The Legal Position of the Clergy Part 4

[103] Gathercole _v._ Smith (1881) 17 Ch. D. 1; 7 Q. B. D. 626; (1887) 50 & 51 Vict. c. 23. s. 6.

[104] -- 22 above.

[105] (1838) 1 & 2 Vict. c. 106, s. 11; (1850) 13 & 14 Vict. c. 98, s.

7.

[106] (1589) 31 Eliz. c. 6, ss. 4-6, 9.

[107] (1559) 1 Eliz. c. 2, s. 2; (1662) 14 Cha. 2, c. 4, s. 20.

[108] (1662) 14 Cha. 2, c. 4, ss. 2, 38; (1865) 28 & 29 Vict. c. 122, s.

7. See -- 6 above.

[109] (1838) 1 & 2 Vict. c. 106, ss. 58, 120.

[110] 37 & 38 Vict. c. 85, s. 13.

[111] 61 & 62 Vict. c. 48 (Benefices Act, 1898), s. 10.

[112] (1870) 33 & 34 Vict. c. 23, s. 2; (1892) 55 & 56 Vict. c. 32 (Clergy Discipline), s. 1.

[113] 3 & 4 Vict. c. 86; 55 & 56 Vict. c. 32.

CHAPTER III

UNBENEFICED CLERGY

1. The unbeneficed clergy engaged in parochial work may be divided into (i.) curates or ministers in charge; (ii.) a.s.sistant licensed curates; (iii.) unlicensed a.s.sistants; and (iv.) lecturers or preachers. An unbeneficed clergyman has no recognised legal status unless he obtains a licence from the bishop of the diocese, for which the fee is 10s.[114]

At the time of being licensed (unless, having been ordained the same day, he has already done so) he must make and subscribe the Declaration of a.s.sent prescribed by the Clerical Subscription Act, 1865; and on the first Lord's Day on which he officiates in the parish to which he is licensed he must publicly repeat the same declaration in the presence of the congregation during Divine service.[115] Canon 48 requires that before a curate or minister is permitted to serve in any place he must be examined and admitted by the bishop, having respect to the greatness of the cure and the meetness of the party. Nor, if he removes from one diocese to another, is he to be admitted to serve without the testimony of the bishop of that from which he came, as to his honesty, ability, and conformity to the ecclesiastical laws of the Church of England. But this Canon gave no absolute right to stipendiary curates to be admitted to serve after examination and upon good episcopal testimony. They might, notwithstanding, "be placed and displaced at the bishop's discretion without any process at law." He is under no obligation to grant a licence to a curate, and cannot be compelled to do so.[116] It is now, however, enacted, with respect to the removal of curates, that the bishop, after giving him sufficient opportunity of showing reason to the contrary, may summarily revoke the licence granted to any curate and remove him for any cause which appears good and reasonable to the bishop. But the curate may within one month after service upon him of the revocation appeal to the archbishop of the province, who may confirm or annul the revocation as he thinks proper.[117]

