BHfc
\ STUOIA IN
THE LIBRARY
of
VICTORIA UNIVERSITY
Toronto
THE
3Catos delating to
IN
CHURCHES,
DISTRICT CHURCHES, CHAPELS,
AND
PROPRIETARY CHAPELS,
THE RIGHTS INCIDENTAL THERETO,
AND
for
BY
SIDNEY BILLING, ESQ.,
OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW.
SEDET ^ETERNUMQUE SEDEBIT."
VIRG. ^ENLID, LIB. 6, 1. 617.
LONDON :
WILLIAM BENNING & CO., LAW BOOKSELLERS,
(LATE SAUNDLUS AND BENNING,)
43, FLEET STREET.
1845.
BV
^To
EMMANUEL
55390
TO
JOHN TURNER, ESQ.,
BENCHER OF THE HONOURABLE SOCIETY
OF THE MIDDLE TEMPLE,
THIS BOOK IS RESPECTFULLY
INSCRIBED BY
THE AUTHOR.
PREFACE.
THE Law relating to Pews has been rendered more than
usually important, by the late discussions upon them,
and the spirit with which such discussions have been
conducted ; for the inquiry has not been directed to
the right which exists, but how that right might be
swept away. When a right has been so menaced, it
was thought that the law, particularly relating to the
subject threatened, should be presented in the clearest
manner.
The pew right, (as a general right,) has existed from
the time of the Reformation, and no work, which can be
strictly termed a law book, has been specially dedicated
to an inquiry into the law of this subject, and its inci
dents. Writers upon Ecclesiastical Law have collected
some of the broad features relating to them, and books
upon general subjects have afforded the matter a short
space, but it was only in the Reports that the law was
to be found.
This Book was written to supply what the Author,
(and, doubtless, others in the Profession also,) felt was a
defect, and it is trusted that it will at least lighten the
labour of research, if its use extends no further.
a3
PREFACE.
The cases which govern the law of this subject, will
be found to be somewhat conflicting, but care has been
taken in advocating that view which the Author deemed
to be in consonance with the principles of law, that the
authorities which bear upon the view opposite to that
taken, may appear, and where a judgment or a dictum
has been canvassed, in the course of these pages, it is
hoped the examinati<&i will be placed to the wish for
inquiry into the truth, rather than to a spirit of captious
objection, for it is only by such inquiries that the subtleties
of the law can be manifested, and justice be adminis
tered.
The Treatise has been divided into Headings, rather
than into Chapters, for it was considered that such a
division would render the Work more concise, and avoid,
in a degree, the great evil which appears in law writings
generally, which is the almost unavoidable repetition of
the subject.
The consideration for a faculty, and the right which a
non-parishioner can acquire, and the rights which are
inherent in parishioners generally, have been commented
upon at a greater length than was at first intended ; but
the trust is, that the reasons above advanced will prove a
sufficient apology for presenting this Work to the Pro
fession, viz.) making those who possess the threatened
right aware of the position in which they are placed, and
the protection which the law will afford them.
Middle Temple.
TABLE OF CASES CITED.
Page
Astley v. Biddle and Ripley
Barrow v. Keen, Keble 112, 167
- v. Kew, Siderfin 361
Blake v. Usborne, 3 Hag. Ecc. Rep. 732 60
Bodenhain v. Rickets, 6 Nev. & Man. 537 196 (n)
Boothby r. Bailey, Hobs. Rep. 69 205
Brereton v. Tamberlane, 2 Ves. sen. 425 8, 119
Brooks v. Owen
Butt v. Jones, 2 Hagg. Ecc. Rep. 424 32
Bulwer v. Hase, 3 East, 220 184
Bunton v. Bateman, 1 Lev. 71 162
Burdett v. Newell, Raym. 1211 187
Burder v. Veley, 12 Adol. & Ellis, 233 207
Byerly v. Windus, 7 Dowl. & Ry. 564 12, 23, 201, 206
Camden (Lord) v. Home, in error, 4 East, 596 199
Carleton v. Hutton, Noy, 78
Clifford v. Wicks and Another, 1 Barn. & Aid. 498 104
Corven s case, 12 Coke, 106 !7, 86
Cross v. Salter, 3 T. R. 639 24
Dawtree v. Dee and Others, Bridg. 4 161
Dixon v Vershaw, Amb. 528
Drury v. Harrison
Ely (Bishop of)t?. Gibbons and Goody, 4 Hag. Ecc. Rep. 156, 66, 99
Farnworth v. The Bishop of Chester, 4 B. & C. 568 121
Frances v. Ley, 2 Cro. Jac. 366 104
Full v. Hutchins, Cowp. 424 203
Fuller v. Lane, 2 Add. Ecc. Rep. 426 11,18, 39, 99
IV TABLE OF CASES CITED.
