Proprietary chapels.

Building new cha

pels.

Chapelry a benefice.

Chapelry. How far exempt from parochial church rates.

With regard to building chapels by subscription under the church-building acts, vid. 5 G. 4, c. 103, s. 5; 1 & 2 W. 4, c. 38, s. 2, post "Churches Building and Endowing."

By 1 & 2 Vict. c. 106, s. 124, the word "benefice" in that act is declared to comprehend "all endowed public chapels, parochial chapelries, and chapelries or districts belonging, or "reputed to belong, or annexed, or reported to be annexed, to any church or chapel."

66

It would seem that the building of chapels, the attendance on which was allowed as a discharge from attending at the mother church, were originally matters of grace and favour, and therefore, being for the ease and convenience of particular inhabitants, ought not to be attended with loss to the mother church, nor can be reasonably converted into a consideration to discharge them from repairs of the parish church. Godolphin says it is against common right that they who have a chapel of ease in a village should be discharged of repairing the mother church; Ab. 153; and so Gibson, Cod. 221. If they have seats in the mother church to go thither when they please, or receive sacraments or sacramentals, or marry, christen, or bury at it, there can be no pretence for a discharge; nor can any thing support that plea but that they have time out of mind been discharged, (which is doubted whether it be of itself a full discharge), or that in consequence thereof they have paid so much towards the support of the church, or the wall of the church-yard, or the keeping a bell, or the like composition, which are clearly a discharge; and vid. 2 Roll. Ab. 290; but nothing short of a prescription will be sufficient. If a chapel be three miles from a parish church, and the inhabitants have used to come to the chapel to repair it, and there to marry and bury, and have never within sixty years been charged to the repair of the parish church, yet it is no cause for prohibition, but they ought to show in the spiritual court their cause of exemption, if they have any upon the endowment. 2 Roll. Ab. 290. Where the inhabitants of a chapelry were prosecuted in the spiritual court for non-payment of rates for the repairs of the parish church, and the case was, that those of the chapelry never had contributed but still always buried in the mother church till about Hen. 8, when the bishop was prevailed on to consecrate them a burial ground, in consideration of which they agreed to pay towards the repair of the mother church, all which appeared in the libel; Holt, C. J. held "that those of a chapelry may pre"scribe to be exempt from repair of the mother church, as " where it buries and christens within itself, and has never con"tributed to the mother church, for then it shall be intended "co-eval, and not a later erection in case of those of the cha"pelry; but here it appears that the chapelry could only be in

"ease and favour of those of the chapelry, for they buried at Chapelry. "the mother church till Hen. 8." 1 Salk. 145.

How far ex

church

rate.

Also in the case of Aston Parish v. Castle Bremridge. The empt from inhabitants of the precinct, called Bremridge, resorted to the parochial chapel there, which was situated in the parish of Aston. There they married, and christened, and received sacraments and sacramentals, and had churchwardens there and a perambulation there of itself; but they buried not there but at Aston, and the parsonage being appropriate, the vicar found them a curate at his charge to serve the chapel. The church at Aston being in decay, the parishioners of Castle Bremridge were taxed towards the reparation thereof with the rest of the parish of Aston and obtained a prohibition on a surmise that there was a chapel parochial, and that they alone had used time out of mind to repair at their own charge, and by reason thereof had been discharged of the reparation of the church, yet they confessed they were within the parish and buried there. Now the prohibition was refused; for it was apparent to the court that they were to all purposes part of the parish of Aston, and, therefore, de communi jure, liable to reparation with the rest; for, though they had this chapel for their ease, yet they might resort if they would to the mother church, and the reservation of burial was a saving of the old right, and no doubt but the vicar might serve them in person at their chapel as well as his curate. Hob. 66; as to repairs of churches generally, post 165. With regard to the repairs of churches and chapels built Repairs. under the church-building acts, it is enacted by 58 G. 3, c. 45, District s. 70, that the repairs of all the churches and chapels built churches under the authority of that act shall be made by the districts pels. to which they respectively belong by rates to be raised within such districts in like manner as in case of repairs of churches by parishes, and every such district shall be deemed in law a distinct parish for that purpose. The repairs of all chapels not made district churches shall be churches or chapels. made by the parish in or for which the chapel shall be built. By s. 71 it is provided that every district shall, for twenty Original years from the day on which the district church or chapel shall parish be consecrated, remain liable to the repair of the original parish church, and be deemed part of the original parish for all purposes of such repairs, and the making and levying rates for that purpose; and after the twenty years the parish church shall be repaired by the district of the parish left as belonging to it after the other divisions of districts are made; "and each district "shall for ever thereafter make, raise, levy, collect, and apply separate and distinct rates for repairs of the church or "churches, or chapels of the district, as if a separate parish."

and cha

Not made

district

church.

Consecration.
Service.

Ornaments.

Church.

Repairs.

tion.

Of the nave or body.

Of the chancel.

Lay impropriators.

Alterations and improvements.

Taking down.

Pews.

Pews.

Right to use in the inhabitants, to disposal of in the ordinary.
Prescriptive right to.

May be transferred.

Ör apportioned.

Action for disturbance at common law.

Declaration in.

Suit for perturbation of seat in the ecclesiastical court.

Right as against the ordinary.

As against an intruder.

Arrangement of.

