Punishment for the same offence in ecclesiastical court. Vaults in churches and churchyards. Proceedings in the ecclesiasti cal court to obtain a faculty for a vault. It was laid down by Lord Stowell in Hutchins v. Denziloe and Loveland (d), that a churchwarden may be sued in the ecclesiastical court, if, without obtaining a faculty, he gives orders for the removal of a monument or a body. The court will not compel by mandamus a rector to bury in a vault (e). A grant by a rector to an individual of the exclusive right of burial for himself, his family, his friends, in a vault under the church, if it can be made at all, must be by deed and not by parol, as it would be an easement arising out of land; but it would seem that no such grant can be made by the rector, but only permission accorded to bury there at each particular time. If such a grant can be granted at all, it must be by faculty to a parishioner, and annexed to a mansion within the parish (ƒ). In Magnay v. Rector, &c. of St. Michael (g) the principles which guide the ecclesiastical court, in granting a faculty for the construction of a vault, were fully set forth in the proceedings and the judgment, which are here inserted at length. 66 "On motion. This was a business of granting a licence or faculty to the executors named in the last will and testament of Christopher Magnay, deceased, late alderman for the ward of Vintry, and late a parishioner and inhabitant of the parish of St. Martin Vintry, London, for setting apart, appropriating, and confirming a certain vault (with the entrance thereto), many years ago made or built of brick, under the north aisle, and extending under a pew, and next to the chancel of the parish church of St. Michael, Paternoster Royal, as and for a burial-place for the interment of the bodies of the said Christopher Magnay, and of his family for ever, exclusive of all others; and also for the removal of the corpses of the said Christopher Magnay, Jane Magnay, his former wife, and of his two sons respectively deceased, from the general vault in the said parish church, where the same now remain, into the said private vault, the same having never been hitherto appropriated.' "A decree, with the usual intimation, had issued under seal of the court, citing the rector, churchwardens and parishioners of the said two united parishes of St. Michael, Paternoster Royal, and St. Martin Vintry, in special, and all others in general, to appear, and show cause why (d) 1 Consist. Rep. 172; see Allam v. Colthurst, L. R., 2 Ad. & Eccl. 30. (e) 1 Barn. & Ad. 122. (f) Bryan v. Whistler, 2 M & R. 318; 8 B. & C. 288. such licence or faculty should not be granted. This decree was publicly read in the parish church of St. Michael, Paternoster Royal, and was returned into court, duly certified as to the execution thereof, on the first session of this term. "A certificate, under the hands and seals of the rector and churchwardens of the said united parishes, consenting to the appropriation of the vault, had also been filed in the registry and an affidavit of the parish clerk was exhibited, setting forth that four persons only had been interred in the vault, for which a faculty was prayed, three of whom were neither parishioners nor inhabitants of either of the said united parishes; and that the vault had never been appropriated: which was confirmed by a search made among the records in the registry of the peculiars. 66 Haggard moved for the faculty. "Per Curiam. "The court observed, that the circumstances under which the present application was made, afforded a presumption that there was sufficient burial room in the parish to allow of this appropriation (h). In the city, generally, there was no want of burial accommodation, particularly in the case of united parishes, and the fact of this parish receiving strangers into its vaults, led also strongly to such a conclusion. The faculty, however, must be limited, in the same manner as faculties for pews, to the use of the family as long as they continue parishioners and inhabitants; and, in this instance, it must also contain a clause that the bodies, already deposited in the vault, shall not be removed. Faculty decreed" (i). In the case cited, 3 Add. 14, the court said, that it would scruple to decree such a faculty, without being satisfied that it is not likely to be generally prejudicial to the parish, even though its issue be unopposed, either on the part of the parish or of that of any particular parishioner. In Rich v. Bushnell (k), the following points seem to Rights of the have been established as to the lay rector's rights of erect- lay rector as ing monuments, &c. in the chancel. 1. That he is not of vaults and to the erection entitled to erect a monument, or affix a tablet, or construct tablets in the a vault, without the leave of the ordinary; for though the chancel. chancel is his freehold, it is subject to the use of the parishioners, the guardian of whose rights is the ordinary. (h) See the case of Rosher v. The Churchwardens, &c. of Northfleet, 3 Add. 14. (i) 1 Hagg. Eccles. Rep. 48. Vicar's rights. 2. That he must satisfy the ordinary these rights will not be impaired. 3. That the leave of the lay rector must precede the application for the faculty. 