Page
Gardner v. Booth, 2 Salk. 548 188
Gilson v. Wright and Another, Noy, 108 165, ITS
Gare v. Gapper, clerk, 3 East, 479 199
Greatcherchy v. Beardsly, 2 Lev. 241
Griffith v. Matthews, 5 T. R. 296 79
Groves and Wright v. The Rector and Parishioners
of Hornsey, 1 Const. Rep. 188 61, 73
Hall v. Maule, 5 Nev. & Man. 455 197, 200, 205
Harford v. Jones 17
Harris v. Drewe, 2 B. & Adol. 164 33
Hart v Marsh, 5 Add. & Ell. 602 203
Hawkins and Coleman v. Compeigne, 3 Phill.16 122, 132
Hill v. Good, Vaughan, 306 199
Hodgson v. Dillon, 2 Curteis, 388 127
Hallock v. The Master and Fellows of the University of
Cambridge, 9 Dowl. P. C. 583 184, 201
Home v. Lord Camden, 4 T. R. 382 199
Jacobs v. Dallow, 2 Salk. 551 187
Jarratt v. Steele, 3 Phil. 167 167, 179
Jeffery s case, 5 Reports, 63 12, 13
Jones v. Ellis 2 Y. & J. 272 5, 6
. v. Stone, 2 Salk. 550 186
Kenrick v. Taylor, 1 Wils. 327 23
Leman v. Goulty, 4 T. R. 3 203
Lindo v. Rodney 197
Line v. Harris, 1 Lee, 146 8
Lousley v. Hayward and Another, 1 Y. & J. 583 83, 90
Mainwaring and Giles, 5 B. & Aid. 361 17, 40 (n.)
Market Bosworth (churchwardens of) . The Rector
of Market Bosworth, 1 Ld. Raym. 435 204
TABLE OF CASES CITED. V
Page
Merchant v. Whitepane, 1 Lev. 193 162
Morgan v. Curtis, 2 Man. & Ry. 387 13, 81
Moysey v. Hilcoat, 2 Hagg. Ecc. Rep. 44 123
Newson v. Baldry, 7 Mod. Rep. 70 198
Parnam v. Templar, 3 Phill. 522 12, 23, 32, 60, 161
Partington v. The Rector and Churchwardens of Barnes,
2 Lee, 345 35
Pepper v. Barnard, 7 Jurist, 1128 84
Pettman v. Bridger, 1 Phil. 324 22, 80
Portland (Duke of) v. Bingham, 1 Const. Rep. 166 8
Presgrave v. The Churchwardens of Shrewsbury, 1 Salk. 167 189
Prout v. Cresswell, 1 Lee, 38 126
Regina v. The Judge of the Episcopal and Consistorial
Court of the Bishop of Lincoln : Rennington and
Another v. Dalby, 8 Jurist, 1135 - 207
Rex v. Bishop of Ely, 1 W. Bl. 81 197
- v. Kealing, 1 Dowl. P. C. 440 198
Rogers and Wife v. Brooks, 1 T. R. 431, innotis - 78, 79
Roberts v. Huraby, 3 Mee. & Wels. 126 201
Reynolds v. Monkton, 2 Moo. & Rob. 385 14
Rymer v. Atkins, 1 H. Bl. 87 199
Sands v. Adam and Unwin, Noy, 153 187
Smyth, ex parte, 5 Nev. & M. 145 - 201
Snelgrave v. Brograve, Palmer, 161 167
Spry v. Flood, 2 Curteis, 365 21, 101, 150
Steevens and Hollah v. Rector of St. Magaret s, Orgar s,
and Others, 2 Add. Ecc. Rep. 255 63
Stevens v. Buller - 17
Stocks r. Booth, 1 T. R. 428 15, 21, 34
Tattersal v. Knight, 1 Phil. 232 13, 63
Tersemond v. Yardley, 5 B. & Adol. 458 198
Turner v. Giraud, 3 Phil. 538 -14
TABLE OF CASES CITED.
Walter v. Gunner and Dewry, 1 Const. Rep. 316
Wemys v. Linzee
Wilkinson v. Moss, 2 Lee, 259
Woollocomb v. Ouldridge, 3 Add. Ecc. Rep. 2
Page
16, 34, 77
199
34
13,22
Wylmer and Mott v. French, 1 Add. Ecc. Rep. 40 14, 15, 19, 163
Ambler, 651
2 Bulstrode, 150
Cro. Car. 162
1 Lev. 293
1 Leon. Ill
1 Mod. Rep. 258
2 Mod. Rep. 254
1 Noy, 133
1 Raym. 387
1 Siderfin, 203 -
3 Salkeld, 85
2 Ves. Sen. 145
Yelv. 128.
126
86
199
86
205
102
102
102
197
162
166
7
STATUTES CITED.
2 Hen. 3, c. 5.
13 Edw. 1, c. 32.
9 Edw. 2, c. 1, 2, 3, 4, 5.
14 Edw. 3, c. 17.
15 Rich. 2, c. 6.
4 Hen. 4, c. 12.
21 Hen. 8, c. 13.
2 & 3 Edw. 6, c. 13
31 Eliz. c. 6.
17 Car. 2, c. 3.
29 Car. 2, c. 8.
2 & 3 Anne, c. 11,
1 Geo. 1, c. 10.
36 Geo. 3, c. 83.
43 Geo. 3, c. 107.
3 Geo. 4, c. 72.
1 Wm. 4, c. 21.
1 & 2 Wm. 4, c. 45.
1 & 2 Viet. c. 106.
1 & 2 Viet. c. 107.
2 & 3 Viet. c. 49.
3 & 4 Viet. c. 3.
3 & 4 Viet. c. 20.
AUTHORITIES AND ABBREVIATIONS.
Black. Com. " Blackstone s Commentaries."
Brae. " Bracton."
Bunts Ecc. Law. " Burn s Ecclesiastical Law."
