CHAPLAINS OF GAOLS. Construction of stat. 2 & 3 Vict. c. 56. s. 15. respecting the appointment of chaplain to a borough gaol and house of correction. Judgment of salary to be paid to such assistant chaplain or chaplains, and make orders for the payment thereof out of the funds applicable to those expenses: and every such chaplain and assistant chaplain must reside within a mile of the prison in which they hold their chaplaincies: but this act does not affect the appointment or the salary of the chaplain of the royal hospital of Bridewell. The case of Reg. v. Bath and Wells (Bishop of) (1) arose upon s. 15. of this act. It appeared that Queen Elizabeth, granted to the corporation of Bath that they might elect two of themselves, yearly, to be bailiffs of the city, and that the corporation might have, within the city, a gaol for the keeping of prisoners attached, committed or adjudged to the prison for any matter which might or ought to be enquired of in the city; but persons arrested for offences not cognisable there, were to be sent to the county gaol: and she also granted that the bailiffs for the time being should be keepers of the city gaol. She further granted that the mayor, recorder, and certain of the aldermen should be justices of the peace for the city, with power to correct certain offenders, to take sureties of the peace, or commit if they were not found, and to try and determine of certain offences (but not felonies) in the same manner as county justices might. She also granted them a court of record for the trial of personal actions, and the bailiffs had the execution of warrants under such court. Until the passing of stat. 5 & 6 Gul. 4. c. 76., the corporation annually elected such bailiffs, who had the care and keeping of the gaol, and appointed a gaoler under them. The corporation was continued by stat. 5 & 6 Gul. 4. c. 76., and the boundaries of the borough were extended; after which, a bailiff was elected annually, and acted, with regard to the gaol, as the bailiffs formerly did. The new corporation obtained a grant of quarter sessions; and, under the powers given by stat. 7 Gul. 4. & 1 Vict. c. 78. s. 37., they built a new gaol, which was also a house of correction, and was regulated by the justices of the city and borough:Upon these facts it was held, that the bailiffs were the "keepers" of the gaol within the meaning of stat. 2 & 3 Vict. c. 56. s. 15., and, therefore, that the power of appointing a chaplain was in the town council, and not in the justices, the right of appointment not being affected by any changes which had occurred since the passing of 'stat. 5 & 6 Gul. 4. c. 76.; Lord Denman observing, "This was an application for a mandamus to the Bishop of Bath and Wells; and the question raised, between the town council on the one hand and the justices of the peace for the city of Bath on the other, was as to the right of appointment to the office of chaplain for the gaol and house of correction for that borough, the contending parties having agreed to be bound by our decision upon the present application. We have examined the charter of the city and the several statutes referred to in the argument; and we are of opinion that the right of appointment is in the town council of the borough. "The rule which regulates such appointment is laid down by the fifteenth section of stat. 2 & 3 Vict. c. 56. That section enacts that in every borough gaol and house of correction a clergyman of the Church of England shall be appointed to be chaplain thereof, by the same authority by which the (1) 5 Q. B. 147. keeper is appointed.' The difficulty has been to ascertain the proper appli- CHAPLAINS cation of the rule. OF GAOLS. Judgment of "By the charter of Queen Elizabeth, the corporation of Bath had the Lord Denman franchise of a prison or gaol; and by the same charter the mayor, aldermen, in Reg. v. Buth and common council were empowered annually to elect two of themselves and Wells to be bailiffs of the city for one whole year; and among other duties (Bishop of ). attached to their office was this, that they should be keepers of the gaol or prison of the city. It appears by the affidavits that, previously to the passing of the Municipal Corporation Amendment Act, it was the usage to elect two bailiffs; and that there was a prison in the city, with the custody of which they were charged, and were used to appoint the actual keeper or gaoler. Since the passing of that act, the town council have annually appointed one bailiff; and he has had the custody of the prison in the same way, discharging the duty, as the two bailiffs formerly did, by the appointment of an actual keeper or gaoler. Under that act a separate court of quarter sessions has been granted, and a separate commission of the peace; the jurisdiction has been enlarged in local extent, and as to the nature of offences within the competency of the justices to try: lastly, the present gaol and house of correction has been erected, and is now fit for use. "By the 6th section of the Municipal Corporation Act, after the first election of councillors, the body corporate was made capable in law by the town council to do all acts which it lawfully might have done before; and, as there is nothing in the nature or duties of the office of bailiffs, as described in the charter, which is inconsistent with, or may not be modified by, the provisions of the statute, it appears to us that the town council would have been warranted in continuing to appoint two bailiffs; and we cannot say on these affidavits that the single bailiff is not well appointed, though it is immaterial to decide that question on the present application. Under the charter it was the duty of the bailiffs to keep the prison. They