CHAPTER V. THE PROPERTY IN THE PARISH CHURCH AND INCUMBENT'S RESIDENCE. Parson's freehold estate in the church. The parson of a parish when once instituted and inducted is deemed by the law to become seised of the freehold of the church for most purposes; and it is now necessary to notice the particulars of which this freehold consists, and the constituent parts of the church itself, and its interior fittings, for all these subjects are regulated either by the common law or by statutes. The nature of the property held by the priest of a parish must have been at first vaguely understood. Bracton, indeed, said that things sacred, religious, and hallowed, were not the property of any man, but the property of God, such as cups, crosses, censers, which it is forbidden to alienate except to redeem captives.1 But such a theory of property obviously could not be acted on. The feudal relation which had then become well settled and understood as to other kinds of property suggested a species of tenure which was adapted to sacred subjects. Frankalmoigne was the kind of tenure proper to the church, being a commutation for military service, allowed to priests, who were excused from doing fealty to any lord-as Littleton said, "because divine service is better to them before God than doing of fealty." And this tenure, though founded on the duty of saying masses, was held to be not changed by the substitution of performing divine service in accordance with the Prayer Book.2 The nature of the incumbent's property was always treated as of a freehold character, 2 Co. Litt. 95b. 1 Bract. b. i. c. 12. though, as will be found, that freehold is subject to many peculiar restrictions which mark out the property of the clergy from secular possessions. The church itself was the most considerable part of the rector's official property, and there were things used in the church which have in modern times, as well as Reformation times, caused many disputes. Consecration of churches.-The churches and chapels set apart for the celebration of divine service in the Church of England are all, except in the case of proprietary or subscription chapels, consecrated in the first instance, and if not so, most of them are at least licensed by the bishop. And one remarkable characteristic of the parish church is, that an ordained minister commits an ecclesiastical offence, if he celebrate public worship in other than consecrated or licensed buildings. The consecration of a church seemed always to be treated as a notable fact in its history, though no particular form was used till about the fourth century, when unusual interest attended the ceremony. And Justinian's law declared, that no church was to be begun, till after the bishop had made a solemn prayer and fixed up the sign of the cross.2 And still further, no church was to be built till security was given for its endowment.3 The notion of consecration naturally led to a punishment for desecration; and the charity feasts called agapae were forbidden by the Council of Laodicea to be held in churches. In the ninth century the consecration of a church seemed to be one of the chief duties of the bishop, and the name of the saint to whom it was dedicated was to be written on the altar, or the wall, or a table.5 This consecration of a church is deemed in the eye of the law not only essential but indelible. Hence difficulties have occurred as to whether this sanctity is lost by the church being rebuilt, or at least by being rebuilt, not entirely on the same lines. Formerly it was doubted sometimes, whether the rebuilding of a church, even within 1 Freeland v Neale, 1 Rob. Ec. 643; Barnes v Shore, 1 Rob. Ec. 382; Kitson v Drury, 11 Jur. N. S. 272. In 1725 it was estimated that there were 9,284 churches for the service of the Church of England; in 1851 there were 14,077; in 1873 there were 15,758. 2 Just. Nov. 131, c. 7. 3 Just. Nov. 67, c. 2; Anselm's Can. 4 Conc. Laodic. c. 28. 5 Wulf. Can. A.D. 816; 1 Wilk. 169. the same area, did not need reconsecration.1 But that doubt was wholly put an end to; and now, whenever a church or chapel has been once consecrated and is rebuilt, no reconsecration is needed, whether the external walls have remained entire or the position of the communion table has been altered.2 And not only must a church be consecrated, but the churchyard also.3 In cases, however, of additions to an existing churchyard, the consecration may be entirely effected by the bishop merely executing an instrument declaring it to be so. The rector's right to cut down the trees in the churchyard was restricted before the time of Edward I.5 This was in accordance with earliest notions, which treated the property as only an official life estate and nothing more. And the lay rector has the freehold in preference to the incumbent, who has it only for spiritual purposes. 6 Repairs of church, and church rates.