Westminster. There are some decided cases of which it is difficult to say Herbert v. whether they relate principally to the category of perpetual Dean, &c. of curates or of the curates of chapels of ease. For instance, the case of Herbert v. Dean and Chapter of Westminster, 1721. In consequence of the plague which happened in the year 1625, the churchyard of St. Margaret's, Westminster, not being large enough to bury the dead parishioners, the inhabitants of that part of that parish which resorted to the new chapel built there, petitioned the dean and chapter of Westminster (who were lords of the manor and rectors appropriate of the parish) to grant them a waste piece of ground to bury their dead, which accordingly the dean and chapter did under their seals, and it was solemnly consecrated. Afterwards, these inhabitants were at the charge of building a chapel there, having first obtained a royal licence for that purpose. The vestrymen and chapelwardens had, ever since the year 1653, elected the ministers who were to preach there; but now the dean and chapter of Westminster claimed a right to name the minister who should preach and do divine service in this chapel. On a bill brought apparently by the vestrymen and chapel wardens to settle the right of nominating the parson of this chapel, Lord Macclesfield, Lord Chancellor, on an interlocutory application, seems to have inclined in favour of the plaintiffs. But afterwards, on the hearing, he decreed that the right of nomination of the minister did belong to the dean and chapter (7). In Dixon v. Kershaw, Lord Northington held that whenever Dixon v. a chapel of ease is erected, the incumbent of the mother Kershaw. church is entitled to nominate the minister, unless there is a special agreement to the contrary which gives a compensation to the incumbent of the mother church, or a prescription, in which everything is presumed to have been proper (m). And in that case, though the chapel was erected and endowed by a grant of lands from the lord and freeholders of a manor, and though the right of nomination was given by the archbishop in the 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, as there was no agreement by deed between the bishop, patron, and incumbent, nor evidence of a prescriptive title in the inhabitants. There are various other cases in which, according to the special Right of circumstances proved, the inhabitants of a parish have or have nomination. not been holden to be entitled to nominate the perpetual curate or the minister of a particular chapel (n). () 1 P. Wms. p. 773. (m) Amb. p. 528. (n) Faulkner v. Elger, 4 B. &. C. p. 449; Arnold v. Bp. of Bath and Wells, 5 Bing. p. 316; Ken. Paroch. Ant. p. 589; Att.-Gen. v. Forster, 10 P. VOL. I. Vesey, p. 335; Farnworth v. Bp. of R Augmented perpetual curacies. Perpetual curacies are benefices. Present sub Dr. Burns observes that, with regard to such of the perpetual curacies as have been augmented by the governors of Queen Anne's bounty, there is no doubt but by the act of parliament here next following, the curates thereof are not removable at pleasure. That is, by 1 Geo. 1, stat. 2, c. 10, s. 4, which makes all augmented churches perpetual cures and benefices and the ministers thereof bodies politic. And as to the rest, it should seem that such curacies are beneficia ecclesiastica. Lord Coke says, beneficium is a large word, and is taken for any ecclesiastical promotion or spiritual living whatever (p). And Dr. Gibson, observing upon the case of Wood v. Birch (g), where it was held that the curate was removable at the will of the parson, and consequently could not prescribe, says this is true of an assistant curate to a resident rector or vicar, but not of a curate properly speaking, who has the curam animarum committed to him pro tempore by the bishop in the absence of the incumbent (r). And in the case of perpetual curacies in particular, the Court of King's Bench will grant a mandamus to the bishop to admit and licence a curate, which implies a right in the person nominated to such office of promotion; as was done by the court in the case of the dean and chapter of Carlisle with respect to the curacy of St. Cuthbert's. It only implies a right until the will is determined; for another at will may have a mandamus (s). The reasons which have sometimes induced the Court of King's Bench to refuse a mandamus in this case have arisen from the nature of that writ. But that a perpetual curacy was to be considered as a benefice with cure of souls, and that the curate must therefore have obtained the bishop's licence, and subscribe the Thirty-nine Articles and declaration of conformity, before he can be admitted to his benefice and maintain an action of money had and received for the profits of it, was the opinion of the Court of King's Bench in Powel v. Milbank (t). This case was afterwards litigated in the Court of Common Pleas. By the Clerical Subscription Act, 1865 (28 & 29 Vict. c. 122), scriptions and sects. 