Bull. N. P. "Buller s Nisi Prius."
Inst. " Coke s Institutes."
Com. Dig. " Comyn s Digest."
Degge P. C. "Degge s Parson s Counsellor."
Doc. Pla. "Doctrina Placitandi."
F. N. B. " Fitzherbert s Natura Brevium."
Gib. Cod. " Gibson s Codex."
Gibbons on Limitations.
Johns. " Johnson s Ecclesiastical Law."
Ken. Parl. Ant. " Kennett s Parliamentary Antiquities."
Phil. " Phillipps on Evidence."
Rogers Eccl. Law. " Rogers s Ecclesiastical Law."
Roll. Abr. " Rolle s Abridgment."
Ros. Dig. Evid. " Roscoe s Digest of Evidence, by Smirke."
Selden. " Selden s Antiquities."
Stephens Com. " Stephen s Commentaries."
Tidd Prac. " Tidd s Practice."
Wat. Clerg. Law. "Watson s Clergyman s Law."
Wood s Ins. "Wood s Institutes."
ERRATA.
Page 7 line 4, for " none goes so," read "none go so."
12 3, for " Parnham," read " Parnam," and so through the work.
13 24, for "the many," read "many."
15 26, for " family increases," read " family decreases."
17 6, for " Rep. "\ 88," read " Rep. 188, S. P."
20 8, for " time of mind," read " time out of mind."
24 19, for 2 T. R.," read " 3 T. R."
32 9, for "Bull.," read " Butt."
36 21, for "purely spiritual," read "purely of spiritual."
41 15, for " acquired by faculty," read " acquired by a faculty."
42 13, for " the other servants," read " the servants."
44 3, for " he continue," read "he continues."
57 23, for " conduc the," read " conduct he."
60* 8, for " new pewing," read " for newly pewing."
60" 9, for " Church," read " the Church."
63 25, for " Ongar," read " Orgars."
67 7, for " exclusive right," read " an exclusive right. "
71 30, for "to the wants of the parish," read "to supply the
wants of," &c.
79 1,/or " Griffiths," read " Griffith."
81, last line, for " Curteis," read "Curtis."
98, second marginal reference, for "new," read "necessary."
109, line 2, for " would be in," read " would vest in. "
121 1, for " Tarn worth," read " Farn worth."
127 1 , for " whereby acceptance," read "whereby the accept
ance."
135 18, "colour," dele "u."
1 45 20, for " would reserve," read " would have reserved."
145 21, for "which we find," read " but which," &c.
1 48 7, for " sec. 25," read " sec. 32."
160 18, for "district parishes," read " distinct parishes."
173 23, for "damage," read " as damaged."
178 28, for " Gibson," read " Gilson."
184 1, for "Bollocks," read " Hallocks."
188 16, for " Carlton," read " Carleton."
188 24, for " Gardener," read " Gardner."
189 7, for " Presgrove," read " Presgrave."
INTRODUCTION.
THE object of this Treatise is to place the Law of
Pews before the public in a clear manner, and
therefore is it that all technicalities, as far as it was
possible, have been avoided. The subject-matter
of such a Treatise has been, in these times, ren
dered particularly necessary and interesting, not so
much from the importance of the pew right itself
as for the attack which has been made upon it.
The right to particular pews will be found, by a
}>erusal of the following pages, to have been carried
back to a very remote period of the English
Church History : and immediately after the period
of the Reformation the right will be found to have
become very general ; for it is supposed that it was
about that period Churches were first pewed. It
will be sufficient for our purpose in this place to
state, that the right to sit in the parish Church for
the purpose of attending the public administration
of the duties of religion, is inherent in every
parishioner, and when pews arc appropriated by
b
X INTRODUCTION.
faculties or claimed by prescription, it may be said
to be only a special mode of enjoying the common
law right.
The tractarian spirit which has been manifested
in these times, has not been contented by attacking
the observances of the Church, and the endeavour
to subvert the simplicity of the forms which
hitherto have been observed in the performance of
the ritual of the English Protestant Church, from
the time of the Reformation, by the introduction
of ceremonies : which, if allowed to progress,
might end in the substitution of form for feeling ;
and a pompous, and gilded show, for that simplicity,
which by the total absence of all exterior aids,
must prove that the worship of Almighty God is
the ostensible object of the attendance upon the
offices of religion.
The disposition, or, rather, the peculiar mode
of seating the parishioners in the Church, has been
deemed a matter not too mean to engage the
subtle-minded logicians of the high Church, and
the advocates of those peculiar tenets, in which
the doctrine of the low Church is comprised.
For this particular object the antagonist parties
meet, as it were, upon common ground, and
from a spirit of innovation, springing on the one
hand from a wish to assimilate, as far as may be,
INTRODUCTION. XI
English Churches to those of Rome : and, on the
other, from a mistaken notion of charity, which is
both wrongly based, and ill deduced.
The Christian theory is a high, and exalted
doctrine, yet, when its peculiarities are applied to
frail, and erring men, their antipathies, and conven
tions must be taken into the account ; for, in dealing
with men, and such as come within the definition
of Christians ; it is not to be assumed that the pure,
and holy doctrine has so spiritually endued their
minds, that that which is of earth is wholly to be
shut out ; the world, the distinction of classes, and
the observances of actual life, must, in some degree,
intrude, and, as the influence is more, or less, so
will either scale predominate. How, then, shall it
be said there shall be no particular pew right in
the Church: yet, such is said both by the high, and
the low Churchmen are men no more to be sub
jected to the usual impulses? Or are all the dis
tinctions which society has created to be con
founded ?
