General Incumbent how vindi cated by the Ecclesiastical lord and freeholders of a manor, and though the right of nomination was given by the archbishop in his deed of consecration to the inhabitants, and the vicar of the mother church at the time declared he had no right to nominate, and though the inhabitants had repaired and nominated for ninety years, his lordship decreed the right of nomination to belong to the vicar, there being neither an agreement by deed between the bishop, patron, and incumbent, or evidence of a prescriptive title in the inhabitants (y). [Lord Tenterden, observing on this case, remarks, “In Dixon v. Kershaw Lord Northington says that a mere arbitrary agreement made even with the consent of the parson, the patron, and the ordinary, without a compensation to the mother church, will not be sufficient; perhaps this expression requires some qualification; and where nothing is taken from the income of the incumbent, the consent of the parson, patron, and ordinary, without a compensation, may be sufficient (z).” "Chapels," says Sir J. Nicholl, in Moysey v. Hillcoat (a), "possess no parochial rights unless acquired by composition with the patron, incumbent, and ordinary." And in Bliss v. Woods (b), the same learned judge adds, "without a provision for the indemnity or compensation of the future incumbent, perhaps in all cases, certainly if his pecuniary rights and interests are to be in any manner affected." [There is no general principle of ecclesiastical law more Rights of the firmly established than this: that it is not competent to any over Chapels, clergyman to officiate in any church or chapel within the limits of a parish without the consent of the incumbent. See the leading cases on this cardinal point of ecclesiastical law: The Duke of Portland v. Bingham (c), referred to under Appropriation; Carr v. Marsh (d); Moysey v. Hillcoat (e); Bliss v. Woods (f); Williams v. Brown (g), and the very recent case of Hodgson v. Dillon (h). In most of these cases the office of the judge was promoted, i. e. a criminal suit was instituted by the incumbent against another clergyman for unlawfully officiating within the limits of his parish, and it is obvious that the practical effect of the suit was generally to ascertain the character of the chapel, whether chapel of ease, free, private, or the two other kinds which are the growth of more modern times,— district and proprietary. In Williams v. Brown, decided 1835, Dr. Lushington said, "Although the form of the suit is a criminal one, I apprehend that all that is sought to be deter (y) Dixon v. Kershaw and others, Amb. 528. (z) [Farnworth v. The Bishop of (a) [2 Hagg. 49.] (c) [1 Consist. R. 157.] (f) [3 Hagg. 486.] (g) [Curteis, i. 54.] (h) [7 May, 1840.] Incumbent how vindi Courts. mined upon the facts before the court is, the rights of the General respective parties." After citing several of the above cases, he Rights of the continues, "I could entertain no doubt that this court had over Chapels, jurisdiction and the power of expressing its opinion upon the cate by the question. But I will state candidly the difficulty which presented Ecclesiastical itself to my mind, which was this: in the course of this discussion I might perhaps be trying incidentally the right to a perpetual curacy, and there was a doubt in my mind whether the court was competent to come to a decision upon the point; at least, whether it would not have been open to either party to have applied for a prohibition if the court proceeded. However, the authorities which I have mentioned of cases in these courts, and which have not been in the slightest degree impugned-no prohibition having been applied for-are sufficient to warrant me in considering the circumstances of this case." [Keate v. Bishop of London, Serj. Hill's MSS.-Keate was libelled against in several articles at the promotion of the rector of St. George's, Hanover Square, for baptizing, marrying, and administering the sacrament in a chapel in the parish without a licence from the bishop, and for collecting money in the chapel in the offertory and not paying the said money to the minister or churchwardens of the said parish. The court discharged a rule for showing cause why a prohibition should not go, for these are matters of spiritual conusance. [This seems to have been a case resembling in its main features Moysey v. Hillcoat (i). To the same effect is the following opinion given by Sir J. Nicholl, when consulted as to the consent requisite for the opening of a chapel: "A chapel for the performance of public worship according to the liturgy of the Church of England cannot be opened without the consent of the bishop, the minister of the parish, and, I think, the patron of the living, and such chapel should be consecrated. A clergyman performing divine service in such a chapel as is suggested, without a licence, is liable to be punished with ecclesiastical censures, and upon repeating the offence, I apprehend that suspension might be inflicted. "J. NICHOLL, 1795." [Sir J. Nicholl