53 & 54 Vict. c. 5. Appointment, licence, and salary of chaplain. Duties of. Superannuation allowance. Transfer to another asylum. burial grounds attached to such asyla. These provisions have now been superseded by the enactments following: By sect. 276 of the Lunacy Act, 1890 (53 & 54 Vict. c. 5), "(1.) The visiting committee of every asylum shall appoint "(a) A chaplain who shall be in priest's orders and shall be licensed by the bishop of the diocese; "(2.) The visiting committee may appoint a minister of any religious persuasion to attend patients of the religious persuasion to which the minister belongs. "(3.) The committee may remove any person appointed under this section, and if the office of chaplain, medical officer, superintendent, clerk, or treasurer becomes vacant, the committee shall appoint a person to fill the vacancy, subject to the restrictions affecting the original appointment, and they may in their discretion fill any vacancies among other officers and servants of the asylum. 66 (5.) The salaries, wages, and remuneration of every person appointed under this section shall be fixed by the committee." By sect. 277, " (1.) The licence of a chaplain of an asylum shall be revocable by the bishop. "(2.) The chaplain or his substitute approved by the committee shall perform in the chapel of the asylum or in some other convenient place belonging to the asylum divine service according to the rites of the Church of England on every Sunday, Christmas Day, and Good Friday. He shall also perform divine service and such other services according to the rites of the Church of England as the committee direct at such times as they appoint. "(3.) If a patient is of a religious persuasion differing from that of the Established Church, a minister of his persuasion at the request of the patient or his friends, may, with the consent of the medical officer and under such regulations as he approves, visit the patient." By sect. 280, "(1.) The visiting committee may grant to any superintendent, chaplain, matron, or other officer or servant of the asylum who is incapacitated by confirmed illness, age or infirmity, or who has been an officer or servant in the asylum for not less than fifteen years and is not less than fifty years old, such superannuation allowance as the committee think fit. . . . "(3.) A superannuation allowance shall not exceed two-thirds of the salary paid to the superannuated person at the date of superannuation and such further sum (if any) as the visitors think fit to grant having regard to the value of the lodgings, rations and other allowances enjoyed by the superannuated person.' By sect. 282, "When any officer is transferred from one asylum to another wholly or in part belonging to the same local authority, his service in all such asylums shall be counted for the purpose of computing his pension superannuation allowance or gratuity for length of service as if all such asylums had constituted only one asylum." Justices. The case of Reg. v. The Middlesex Justices (ƒ), decided on the Regina v. construction of the then statute 9 Geo. 4, c. 40, ruled that the The Middlesex visitors of a lunatic asylum might dismiss their chaplain without the consent of the bishop. In the course of his judgment Mr. Justice Coleridge made the following remarks, which may be important as to the construction of the present act: "It is not reasonable to argue this question as if the only duties incumbent upon the chaplain were the performance of service on Sundays, and the great festivals, as prescribed in sect. 32. That is not a fair interpretation. Can it be supposed that the chaplain is not also to give spiritual advice and consolation to the patients in proper cases? If such a construction as this is required, the inference must be that the argument cannot be supported." Fourthly, as to chaplains to cemeteries. Cemeteries. By 10 & 11 Vict. c. 65 (The Cemeteries Clauses Act, 1847), 10 & 11 Vict. any cemetery company incorporated by special act of parliament c. 65. may make provision for establishing a chaplain for their cemetery as follows: with consent Sect. 27. "The company shall from time to time, with the Chaplain to approval of the bishop of the diocese in which the cemetery is be appointed situated, appoint a clerk in holy orders of the Established Church of the bishop. to officiate as chaplain in the consecrated part of the cemetery; and such chaplain shall be licensed by and be subject to the jurisdiction of the said bishop, and the said bishop shall have power to revoke any such licence and to remove such chaplain for any cause which appears to him reasonable." service when Sect. 28. "The chaplain shall, when required, unless prevented Chaplain to by sickness or other reasonable cause, perform the burial service perform burial over all bodies brought to be buried in the consecrated part of required. the cemetery which are entitled to be buried in consecrated ground according to the rites and usage of the Established Church." Established officiate. Sect. 29. "Any clerk in holy orders of the Established Church, Other clergynot being prohibited by the bishop, nor under ecclesiastical cen- men of the sure, at the request of the executor of the will of any deceased Church may person, or any other person having the charge of the burial of be allowed to the body of any deceased person, and with the consent of the chaplain for the time being of the cemetery, or if there be no chaplain with the consent of the bishop, may perform the said burial service over such body in the consecrated part of the cemetery." Sect. 30. "The company out of the moneys to be received by virtue of this and the special act, shall allow to the chaplain of the cemetery for the time being such a stipend as is approved of (f) 2 Q. B. p. 433. Company to pay the chapÎain a stipend approved by the bishop. Chaplains politan burial acts. by the bishop of the diocese in which the