It has been inferentially advanced as an argu
ment for the abolition of pews by Mr. Fowler, in
his book upon " Pews," that as there are no pews
in the Catholic Churches, there should be none in
our Churches. It in return might be asked, were
the spaces in the spacious continental Cathedrals
62
Xll INTRODUCTION,
not pewed from a wish that all might be equal ?
Or was it That the grand, and the magnificent
machinery of the Romish Church might be seen to
its greatest advantage?
When the high Church party step forward to
advocate the cause of the abolition of pews in
Churches, it is, as has been before said, from a wish
to introduce a similarity in appearance to the con
tinental Churches. An intimate knowledge of the
impulses of men will show, that when the out
ward appearances are destroyed, that which is
more particular and important too often follows ; it
was a far-sighted view which directed the attack
upon things seemingly unimportant ; for men are
governed by association, and appearances are its
outworks. The Romish religion has ever been full
of ceremonies, and observances ; and, even in the
Romish Chapels of Protestant England there is
more than sufficient grandeur to confound the
ignorant ; who gaze upon its external splendour, and
pomp : whereby the imagination is charmed, and
the heart seduced ; yet without being touched.
The introduction of the ceremonies of the
Church of Rome into the forms of that of England
would, it is conceived, end in the subversion of the
latter ; for, however slowly, and carefully the altera
tion might be introduced : it would end in the
INTRODUCTION. XI 11
adoption of all the external aids which are practised
by that most subtle of all Churches ; and which has
ever sought rather to act upon the weaknesses of
man, through the imagination, than to convince the
reason.
To thinking, and reasoning men, however much
they might regret the change, it would make no
difference : but all men do not reflect, and with such
as do not, the ceremony would be confounded with
the spirituality, until the distinction between the
creeds would be to the million lost ; and the glare of
the outer ceremony would conceal the rottenness
within : the absurdities of transubstantiation would
be received instead of the most reasonable theory
which the Protestant Church inculcates; and in
maintenance of which, great, and good men have
bled : and England would again fall under the yoke
of Rome, if not to endure the terrors of martyrdom,
yet most certainly exaction, extortion, and the
thousand miseries incidental thereto.
If then, the introduction of the Romish ritual,
under a false garb, is the aim, as it is said to be, of
the tractarians ; should they not at least be open to
suspicion, when they attempt to introduce, or
rather, advocate the introduction of their forms, and
ceremonies: under the pretence of advancing the
XIV INTRODUCTION.
cause of the poor man ? cloaking all as they do
beneath the garb of universal charity.
It has been considered necessary to diverge so
far from the direct course of the subject in discus
sion, that the motive which actuates the tractarian,
or PUSEYITE may be shown : that men, by the
beautiful theory they have reared, or, rather,
adopted, may not be led away from the question of
the positive right. But let the theory spring from
what source it will, and be the arguments which
are adduced to support it whatever they may, it is
impossible in practice ; so long, however, as men
are actuated by the realities of life.
To account for the like advocacy by the low
Church party may be a matter of much greater
difficulty, though, perhaps, in both cases, it may
resolve itself into greediness for proselytism. But
of such actuates or motives enough the pen was
assumed, not for the purpose of arguing a question
of POLEMICS, but in defence of an universal right ;
it is called an universal right, because every parish
ioner has a right to a seat in the Church, and if
one be wrongfully appropriated, however poor the
applicant might be, he could compel the church
warden to allot him a seat. Therefore ; it is said to
be an universal right.
INTRODUCTION. .XV
Pew rights have been attacked by a gentleman
who should be a defender rather than a subverter
of rights : unless he could produce the most positive,
and conclusive argument to show that they are a
crying, and most flagrant injustice ; and in doing so,
it is apprehended something more than a stale
proposition should be adduced ; and which, however
true it may be in theory, it is impossible, under the
existing state of things, to reduce into practice.
If society could be re-organized if men could
forget the distinctions of life if the rights of pro
perty could be reduced to their origin, then, by
possibility for a short time at least, the theory
might work: but for its continuance things must be
kept exactly in the same state; for the smallest
progression made by one of the community would
raise him above his fellows, and immediately create
a distinction : and which, if once established, would,
in despite of all, overturn the theoretical equality,
and men would naturally fall into classes. In such
re-organization, or reduction to its primitive ele
ments, the minds of all must follow in the march,
and be circumscribed within exactly the same
limits ; for whilst men are unequal in capacity there
must be gradations in society ; and whilst distinc
tions in society exist, it is apprehended that the
abolition of the pew rights, and making the Church
XVI INTRODUCTION.
in common, or, rather, reviving in respect of them
the exploded theory of commdn occupancy, is as
chimerical as the propositions, or pictures contained
in the Utopia.
The doctrine of common occupancy was abo
lished for its practical inconvenience: and, it is
apprehended the difficulties which attached to it
when exerted upon secular things, would be greatly
increased when applied to pew rights: for the
interruption of the sacred ordinances of religion
must, at the least, be the result.
