generally said, that if a bishop do not constitute a chancellor, he may be CHANCELLOR, obliged to do it by the archbishop of the province. (1) But as to the other branch, viz. voluntary jurisdiction, as visitation, institution, licences, and the like, it remains in the archbishop or bishop, notwithstanding the general grant of all and all manner of jurisdiction to the official. And, therefore, in our ancient ecclesiastical records, we find special commissions to hear and determine the comperta and detecta in visitatione, granted by the visitors to such persons whose zeal and integrity they could confide in, for the effectual prosecution of the crimes. and vices detected. In like manner, institutions, licences, and the like, can belong to chancellors no otherwise, than as the right of granting is conveyed to them distinctly and in express terms: and all that is here said of chancellors, holds equally in the case of commissaries and officials, according to the respective powers delegated to them. (2) OFFICIAL pellation of delegated jurisdiction. Under the appellation of delegated jurisdiction, in a large sense, may be What may be comprehended the jurisdiction of archdeacons, who exercise such branches comprehended under the apof episcopal power (in subordination to the bishops) as have been anciently assigned to them, especially the holding of visitations; and of deans, deans and chapters, and prebendaries, who exercise episcopal jurisdiction of all kinds independent of the bishops, though no jurisdiction could accrue to them, otherwise than by grant from the bishops, or by the arbitrary and overruling power of the popes. Both of these, however originally delegated, have long obtained the style of ordinary jurisdiction, as belonging of course, and without any express commission, to the several offices beforementioned. (3) But the power which we properly call delegated, is the power of chancellors, commissaries, and officials; which they exercise by express commission from the respective ordinaries to whose stations or offices such powers are annexed. (4) licenses. In Smith v. Lovegrove (5), Sir George Lee observed, "The power The chancellor of granting licences cannot now be legally given to a chancellor; for the cannot grant Statute of Uniformity, 13 & 14 Car. 2. c. 4. s. 19. says, that lecturers shall be licensed by the archbishop of the province, or bishop of the diocese, or in case the see be void) by the guardian of the spiritualities, under his seal; and shall, in the presence of the same archbishop, or bishop, or guardian of the spiritualities, read the thirty-nine articles, &c. Now, when an act of parliament has appointed certain persons to do a certain act, no other person can do it; and this was agreeable to the desire of the bishops long before, as appears from Archbishop Abbot's injunctions and Il canon, 1640." In Chase v. Yonge (6) Sir John Nicholl's opinion inclined against the power of a commissary to appear and deny the jurisdiction of a superior court, for the purpose of obstructing the grant of a probate, till the question of Whether the person requesting it had or had not "bona notabilia?" had been determined. He thought the interest of the commissary, arising from his right to grant probate, if there were no "bona notabilia,” did not entitle him to (1) Gibson's Codex, 986. 1 Vent. 3. Keb. 459. 3 Mod. 334. (2) Gibson's Codex, 987. (3) Ibid. Introd. xxii. (4) Ibid. (5) 2 Lee (Sir G.), 170. Chancellor &c. not entitled to put a party to his oath that they have bona notabilia out of their jurisdiction except in CHANCELLOR, PRINCIPAL, ETC. their own court. Chancellor can be an assessor under the Church Discipline Act. APPEAL. Appeal and letters of request lie from the commissary to the metropolitan court. REMEDIES AGAINST THE When an action a chancellor. put the executor, otherwise than by oath in his own court(1), on proof of there being "bona notabilia," before probate was granted in the Prerogative Court. In this case, the official of the archdeaconry of Norwich had interposed a caveat to the issue of the probate, but he proceeded no farther after this intimation of the judge's opinion, and was ultimately condemned in the costs of the proceeding. In the Church Discipline Act (2), the chancellor is enumerated among those qualified to be the assessors of the bishop in hearing proceedings against a clergyman. It was held, in Burgoyne v. Free (3), that the appeal lies from the commissary to the metropolitan, and not to the chancellor, the doctrine of the canon law, as cited by Ayliffe, being overruled in this particular by the bill of citations (4); and the same decision established that letters of request go in the same course with the appeal. An action lies against the judge of an ecclesiastical court who has acted beyond the jurisdiction of the court: as where a party was excommunicated for refusing to obey an order of the