cemetery is situated, which shall be payable by equal moieties on the 25th day of March and the 29th day of September in each year; and if any chaplain die, resign, or be removed or appointed, in the interval between the half-yearly days of payment, the company shall pay to him, or his executors or administrators, a part only of the half-yearly payment of the stipend proportioned to the time during which he shall have been the chaplain since the last preceding day of payment." By sect. 31, this stipend may be recovered by action at law. By sect. 32, the chaplain is to register the burials in the consecrated part of the cemetery. By sect. 39 of 15 & 16 Vict. c. 85, "An Act to amend the under metro- Laws concerning the Burial of the Dead in the Metropolis" (which incorporates the previous act), the bishop of the diocese may confirm any arrangement of which a majority or in the case of equal numbers one-half of the incumbents concerned approve for paying a chaplain to a burial-ground provided for the common use of two or more parishes, either by salary or by a portion of the fees. Sect. 7 of 20 & 21 Vict. c. 35, provides that the chaplain or chaplains appointed for the burial ground belonging to the parishes in the City of London under the last act shall conform to all such regulations laid down by the Commissioners of Sewers as shall not interfere with the performance of the funeral service according to the order of the church. THE Common law, to the intent that ecclesiastical persons might Not bound the better discharge their duty in the celebration of divine service, to serve in a temporal and not be entangled with temporal business, has provided that office. they shall not be bound to serve in any temporal office (a). And although a man holds lands or tenements, by reason whereof he ought to serve in a temporal office, yet if this man be made an ecclesiastical person within holy orders, he ought not to be elected to any such office; and if he be, he may have the king's writ for his discharge (b). And this, although it be an office which he may execute by deputy: Thus in the Case of the Vicar of Dartford, in 12 Geo. 2, the court granted to him a writ of privilege against serving the office of expenditor to the commissioners of sewers, though it was insisted that this was an office which might be executed by deputy (c). The general canon law forbids secular offices and employments to persons in holy orders. So do the following English constitutions (d) : "No clergyman shall be an advocate in the secular court in a English cause of blood, or in any other cause but such as are allowed by canons. law. And if any shall do otherwise, if it be in a cause of blood, he shall be ipso facto suspended from his office; and if in any other cause, he shall be punished by his diocesan according to his discretion. And in causes of blood which shall extend to 1 Inst. p. 96. 2 Inst. p. 3. (d) For the ancient canon law on this subject, see Thomass. vol. iii. pt. 1, lib. 3. Employment under the crown. life or member, we do strictly enjoin that no clergyman presume to be a judge or an assessor; and he who shall act contrary hereunto, besides the suspension from his office, which he shall ipso facto incur, shall be otherwise punished according to the discretion of his superior: From which sentence of suspension he shall by no means be absolved by his diocesan, until he shall have made competent satisfaction" (e). And, more particularly, another constitution of the same legate: "Whereas it is unbecoming for clergymen employed in heavenly offices to minister in secular affairs; we think it sordid and base, that certain clerks greedily pursuing earthly gain and temporal jurisdictions, do receive secular jurisdiction from laymen, so as to be named justices, and to become ministers of justice, which they cannot administer without injury to the canonical dispositions, and to the clerical order: We, desiring to extirpate this horrid vice, do strictly enjoin all rectors of churches and perpetual vicars, and all others whatsoever constituted in the order of priesthood, that they receive no secular jurisdiction from a secular person, or presume to exercise the same; and if they do, they shall relinquish the same within the space of two months, and never resume it; and whosoever shall attempt anything contrary to the premises, shall be ipso facto suspended from his office and benefice; and if he shall intrude into his office or benefice during such suspension, he shall not escape canonical vengeance, which shall not be relaxed until he shall have made satisfaction at the discretion of his diocesan, and taken an oath that he will not do the like again. Saving the privileges of our lord and king in this behalf" (f). Which saving has been said to have entirely defeated the constitution (g). And in the former constitution there is also a saving for such causes as are allowed by law. But if those savings had not been expressed, yet it is certain that the constitution could not have altered the law of the land in this respect. The kings of England in all ages have asserted and still possess a right to employ what subjects they please, of the clergy as well as laity, in any post of civil government; and, in fact, many clergymen have been chancellors, treasurers, and even chief justices of the King's Bench, and consequently must have sate judges in cases of life and death (h).` And where a petition was made to the crown that an ecclesiastical person should not be chancellor, treasurer, clerk of the privy seal, baron of the exchequer, chamberlain of the exchequer, comptroller, &c., the king answered, that he will do as he thinks fit (i). All the chancellors of England, from the time of Becket to Wolsey, were either civilians or ecclesiastics. Walter De Otho. Athon, p. 91. f) Ibid. p. 89. (g) Johnson's Canons, vol. ii., p. 220. (h) 1 Black. Com. sect. 1, p. 17. (i) 2 Roll. Abr. p. 221. |