THE CLERK AND THE LAW
The parish clerk is so important a person that divers laws have been framed relating to his office. His appointment, his rights, his dismissal are so closely regulated by law that incumbents and churchwardens have to be very careful lest they in any way transgress the legal enactments and judgments of the courts. It is not an easy matter to dismiss an undesirable clerk: it is almost as difficult as to disturb the parson's freehold; and unless the clerk be found guilty of grievous faults, he may laugh to scorn the malice of his enemies and retain his office while life lasts.
It may be useful, therefore, to devote a chapter to the laws relating to parish clerks--a chapter which some of my readers who have no liking for legal technicalities can well afford to skip.
As regards his qualifications the clerk must be at least twenty years of age, and known to the parson as a man of honest conversation, and sufficient for his reading, writing, and for his competent skill in singing, "if it may be [85]." The visitation articles of the seventeenth century frequently inquire whether the clerk be of the age of twenty years at least.
[85] Canon 91 (1603).
The method of his appointment has caused much disputing. With whom does the appointment rest? In former times the parish clerk was always nominated by the incumbent both by common law and the custom of the realm. This is borne out by the constitution of Archbishop Boniface and the 91st Canon, which states that "No parish clerk upon any vacation shall be chosen within the city of London or elsewhere, but by the parson or vicar: or where there is no parson or vicar, by the minister of that place for the time being; which choice shall be signified by the said minister, vicar or parson, to the parishioners the next Sunday following, in the time of Divine Service."
But this arrangement has often been the subject of dispute between the parson and his flock as to the right of the former to appoint the clerk. In pre-Reformation times there was a diversity of practice, some parishioners claiming the right to elect the clerk, as they provided the offerings by which he lived. A terrible scene occurred in the fourteenth century at one church. The parishioners appointed a clerk, and the rector selected another. The rector was celebrating Mass, assisted by his clerk, when the people's candidate approached the altar and nearly murdered his rival, so that blood was shed in the sanctuary.
Custom in many churches sanctioned the right of the parishioners, who sometimes neglected to exercise it, and the choice of clerk was left to the vicar. The visitations in the time of Elizabeth show that the people were expected to appoint to the office, but the episcopal inquiries also demonstrate that the parson or vicar could exercise a veto, and that no one could be chosen without his goodwill and consent.
The canon of 1603 was an attempt to change this variety of usage, but such is the force of custom that many decisions of the spiritual courts have been against the canon and in favour of accustomed usage when such could be proved. It was so in the case of Cundict v. Plomer (8 Jac. I) [86], and in Jermyn's Case (21 Jac. I).
[86] Ecclesiastical Law, Sir R. Phillimore, p. 1901.
At the present time such disputes with regard to the appointment of clerks are unlikely to arise. They are usually elected to their office by the vestry, and the person recommended by the vicar is generally appointed. Indeed, by the Act 7 & 8 Victoria, c. 49, "for better regulating the office of Lecturers and Parish Clerks," it is provided that when the appointment is by others than the parson, it is to be subject to the approval of the parson. Owing to the difficulty of dismissing a clerk, to which I shall presently refer, it is not unusual to appoint a gentleman or farmer to the office, and to nominate a deputy to discharge the actual duties. If we may look forward to a revival of the office and to a restoration of its ancient dignity and importance, it might be possible for the more highly educated man to perform the chief functions, the reading the lessons and epistle, serving at the altar, and other like duties, while his deputy could perform the more menial functions, opening the church, ringing the bell, digging graves, if there be no sexton, and the like.
It is not absolutely necessary that the clerk, after having been chosen and appointed, should be licensed by the ordinary, but this is not unusual; and when licensed he is sworn to obey the incumbent of the parish [87].
[87] Ibid., 1902.
We have recorded some of the perquisites, fees and wages, which the clerk of ancient times was accustomed to receive when he had been duly appointed. No longer does he receive accustomed alms by reason of his office of aquæbajalus. No longer does he derive profit from bearing the holy loaf; and the cakes and eggs at Easter, and certain sheaves at harvest-tide, are perquisites of the past.
The following were the accustomed wages of the clerk at Rempstone in the year 1629 [88]:
[88] The Clerks' Book, Dr. Wickham Legg, lv.
"22nd November, 1629.