In the work above mentioned there are a series
of propositions put forth, and which are endea
voured to be used as arguments to show the injus
tice of the continuation of the pew right ; such as
the inelegance of pews, the harbouring of dirt, and
damp, &c., and then follow examples of several
Churches, wherein it is said, the proposed abolition
of pews has been tried.
It is intended, in the course of these few intro
ductory remarks, to examine each of these proposi
tions, and to test the examples which have been
adduced in favour of the well working of the
system ; and it is apprehended, that it will be shown
that the evil which is complained of will, by the
new arrangement, be rather increased than dimi
nished.
INTRODUCTION. XVll
It is said (Foivler on Pews, p. 60,) "it is well
known that population has so prodigiously outrun
the capacity of Churches to contain it," " that the
Church-building spirit lately awakened has barely
kept pace with the growth of the population," and
that " the real deficiencies of the Church are as
alarming as they were thirty years ago." The
" Temple Church " is instanced as an example of
the propriety of abolishing pews, so also " Chester
field Church," " St. Mary s, at Beverley, St Mary s,
at Stafford, St. Sepulchres, at Cambridge," but
Chesterfield Church seems to be that which is
specially relied upon to show the good working of
the system proposed. " The case of the Church of
Chesterfield, therefore, goes further as an illustra
tion than I expected it would, and realizes, at least
with respect to a considerable part of the Church,
that equality and impartiality in its arrangements
which has been endeavoured to be pointed out as
the true principles of Church accommodation,"
(Ib. 91); but prior to which he tells how the
change was brought about. " Chesterfield Church
consists of a nave, transept, and chancel, and until
a recent period the floor of the nave, which was
divided from the rest of the Church, and the galle
ries which surrounded the nave on every side, were
entirely occupied by close pews ; most of these
b 3
Xvill INTRODUCTION.
pews were regarded, and claimed by different in
habitants as private property, and, in some instances,
individuals were considered to be the owners and
proprietors of a considerable number of pews, and
were in the habit of letting them at certain rents,
like houses, conveying them by sale, devising them
by will, and, in all respects, treating them like
other property," (76. 85) ; and of all these claims,
when investigated on the obtainment of the faculty,
it was found " that the only pews held by either of
the recognized titles (prescription and faculty) were
the corporation seats," (Ib. 86).
To prevent the exceeding opposition which the
proposed measure had excited, " it was ultimately
compromised by an agreement that the claims of
all parties who had been in the habit of letting
pews should be disregarded, but that the church
wardens should provide sittings for such house
holders as had previously been permanent occu
piers of pews, and should not disturb them so long
as they remained parishioners and frequented the
Church as their ordinary place of worship," ( Ib. 86).
It is said the alteration has been attended with
great benefit. " With regard to the galleries closed
pews are still allowed to remain in that quarter,"
(Ib. 87); and in continuation, it is said, "with
regard to that part of the Church which is furnished
INTRODUCTION.
with open seats hitherto left free and unappro
priated, it is found among the regular frequenters
of the Church that they have little difficulty in
seating themselves on successive Sundays in the
same free sittings, and so great is their security that
many persons have furnished the free seats with
cushions and hassocks? " but it is rarely found
that any regular attendant is disturbed in his usual
sitting, nor has this alteration caused any indecorous
confusion amongst the poorer claimants for accom
modation," and then, after the statement of the
facts, follows the argument, as it is there contended,
which bears out the position proposed. He says,
"that by the alterations lately effected the very
same edifice which formerly contained about 1200
sittings, now affords accommodation to more than
1800 persons, and this surprising increase was
simply effected by contesting all doubtful claims to
the exclusive appropriation of the pews," " and by
substituting uniform open benches for the closed
and variously-shaped pews." " In this case it may
be truly said, that the great mass of the poorer
inhabitants were literally excluded from the services
of the Church, for there were only sixty-four sit
tings for adults left unappropriated in the whole
building ; to call this, therefore, the poor man s
Church was to pay the Church of Chesterfield a
XX INTRODUCTION.
very idle compliment indeed. Again, this example
proves that where the poor can obtain accommoda
tion as a matter of right, and of the same description
as that which is offered to the rich, they are dis
posed to attend the services of the Church, and by
the adoption of these plans are greatly encouraged
to do so, (Ib. 89)."
The above selections, it has been considered
proper to make for the purpose of testing the
argument which has been adduced in support of
the system proposed; and also, as the Church in
question is, it is said, one wherein the system
proposed has been tried, and found to be completely
successful. The example produced (Chesterfield
Church) will, it is presumed, be admitted to be a
most unfortunate selection, especially as it is put
forth as an illustration of the triumph of particular
views : for it, in itself appears to be most incomplete,
and as far as it goes, most inconclusive.
The Temple Church stands first upon the list,
and it therefore, if for no other consideration, is
entitled to the first comment. It has a congrega
tion which is unlike any other congregation in
England, the Chapels of the Colleges of the
Universities coming nearest to it. In the Temple
Church the most exclusive rules are adopted, and
carried out, and at certain part of the year it
INTRODUCTION. XXI
is impossible for strangers, except through the
express written order of a Bencher of one of the
two societies comprising the Temple, to obtain ad
mission into the body of the Church during the
Sunday services. It is true, particular parts of the
Church are appropriated to the particular ranks
of the members ; and in those places so appor
tioned the seats are in common ; and as the Church
is exclusively appropriated to the members of the
two societies : it may be said to be a congregation
of gentlemen ; and any objectionble conduct from
one towards another could not be expected, and
in their particular case, the argument to be used
against the general system of benches would not
apply, all there being equal (in the sense in which
the word is here used). And though the seats are
said to be in common, it is only in a degree, for
between the sittings of the two societies, viz., the
Middle and Inner Temple : there is a division which
extends throughout the body of the Church, and it
is very doubtful whether a member of one society
would be allowed to occupy a sitting which is allotted
to the other society ; but be that as it may, it is very
certain he could not claim it as of right. It is pre
sumed that the instance produced in the Temple
Church will count for nothing in furtherance of the
theory in question.
