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of residence), the bishop shall appoint a salary to the licensed curate, not less than L.80 per annum, or the annual value of the benefice, if the gross value does not amount to that sum; nor less than L.100 per annum, or the whole value, if the gross value does not amount to L.100 per annum, and the population amounts to or exceeds 300; nor less than L.120 per annum, or the whole value where the gross value does not amount to L.120 per annum, and the population amounts to or exceeds 500; nor less than L. 150 per annum, or the whol value as above, if it does not amount to L.159 per annum, and the population amounts to er exceeds 1000. Where the actual annual value of any benefice exceeds L.400, the bishop may assign L.100 per annum to the curate, though the population do not amount to 300; and where the income exceeds L.400, and the population does not amount to, or exceed 500, a farther provision of L.50 per annum. In all cases of nonresidence from sickness, age, or other unavoidable causes, the bishop may fix smaller salaries at his discretion. The salary of a curate who serves interchangeably with his incumbent at different benefices belonging to the same incumbent, shall not exceed that allowed under the act for the largest of these benefices, nor be less for that of the smallest. All contracts between incumbents and curates in fraud or derogation of this act are void ab initio. Where the curate's salary is equal to the gross value of the benefice, it is to be subject to all deductions, for charges and outgoings legally affecting it, and to any loss or diminution of it not arising from default of the incumbent. And in all such cases the incumbent may deduct any sum expended in repairing the chancel, or house of residence with its appurtenances, and not exceeding one-fourth of the salary. When the incumbent is nonresident for four months in the year, the bishop may allot the house of residence to the curate during the time he shall serve the cure, or during the incumbent's nonresidence. Or if the curate be assigned a salary not less than the gross annual value of the benefice, and lives in the house of residence, he shall then pay all the taxes and parish assessments of the house during his residence. On three months' notice from the bishop, the curate must deliver up possession of the house of residence to the incumbent, under a penalty of 40s. for each day of wrongful possession; and in the event of a vacancy, he is to quit the same within three months after the appointment of the new incumbent, on his requiring him so to do, with one month's notice to quit. Lastly, whenever the ecclesiastical duties of a benefice are inadequately performed, or the incumbent neglects to appoint a curate during his nonresidence, the bishop is empowered to license and appoint a curate with a salary.
VII. Churchwardens are the guardians or keepers of the church, and representatives of the body of the parish. They are sometimes appointed by the minister, sometimes by the parish, and sometimes by both together, as custom directs. They are taken, in favour of the church, to be for some purposes a kind of corporation at the common law; that is, they are enabled by that name to have a property in goods and chattels, and to bring actions for them, for the use and profit of the parish. Yet they may not waste the church goods, but may be removed by the parish, and then called to account by action at common law; but there is no method of calling them to account, but by first removing them; for none but their successors can legally do it. As to lands or other real property, as the church, churchyard, &c., they have no sort of interest therein: but if any damage is done thereto, the parson only or vicar shall have the action. Their office also is to repair the church, and make rates and levies for that purpose; but these are recoverable only in the ecclesiastical court. They are also joined with the overseers in the care and maintenance of the poor. They are to levy a shilling forfeiture on all such as do not repair to church on Sundays and holydays; and are empowered to keep all persons orderly while there. To which end it has been held, that a churchwarden may justify the pulling off a man's hat, without being guilty of either an assault or trespass. There are also a multitude of other petty parochial powers committed to their charge by several acts of parliament.
Parish clerks and sextons are also regarded by the common law as persons who have freeholds in their offices; and therefore, though they may be punished, yet they cannot be deprived, by ecclesiastical censures. Formerly the parish clerk was frequently in holy orders, and some are so to this day. He is generally appointed by the incumbent, but by custom may be chosen by the inhabitants; and if such custom appears, the court of king's
bench will grant a mandamus to the archdeacon to swear him in, for the establishment of the custom turns it into a temporal or civil right.*
RELATIONS IN PRIVATE LIFE.
