"formal notice" to Mr. Rodber, that Mr. Saunders was in attendance, purely superfluous, but its delivery could scarcely, under the circumstances, be ascribed, by any stretch of charity, to a laudable motive; but, be that as it may, it was certain that the scene of tumult and disorder which ensued was the actual, if not the designed, consequence of the delivery of this notice by the defendant, who therefore has been selected, in my judgment, with great propriety, as the person against whom these proceedings have been instituted. A very little inquiry, which it was his duty to have made, if inclined to meddle in this matter at all, would have instructed him that in the case of every, at least unendowed lectureship, no choice by the parish of a lecturer is effective, without the consent or approval of the rector, whose undoubted right it is, in every such case, to grant to, or withhold from the lecturer so chosen, the use of his pulpit. At all events, however, he could not be ignorant that, if Mr. Saunders had a legal right to the pulpit in the instance in question, there must be a legal mode of enforcing it; that any other mode of attempting to enforce it was unjustifiable as it must eventually prove unavailing; and that an appeal to private judgment, or rather to popular feeling upon such a subject (which this defendant's conduct amounted to, in his apprehension), was illegal, as well as in the highest degree indecorous. The defendant was suspended ab ingressu ecclesia, for one month only, from the circumstance of his being an undertaker (e). (e) 1 Rol. 104. Hagg. Consist. Rep. CHAP. IV. OF PEWS. Pews in churches are intended for the privacy and convenience of those who are in the habit of attending the performance of divine worship; they were unknown to the simplicity of former times, when nothing but chairs and moveable seats were known to prevail : a practice which still obtains in a great degree in catholic countries to this day, and even in some of our own more ancient edifices. The higher classes, however, being desirous of separating themselves from the community, soon began to portion off parts of the churches which they frequented, for themselves and their families, and thus having set the example, the practice shortly spread, and is now generally adopted throughout this country. These pews, as they are intended for the privacy, so are they accounted the property of parishioners; and it is one amongst the numerous duties of churchwardens to see that all strangers be excluded therefrom;-for churchwardens are entrusted not only with the care of the church, but also of the seats therein (a); and this not only (a) Vide Appendix, No. 1. to repair them, but also to see that good order be preserved therein, and that no contention be made about priority of place, to the disturbance of divine worship and the dishonour of God, but that every man regularly take that seat and that place in it to which he is entitled, either by prescription, or by a faculty from the bishop, or by permission from themselves. The seats in the body of the church, and also in the aisles and elsewhere, if they are repaired at the charge of the parish, are at the disposal of the churchwardens with the advice of the minister, but still in subordina tion to the bishop, who hath the primary right of disposing and ordering of this matter in every church of his diocese. The law justly presumes that he who has the primary cure of the souls of the people, and the chief government and direction of all matters relating to order and decency, is the fittest person to be entrusted with a discretionary power of placing his people in the church according to their respective qualities and degrees, so that no contention should arise there about this matter. And therefore, if any think themselves aggrieved by any disposition or regulation of seats by the churchwardens, they may apply to the bishop for remedy, and his decision is final, unless an appeal be made from him to the archbishop. No custom or usage, in any place, for the churchwardens to dispose of the seats in a church, can amount to a prescription to exclude the bishop; for churchwardens are officers under the bishop, and whatsoever is done by them in these matters must be taken to be done by authority derived from him, either expressly, as in the case of a faculty, or else tacitly allowed: and although in London and other large cities the churchwardens take it upon themselves wholly to dispose of the seats and pews in their respective churches, yet the bishop is not therefore excluded from interfering, if he thinks fit so to do; and disusage or nonusage will not operate as a bar to his claim. The common law never interferes in these matters, unless where a seat is claimed by prescription, as for instance, where a seat is claimed as appurtenant to a messuage within the parish. All other seats it leaves to the disposition and regulation of the bishop, or his officers, the churchwardens, who, as we shall have occasion to show hereafter, are to take the opinion and advice of the minister herein (a). The right of the bishop to dispose of the seats in a church, extends as well to those which are in the chancel as to those which are in the body of the church; nor does it signify, that not only the freehold of this part of the church is in the parson, but that he is also liable to the repairs thereof, for the right of the bishop extends equally over every part. But as the lord of a manor, or any other owner of an ancient messuage, may prescribe to a seat in the body of the church, which he and his ancestors have immemorially used and repaired, to the exclusion of the bishop, so may the parson prescribe to a seat in the chancel which he and his predecessors have immemorially been possessed of (b). And if there be no such prescription, as aforesaid, under which he can claim to be (a) 12 Coke, 105. 3 Inst. 202. 2 Buls. 150. Hobart, 69. (b) Prid. Direct. entitled to a pew, he is nevertheless entitled, by virtue of his office, to a pew in this part of the church for himself and family, in preference to all those who do not claim by prescription; and this holds good, whether the parson be appropriator impropriator or instituted rector of the parish. If the bishop doth not interfere, the parson may dispose of the seats in the chancel in the same manner as the churchwardens dispose of those in the body of the church; but if any controversy arise with respect to such seats, an appeal lies to the bishop, from the one as well as the other (ƒ). There is an exception, however, in the case of the city of London,-for there the churchwardens repair the chancel as well as the body of the church, and consequently dispose of the seats in both; still however with the same subordination to the bishop as in other cases (g). If a chapel to a monastery has, since the dissolution, always been used as a parish church, the ordinary may have the disposition of the seats there, though he had it not before. So if an aisle of the church be always repaired at the charge of the parish, the ordinary may likewise dispose of the seats there (h). The ordinary cannot grant a seat in the body of the church to a man and his heirs, without annexing it to some particular messuage within the parish; for that would tend to the injury of the parishioners, who by such means might eventually be wholly excluded from the parish church, which would be filled with strangers. (f) Watson, cap. 39. (h) 2 Cro. 366. |