XXI I INTRODUCTION.
Chesterfield Church is the next in order upon
the list, and on it Mr. Fowler seems to have relied
for complete proof of his theory, for he says it goes
further as an illustration than he expected. The
facts he has adduced, and the arguments offered in
support of such an assumption, will be commented
on in the order in which they are placed above,
(supra) p. xvii). Of the other examples he says
nothing : and therefore it is a fair inference that
from them nothing could be brought to bear upon
the subject-matter of his theory: or in furtherance
of his particular views : or it might be fairly said
they are rather proofs of the ill working of the
system, or surely one, or other of them could have
furnished some point of evidence.
The case of Chesterfield Church is the one
especially open to discussion, for facts are afforded
as a basis whereon to found an argument. It is
said (supra, p. xix) that the Church was formerly
pewed in the usual manner ; and as the Church ac
commodation was found to be insufficient, it was
proposed to alter the interior arrangement, and
to substitute open benches ; but with this plan it
was found certain claims interfered, many of which
it appears were of an illegal origin, as being
the subject of barter and sale. To stifle the oppo
sition which it was feared the proposed measure
INTRODUCTION. XX111
would excite, it was agreed that the illegal holdings
of those who claimed the power of sale should be
disregarded, and they who had the right of the
permanent occupancy of the pew should be ap
pointed during residence, and user to particular
sittings (supra, p. xviii) and such exclusive appro
priations amounted in number to " eight hundred
and ninety-two sittings." He then further says,
that in the new arrangement the galleries remained
as they were before, (supra, p. xviii; ; and that the
poorer inhabitants were excluded from the Church,
there being room for only sixty-four adults in the
free sittings.
It is difficult to understand why the seats in the
gallery should not have been subjected to like treat
ment, as those in the nave of the Church, for the
pews therein are held exactly upon the same basis
as those in the nave : and if the illegal system was
carried on in the nave of the Church, it is more than
likely to exist in the undisturbed pews in the gallery.
If the pews in the gallery are allowed to be continued
under the old usage, it is creating in a more acute
form the very evil which is so much complained of;
and it is doubtful, unless upon the direct inter
ference of the ordinary, whether the occupant of
the gallery pews could be disturbed ; for if a
parishioner claimed to be seated, the churchwarden,
XXIV INTRODUCTION.
rather than involve himself in litigation, would
reply that the seats in the nave of the Church were
unappropriated and in common. It is advanced as
a reason, in furtherance of the theory in question,
that the avoidance of ill feeling, and litigation, and
the undue elevation of one parishioner over another,
is the special object of the advocation ; but how far
the allowance of the old regulation, as to the seats
in the gallery, will conduce to its attainment, (if the
supposition of barter, and sale is correct), is at least
very problematical. The occupants of those sittings
will, as the legal right becomes more understood, be
continually annoyed by intrusions, and which it
will be impossible for them to rebut. The case of
Blake v. Usborne (3 Hag. Ecc. Rep. 732, supra,
p. 56), sets forth very clearly the right which is ac
quired in pews in the gallery of a Church, but it is
apprehended the right of barter, and sale can in no
case be countenanced, for it is positively opposed
to all principles of law, and would not give even the
color of a title.
Mr. Fowler, by the title of his book, may be pre
sumed to have examined into the law of pews, and
which makes the argument he has advanced most
difficult to be understood ; and where he says there
were only sixty-four unappropriated seats, the argu
ment must be, it is presumed, understood rather as
INTRODUCTION. XXV
the assumption of the advocate than the settled, and
deliberate opinion of the lawyer, for he must, from
his own showing, have been well aware that as the
whole of the sittings, with the single exception of
the corporation pew, were held under an illegal
title, that they were open to the appointment of the
churchwarden : and if the free sittings were insuffi
cient to supply the poor parishioners, the others
were open to their use. The citation into the
Ecclesiastical Court of the churchwardens on re
fusal (under the circumstances) to appoint, would
have been attended with no expense to the poor
parishioner, for on the proper suggestion the Court
would have appointed both a proctor, and a counsel.
It is also conceived that the (most inconclusive)
trial, in Chesterfield Church, of the proposed
system ; is insisted on as conclusive evidence of the
propriety of abolishing pews, in the same spirit as
that which dictated the observation above, as to
the unappropriated seats. Therefore : it is held im
possible, under the circumstances adduced, to say
that the poor were excluded the Church, and the
proposition must be received rather as an attempt to
prop an argument, than as a valid suggestion. It may,
perhaps, be said in return, that in effect they were
excluded: to which it will be replied, that where the
law provides a remedy for a wrong, as it does in
XXVI INTRODUCTION.
this instance, there cannot be said to be an ex
clusion.