says, in 2 Hagg. 48, the incumbent of the parish has a right to perform divine service in any consecrated building within the parish; and again, in Carr v. Marsh, "By law no persons can procure divine service to be administered without the consent of the incumbent and the licence of the bishop (to which, in some instances, must be added the consent of the patron), and the person officiating without such consent is liable to ecclesiastical censures." In these two last cases the nature of unconsecrated proprietary chapels was discussed. (i) [2 Hagg. 30.] Proprietary Bishop has absolute power of revoking a Licence to officiate in an Unconse. crated Chapel. These are anomalies unknown to the ecclesiastical constitution of this kingdom, and can possess no parochial rights. The two principal decisions upon this subject are Moysey v. Hillcoat, and Hodgson v. Dillon, already referred to. The substance of the former case was as follows: a chapel being built shortly before 1735 by private subscription, and the subscribers agreeing out of the pew-rents to pay the rector of the parish a yearly stipend for performing divine service, a licence was obtained from the bishop to the rector and his successors, who from time to time performed therein parochial duties; but there being no proof of consecration, nor of any composition between the patron, incumbent, and ordinary, such chapel was held merely proprietary, and the minister, nominated by the rector of the parish, cannot perform parochial duties therein, nor distribute the alms collected at the Lord's Supper (j). The case of Hodgson v. Dillon decided that the bishop has the power of revoking absolutely and discretionally licences to officiate in unconsecrated chapels. During the course of this judgment, Dr. Lushington said, "I think that the principle on which the law of the Church of England stands is this, no clergyman whatever of the Church of England has any right to officiate in any diocese in any way whatever as a clergyman of the Church of England unless he has a lawful authority so to do, and he can only have that authority when he receives it at the hands of the bishop, which may be conferred in various ways; as by institution in the case of a benefice by licence where the party is a perpetual curate; and by licence when the clergyman officiates as stipendiary curate. I need not say the ancient canon law of this country knew nothing of proprietary chapels or unconsecrated chapels at all. The necessity of the times, and want of accommodation in the churches and chapels in the metropolis and other large towns, gave rise to the erection of chapels of this kind, and to the licensing of ministers of the Church of England to perform duty therein. The licence emanates from his episcopal authority; he could not, however, grant such a licence without the consent of the rector or vicar of the parish." The learned judge proceeded to say that the bishop may revoke such licence whenever he thinks fit, according to a discretion not examinable by the ecclesiastical judge; and that it is not in the power of the bishop to estop himself from such a remedy, or to confer a permanent right against himself (k). It should seem that it is at any time competent to the proprietors of an unconsecrated chapel to convert it to secular purposes (1). We come now to the consideration of the last species of chapels, those erected under the authority of the 7 May, 1840.—ED.] (1) [2 Hagg. 50.] (j) [2 Hagg. 30.] (k) [Interlocutory decree in the Consistory of London, Easter term, various Church-Building Acts, and usually designated District District Chapels (1). [By 59 Geo. 3, c. 134, s. 16, Chapels under ChurchBuilding Acts. Districts to care of ["It shall be lawful for the commissioners in the same manner Commissionand with the like consents as are required in case of division into my assign ecclesiastical districts under the 58 Geo. 3, c. 45, or this act, to Chapels under assign a particular district to any chapel of ease or parochial Curates. chapel already existing, or to any chapel built or which may hereafter be built or acquired under the powers of the said act or this act; and such district shall be under the immediate care of the curate appointed to serve such chapel, but subject nevertheless to the superintendence and controul of the incumbent of the parish church, and all such curates shall be nominated by the incumbent of the parish, to the bishop for his licence, except where the right of nomination shall already be legally vested in any other person or persons, and in every such case by the person or persons possessing such right of nomination, subject to all the laws in force relating to stipendiary curates, except as to the assigning of salaries to such curates Provided always, that it shall be lawful for the commissioners, with the consent of the bishop of the diocese, to determine whether any and what part or proportion of the fees or dues for marriages, baptisms, churchings and burials, shall be assigned to any such curate, and whether banns of