2. Curates or ministers in charge are appointed in a variety of cases.

(_a_) If a benefice is vacant, the sequestration of it is granted by the bishop to the churchwardens or some one or more other persons; and subject to the direction of the bishop, if he gives any, the sequestrators are charged with the selection of the person or persons to serve the cure during the vacancy, and the bishop may a.s.sign to him or them a stipend not greater in the case of each than at the rate of 200 per annum, and so that the aggregate amount a.s.signed do not exceed the net annual income of the benefice. The sequestrators pay the costs of serving the cure out of the revenue of the benefice, and account for the balance to the succeeding inc.u.mbent, upon whom on the other hand any deficiency falls if these costs exceed the net revenue received by the sequestrators.[118] (_b_) Where under the bankruptcy of the inc.u.mbent, or under a judgment recovered against him, a benefice remains under sequestration for six months, the bishop from the expiration of the six months till the close of the sequestration is to take order for the services in the church of the benefice, and may appoint and license for the purpose one or more curates or additional curates to reside in and serve the parish, subject to revocation at any time, and with such stipends out of the revenue of the benefice as he thinks fit within certain prescribed limits according to the population of the parish, and not exceeding in the whole two-thirds of the annual value of the benefice.[119] (_c_) Where an inc.u.mbent is absent from his benefice for a period or periods exceeding altogether three months in any one calendar year, he must leave a curate or curates licensed or approved by the bishop to perform the ecclesiastical duties of the benefice. If he fails to do so, or if after the death, resignation, or removal of any such curate he does not within one month notify the fact to the bishop, or does not within four months nominate another proper curate to the bishop, the bishop may appoint and license a proper curate, with directions as to residence and with a stipend according to a prescribed scale, varying with the value of the benefice and the population of the parish and the grounds of the non-residence of the inc.u.mbent. A curate who is appointed to serve in a benefice on which the inc.u.mbent does not reside during four months in the year is to be required by the bishop to reside within the parish, or within three miles of the church of the benefice, if no convenient residence can be procured within the parish, except in cases of necessity approved by the bishop. If the population of the benefice exceeds 2000, the bishop may require the inc.u.mbent to nominate two or more curates, and, if this is not done, may himself appoint them. A scale of curates' stipends where the inc.u.mbent is non-resident is provided by law, varying according to the annual value of the benefice and other circ.u.mstances, and the bishop may direct that the curate shall reside in the parsonage house.[120] (_d_) Where a commission appointed to inquire into the matter has reported that the ecclesiastical duties of a benefice are inadequately performed owing to the negligence of the inc.u.mbent, the bishop may either require the inc.u.mbent to nominate a curate or curates with sufficient stipend to be licensed to perform or a.s.sist in performing the duties, or may himself appoint a curate or curates to perform all or any of the duties, subject to an appeal to the court const.i.tuted under the Benefices Act, 1898.[121] A minister in charge has the rights and powers of an inc.u.mbent in certain particulars, such as the choice of a churchwarden, and, if the benefice is vacant, but not if the inc.u.mbent is bankrupt, the appointment of the parish clerk.[122] (_e_) Where under the New Parishes Act, 1843, what is called a Peel district is const.i.tuted, and a minister is licensed to it by the bishop, he occupies a somewhat ambiguous position during the interval before it becomes a separate ecclesiastical parish upon the consecration of a church within its area. He is in many respects in the position of a perpetual curate, being a corporation sole, subject to the jurisdiction of the bishop and archdeacon, and independent of the inc.u.mbent of the parish so far as his licence extends. But he has no power to take marriages or burials, and the inhabitants of the district retain their ecclesiastical position as parishioners of the parish out of which the district is formed.[123]

3. a.s.sistant unbeneficed clergy are contemplated by the canons, in which they are styled curates; and with the licence of the bishop any inc.u.mbent may employ one or more curates to a.s.sist him in serving the parish. A curate frequently comes in the first instance on probation without being licensed, and his tenure of office is then entirely dependent on the will of the inc.u.mbent.[124] But after he is licensed it becomes more secure; and, in the meantime, if a difficulty occurred about the remuneration for his services, the law would give it to him upon a _quantum meruit_. In order to obtain a licence, the curate must present to the bishop a declaration by the inc.u.mbent undertaking to pay to him a specified annual sum as his stipend and a declaration of his own intention to receive the whole of that stipend; and the licence will specify the amount of the stipend.[125] Any dispute between an inc.u.mbent and a curate respecting the curate's stipend is to be decided by the bishop, who may enforce payment of it by monition and sequestration of the benefice.[126] If the benefice becomes vacant, a curate must quit upon six weeks' notice from the new inc.u.mbent, if given within six months from the date of admission to the benefice. But in other cases, unless the bishop revokes his licence (see -- 1 above), a curate can only be required to quit after six months' notice given by the inc.u.mbent with the previous written permission of the bishop, or of the archbishop, if the bishop refuses it and the archbishop grants it upon an appeal to him within one month after the bishop's refusal. On the other hand, unless he obtains the express written consent of the bishop, a curate before relinquishing a curacy to which he has been licensed must give three months' notice of his intention to the inc.u.mbent and the bishop, upon pain of forfeiting to the inc.u.mbent, as a debt retainable out of his stipend or recoverable at law, such sum not exceeding half a year's stipend as the bishop may in writing direct.[127] Ordinarily, an inc.u.mbent who is himself resident and performing the duties of his cure has complete discretion whether he will employ any, and, if so, how many curates, and what duties shall from time to time be performed by any whom he employs. But, besides the cases of the inc.u.mbent's non-residence and negligence in the performance of duties noticed above (-- 2 (_c_), (_d_)), the bishop has power, if a commission issued by him reports that the duties of a benefice are inadequately performed, to require the inc.u.mbent, although himself engaged in performing them, to nominate an a.s.sistant curate or curates; and, if he fails to do so within three months, the bishop may himself appoint one or more, as the case may require, with a stipend proportionate to the value of the benefice and the population of the parish. The inc.u.mbent has an appeal to the archbishop, who may confirm or amend the bishop's action.[128] Moreover, where the annual value of a benefice exceeds 500, and either the population amounts to 3000, or there is a second church or chapel with a hamlet containing 400 persons, the bishop may require the inc.u.mbent to nominate an a.s.sistant curate, and, on his failing to do so within three months, may himself appoint one with a stipend not exceeding 150; subject to a similar appeal to the archbishop as in the case where the duties have been inadequately performed.[129]

