The Legal Position of the Clergy

by Philip Vernon Smith

[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 παροικία (habitation), and the Latin parochia, an expression originally synonymous with diocese (Gr. διοίκησις, i.e. administration; Lat. diœcesis, 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 primâ 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.