By churchwardens as officers of the ordinary.
Their duties in respect of.

May not be let or sold at common law.

Pews under the acts for building and endowing churches. In churches built under the authority of 1 & 2 W. 4, c. 38. Churchwardens may be called on to justify their proceedings in a rule to shew cause before the ordinary. Churchwardens have no power independently of the bishop except by custom.

Quære, of such a custom.

In the chancel.

In an aisle.

Faculties for.

To a man and his heirs bad.

So annexing a pew to an estate.

Annexing a pew to a house out of the parish.

Of the evidence necessary to support a prescription.

Consecra WITH regard to the general foundation of churches, vid. ante, 1, "Advowson," and "Appropriation," note (a). The law

takes no notice of any building as a church, till it has been con- Consecrasecrated by the bishop. Gibs. Cod. 213.

In the church of England, every bishop is left to his own discretion, as to the form of consecrating churches and chapels. It is true there was a form drawn, by authority of convocation, in the year 1660 occasioned, as some think, by the offence taken at bishop Laud's ceremonious manner of consecrating St. Katherine Creed's church in London; but this form was neither authorised nor published. Again, in the year 1712, a form of consecrating churches and chapels, church-yards and places of burial, was sent down from the bishops to the lower house of convocation on the 2nd of April, and was altered by the committee of the whole house, and being reported to the whole house was agreed to with some alterations. This form never received the royal assent and therefore was not enjoined to be observed, but notwithstanding, it is generally used for the purpose; 1 Burn's E. L. 323, 325; and is the form which is given in some of the Common Prayer books. The form is fully given in 1 Burn's E. L. 326 et sqq. as is also a form of consecration of a church-yard, and vide generally on this subject, Gibs. Cod. 212, 213.

tion.

With regard to the service of the church, the general law, ac- Service. cording to the form prescribed in the book of Common Prayer, requires it to be regularly performed every Sunday in the morning and evening. If less duty is required, it is to be supposed that the relaxation has been adopted with the approbation of the diocesan, and has been permitted, owing to the circumstances of the parish, and as the service is to be performed for the use of the parishioners, such relaxation may be properly granted in certain cases; but if it be so granted, the minister must strictly adhere to the terms prescribed, and must not vary them at his own pleasure, for his own convenience, and on his own authority. It is the diocesan who is to judge of the degree of relaxation to be allowed. 2 Hag. 25.

vices,

58 Geo. 3,

c. 45.

By 58 G. 3, c. 45, s. 65, bishops are empowered to require Third serthat a third or additional divine service, being either the morning or evening service, shall be celebrated in the churches " and chapels existing at the time of the passing this act, or by "the celebration of a third or additional service as aforesaid, "with a third sermon in any church or chapel which may "be built or provided under the provisions of this act," post "Churches Building and Endowing."

And by 1 & 2 Vict. c. 106, s. 80, it is enacted that it shall 1 & 2 Vict. be lawful for the bishop, in his discretion, to order that there c. 106. shall be two full services, each of such services, if the bishop shall so direct, to include a sermon or lecture on every Sunday throughout the year, or any part thereof, in the church or chapel of every or any benefice within his diocese, whatever may be the

Service of annual value or population thereof; and also in the church or chapel of every parish or chapelry, where a benefice is composed of two or more parishes or chapelries, in which there shall be a church or chapel; if the annual value of the benefice arising from that parish or chapelry shall amount to one hundred and fifty pounds and the population to four hundred. Provided that nothing therein contained is to repeal or interfere with the above provision of the 58 G. 3, c. 45.

Power of

dens over the service.

If irregularities take place in the service of the church, it is the duty of the churchwardens to bring the matter before the court; 2 Hag. 25; but they have no authority to interfere with the church service.

Generally speaking, the duties of churchwardens are confined churchwar to the care of the ecclesiastical property of the parish, over which they exercise a discretionary power for specific purposes. In all other respects, it is an office of observation and complaint, but not of control, with respect to divine worship; so it is laid down in Ayliffe, Parerg. 170, in one of the best dissertations on the duties of churchwardens, and in the Canons of 1571. In these it is observed, that churchwardens are appointed to provide the furniture of the church, the bread and wine for the holy sacrament, the surplice, and the books necessary for the performance of divine worship, and such as are directed by law; but it is the minister who has the use. If, indeed, he errs in this respect, it is just matter of complaint, which the churchwardens are obliged to attend to; but the law would not oblige them to complain, if they had a power in themselves to redress the abuse.

In the service, the churchwardens have nothing to do, but to collect the alms at the offertory; and they may by authority of the Canon 50, 1603, refuse the admission of strange preachers into the pulpit. But if letters of orders are produced, their authority ceases. So if the minister introduces any irregularity into the service, they may complain to the ordinary of his conduct, but they have no authority of themselves to interfere. There may be cases where they are bound to interpose; in such they may repress, and ought to repress indecent interruptions of the service by others, and are the most proper persons to repress them, and they desert their duty of they do not. And if a case could be imagined, in which even a preacher himself was guilty of any act grossly offensive, either from natural infirmity or from disorderly habits, not only might the churchwardens, but even private persons, might interpose to preserve the decorum of public worship. But such must be a case of instant and overbearing necessity, that supersedes all ordinary rules. In cases which fall short of such a pressure, and can await the remedy of a proper legal complaint, that is the only proper mode