ornaments have been called inert, such as the holy table, pulpit, and reading desk; others are deemed active, such as incense, banners, torches, candles, which may be so used as to become part of some ceremony. And in order to discover what inert ornaments were deemed legal, and in order to explain the words of the first Prayer Book of Edward VI., the courts have been obliged to look at many contemporary documents of a miscellaneous character before and after that date, such as historians usually consult, in order to arrive at that certainty which the law delights in, and is bound to discover in the end, however loose may be the materials from which it is deduced.2 As to a cross or crucifix, this cannot be used as a part of a ceremony, as by placing it on the communion table, for such a usage is presumed to tend towards superstition. And it can neither be fixed to the table nor to a place near to the table; and yet, at a distance, such as five feet above, it may be unobjectionable. And it is equally illegal when made of metal and set upon the top of an iron screen-work at the entrance of the church, for that cannot be viewed as an architectural decoration. Again, if, for example, flowers arranged in certain outlines of figures are used inertly, and not ceremonially, it may make all the difference between legality and illegality. And decorations called stations of the cross hanging or fixed to the walls are illegal.? A reredos erected in a cathedral for decoration, having sculptured decorations in high relief of the Ascension and kindred subjects, was recently deemed not illegal, being merely decorative, and not likely to give occasion to any idolatrous or superstitious practices. Monuments and tombs in church and churchyard.As to monuments in a parish church, the permission of the incumbent as well as of the ordinary is required to authorize their erection or alteration. The freehold of the 1 Martin v Mackonochie, L. R., 3 Priv. C. 52. 2 Westerton v Liddell, Moore Sp. Rep. 157. An abuse was noticed in the matter of pictures in churches so early as the fourth century. -Bing. Chr. Ant. b. viii. c. 7. 3 Westerton v Liddell, Moore Sp. Rep. Ridsdale, 1 Prob. Div. 316. 4 Ibid. 5 Clifton v 6 Martin v Mackonochie, L. K., 2 Priv. C. 387; Elphinstone v Purchas, L. R., 3 Eccl. 66, 107. 7 Clifton v Ridsdale, 1 Prob. Div. 321. L. R., 6 Priv. C. 435. 8 Philpotts v Boyd, church being in the rector and not in the churchwardens, the consent of the latter is not sufficient authority in such a matter. And no lengthy period of consent or non-interference will have the effect of transferring this power to the churchwardens in their own right. And a lay rector must also have the consent of the ordinary to approve a like erection. Thus, when Sir F. Bury set up his arms in the church of St. David's, in Exeter, the bishop was held entitled to promote a suit to deface them, as being set up without his consent. But there is an appeal to the Arches Court against the exercise of the bishop's discretion.* The doctrine that the freehold of the churchyard is in the rector has been pushed to the length of a censorship of inscriptions on the tombstones in the churchyard, and even requiring permission to set them there; though it is difficult to discover on what theory this power is founded. Any material alteration in the tombstones, as laying them flat instead of erect, has been usually allowed on application for a faculty, especially if a majority of the inhabitants agree. But the courts have sometimes been called upon to compel persons who erect tombstones in the parish churchyard to take care, that they say nothing implying a doctrine inconsistent with that of the thirtynine articles. Hence, the executors of a Roman Catholic, who put on his tombstone the words "Pray for the soul of J. Woolfrey," only escaped being punished and made to pay the costs of a prosecution having for its object to erase those words, by the accident, that there was no such express or implied inconsistency to be found, after an elaborate examination of the thirty-nine articles and of the works of the divines of the Church of England. In 1794, when intolerance was part of the law of England, and before the repeal of the Test and Corporation Acts, and the Act of 1846, Lord Stowell pronounced a dictum, that no monument can be erected in the churchyard without leave of the ordinary, and that the ordinary or the rector could prohibit a tombstone. As, however, all dissenters must 1 Beckwith v Harding, 1 B. & Ald. 508. 2 Rich v Bushnell, 4 Hagg. Ecc. 164. 3 Palmer v Bp. Exeter, 1 Str. 575. F F die, and refusal to bury them in the parish churchyard cannot be denied on any pretext, it seems to follow that the right to erect a tombstone is part of the right of burial, and cannot be left to the mere discretion of the rector, who is deemed the owner of the freehold not by way of restricting the general rights, but rather to advance them. In one case, this exclusive right of the bishop and rector to dictate to parishioners the inscriptions on their tombstones was pushed to the length of refusing permission to an incription in which a Baptist minister was described under the prefix of "reverend." But this was held to be an interference of the incumbent and bishop altogether unjustifiable.1 Sacrilege. The offence of stealing and breaking into places of public worship is put on the same footing whether the house is a church of the Church of England, or of any sect. It is enough that the place be one for divine worship in the popular meaning of the term. Hence, whoever breaks and enters any of these places, and commits a felony therein, or being therein peaceably, then commits a felony, is liable to penal servitude.2 Duties of churchwardens as to fabric of church.