THE principal relations in private life consist of, I. Husband and wife; II. Parent and child; III. Guardian and ward; IV. Master and servant. I. HUSBAND AND WIFE.-That the holy estate of matrimony was instituted by God himself, is evident from the two first chapters in the Bible. Man was created on the sixth day in the image of God; or as the apostle explains these words, in "righteousness and true holiness,"† and "renewed in knowledge, after the image of him that created him."‡ Immediately after the creation, and as it would appear, on the same day, God who alone could confer it, gave him dominion over every living creature, and over all the earth, commanding him to subdue it, and to increase and multiply in it. But for Adam there was not a help, meet for him. God took one of Adam's ribs and made of it a woman, which is an evident token of her natural dependance and subjection to him. Her Creator brought her unto Adam, a just precedent for the universal practice of the woman's father or nearest of kin giving her away. It is also another symptom of her natural inferiority. On this occasion Adam exercised his right of sovereignty, by naming her both Eve and woman, because she was bone of his bone, and flesh of his flesh. In virtue of his universal dominion and sovereignty, he enacted that statute, which has ever since been recognized and obeyed in all countries both civilized and barbarous "Therefore shall a man leave his father and his mother, and shall cleave unto his wife, and they shall be one flesh." This statute was confirmed by our blessed Lord, repeating the identical words.|| After the unfortunate transaction between Eve and the serpent, the Almighty again renewed Adam's charter. "Unto the woman he said, I will greatly multiply thy sorrow and thy conception: in sorrow thou shalt bring forth children, and thy desire shall be to thy husband, and he shall rule over thee." This divine institution has accordingly been observed in every country, and in every country there has been some religious way of entering into this holy estate. The church of Scotland acknowledges that riage was ordained for the mutual help of husband and wife; for the increase of mankind with a legitimate issue, and of the church with an holy seed; and for preventing of uncleanness.”¶ And the church of
* Blackstone's Commentaries, with Professor Christian's Notes.-Burns' Ecclesiastical Law.-Gibson's Coder.-Tomline's Law Dict.-Bell's ditto.
Col. iii. 10. Ş Gen. ii. 24.
+ Eph. iv. 24.
Matth. xix. 5. Mark x. 7.
England says it is an honourable estate, instituted of God in the time of hat man's innocency, signifying unto us the mystical union that is betwixt sh Christ and his church: which holy estate Christ adorned and beautified a with his presence and first miracle that he wrought in Cana of Galilee; 110 and is commended of St Paul to be honourable among all men; and b therefore is not by any to be enterprised, nor taken in hand, unadvisedly, lightly, or wantonly, to satisfy men's carnal lusts and appetites, like brute beasts that have no understanding; but reverently, discreetly, advisedly, soberly, and in the fear of God; duly considering the causes for which matrimony was ordained. First, It was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord, and to the praise of his holy name. Secondly, It was ordained for a remedy against sin, and to avoid fornication; that such persons as have not the gift of continency might marry, and keep themselves undefiled members of Christ's body. Thirdly, It was ordained for the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity.*"Marriage," says the apostle, " is honourable in all, and the bed undefiled; but whoremongers and adulterers God will judge."t Eve received her life from Adam, as the church did from Christ. She was taken out of Adam's side when he was in a deep sleep. After Christ was dead, the sacraments of water and blood flowed out of his side, that is, baptism, whereby we are born again unto Christ, and the sacrament of his blood, whereby we are nourished unto eternal life. "What therefore God hath joined together, let not man put asunder.” "Nevertheless, to avoid fornication, let every man have his own wife, and let every woman have her own husband. Let the husband render unto the wife due benevolence; and likewise also the wife unto the husband. The wife hath not power of her own body, but the husband: and likewise also the husband hath not power of his own body, but the wife." "And unto the married I command, yet not I, but the Lord, let not the wife depart from her husband; but, and if she depart, let her remain unmarried, or be reconciled to her husband: and let not the husband put away his wife. But to the rest speak I, not the Lord: if any brother hath a wife that believeth not, and she be pleased to dwell with him, let him not put her away. And the woman that hath an husband that believeth not, and if he be pleased to dwell with her, let her not leave him. For the unbelieving husband is sanctified by the wife, and the unbelieving wife is sanctified by the husband, else were your children unclean but now are they holy. But if the unbelieving depart, let him depart. A brother or a sister is not under bondage in such cases: but
*The Form of Solemnization of Marriage, Book of Common Prayer.