-While the freehold of the church and churchyard was deemed by the law to be vested in the rector, yet that this was little more than a name was proved, not merely by the restrictions already noticed as to selling and letting and burdening the property, but also by the incidence of the duty to repair, which in an ordinary freehold none other than the owner must discharge, if bound at all or inclined to do any repairs. One of the duties of the earliest order of bishops in this country was to set aside one fourth of his income for the repair of the church." And the like duty, after a diocese came to be subdivided into parishes, next devolved on the parish priest. It was in the tenth century still clearly the priest's duty, and his alone, to do the repairs. But in the eleventh century it began to be discovered, that it was the duty of all the parishioners, seeing that the church was for their common benefit.10 Coke says, that the canon law required the parson to repair the parish church, but the custom of the realm required the parishioners to undertake this duty, for the canon law did not bind the clergy.11 8 2 30 & 31 Vic. c. 133, 4 30 & 31 Vic. c. 133, § 1. 1 Parker v Leach, L. R., 1 Priv. C. 312. 3 Gibs. Cod. 190. § 12. 5 1 Stat. Realm, 211. 6 Greenslade v Derby, L. R., 3 Q. B. 421. Exc. A.D. 740. Ecgbright's 10 Cnut, L. Eccl. And this, he says, was one of the instances in which the statutes of Henry VIII. made for the clergy instead of against them. In working out this law, however, the greatest difficulty arose in modern times, when dissenters began to reflect, that the church was no longer for their benefit or advantage. Thus, though the law declaring it to be the duty of the parishioners to repair the church was as old as Canute, yet in the statute of 31 Edward III. (circumspecte agatis), it was also declared to be a matter for the court Christian to enforce, and that such court must not be interfered with. This, in effect, meant, that the remedy was not by mandamus, but merely by interdict and excommunication; and as these last became, in course of time, idle and impotent, the only remedy given became thereby lost for ever. The Ecclesiastical Court might single out one or two whose duty might be supposed to be clear, and punish them as contumacious by imprisonment; but how could they punish ten thousand inhabitant householders in the same way 22 The abortive attempts of churchwardens to persuade the inhabitants in vestry assembled to agree to this voluntary tax, became so frequent and caused so much irritation in parishes, that the legislature in 1868 intervened, and altogether abolished for ever the compulsory payment by the whole inhabitants of these church-rates.3 Church bells, organ, and holy table.-Church bells seem not to have been in use before the time of Bede, in the seventh century. They are, however, referred to in the canons, as if deemed necessary to summon the congregation to church. The exclusive control over the bell is vested in the incumbent, and to ring it against his wish is an ecclesiastical offence which is punished usually with costs. Though music in church services was known from the earliest times, yet instrumental music and organs were not used till the thirteenth century. The organ is, however, not deemed one of the things necessary for the church, and hence the parishioners were not bound by the 5 1 159 Parl. Deb. (3) 641. 6 2 Per L. Wensleydale, 151 Parl. Deb. (3), 850. 3 31 & 32 Vic. c. 109. Some exceptions were made when the rate was made under a statute. 4 Bing. Chr. Ant. b. viii. c. 7. 5 Daunt v Crocker, L. R. 2 Eccl. 41. Ant. b. viii. c. 7. 6 Bing. Chr. common law to provide one. Nevertheless, a faculty to erect one, when it was provided by subscribers, as has been a frequent occurrence, was always readily granted, after which the parish, as a natural consequence, became bound to repair it during those days when church-rates were compulsory. And when an organ is made part of the fabric, then the incumbent has the exclusive control over it; and the organist, though appointed and paid by the vestry, cannot set up his own views as to the music during divine service in opposition to such incumbent.3 In the primitive church, the altar and the Lord's table were convertible terms. But after the Reformation new views came to be entertained. And under the laws now regulating that subject, it is held, that in order to exclude idolatrous uses, the table must be made not of stone, and immovable, but of wood, and more or less movable.5 A credence-table, that is to say, a small side-table on which the bread and wine are placed before consecration, is also not illegal." Ornaments in churches.-The law relating to ornaments in churches has been for three centuries in a confused state. The doctrine relating to these ornaments has been arrived at after an examination of the state of things deemed legal in the time of Edward VI., for the rubric of the present Prayer Book, which is part of the statutory law, prescribed, "that such ornaments of the church and of the ministers should be retained as were in use by authority of parliament in the second year of Edward VI.;" in other words, according to the first Prayer Book of Edward VI. established in that year. And "ornaments," in this sense, have been interpreted to include vestments, books, cloths, chalices and patens, and other things mentioned in the various ecclesiastical constitutions. Some of these 1 Pearce v Hughes, 3 Hagg. Eccl. 10. 2 Jay v Webber, 3 Hagg. Eccl. 4; St. John's, Margate, 1 Hagg. Cons. 198. 3 Wyndham v Cole, 1 Prob. Div. 130. 4 Bing. Chr. Ant. b. viii. c. 6. 5 Faulkner v Lichfield, 1 Rob. Ecc. 184; Beal v Liddell, Moore Sp. Rep. Westerton Liddel, Moore Sp. Rep. A baldacchino or marble canopy supported on pillars over the communion table, and under which the celebrant priest may stand, has been treated as illegal.— White v Bowron, L. R. 4 Eccl. 207. 7 Lyndw. 251; 2 Phillim. Eccl. L. 929. |