—And here it is convenient to notice the powers and duties of churchwardens, who are compulsory officers appointed 1 Keet v Smith, 1 Prob. D. 73. It has sometimes been hastily observed, that because a rector is deemed the freeholder of the churchyard, and has therefore as part of such right that of grazing sheep and cattle there, the burial of a dead person is a form of encroachment on that vested right of grazing, and that it requires a species of gift or sacrifice on the rector's part; whereas the contrary is obviously the rule of law. It has been too readily assumed, that it is still in the power of the rector to enforce his views of morality and religion on tombstones; but since the repeal of the Test and Corporation Acts, and the repeal of all religious disabilities in 1846, there seems now no foundation for any such doctrine in the existing law-9 & 10 Vic. c. 59. A dissenter's religion is now as agreeable to public policy and as much established and protected as that of the church. See post, Chap. IX. 2 24 & 25 Vic. c. 96, § 50. For life, or not less than five years, or for two years imprisonment.-27 & 28 Vic. c. 47. Sacrilege has always been a crime punished severely, and viewed with detestation. Though Titus the Roman Emperor carried from Jerusalem in triumph the holy books, the seven-branched candlestick, the silver trumpets, and the veil of the temple, and kept them, they were ultimately returned by his successor more than 400 years afterwards, A.D. 520.—Suet. Tit. annually, chiefly to assist in protecting and regulating the property in the parish church. The churchwardens are charged with the custody of the sacred edifice, but are subject, nevertheless, to the directions of the incumbent, and hold possession subject to him. Hence, if a churchwarden break into the church to do something which he thinks it his duty to do, he is nevertheless guilty of an ecclesiastical offence, for the keys belong to the incumbent." The leading duty of the churchwardens is to preserve decorum among the congregation. And if strangers intrude into private pews, the churchwardens have power to remove them, using no more force than is necessary; though they cannot detain and imprison such intruders for fear they should return. The same officers must keep the footpaths and fences of the church, and also the churchyard in good repair. And the Ecclesiastical Court may issue against them a monition for not repairing them." The churchwardens' duty as to pews.-One leading duty of the churchwardens is that which relates to their regulation of the seats and pews. Their discretion as to the 1 See 1 Pat. Com. (Pers.) 481. Eccl. 173. 2 Lee v Mathews, 3 Hagg. 3 Ritchings Cordingly, L. R., 3 Eccl. 113. Burton v Henson, 10 M. & W. 105; Worth v Terrington, 13 M. & W. 781. It seems men and women used to sit in separate parts of the church in earliest times.--Const. Apost. b. ii. c. 57. One gate of the ancient church was called the Beautiful or Royal Gate, at which kings laid down their crowns before entering, as it was deemed indecent to carry such symbols of worldly distinction into a place where all ought to be sensible of equality.-Leo Gram. Chronog. 466. In eastern places of worship the shoes are taken off before entering. Churches in early centuries included courts and purlieus, and a prison for refractory clerks.-Bing. Chr. Ant. b. viii. c. 7. In England interludes and plays were long allowed in churches. -2 Pike on Crime, 618; Roberts' Soc. Hist. 37. And in the time of Elizabeth the people used to walk about and talk during divine service.--1 Strype, Ann. 522. 5 Walter v Montague, 1 Curt. 253. 6 Millar v Palmer, 1 Curt. 540; Fielding v Standen, 2 Curt. 663. The compulsory attendance of the laity at church was long deemed part of the business of the law. 5 & 6 Ed. VI. c. 1. But all pecuniary penalties for non-attendance were abolished in 1846.— 9 & 10 Vic. c. 59. In 1839 a dissenter having been appointed churchwarden, though unable to raise money by a church-rate, and having no funds, was yet cited and punished with imprisonment by the Ecclesiastical Court for not providing wine and bread for the communion. more detailed arrangements relating to pews and to seating the parishioners, being a practical matter requiring attention, is not to be controlled even by the incumbent, though it is liable to be reviewed by the ordinary.1 Thus every housekeeper has a right to call upon the parish for a convenient seat, and if an inhabitant wants a pew, the churchwardens ought not to permit an occupancy by a noninhabitant, nor permit prescriptive pews to be let, so as to prevent them meeting such demands. The discretion of the churchwardens in this matter is subject to two restrictions. 1, There may be faculties appropriating certain pews to certain individuals in different terms, and with different limitations. These faculties can only now legally be granted to a man and his family so long as they continue inhabitants of a certain house in the parish, or at least continue inhabitants of that parish. 2, There may be a prescriptive right to a pew, which the common law recognises as derived from a faculty. The holders must show the annexation of the pews to the messuages time out of mind, and the reparation from time to time of such pews by the tenants of such houses or messuages. The chancel, indeed, may belong to a non-parishioner. But a parishioner cannot sell or rent his pew to another, after he himself has ceased to be an inhabitant. Nor can a prescriptive right to a pew be severed from the messuage to which it belongs.3 But though a faculty cannot now be 1 Fuller Lane, 2 Add. 419; Byerly v Windus, 5 B. & C. 1; Wyllie v Mott, 1 Hagg. Eccl. 28. Ibid. "By the general law and of common right, all the pews in a parish church are the common property of the parish. They are for the use in common of the parishioners, who are all entitled to be seated orderly and conveniently, so as best to provide for the accommodation of all. The distribution of seats rests with the churchwardens, as the officers and subject to the control of the ordinary. Neither the minister nor the vestry have any right whatever to interfere with the churchwarden in seating and arranging the parishioners, as is often erroneously supposed. The churchwardens are bound in particular not to accommodate the higher classes beyond their real wants to the exclusion of their poorer neighbours, who are equally entitled to accommodation with the rest, though they are not entitled to equal accommodation supposing the seats to be not all equally convenient."-Sir J. Nichols, Fuller Lane, 2 Add. 426. 3 Fuller v Lane, 2 Add. 436. |