The Legal Position of the Clergy

by Philip Vernon Smith

CHAPTER IX

TEMPORALITIES

[1]. The legal possessions and revenues of the benefice of an ancient parish consist of (i.) the church and churchyard (subject to the use of both for the benefit of the people), (ii.) the parsonage house and glebe lands and buildings, (iii.) the tithe, (iv.) any modern endowments, including perpetual annuities granted by the Ecclesiastical Commissioners, (v.) ordinary dues and offerings, (vi.) mortuaries, and (vii.) fees; and some of these possessions and revenues are also attached to the benefice of a new ecclesiastical parish, which has, moreover, in certain cases a further source of revenue in (viii.) pew-rents.

[2]. The incumbent for the time being, whether of an ancient or new parish, has a freehold interest for his life, if he so long remains incumbent, in the possessions of the benefice, and for the purpose of holding them is a corporation sole, with a continuous succession in himself and all future incumbents. As such, he is subject to the general laws respecting corporations, and also to those which regulate the acquisition and holding of landed property for charitable purposes, except so far as the law has made special exemptions in his favour. Accordingly, except to the extent expressly permitted by statute, he cannot in his corporate capacity, with perpetual devolution to his successors in office, (a) acquire or hold additional landed property without a licence in mortmain or in a manner inconsistent with the provisions of the Mortmain and Charitable Uses Acts, 1888 and 1891,[317] or (b) hold landed property upon any trust or for any purpose other than as part of the possessions of the benefice.[318]

[3]. The rights of an incumbent in the church and churchyard differ according as the benefice is an ancient or a new parish, and in the former case according as it is a rectory or a vicarage. The freehold of the whole church in an ancient parish (except where a chapel or aisle or a pew belongs to a private individual), and of the churchyard, belongs to the rector, whether he be the incumbent or not;[319] and the chancel is repairable by him, except where there is a custom for the parishioners to keep it in repair. His duty in this respect can be enforced by suit in the ecclesiastical court, and the churchwardens cannot safely repair the chancel themselves and then sue him for the cost.[320] But the incumbent and churchwardens (subject to the rights of the bishop) have the possession and custody of the whole church, including the chancel, and a lay rector cannot interfere with their proper use of it; nor can any person claim to enter it, when not open for Divine service, without their permission.[321] And the incumbent has the paramount right to keep the keys of the church and to control the use of the organ and the ringing of the bells.[322] But ringers are not liable to criminal proceedings in the ecclesiastical court for ringing the church bells without his consent, unless it was done against his express desire.[323] Moreover, Canon 88 contemplates that the churchwardens and sidesmen should have some control over the bellringing; for it enjoins upon them not to allow the bells to be rung superstitiously upon holy-days or eves abrogated by the Prayer Book, nor at any other times without good cause to be allowed by the incumbent and by themselves. And as regards the churchyard, unless there is a special provision to the contrary in connection with his endowment, a vicar, as against the rector impropriate, is only entitled to the possession of the churchyard for spiritual purposes. The rector has a right to the profits of the soil, and he or his tenants can depasture it with sheep.[324] But a rector is only at liberty to fell the trees in the churchyard when they are required for the repair of the chancel, or when the body of the church requires repair and he voluntarily allows the parishioners to use them for the purpose.[325] In new parishes the freehold of the church and churchyard and of the vaults belonging thereto is vested in the incumbent, except where it has been vested in the vestry under a local Act and they have not consented to part with it.[326] Neither incumbents nor rectors impropriate are liable in respect of the church and churchyard to rates, nor to contributions towards the expense of making and paving new streets.[327] So, too, an incumbent was held not liable as owner for expenses incurred by a local authority under a statute in removing a part of the church which had become a dangerous structure.[328]