appear to have had other duties by the charter, from which it may be inferred that they were keepers of the prison rather as the sheriffs of counties are by law keepers of the county gaol, than as the actual gaolers thereof. This, however, does not alter the legal objection. They might discharge the actual personal duties by the agency of inferior officers; but they were responsible for those officers, and in law are to be considered responsible for the safe keeping of the inmates, and to be the actual keepers. After the passing of stat. 5 & 6 Gul. 4. c. 76., if no court of quarter sessions or separate commission of the peace had been granted, the duties of the bailiffs in regard to the borough prison would have remained unaltered, and one bailiff only being appointed, he would have been the keeper. "We think the circumstances just stated, and the enlargement of the jurisdiction before-mentioned, have made no difference in this respect. The statute 2 & 3 Vict. c. 56. s. 15. appears to us framed with a view to the existing state of things in every borough, and to the avoiding of all questions of right to appoint chaplains which might have arisen upon reference to the general gaol acts. It vests the appointment, therefore, at once in that body or individual by whom in any particular borough the keeper is appointed. "It was argued that the term 'keeper' here, by reference to the statutes in vari materiâ, must mean the actual gaoler, seeing that the clause relates CHAPLAINS OF GAOLS. Judgment of in Reg. v. Bath and Wells to borough gaols only. We are not sure that this is necessarily so. It is not improbable that it may have been used in a larger sense; but, strictly understood, we think the bailiffs or bailiff of this borough sufficiently answer the denomination; they are the gaolers, acting by their subordinate agents. "Nor is this an inconvenient or unreasonable arrangement; for, while on the one hand the appointment will be with the town council, with whom must be the power to settle and pay the amount of the salary, the interior regulation and control of the prison still will remain with another independent body, the justices, who will be charged to see that the officer appointed efficiently and regularly discharges his duty, and who are certainly the most competent for such supervision. "We think, therefore, that the rule should be absolute." CHAPLAINS c. 40. ss. 30. & 32. Visitors to make regulations and appoint officers. A chaplain to be appointed. Chaplains of unions, 3. CHAPLAINS OF LUNATIC ASYLUMS, UNIONS, AND WORKHOUSES. By stat. 9 Geo. 4. c. 40. ss. 30. and 32. (1) in all cases where any county lunatic asylum has been established under the authority of that act, or any former act or acts, the major part of the visitors appointed to superintend it present at a meeting duly summoned (such major part not being fewer than three), are from time to time to make such regulations as to them shall seem expedient for its management and conduct, in which regulations are to be set forth the number and description of officers and. servants to be kept, the duties to be required, and what salaries respectively are to be paid to them, and may appoint a treasurer, and such other officers and servants, together with such number of assistants as they shall from time to time find necessary, in proportion to the number of persons confined in such county lunatic asylum, and may dismiss any such officer, servant, or assistant, if they see occasion: and, by section 32., in every case where a county lunatic asylum is provided, a chaplain is to be appointed for it, which chaplain must be in full orders, and be licensed by the bishop of the diocese; and such license is revocable by the bishop whenever he thinks fit to withdraw it; and such chaplain is to perform on each Sunday, and on the great festivals, the divine service of our church, according to the forms by law established. Under these enactments, the visiting justices of county lunatic asylums have the power of appointing and dismissing the chaplain at their discretion, though the chaplain appointed must be licensed by the bishop of the diocese, and though the bishop has power to revoke such license. Consequently, where a chaplain, appointed by the visiting justices, and afterwards licensed by the bishop, was dismissed by the justices, and another appointed in his stead, but the bishop refused to revoke his first license, or to license the new appointee, the Court of Queen's Bench refused to issue a mandamus commanding them to admit the first appointee to per. form the duties of chaplain in the asylum. (2) The poor law commissioners may order the guardians of a union to appoint a chaplain for the union workhouse, with a salary; such chaplain (1) Stephens' Ecclesiastical Statutes, 1386. (2) Regina v. Middlesex Pauper Lunatic Asylum (Visiting Justices of), 2 Q. B. 433. CHAPLAINS OF LUNATIC ASYLUMS, UNIONS, AND WORK HOUSES. being an officer within the meaning of stat. 4 & 5 Gul. 4. c. 76. s. 46., interpreted by sect. 109. And it is no objection to such order that, by a previous order, not expressly altered or rescinded, the commissioners have authorised the guardians to appoint such chaplain if they shall deem it necessary, and have specified his duties, should he be appointed. (1) No person can hold the office of chaplain to a workhouse under the orders Chaplains of issued by the poor law commissioners by virtue of stat. 4 & 5 Gul. 4. c. 76. 6. 46., without the consent of the bishop of the diocese, signified in writing. (2) workhouses. CHRISTENING. (3) CHURCH. 