marriage shall be published and marriages or baptisms, churchings or burials, shall be solemnized or performed in any such chapel or not; and in any case in which marriages shall be allowed in any such chapel, the Commissioners shall cause the boundaries of the district assigned to such chapel to be enrolled in the High Court of Chancery, and in the office of the registry of the diocese, any thing in the said recited act to the contrary notwithstanding." [The remainder of this clause was, as has been shown under the title Benefice, Augmentation of, repealed by s. 1 of 2 & 3 Vict. c. 49.] [By 3 Geo. 4, c. 72, s. 16, vert District into separate or District Parishes. ["It shall be lawful for the commissioners, and they are hereby Commissionempowered, with the consent of the ordinary and the patron and ers may conof the incumbent of the parish for the time being, or in case of the Chapelries refusal of any incumbent, then with the consent of the ordinary upon the next avoidance, to convert any district chapelry made under the provisions of the said recited acts into a separate and distinct parish for ecclesiastical purposes, or into a district parish under the said acts, in any case in which a suitable house of residence, and such maintenance as the said commissioners shall deem competent, can be procured and established for the use of the minister of such separate and distinct or district parish so to be made, and his successors, and in which a compensation shall be Lushington's judgment in Varty and Mopsey v. Nunn, 5 Jurist, 1138.] DD 3 () [As to the distinction between District and Distinct Parishes created by the Church-Building Acts, see Dr. VOL. I. provided to the satisfaction of the commissioners and the then incumbent of the parish, for all fees, oblations, offerings, and other ecclesiastical dues which may by such conversion be transferred to the minister of such separate and distinct or district parish so to be made; and every such conversion shall be made under the seal of the said commissioners, and registered in the registry of the diocese in which the parish shall be locally situate, and enrolled in the High Court of Chancery, and duplicate therefore shall be lodged in the chest of the original parish church, and in the church or chapel of the separate and distinct or district parish." [By 1 & 2 Vict. c. 107, s. 12, ["Whereas by the 58 Geo. 3, c. 45, s. 16, it was enacted, that it should be lawful for his Majesty in council, if he should judge fit, on a representation to be made to him by the commissioners of the expediency of the same, with the consent of the bishop of the diocese and the patron, to direct by an order in council, the division of any parish into two or more distinct and separate parishes, for all ecclesiastical purposes whatever: And whereas it was by the said last-recited act also enacted, that it should be lawful for his majesty in council, if he should judge fit, on a representation to be made to him by the said commissioners, with the consent of the bishop of the diocese in like manner, in any case in which they should be of opinion that it was not expedient to divide any populous parish or extra-parochial place into such complete, separate, and distinct parishes as aforesaid, by an order in council to direct the division of the same into ecclesiastical districts: And whereas it may be found expedient to divide off from any parish or extraparochial place any part or parts thereof, and to form the same, at once or at different times, into a distinct and separate parish or parishes, and into a district parish or district parishes, and district chapelry or chapelries, or to make such extra-parochial place, or any part thereof, a district parish; be it therefore enacted, that it shall be lawful for her Majesty in council, when she shall judge fit, on a representation to be made to her by the said commissioners of the expediency of the same, to direct, by an order in council, the dividing off from any original parish or extra parochial place any part or parts thereof, and forming the same into a distinct and separate parish or distinct and separate parishes, or into a district parish or district parishes, either at the same time or at separate times, and to make any extra-parochial place, or any part thereof, a district parish or district chapelry, or a part of such district parish or district chapelry, and also at any time to direct the dividing off any such separate and distinct parish or district parish so formed into other distinct and separate or district parish or parishes, or district chapelry or chapelries; provided always, that all such divisions, and all parishes so divided, shall respectively be under and subject to the like consents and to the same rules and regulations as are provided in the said recited acts or this act with respect to distinct and separate parishes, and district parishes and district chapelries respectively; and that the nomination to the chapel of a chapelry district so taken from any distinct and separate parish or |