, 1874,[23] introduced an alternative procedure in matters of ornament and ritual. On the representation of the archdeacon or a churchwarden or any three parishioners, the bishop, unless he is of opinion that no proceedings should be taken upon it, is to require the parties to state whether they are willing to submit to his directions in the matter, and if they assent he is to hear the case and pronounce judgment as he thinks proper, and no appeal is to lie from his judgment. But if they decline to submit the case to the bishop, it is to be heard by the judge appointed under the Act, who is in fact the same person as the judge of the two provincial courts, and an appeal lies from his decision to the Judicial Committee. (iii.) The Clergy Discipline Act, 1892,[24] prescribed a new mode of dealing with offences against morality. In certain cases where the offence is proved by a conviction and sentence or an order of a temporal court, the offending clergyman is to be incapable of holding preferment, and the bishop is to declare vacant any preferment which he holds without any further trial. But in all other cases proceedings are to be taken in the consistory court before the chancellor of the diocese, with the addition of four assessors to try any question of fact, if either party demands them. Either party may appeal against the judgment of the consistory court on a question of law, and the accused clergyman may, with the leave of the appellate court, appeal on a question of fact. The appeal may at the option of the appellant be either to the provincial court or to the Judicial Committee of the Privy Council, but if it is made to the provincial court the decision of that court is final. The net result of the three Acts is that (i.) offences of the clergy in respect of morality can only be dealt with under the Act of 1892; (ii.) proceedings for offences in respect of ritual and the ornaments of the church or the minister may be taken either under the Act of 1840 or under that of 1874; and (iii.) offences in respect of doctrine, as well as all other offences which do not come under (i.) or (ii.), must be dealt with under the Act of 1840.

14. Priests, at their ordination, are reminded of their duty to forsake and set aside, as much as possible, all worldly cares and studies, and are exhorted to apply themselves wholly to their sacred office, and draw all their cares and studies that way; and they promise, among other things, to lay aside the study of the world and the flesh. No similar expressions occur in the form for the making of deacons; but our law recognises no distinction between the two orders of clergy in respect of their civil privileges and disabilities.

15. A clergyman, whether priest or deacon, is not compellable to serve on a jury, though it is not illegal for him to do so. He may be appointed a justice of the peace or guardian of the poor, may be a member of a parish or district council, and may act as chairman, alderman, or councillor of a county council, and as mayor, alderman, or councillor of any of the Metropolitan boroughs. But he is disqualified from being mayor, alderman, or councillor of any other municipal borough;[25] and he cannot be elected a member of the House of Commons;[26] though, if he is a peer, he may sit in the House of Lords.

16. Canon 75 not only forbids ecclesiastical persons to resort, except for their honest necessities, to taverns or alehouses, or to board or lodge therein, or to spend their time in drinking or riot or playing at dice, cards, or tables, or any other unlawful games, but also prohibits them from engaging in any base or servile labour. And a clergyman who holds any cathedral preferment, benefice, curacy, or lectureship, or is licensed or is otherwise allowed to perform the duties of any ecclesiastical office, is subject to certain specific legal restrictions as to engaging in business or trade. (a) He may not acquire for occupation, use, or cultivation more than eighty acres of land without the written permission of the bishop, which must be restricted to a specified number of years not exceeding seven. (b) He may not engage in any trade or dealing for profit except where it is carried on by more than six partners, or by a company, or where the concern, or a share in it, has devolved on him under a will or settlement, or by inheritance or marriage or bankruptcy; and in none of the excepted cases may he act as a director or managing partner, or carry on the concern in person. These restrictions, however, do not extend to keeping a school or seminary, or being employed as a schoolmaster or tutor, or being concerned in education for profit, or buying or selling or otherwise acting in relation to such school, seminary, or employment. Nor of course do they prevent an incumbent from farming, if he pleases, his own glebe lands. Nor do they interfere with the sale, even at an enhanced price, of goods which a clergyman actually buys for the use of his household, but afterwards does not want to keep, nor with the sale of books to or through a bookseller or publisher. He may also be a manager, director, partner, or shareholder in any benefit society, or fire or life assurance society, and may sell minerals from mines on his own lands, and also (provided he do not do so in person at a market or other public sale) may buy and resell for profit cattle, corn, and other things required for the occupation, cultivation, and improvement of glebe or other lands lawfully held by him. The penalties for unlawfully trading are, for the first offence, suspension for not exceeding one year, for the second offence suspension for a longer period, and for the third offence deprivation ab officio et beneficio.[27]

17. Both clergymen and other ministers of religion are specially protected in the performance of religious rites, including rites of burial, in a church or other place of worship, or a churchyard or burial-place. It is a misdemeanour punishable by imprisonment with or without hard labour, to offer violence to them or arrest them upon any civil process while engaged in or going to or returning from the performance of these rites, or to obstruct or endeavour to obstruct them in the performance.[28] The maintenance of order in a church or other place of worship, whether Divine service is being performed or not, and in a churchyard or burial-place, is also provided for by the Act against brawling passed in 1860.[29]

18. A clergyman cannot divest himself of his orders;[30] and Canon 76 prohibited him from forsaking his calling or conducting himself as a layman under pain of excommunication. But now, by statute, after resigning all preferments held by him, he can surrender all clerical rights and powers, and free himself from all clerical disabilities, if he executes a deed of relinquishment in the prescribed form, and causes it to be enrolled in the Central Office of the Supreme Court of Judicature, and delivers an office copy of the enrolment to the bishop of the diocese in which he last held preferment, or (if he has never held preferment) in which he resides, and gives notice of having done so to the archbishop of the province in which the diocese is situate. And a clergyman who takes this course is relieved from all censures or other proceedings for so doing, but is rendered incapable of afterwards officiating or acting as a minister of the Church of England or taking or holding any preferment therein.[31]