Heb. xiii. 4.
Mark x. 9.
1 Cor. vii. 2-4.
God hath called us to peace. For what knowest thou, O wife, whether thou shalt save thy husband, or how knowest thou, O man, whether thou shalt save thy wife."* "Wives submit yourselves unto your own husbands, as unto the Lord. For the husband is the head of the wife, even as Christ is the head of the church, and he is the Saviour of the body. Therefore as the church is subject unto Christ, so let the wives be to their own husbands in everything. Husbands love your wives, even as Christ also loved the church, and gave himself for it; that he might sanctify and cleanse it with the washing of water by the word; that he might present it unto himself a glorious church, not having spot, or wrinkle, or any such thing; but that it should be holy, and without blemish. So ought men to love their wives as their own bodies: he that loveth his wife loveth himself. For no man ever yet hated his own flesh; but nourisheth and cherisheth it, even as the Lord the church: for we are members of his body, of his flesh, and of his bones. For this cause shall a man leave his father and mother, and shall be joined unto his wife, and they two shall be one flesh. This is a great mystery: but I speak concerning Christ and the church. Nevertheless, let every one of you in particular so love his wife even as himself; and the wife see that she reverence her husband."† "The wife
is bound by the law as long as her husband liveth; but if her husband be dead, she is at liberty to be married to whom she will; only in the Lord. But she is happier if she so abide, after my judgment: and I think also that I have the Spirit of God."‡
In what follows, I shall in the first place inquire how marriage may be contracted or made; and shall next point out the manner in which it may be dissolved; and, lastly, shall take a view of the legal effects and consequences of marriage.
I. Our law considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law. And taking it in this civil light, the law treats it as it does all other contracts. It allows it to be good and valid in all cases, where the parties, at the time of making it, were, in the first place, willing to contract; secondly, able to contract; and lastly, actually did contract, in the proper forms and solemnities required by law.
All persons in general are able to contract themselves in marriage, unless they labour under some particular disabilities and incapacities. what those are, I shall now point out.
These disabilities are of two sorts: first, such as are canonical, and therefore sufficient by the ecclesiastical laws to avoid the marriage in the spiritual court; but in law these only make the marriage voidable, and
* 1 Cor. vii. 10-16.
+ Eph. v. 22-33.
1 Cor. vii. 39, 40.
not ipso facto void, until sentence of nullity be pronounced. In order to a regular marriage in England, the banns must first be published during divine service by the minister of the parish or parishes where the parties dwell. Whoever has any objection against a marriage must make appli cation to the bishop, who, if he see cause, may send an inhibition to the parish minister, forbidding him to proceed. But if no such inhibition be sent, the minister may marry them at any lawful time or place. At the time of marriage, however, when the minister pronounces these words: "If any one know any just cause or impediment why these parties should not be joined together in holy matrimony, ye are to declare, or else for ever hold your peace." Then the rubric directs, that if any one "declare any objection or impediment, and give security to the persons to be married, to the full damages they will sustain by not being married, that he shall prove his allegation," &c, then the marriage shall be deferred till the cause be determined, or the parties agreed.
Lawful impediments are three. 1. Precontract, when one or both parties are before married, or are pre-engaged to another person by a solemn mutual promise made in the presence of witnesses, and a suit is hereupon commenced in some ecclesiastical court. If satisfactorily proved, precontract dissolves marriage with any other person, even though it may have been consummated; by statute 2 Edw. VI. 2. Affinity or consanguinity. To know who are too near of kin to marry together, the following table of degrees, set forth by authority in 1563, will sufficiently demonstrate.
A TABLE of KINDRED and AFFINITY, wherein whosoever are related are forbidden in Scripture, and by our Laws, to marry together.