1. GENERALLY, pp. 274—277. DEFINED-WHO MAY BUILD CHURCHES-CONSECRATION AND DEDICATION OF CHURCHES Endowment must precede consecration Form of consecration Re-consecration - Time of consecration - 2 AISLE, pp. 278, 279. DEFINED-Property in aisles If the Aisle always supposed to be held in respect of a house - An action can be maintained for a disturbance in the right of an aisle ordinary remove the owner of an aisle, or place any other person there, a prohibition will lie. 3. CHANCEL, pp. 279-282. - DEFINED Chancels to remain unchanged · The rector has the freehold in the chancel, but no part of the chancel can be separated from the rectory — Judgment of Mr. Justice Holroyd in CLIFFORD v. WICKS GREATER AND LESSER CHANCELS Impropriators have not the same rights in the great chancel that a nobleman has in the lesser-SEATS IN CHANCEL VICAR'S SEATS Seats in the chancel under the disposition of the ordinary. Rector entitled to have the chief seat in the chancel· Rector not entitled to make a vault, or to affix tablets in the chancel, without leave of the ordinary-Possession of the church in the minister and churchwardens Repairs of chancel-Archdeacons enjoined to see that the chancel is kept in proper repair · Repairing the chancel is a discharge from contributing to the repairs of the churchCustom has allotted the repair of the chancel to the parson if there be no adverse custom -By stat. 1 & 2 Vict c. 106. s. 54. part of sequestrated profits to be appropriated to the repair of the chancel― Parishioners in London repair the chancel — Spiritual persons and impropriators bound to repair the chancel — Impropriators neglecting to repair - If two churches be united, the repairs will be made as before the union. 4. GOODS AND ORNAMENTS OF THE CHURCH, pp. 283–292. GENERALLY-Consent of parishioners not indispensably necessary for church ornaments Stat 1 Eliz. c. 2. s. 25.-Observations of the Bishop of Worcester upon the attempts to restore ancient ornaments and forms · Ordinary's jurisdiction · Stat. 13 Edw. 1. -- st. 4.-Canons 85. & 89. Duties of churchwardens in accounting for church goods — ALIENATION OF GOODS- Who has the property in the goods of the church-Stealing articles from a church, though not used for divine service, is sacrilege — ALMS (Chest for) Canon 84. Basin for the offertory - Alms collected at the offertoryBIBLE-BIER-COMMANDMENTS (THE TEN) - COMMUNION TABLE- Canon 82. The test between an "Altar" and a "Table"-Chalice and other vessels for the communion- DEGREES OF MARRIAGE PROHIBITED — FONT HOMILIES (BOOKS OF) IMAGES · ORGANS An organ cannot be legally erected without a faculty — When legally necessary, when ornamental — Faculty for an organ refused, because the church was too small for the inhabitants · Minister has the right of directing when the organ shall and shall not play — Organist under control of minister — Salary of organist— PRAYER BOOK (COMMON) PULPIT READING DESK REGISTER BOOKSSURPLICES GOODS AND ORNAMENTS FOR WHICH NO PROVISION IS MADE BY SPECIAL LAW. - GENERALLY. Defined. Who may build churches. 1. GENERALLY. The ancient Saxon word is cyrce, the Danish kircke, the Belgic kercke, the Cimbric kirkia or kurk; probably from the Greek word Kupiayov, belonging to the Lord, or Kupiov oukoç, the Lord's house; so that the ancient pronunciation of the word has been lost (except in the northern parts of England and in Scotland), by softening the letters c or CH, as we have done in many cases; which letters the ancient Greeks and Romans always pronounced hard, as the letter K. Lord Coke states that, by the common law and general custom of the realm, it was lawful for bishops, earls, and barons to build churches or chapels within their sees. (1) But Dr. Gibson (2) says, that no person can erect a church without the leave and consent of the bishop; and which is agreeable to the rules, both of the civil and canon law (3), and was made an express law of the Church of England many years before the reign of King John, viz. in the Council of Westminster, in the time of King Stephen. These two assertions are not contradictory; for the one says only, that by the civil and canon law it might not be done; and the other says, that it might be done by the common law; although Lord Coke produces no instances, before the reign of King John or after, of churches erected without the license of the diocesan. But it seems to amount to the same thing, so long as the bishop has power (to which Lord Coke assents), after the church is erected, to withhold or deny the consecration. Not only the bishop, by refusing to consecrate, may hinder the establishment of a new church or chapel in any parish, but also any other person, thinking himself injured thereby (1) 3 Inst. 201, 202. (3) Quicunque voluerit in suâ proprietate ecclesiam ædificare, et consensum et voluntatem Episcopi habuerit, in cujus parochia est; licitum sit. (Caus. 16. q. 1. c. 44.) And again, Nemo ecclesiam ædificet, antequam Episcopus civitatis veniat, et ibidem crucem figat, publicè atrium designet, &c. (Dist. 1. de Consecr. c. 9.); in conformity to the rule of the civil law, Sancimus præ omnibus quidem illud fieri et nulli licentiam esse, neque monasterium neque ecclesiam, neque orationis domum incipere ædificare, antequam civi as by encroaching upon his ground, tatis Deo amabilis Episcopus orationem in loco faciat, et crucem figat, &c. (Nov. t. 67. c. 1.), and to the fourth canon of the council of Lateran, Placuit, nullum ædificare aut constituere monasterium, vel oratorii domum, præter conscientiam [vel voluntatem] civitatis Episcopi - the necessity of which consent, or licence, was made an express law of the Church of England in the Council of Westminster, Apostolicâ autoritate probibemus, ne quis absque licentiâ Episcopi sui in possessione sua ecclesiam vel oratorium constituat. (Spel. vol. ii. p. 41. c. 12.) - Gibson's Codex, 188. |