5, 7, 9, the same oaths and declarations are required of one about to be licensed to a perpetual curacy as of one about to be instituted to a rectory or vicarage (u). declarations. 1 Geo. 1, c. 10. Chapels of ease and perpetual curacies augmented. The 4th section of 1 Geo. 1, stat. 2, c. 10, referred to above, after reciting as follows:-Whereas the late Queen Anne's "bounty to the poor clergy was intended to extend not only to parsons and vicars who come in by presentation or collation, institution, and induction, but likewise to such ministers who come in by donation, or are only stipendiary preachers or curates most of which are not corporations, nor have a (p) 2 Inst. p. 29. (9) Nom. Birch v. Wood, 2 Salk. p. 506. (r) Gibs. p. 896. 2 Salk. pp. 428, 429. (t) 1 T. R. p. 399. (u) Vide infra, Chap. XI., sect. 7. legal succession, and therefore are incapable of taking a grant or conveyance of such perpetual augmentation" as is intended by the said bounty; "and in many places it would be in the power of the donor, impropriator, parson or vicar to withdraw the allowance now or heretofore before paid to the curate or minister serving the cure; or in case of a chapelry, the incumbent of the mother church might refuse to employ a curate . . . and might officiate there himself, and take the benefit of the augmentation. . . . and the maintenance of the curate or minister would be thus sunk instead of being augmented:" enacts in substance that all such churches, curacies, or chapels which shall be augmented by the governors of the said bounty, shall be from henceforth perpetual cures and benefices, and the ministers duly nominated and licensed thereunto shall be in law bodies politic and corporate, and have perpetual succession, and be capable to take in perpetuity; and the impropriators or patrons of any augmented churches or donatives, and the rectors and vicars of the mother churches whereunto such augmented curacy or chapel doth appertain, shall be excluded from receiving any profit by such augmention, and shall pay to the ministers officiating such annual and other pensions and salaries, which by ancient custom or otherwise of right but not of bounty they were before obliged to pay. And by sect. 6, for continuing the succession in such augmented Lapse. cures hereby made perpetual cures and benefices, and that the same may be duly and constantly served, if they shall be suffered to remain void for six months, they shall lapse in like manner as presentative livings. mented church By 2 & 3 Vict. c. 49, s. 2, "In the case of any church or 2 & 3 Vict. chapel which has already been or hereafter may be augmented c. 49. by the said governors of the bounty of Queen Anne, and for or Any aug to which any district chapelry has already been or hereafter may or chapel be assigned, whether before or after such augmentation under having a disthe provisions of the said recited acts or some of them, such trict to be a perpetual church or chapel, from and after such augmentation and the curacy, and assignment of such district chapelry, shall be and is hereby the minister declared to be a perpetual curacy and benefice; and the minister cumbent with duly nominated and licensed thereto, and his successors, shall not be a stipendiary curate, but shall be and esteemed in law to succession, be a perpetual curate, and a body politic and corporate, with &c., and to perpetual succession, and may receive and take to himself and cure of souls his successors all such lands, tenements, tithes, rentcharges, and within the hereditaments as shall be granted unto or purchased for him or them by the said governors of the bounty of Queen Anne or otherwise; and such perpetual curate shall henceforth have within the district chapelry so assigned as aforesaid sole and exclusive cure of souls, and shall not be in any wise subject to the control or interference of the rector, vicar, or minister of the parish or place from which such district chapelry shall have been taken, any law or statute to the contrary notwithstanding." have exclusive district. Qualification tion of incumbents. Sect. 5 saves all the powers and privileges given by 1 Geo. 1, stat. 2, c. 10. By these statutes the augmented chapels, being expressly made and nomina- perpetual cures and benefices, if the