4. That the vicar has no power of interposing an absolute veto, but may show cause against the issue of the grant. The vicar has no fee for interments in the chancel of common right. church. Vicar's rights It is doubtful (says Sir John Nicholl in the same case) in body of the whether the consent of the vicar is necessary to the construction of a vault, or to the affixing a tablet even in the body of the church, or whether he has in such a case a claim to a fee unless when established by a special custom. The learned judge also expressed his opinion that vaults were highly objectionable in the chancel or in the church, but that the affixing of tablets was rather to be favoured than discouraged. If a tombstone contain an im proper uncanonical inscription, it may be removed. Prayers for the dead not expressly forbidden by our church. In college chapels. SECT. 8.-Prayers for the Dead. 6 In the cause of the office of the judge promoted by Breeks v. Woolfrey, Sir Herbert Jenner said, "It has not been contended, indeed it has been admitted, that if the inscriptions be of the character attributed to them in the citation, namely, contrary to the articles, canons and constitutions, and to the doctrines and discipline of the Church of England,' no person has a right to erect a tombstone, with such an inscription impugning the doctrines of the Church of England, and that a person so offending is liable to be punished, and the stone removed." "The inscription was, "Pray for the soul of J. Woolfrey;" and the judge decided in a very elaborate judgment that such an inscription was not illegal, as by no canon or authority of the church in these realms had the practice of praying for the dead been expressly prohibited, and the inscription on Bishop Barrow, in the cathedral of St. Asaph in 1680, "O vos transeuntes in domum Domini, in domum orationis, orate pro conservo vestro, ut inveniat misericordiam in die Domini," was much relied upon both by the advocate for Woolfrey and the judge (1). Prayers in the nature of prayers for the dead are used on special occasions in the chapels of some colleges at Oxford. (1) 1 Curteis, Eccl. Rep. 880. CHAPTER XI. LITURGY AND RITUAL. SECT. 1.-General Law of the Church as to Ritual. 3.— Ornaments and Vestments of Bishops and 4.- Ornaments and Decorations of the Church. 5.-Attendance on and Behaviour at Public 6.—Acts of Uniformity. 7.-Performance of Divine Service. 8.-Kalendar and Tables of Lessons. 9.-Public Preaching. 10.-Publication of Notices in Church. SECT. 1.-General Law of the Church as to Ritual. EVERY church must have some ritual, that is, some Necessity of recognized order established by competent authority, in ritual. accordance with which its rites and ceremonies are con ducted. Before we consider the question, what ceremonies are enjoined or allowed or forbidden by the ecclesiastical law of England, and more especially by that part of it which consists of the provisions of the Prayer Book and the Statutes of Uniformity, it is right to draw attention to the judgment of the church universal, and especially of" that pure and apostolical branch of it established in this "realm," upon the general subject of ceremonies. 66 Distinction between mutable and immutable ceremonies. St. Paul. St. Augustine. St. Jerome. Archbishop Augustine. And from that judgment it will appear that an essential distinction is drawn between those which are from their origin immutable, and those which it is competent to the proper authorities to mould according to the varying necessities and exigencies of each particular church. The only orders given in the New Testament with respect to the ritual of the church are of the most general kind, and are to be found in the following passages: Saint Paul in his first epistle to the Corinthians directs, and again, πάντα πρὸς οἰκοδομὴν γενέσθω ; πάντα εὐσχημόνως καὶ κατὰ τάξιν γενέσθω ; which we render, and "Let all things be done to edification," "Let all things be done decently and in order.” Saint Augustine, whose authority our church so highly regards, observes (a), "In his rebus de quibus nihil certi "statuit Scriptura Divina, mos populi Dei vel instituta majorum pro lege tenenda sunt." 66 And St. Jerome, to whom our articles refer, says (b), "Ego illud te breviter admonendum puto traditiones "ecclesiasticas, præsertim" (remark the caution) "qua "fidei non officiant ita observandas ut a majoribus traditæ "sunt: nec aliorum consuetudinem aliorum contrario "more subverti. Sed unaquæque provincia abundet in "suo sensu, et præcepta majorum leges apostolicas arbi"tretur." When Augustine, the missionary of Gregory the Great (to whom this country is so much indebted), found the ancient British Churches in possession of a ritual in accordance with the Gallican use and that of the Eastern Church, he became perplexed what course to pursue, and wrote for advice on the subject to the pope. From our old historian Bede we learn how wise an answer he received (c): 66 "Cum una sit fides," wrote Augustine, cur sunt "ecclesiarum diversæ consuetudines, et altera consuetudo "missarum in sanctâ Romanâ ecclesiâ, atque altera in (a) Ep. 36, tom. ii. p. 101. (b) Ep. xxviii. ad Lucinium Bæticum. (c) Beda, Hist. i. 27, § 60, Secunda interrogatio Augustini, ed. Stevenson, p. 59. |