"The wages of the Clarke of the Parish Church of Rempstone. At Easter yearely he is to have of every Husbandman one pennie for every yard land he hath in occupation. And of every Cottager two pence.
"Furthermore he is to have for every yard land one peche of Barley of the Husbandman yearely.
"Egges at Easter by Courtesie.
"For every marriage two pence. And at the churching of a woman his dinner.
"The said Barley is to be payed between Christmasse and the Feast of the Annunciation of the Blessed Virgin Mary."
Clerk's Ales have vanished, too, together with the cakes and eggs, but his fees remain, and marriage bells and funeral knells, christenings and churchings bring to him the accustomed dues and offerings. Tables of Fees hang in most churches. It is important to have them in order that no dispute may arise. The following table appears in the parish books of Salehurst, Sussex, and is curious and interesting:
"April 18, 1597.
"Memorandum that the duties for Churchinge of women in the parishe of Salehurst is unto the minister ix d. 0 b. and unto the Clarke ij d.
"Item the due unto the minister for a marriadge is xxj d. And unto the Clarke ij d. the Banes, and iiij d. the marriadge.
"Item due for burialls as followeth
To the Minister in the Chancell . . xiii s. iiij d.
To the Clarke in the Chancell . . vi s. viiij d.
To the Parish in the Church . . . vi s. viii d.
To the Clarke in the Church . . . v s. o d.
To the Clarke in the churchyard for great
coffins . . . . . . . ii s. vi d.
For great Corses uncoffined . . . ii s. o d.
For Chrisomers and such like coffined . i s. iiii d.
And uncoffined . . . . . xij d.
For tolling the passing bell and houre . i s.
For ringing the sermon bell an houre . i s. 0 d.
To the Clarke for carrying the beere . iiij d.
If it be fetched . . . . . ij d.
"Item for funerals the Minister is to have the mourning pullpit Cloth and the Clarke the herst Cloth.
"Item the Minister hathe ever chosen the parishe Clarke and one of the Churchwardens and bothe the Sydemen.
"Item if they bring a beere or poles with the corps the Clarke is to have them.
"If any Corps goe out of the parish they are to pay double dutyes and to have leave.
"If any Corps come out of another parish to be buryed here, they are to pay double dutyes besides breakinge the ground; which is xiij s. 4 d. in the church, and vi s. viii d. in the churchyard.
"For marryage by licence double fees both to the Minister and Clarke [89]."
[89] Sussex Archæological Collections, 1873, vol. xxv. p. 154.
In addition to the fees to which the clerk is entitled by long-established custom, he receives wages, which he can recover by law if he be unjustly deprived of them. Churchwardens who in the old days neglected to levy a church rate in order to pay the expenses of the parish and the salary of the clerk, have been compelled by law to do so, in order to satisfy the clerk's claims.
The wages which he received varied considerably. The churchwardens' accounts reveal the amounts paid the holders of the office at different periods. At St. Mary's, Reading, there are the items in 1557:
"Imprimis the Rent of the Clerke's
howse . . . . . . vi s. viii d."
"Paid to Marshall (the clerk) for parcell of
his wages that he was unpaide . . v s."
In 1561 the clerk's wages were 40 s., in 1586 only 20 s. At St. Giles's, Reading, in 1520, he received 26 s. 8 d., as the following entry shows:
"Paid to Harry Water Clerk for his
wage for a yere ended at thannacon
(the Annunciation) of Our Lady. xxvi s. viii."
The clerk at St. Lawrence, Reading, received 20 s. for his services in 1547. Owing to the decrease in the value of money the wages gradually rose in town churches, but in the eighteenth century in many country places 10 s. was deemed sufficient. The sum of £10 is not an unusual wage at the present time for a village clerk.
The dismissal of a parish clerk was a somewhat difficult and dangerous task. In the eyes of the law he is no menial servant--no labourer who can be discharged if he fail to please his master. The law regards him as an officer for life, and one who has a freehold in his place. Sixty years ago no ecclesiastical court could deprive him of his office, but he could be censured for his faults and misdemeanours, though not discharged. Several cases have appeared in the law courts which have decided that as long as a clerk behaves himself well, he has a good right and title to continue in his office. Thus in Rex v. Erasmus Warren (16 Geo. III) it was shown that the clerk became bankrupt, had been guilty of many omissions in his office, was actually in prison at the time of his amoval, and had appointed a deputy who was totally unfit for the office. Against which it was insisted that the office of parish clerk was a temporal office during life, that the parson could not remove him, and that he had a right to appoint a deputy. One of the judges stated that though the minister might have power of removing the clerk on a good and sufficient cause, he could never be the sole judge and remove him at pleasure, without being subject to the control of the court. No misbehaviour of consequence was proved against him, and the clerk was restored to his office.