ecclesiastical court which it had no authority to make; or where the party had not been previously served with a citation or monition, nor had due notice of the orders. (5) But in Ackerley v. Parkinson (6) an action was held not to lie against the vicar general of the bishop for excommunicating the plaintiff for contumacy, in not taking upon him administration of the effects of an intestate to whom he was next of kin, and where he had intermeddled with the goods, &c.; although the citation by which the plaintiff was cited was void, by reason that it required him to appear and take administration, &c., without leaving him an option to renounce it, and the proceedings thereupon had been set aside upon appeal; for the vicar general had jurisdiction over the subject matter, viz. the granting administration, and there was no malice: Mr. Justice Le Blanc observing, "The whole fallacy of the argument lies in considering every step taken in the cause as an excess of jurisdiction, because some steps have been erroneously taken; whereas the distinction is, that where the subject-matter is within the jurisdiction, and the conclusion is erroneous, although the party shall, by reason of the error, be entitled to set it aside, and to be restored to his former rights, yet he shall not be entitled afterwards by action to claim a compensation in damages for the injury done by such erroneous conclusion, as if, because of the error, the Court had proceeded without any jurisdiction. It seems to me that this is not the case of a court having proceeded altogether without jurisdiction, or having exceeded its jurisdiction, but of a court having jurisdiction, and having, in the course of the exercise of it, come to an erroneous conclusion, which has been the cause of the damage." (1) Vide Canon 92. (2) Stat. 3 & 4 Viet. c. 86. s. 11. Stephens' Ecclesiastical Statutes, 2081. (3) 2 Add. 410. (4) Stat. 23 Hen. 8. c. 9. (5) Beaurain v. Scott, 3 Cowp. 388. (6) 3 M. & S 411. 1. DEFINED, pp. 247, 248. CHAPELS. (1) 2. PRIVATE CHAPELS, pp. 248, 249. A parson appropriate is not bound to supply every chapel built within the parish with a preacher Stat. 2 & 3 Edw. 6. and stat. 1 Eliz. c. 2. s. 1. Stat. 23 Eliz. c. 1. s. 12. Canon 71. Ministers not to preach or administer the communionin private houses. 3. FREE CHAPELS, pp. 249-251. 4. CHAPELS OF EASE AND PAROCHIAL CHAPELS, pp. 251-258. Defined-Whether a chapel be parochial is a matter of spiritual conusance — Chapel of ease is not altered by the circumstance that it has sacraments and burials - General principles of law as to the erection of chapels - Judgment of Sir John Nicholl in BLISS v. WOODS- Endowment and dependence of chapels of ease- Dependence of chapels on the mother church Submission of the curate of a chapel to the rector or vicar of the mother church Repairs to a chapel of ease no discharge from repairs A prescription to pay a parson of a chapel of ease with tithes held to be good - At common law parishioners bound to repair the church — Judgment of Chief Justice Holt in BALL v. CROSS. to the mother church 5. GOVERNMENT OF CHAPELS, pp. 258-262. General Chapel or church how to be tried — Word "benefice" comprehends chapelries. - Respecting the definition of the word "chapel, Dr. Burn (3) has Chapel, whence ཁྱོན།། observed, "We have softened, in English, the pronunciation of the initial so called. CHAPEL DEFINED. which is used to denominate the same vestment, and signifieth also a canopy or other vaulted covering. So coppe denoteth the round top of a hill. So we say the cape of a wall; the cape of a coat; cape, a promontory or other extremity; cap, a covering for the head; and other such like.” PRIVATE A parson appropriate is not bound to supply every chapel built within the parish with a Preacher, 2. PRIVATE CHAPELS. Private chapels are such as noblemen, and other religious and worthy persons, have, at their own private charge, built (1) in or near their own houses, for them and their families to perform religious duties in. These private chapels and their ornaments are maintained at the charge of the persons to whom they belong, and chaplains are provided for them by themselves, with honourable pensions; and they anciently were all consecrated by the bishop of the diocese, and ought to be so still. A parson appropriate is not bound to supply every private chapel built within the parish with a preacher: thus, in Herbert v. Westminster (Dean and Chapter of) (2), the lord chancellor observed, “The building and endowing of the church was what, at common law, originally entitled the patron to the patronage; here the inhabitants built the chapel, and by the pew-money have endowed it. It is not reasonable to say that the dean and chapter, as parson appropriate, have a right to supply every chapel built within the parish with a preacher; it would be an expense and hardship upon them to be obliged so to do; neither