If the poor, of whose claims Mr. Fowler ap
pears to be the advocate, had a right, as parishioners,
to a seat in the Church ; the churchwardens, on
application, would have been compellable, as above
shown, to provide them sittings in the Church, for
the claims of purchase would have been disregarded;
and if there was only one valid claim admitted,
it necessarily follows that the whole of the other
sittings were free to the use of the parishioners :
and on the appointment of the poor parishioner
to the seat by the churchwarden, it is clear that he
who claimed by the wrongful title could have no
right : and if he persisted in occupying the seat,
the appointee of the churchwarden could have cited
him into the Ecclesiastical Court, and have obtained
an inhibition against his again occupying the seat :
Therefore : it is submitted that the argument that
there were only sixty-four unappropriated sittings
is fallacious, for the law would regard the claim of
the poor man, as well as that of the rich, and in the
case proposed the churchwarden, on citation by a
parishioner, would have been condemned in costs.
It is not shown who were the claimants of the
eight hundred and ninety-two sittings in the nave
and of the gallery pews, which were allotted when
INTRODUCTION. XXV11
the Church was benched, but it may be reasonably
supposed that they belonged to the most wealthy
and influential part of the parish ; and if then the
higher class of society in the parish are specially
provided for, how can it be said that CHESTERFIELD
CHURCH presents zfair example of the well working
of the proposed system ?
If the whole of the congregation, as in case of
the Temple Church, and the College Chapels, were
equals, then the disagreeables which would result
from no particular seat being allotted, would be in
a great degree avoided, for each being equal to the
other there would be no clashing of the conventional
feelings of society ; and all would doubtless be con
ducted in an orderly, and proper spirit. But when
all grades of society are admitted in equal right to
the same seat, then it is apprehended feelings
would arise which are the opposites of that pro
priety of feeling which should exist in a place
wherein is supposed to be the actual presence of
God; for it is written that " Where two or three
are gathered together in my name, there am I
in the midst of them." Matt. c. xviii. v. 20.
For instance, a lady in a white muslin, or light
silk dress, being seated in the then free seats, and a
sweep, as by the power of the equalization, and
the levelling of rights he might, came, and placed
XXviii INTRODUCTION.
himself beside her ; would she not shrink from the
contact ? or would she be so absorbed by her reli
gious duties as not to fear the result ? In novels,
and romances we sometimes read of a state of
abstraction approaching that above, but it is thought
it will but rarely be found in the actual movements
of life.
The actual consequence of such contact would
be known to her, and the feelings which she ought
to experience would vanish in contemplation of the
near and positive ill. And yet, as the seats are
open to all the parishioners in common, no one
would have a right to remove the sweep ; for his
occupation is not put under an interdict, and by
possibility he may have no clothes unstained by
his trade ; yet, for his attendance in the parish
Church there is an equal need with that of the
cleanly, and well dressed ; for Mr. Fowler admits,
as it must be admitted upon all hands, that poverty,
and its too often companion, uncleanliness, is no
desecration of the House of God, and would be no
plea in bar to the penalties which the statutes
inflict.
The rights of the poor, and the hardships with
which they are environed, is argued with great
feeling; but in advocating this question care should
be taken not to overlook the rights which are
INTRODUCTION.
resident in the community generally. And in
arguing the case of one class of the community,
it should not be forgotten that the other classes
of society have an equal claim upon our sympathies ;
and that there may be as great a tyranny in the
exaltation, as in the depression of the poor.
The supposition above offered is one which would
be more than possible to occur in such a state of
things as that proposed, and the consequence would
be, that the well dressed (not to say respectable
portions of the community, for all who conduct
themselves properly are respectable in their degrees)
would be driven from the Church. And why ?
Because they could not, on every attendance,
afford to risk the spoiling of a dress ; and in those
cases where the dress would not be spoiled, it would
not be agreeable to pass through the streets with a
large stain upon it, and possibly accompanied with
a disagreeable odour: so again, they would be
averse to the continual admixture of classes which
the indiscriminate user of the seats would create.
It will, perhaps, be said that such feelings could
only result from pride, and that pride is unbecoming
in a Christian. Truly ; but then we must argue
upon the material we have, which is humanity,
with all its errors, and inconsistencies. The founder
of the Christian religion himself respected the dis-
XXX INTRODUCTION.
tinctions of classes ; shall then mere man go beyond
him ? And so also did the Creator of the world,
or the differences we find in man would not exist :
and from the history of man, traced to its earliest
periods, such distinctions have existed, and they
might be said to be a consequence of the division
of labour : for it must be admitted, that one of the
primary elements of society, is the division of labour;
and in such division some of its offices must be
more honourable than others, and therein com
menced the distinctions of society: for he who
governs shall be more elevated than he who is
governed, so he who directs than he who is
directed. All must be fed ; if therefore the higher
are exerting their abilities for the protection of the
lower class, it follows as a natural consequence that
the lower class shall provide them with proper sus
tenance ; as a recompence for the services they
render them. And it may also be said, that the
division of labour is necessary for the perpetuation
of the species : for it is only the increased facilities
which such division affords that enable the numbers
to be fed : that sustains the government : and ex
tends commerce* If each man had to provide for
his own wants, he would only provide sufficient for
his need. It would be useless to grow more corn
than he could consume, or to make more clothes
INTRODUCTION. XXXI
than were necessary for his use, or to build more
houses than he could inhabit ; he would have no
overplus, at least not more if he were a provident
man, than would be sufficient for his probable wants;
for as there was no barter, there would be no means
of getting rid of his surplus. His foresight might
extend a season in advance of his want, in case of a
failure of the crop, but such provision would be in
sufficient to provide for casualties. In particular parts
there might be a successive failure of crops, and other
sustenance, and the inhabitants would then perish ;
their neighbours could not supply their need, for
they have only sufficient for their wants. Admit thev
could have a surplus commodity, and that they could
barter that commodity, and the position contended
for is established ; viz., that the division of labour is
a necessary consequence of society : so the division
of classes is a necessary consequence of the division
of labour : for the want must have been antecedent
to the division : and the distinction of classes, the
effect of the division, coupled with increase of
numbers.