[4]. The rights of the incumbent are, moreover, qualified and controlled by the rights of the bishop on the one hand and of the parishioners on the other. He has a general authority from the bishop to decide as to allowing or disallowing the erection in the churchyard of tombstones with inscriptions, not being of an unusual character in respect of size or otherwise, as well as glass shades for wreaths and other additions to the contents of the churchyard.[329] But any person interested may appeal against his decision to the bishop's court, which has power to determine the matter, subject to appeal to the higher tribunals.[330] He cannot, however, authorise the erection of monuments or tablets in the church itself, nor monuments of abnormal size in the churchyard. These, as well as other additions to or alterations in the church or churchyard, require the sanction of a faculty either from the bishop's consistory court or, if there refused, from the provincial court or the Judicial Committee of the Privy Council. A faculty for the purpose will, in proper cases, be granted on the application of the incumbent and churchwardens supported by a resolution of the vestry.[331] If there is a rector impropriate, his consent will be necessary to any proposed change in the chancel. As already noticed (Ch. VII. § 1 above), the incumbent cannot validly, on his own authority, sell grave spaces in perpetuity in the churchyard; and a faculty will not be granted for a vault or space for exclusive burial unless it is clearly improbable that it will inconveniently diminish the available ground for the burial of the parishioners.[332] It is an offence on the part of any one to remove earth and bones from the churchyard[333] or to desecrate it in any other way; but a faculty will in a proper case be granted for diverting the course of an ancient footpath through a churchyard when necessary for the enlargement of the church;[334] and for throwing a portion of a churchyard, which is not required for interments, into a highway.[335] A wall of a churchyard which has been wilfully pulled down does not require a faculty for its restoration.[336] A faculty has been granted to secure for ninety-nine years an easement of light and air to the lower windows of an adjoining house through the railings of a churchyard, on payment of an annual rent of £22 to the rector for the time being.[337] Where a churchyard or other burial ground has been closed or is no longer used for burials, a faculty may be obtained for laying it out as a garden with footpaths, and removing the tombstones and placing them against the walls of the church or churchyard;[338] but the erection upon it of any building, except for the purpose of enlarging a church, chapel, or other place of worship, is unlawful, and no faculty can be granted for it.[339]

[5]. Every ancient church ought of right to have glebe as well as a manse or parsonage house attached to it.[340] In a parish where there is an impropriate rectory and a vicarage, glebe may be attached to both or either. Rectorial glebe is not liable to pay vicarial tithe to the vicar, nor is vicarial glebe liable to rectorial tithe to the rector.[341] Since the interest of the incumbent in the house of residence and glebe is limited to his life or tenure of the benefice, he cannot deal with them in a way prejudicial to the rights of the patron or of his successors in the incumbency. His powers of selling, exchanging, and leasing are strictly defined by statute. He must not commit what is technically called "waste"—that is to say, any spoiling or destruction of houses, gardens, or other glebe of the benefice, or of the trees thereon, to the detriment of his successors. In cultivating the glebe lands himself, he is not restricted to any particular mode of cultivation, nor accountable to his successors for neglect or mismanagement.[342] But he must not cut down trees, except so far as they may be required for the repairs of the buildings of the benefice, including the chancel of the church, if he is the rector and is liable to repair it.[343] He may not on his own account open mines, quarries, or gravel-pits under or upon the glebe land, nor work those which have been unlawfully opened; but he may work those which are already lawfully open;[344] and even as regards minerals or gravel unlawfully taken by him, if he is not restrained at the time, his successor cannot maintain an action for damage against his representatives after his death.[345]

[6]. In modern times the provision of parsonage houses and of other necessary buildings on glebe lands, and the repairs of chancels liable to be repaired by rectors, have been facilitated by special legislation. In 1777 and 1781 the Gilbert Acts were passed,[346] which, as amended by Acts of 1826 and 1838,[347] enabled an incumbent, with the consent of the bishop and patron, or, during a vacancy in the living, the bishop, to borrow money for the purpose of providing a parsonage house, or rebuilding it in case of its having become ruinous, upon the security of a mortgage of the income of the benefice for thirty-five years. The loan was not to exceed the amount of the gross net income of the benefice, and was to be repayable with interest by thirty yearly instalments. The Governors of Queen Anne's Bounty were empowered to lend money for the purposes of the Acts; and, in practice, the loans are generally obtained from them. A later statute[348] extended these provisions to the purchase of land convenient to be used with the parsonage house or existing glebe land, and to the repair of the chancel in cases where it is repairable by the incumbent, and to the building or improving of farm houses or buildings or labourers' dwelling-houses on the glebe land; and subsequent Acts have extended the time for repayment of the loans.[349] Another series of enactments has specially sanctioned gifts and bequests for providing parsonage houses and glebe;[350] and under a third series incumbents are empowered to sell the parsonage houses and glebe lands of benefices, or exchange them for others of greater value or more conveniently situated, and to acquire new parsonage houses and additional glebe lands.[351]

[7]. When an incumbent has a licence from the bishop to reside elsewhere than in the parsonage house, he may let the house, subject to an obligation on the part of the tenant to give up possession on the bishop ordering the incumbent to resume residence therein.[352]