ought it to be at their election to supply it: for, suppose I build a chapel in my house for myself, the parson is not bound to provide for it; or, suppose. build a chapel in my house for myself or my next neighbour, can the parson name one to preach there? I think not: and it will make no alteration, if the chapel which I build in my own grounds be intended for the use of twenty neighbours besides my own family." (3) By a constitution of Archbishop Stratford it was decreed, that whosoever, against the prohibitions of the canons, should celebrate mass in oratories (4), chapels, houses, or other places (5) not consecrated, without having obtained the license of the diocesan (6), should be suspended from the celebration of (3) Vide etiam Stephens' Ecclesiastical Statutes, 988. (4) In oratories:-An oratory differs from a church; for in a church there is appointed a certain endowment for the minister and others; but an oratory is that which is not built for saying mass, nor endowed, but ordained for prayer. Lyndwood, Prov. Const. Ang. 233. (5) Or other places: - As suppose, in a tent, or in the open air. Ibid. (6) Without having obtained the license of the diocesan:- Such oratory any one may build without the consent of the bishop, but without the consent of the bishop divine service may not be performed there. And this licence be shall not grant, for di vine service there to be performed upon the greater festivals. Ibid. Abundance of such licences both before and since the Reformation, remain in our ecclesiastical records, not only for prayers and sermons (Reg. Cran. f. 15, 16, 17. 20. 34. 39, 40. Abb. 3. 142. Ibid.), but, in some instances, for sacraments also. But the law is, that such licences be granted sparingly; Episcopi potentibus licentiam audiendi missas extra ecclesiam parochialem, nisi cum magnâ difficultate, concedere non debent (as is said by Lyndwood); who also says in his gloss on the same constitution, Hanc licentiam non concedet Episcopus in majoribus festivitatibus; and that, without the like licence, they shall not have a bell, In dictis tamen oratoriis non possunt imponi campanæ, sine auctoritate Episcopi. And these restrictions were laid on private oratories, out of a just regard to the divine service for the space of a month. And all licences granted by the PRIVATE CHAPELS. bishops for celebrating mass in places not consecrated, other than to noblemen or other great men of the realm, living at a considerable distance (1) from the church, or notoriously weak or infirm, should be void. Nevertheless the heads, governors, and canons of cathedral churches, and others of the clergy, might celebrate mass in their oratories of ancient erection, as had been accustomed. Moreover, the priests who should celebrate mass in oratories or chapels built by the kings or queens of England, or their children, should not incur such pains. (2) By stat. 2 & 3 Edw. 6. c. 1. s. 1. and stat. 1 Eliz. c. 2. s. 4. (3), the expression "open prayer" in and throughout those acts is explained to be that prayer which is for others to come unto or hear, either in common churches, or private chapels, or oratories. Stat. 2 & 3 Edw. 6. and stat. 1 Eliz. c. 2. s. 1. Stat. 23 Eliz. c. 1. s. 12. administer the By stat. 23 Eliz. c. 1. s. 12. (4), every person who usually on the Sunday shall have in his house the divine service which is established by law, and be thereat himself usually present, and shall not obstinately refuse to come to church, and shall also four times in the year at least be present at the divine service in the church of the parish where he shall be resident, or in some other open common church or chapel of ease, shall not incur the penalty of 207. a month imposed by that act for not repairing to church. By canon 71. "No minister shall preach or administer the holy communion Canon 71. in any private house, except it be in times of necessity, when any being Ministers not either so impotent as he cannot go to the church, or very dangerously to preach or sick, are desirous to be partakers of the holy sacrament, upon pain of sus- communion in pension for the first offence, and excommunication for the second; provided private houses. that houses are here reputed for private houses, wherein are no chapels, dedicated and allowed by the ecclesiastical laws of this realm: and provided also, under the pains before expressed, that no chaplains do preach or administer the communion in any other places but in the chapels of the said houses; and that also they do the same very seldom upon Sundays and holydays; so that both the lords and masters of the said houses, and their families, shall at other times resort to their own parish churches, and there receive the holy communion at the least once every year." 3. FREE CHAPELS. FREE CHAPELs. The distinction of free chapels is grounded on their freedom or exemp- Defined tion from all ordinary jurisdiction. (5) |