4. An inc.u.mbent has an absolute discretion as to permitting or refusing any other clergyman, not being licensed as a curate to the parish, to officiate within his parish, with this qualification, that he has no right to permit any clergyman to officiate in his parish who by law is debarred from taking duty in the diocese. With regard to this, no unbeneficed clergyman has, strictly speaking, a right to officiate publicly in a diocese, either in church or elsewhere, without the licence or consent of the bishop, and his doing so is an ecclesiastical offence.[130] But if the bishop has not actually inhibited him from officiating, a clergyman may take merely temporary duty without obtaining the formal licence of the bishop.[131] If, without being either beneficed or licensed to a curacy in the diocese, he frequently takes duty therein, he should obtain a general licence from the bishop for the purpose. Canons 50 and 52 direct inc.u.mbents and churchwardens not to suffer any one to preach in their churches without showing his licence to preach, and require the names of strangers who preach with the date of their preaching and the name of the bishop by whom they were licensed, to be entered in a book for the information of the bishop of the diocese.

5. In some parishes provision has been made for the election or appointment of lecturers or preachers for the sole purpose of delivering lectures or preaching sermons. In any such parish the bishop, if he thinks fit, with the a.s.sent of the inc.u.mbent, may require the lecturer or preacher to perform other ministerial duties as a.s.sistant curate or otherwise, and may vary the duties from time to time. If the duties so prescribed are not performed, the defaulter may be removed from his office.[132]

Footnotes

[114] (1838) 1 & 2 Vict. c. 106, s. 82. For the stamp duty on licences, and exemptions therefrom, see (1891) 54 & 55 Vict. c. 39, sch.

"Licence."

[115] 28 & 29 Vict. c. 122, ss. 1, 8; see ch. ii. -- 6 (i.).

[116] Johns, vol. i. p. 95; see Ex parte Carlyon (1903) _Times_, Dec.

19; s.c. nom. R. _v._ Bp. of Liverpool (1904) _Times_, May 4.

[117] (1838) 1 & 2 Vict. c. 106, s. 98; Poole _v._ Bp. of London (1859) 5 Jur. N. S. 522; (1861) 14 Moo. P. C. 262; 7 Jur. N. S. 347.

[118] (1536) 28 Hen. 8, c. 11; (1838) 1 & 2 Vict. c. 106, ss. 99-101; Dakins _v._ Seaman (1842) 9 M. & W. 777; (1885) 48 & 49 Vict. c. 54, s.

10.

[119] 34 & 35 Vict. c. 45 (Sequestration Act, 1871).

[120] Canon 47; (1838) 1 & 2 Vict. c. 106, ss. 75, 76, 81-98, 120-122, 130; (1885) 48 & 49 Vict. c. 54, s. 9.

[121] See ch. ii. -- 15; (1838) 1 & 2 Vict. c. 106, ss. 77, 85-87, 105; (1885) 48 & 49 Vict. c. 54, ss. 1-3; (1898) 61 & 62 Vict. c. 48, s. 9.

[122] Hubbard _v._ Penrice (1746) 2 Str. 1245; Reg. _v._ Allen (1872) L.

R. 8 Q. B. 69; Pinder _v._ Barr (1854) 4 E. & B. 105; Lawrence _v._ Edwards (1891) 1 Ch. 144; 2 Ch. 72.

[123] 6 & 7 Vict. c. 37, ss. 11-14.

[124] Martyn _v._ Hind (1776) 2 Cowp. 437, 440.

[125] (1865) 28 & 29 Vict. c. 122, ss. 3, 6.

[126] (1838) 1 & 2 Vict. c. 106, s. 83.

[127] (1838) 1 & 2 Vict. c. 106, ss. 95, 97. The notices require no special formalities; Tanner _v._ Scrivener (1888) 13 P. D. 128.

[128] (1838) 1 & 2 Vict. c. 106, s. 77; (1885) 48 & 49 Vict. c. 54, ss.

2-8.

[129] (1885) 48 & 49 Vict. c. 54, s. 13.

[130] Trebec _v._ Keith (1742) 2 Atk. 498; Barnes _v_. Sh.o.r.e (1846) 1 Rob. Eccl. 382; Freeland _v._ Neale (1848) _Ib._ 643. As to beneficed clergy, see above, ch. ii. -- 11.

[131] Gates _v._ Chambers (1824) 2 Add. 177.

[132] 7 & 8 Vict. c. 59 (Lecturers and Parish Clerks Act, 1844), ss. 1, 6.

CHAPTER IV

LAITY OF THE PARISH

1. There is no general law as to the relations between an inc.u.mbent and the lay officers of a parish. They vary in ancient and in new ecclesiastical parishes, and in particular places are modified by custom.