In a more recent case the clerk had conducted himself on several occasions by designedly irreverent and ridiculous behaviour in his performance of his duty. He had appeared in church drunk, and had indecently disturbed the congregation during the administration of Holy Communion. He had been repeatedly reproved by the vicar, and finally removed from his office. But the court decided that because the clerk had not been summoned to answer for his conduct before his removal, a mandamus should be issued for his restoration to his office [90].
[90] Ecclesiastical Law, Sir R. Phillimore, p. 1907.
No deputy clerk when removed can claim to be restored. It will be gathered, therefore, that an incumbent is compelled by law to restore a clerk removed by him without just cause, that the justice of the cause is not determined in the law courts by an ex-parte statement of the incumbent, and that an accused clerk must have an opportunity of answering the charges made against him. If a man performs the duties of the office for one year he gains a settlement, and cannot afterwards be removed without just cause.
An important Act was passed in 1844, to which I have already referred, for the better regulating the office of lecturers and parish clerks. Sections 5 and 6 of this Act bear directly on the method of removal of a clerk who may be guilty of neglect or misbehaviour. I will endeavour to divest the wording of the Act from legal technicalities, and write it in "plain English."
If a complaint is made to the archdeacon, or other ordinary, with regard to the misconduct of a clerk, stating that he is an unfit and improper person to hold that office, the archdeacon may summon the clerk and call witnesses who shall be able to give evidence or information with regard to the charges made. He can examine these witnesses upon oath, and hear and determine the truth of the accusations which have been made against the clerk. If he should find these charges proved he may suspend or remove the offender from his office, and give a certificate under his hand and seal to the incumbent, declaring the office vacant, which certificate should be affixed to the door of the church. Then another person may be elected or appointed to the vacant office: "Provided always, that the exercise of such office by a sufficient deputy who shall duly and faithfully perform the duties thereof, and in all respects well and properly demean himself, shall not be deemed a wilful neglect of his office on the part of such church clerk, chapel clerk, or parish clerk, so as to render him liable, for such cause alone, to be suspended or removed therefrom."
A special section of the Act deals with such possessions as clerks' houses, buildings, lands or premises, held by a clerk by virtue of his office. If, when deprived of his office, he should refuse to give up such buildings or possessions, the matter must be brought before the bishop of the diocese, who shall summon the clerk to appear before him. If he fail to appear, or if the bishop should decide against him, the bishop shall grant a certificate of the facts to the person or persons entitled to the possession of the land or premises, who may thereupon go before a justice of the peace. The magistrate shall then issue his warrant to the constables to expel the clerk from the premises, and to hand them over to the rightful owners, the cost of executing the warrant being levied upon the goods and chattels of the expelled clerk. If this cost should be disputed, it shall be determined by the magistrate. Happily few cases arise, but perhaps it is well to know the procedure which the law lays down for the carrying out of such troublesome matters.
The law also takes cognizance of the humbler office of sexton, the duties of which are usually combined in country places with those of the parish clerk. The sexton is, of course, the sacristan, the keeper of the holy things relating to divine worship, and seems to correspond with the ostarius in the Roman Church. His duties consist in the care of the church, the vestments and vessels, in keeping the church clean, in ringing the bells, in opening and closing the doors for divine service, and to these the task of digging graves and the care of the churchyard are also added. He is appointed by the churchwardens if his duties be confined to the church, but if he is employed in the churchyard the appointment is vested in the rector. If his duties embrace the care of both church and churchyard, he should be appointed by the churchwardens and incumbent jointly [91].
[91] Ecclesiastical Law, p. 1914.
Many cases have come before the law courts relating to sextons and their election and appointment. He does not usually hold the same fixity of tenure as the parish clerk, he being a servant of the parish rather than an officer or one that has a freehold in his place; but in some cases a sexton has determined his right to hold the office for life, and gained a mandamus from the court to be restored to his position after having been removed by the churchwardens.
The law has also decided that women may be appointed sextons.