incumbents of such chapels have not before such augmentation been qualified, or qualified themselves, according to the requisites above specified for perpetual curates, it may be advisable, upon such augmentation made, that they be nominated de novo, and then perform the several particulars within the time required, which nomination may be in this or the like form : Form of nomination. "To the right reverend father in God, C. lord bishop of — A. B. of- gentleman, sendeth greeting: Whereas the curacy of the chapel of - in the county of , and in your lordship's diocese of is augmented, or shortly intended to be augmented, by the governors of the bounty of the late Queen Anne, for the augmentation of the maintenance of the poor clergy; by reason whereof it is requisite that a curate should be duly nominated and licensed to serve the said cure, pursuant to the statute in that case made, I, the said A. B., do hereby nominate C. D., clerk (the person employed by me in serving the said cure), to be curate of the said chapel of and do humbly pray your lordship to grant him your licence to serve the said cure, and to perform all divine offices therein accordingly. In witness whereof I have hereunto set my hand and seal, the in the year of our Lord (x). day of Rights of per- The perpetual curate of an augmented parochial chapelry may petual curate maintain trespass for entering the chapel and destroying pews (1). in his chapel. The chapelwarden of such a chapelry may not, without the consent of the perpetual curate, remove pews (z). It is a question of fact in each case whether a perpetual curate has possession of the churchyard for other than spiritual purposes (a). Chapels of institutions. Origin of curates in chapels of ease. SECT. 3.-Ministers of Chapels of Ease. The position of ministers of chapels belonging to any college school, hospital, asylum or public or charitable institution is now regulated by the terms of a bishop's licence granted under the act 34 & 35 Vict. c. 66, and will be found treated of later (b). When by long use and custom parochial bounds became fixed and settled, many of the parishes were still so large that some (x) Ecton, p. 460. (y) Jones v. Ellis, 2 Y. & J. p. 265. (a) Greenslade v. Darby, L. R. 3 Q. B. p. 421. (b) Infra, Part VI., Chap. III., sect. 5. of the remote hamlets found it very inconvenient to be at so great a distance from the church, and, therefore, for the relief and ease of such inhabitants, a method obtained of building private chapels or oratories, in which a capellane was sometimes endowed by the lord of the manor, or some other benefactor, but generally maintained by a stipend from the parish priest (c). But in order to authorize the erecting of a chapel of ease, the Consents joint consent of the diocesan, the patron and the incumbent (if necessary. the church was full) were all required (d). The form of a nomination to a chapel of ease may be to this Form of effect : "To the right reverend father in God lord bishop of A. B. of&c. sendeth greeting: Whereas the curacy of in the county of and diocese of is now void by the death of C. D. last incumbent there, and doth of right belong to my nomination: These are humbly to certify your lordship that I do nominate E. F. clerk to the curacy aforesaid; requesting your lordship to grant him your licence for serving the said cure. In witness whereof I have hereunto set my hand and seal, the in the year of our Lord day of nomination ease. On this subject Sir John Nicholl gave the following opinion: Opinion of Sir "A chapel for the performance of public worship according J. Nicholl. 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." And in several cases which came before him as judge he laid down the law to the same effect (e). The latest is Bliss v. Woods (f), in which he said: "I conceive that by the general law and customs of the Church of England no person has a right to erect a new public chapel, forming part of the ecclesiastical establishment of the Church of England, whether as a chapel of ease or otherwise, without the concurrent consent of incumbent, patron, and ordinary, and 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 way affected." Dr. Lushington adopted this statement of the law in Williams v. Brown (g). Bliss v. Woods. Ministers or curates of such chapels are capable of augmenta- Augmentation by Queen Anne's bounty (h). tion. It is not necessary in order to prevent a lapse that the appoint- No lapse. (c) Ken. Paroch. Ant. p. 587. (d) Ibid. p. 585. (e) Carr v. Marsh, 2 Phillim. p. 198; Moysey v. Hillcent, 2 Hagg. Eccl. p. 30; vide infra, sect. 4. See p. 242, supra. |