If these distinctions have existed through all time,
and do exist in every modification of society, why
should the Church be exempt ? It is said, that in
the eyes of God all men are the same ; but which
must be received with great qualification, for in
XXX11 INTRODUCTION.
Holy Writ we find that even HE made distinctions :
though in one sense it may be true, for the salvation
of all was intended by the death of the Saviour.
Perhaps it will be answered, if a person met
with a disagreeable neighbour, that he could re
move to another seat : truly he might, if the next
seat were disengaged, and if disengaged, the same
objection might apply; and if it were engaged; and
so, through the whole range, then the person
would have to pass through the whole range of the
seats, disturbing every one he passed, creating inter
ruption and its consequent confusion ; which would
be an interruption to the orderly progression of the
service, and an inconvenience to the person : it
might be that this was not a solitary instance, for it
would be fair to presume, that many might be
placed in the same position ; and there is no law to
prevent the orderly movement of a person in a
Church. If confined to a solitary instance, the in
terruption would be comparatively trifling, (but yet
during the Church service if a book, stick, or
umbrella, falls, we find it excites much attention) ;
but if such passing was frequent, or continued in
its operation, then the confusion would become
important.
In speaking of the poor, Mr. Fowler says, " they
are closely tied down in the world by their circum-
INTRODUCTION. XXX111
stances, they rarely see the slightest prospect of
ever tasting the supposed pleasures of opulence, and
power, their life is generally a constant repetition
of labour, with old age, or sickness unprovided for
in prospect. Is it not desirable that they should
be made to feel there is one place at least into
which the world, and its artificial relations, and dis
tinctions do not enter where poverty and mean
apparel will not exclude them, and where money
and rank cannot purchase privileges. We have a
right to expect that the guardians of the Church
will exert themselves to make that society an actual
type of better and future times, and to receive all
comers whether high, or low, rich or poor, within
the sacred walls on the same equal terms, on which
we are taught they will be received hereafter," (Ib.
66). "The principle of spiritual equality between
rich and poor, is the very principle of Christianity
itself, and to act upon such a principle is the duty
of every Christian, and to neglect or violate such a
principle is to subvert the fundamental laws of
Christianity itself. Christianity acknowledges an
aristocracy, but not in pews ; respects the privileges
of birth, but not in public worship ; there men
come to abase, not glorify and exalt themselves,"
(Ib. 81, et seq.). It i$ difficult to arrive at the
argument intended to be conveyed by the above
XXXIV INTRODUCTION.
quotation : that the fundamental principle of Chris
tianity is spiritual equality is admitted ; but such
admission involves nothing in furtherance of the
argument in favor of the question at issue.
If A. builds a house, wherein he proposes to wor
ship God by himself, and procures consecration,
there is nothing to hinder him from erecting a
throne, wherefrom he pleases to worship, or to bid
his wealthy fellows to join with him, to the ex
clusion of his poorer neighbours, and e contra,
for he may choose only to humble himself before
his wealthier neighbours, or only before the poor,
as the case may be ; wherein then are the rights of
the excluded portion of society disregarded ?
When spiritual equality is spoken of, does it not
mean that God will hearken equally to the prayers
of the poor as to those of the rich ? What more
can it convey, then that prayer, if sincere, will be
heard from the privacy of the humble closet as well
as from the altar of the gorgeous and turretted
Cathedral. And when it is said, that God is no
respecter of persons, it can but mean that he will
have an equal regard to the supplications of the lowly,
as of the rich and as the distinctions of society
existed when Jesus Christ walked earth as man ;
had they been wrong, he would have reprobated
them ; but we do not find anywhere that he dis-
INTRODUCTION. XXXV
regarded their existence. He inculcated the care
of the poor as a duty, but He never confounded the
distinctions of class He recommended humility,
and shewed the spiritual danger of pride ; but He
never said distinctions should not exist He said it
was difficult for the rich to be saved, but He never
said that in the synagogue there should be no prece
dence He said the repentant sinner, was more
worthy than the haughty Pharisee, but He did not
say they should worship side, by side He knew the
peculiarities, the frailties, and prejudices of men ;
He taught them the road to Heaven, not by doing
violence to their conventions, but by reproving
their sins He did not say that all men were
equal ; and in the case of the tribute money by
his answer he showed that he respected the con
stituted authorities. If He then, who is the great
founder of our faith, respected the distinctions
of class, who shall say that the classes of society
shall be confounded?
How does the case of A. above differ from that
of the wealthier parishioners : building, and up
holding the structure of the Church, as they do ?
Should not the rule in this instance hold, that they
who bear the burden should also share the profit ?
where then is the injustice complained of? The
poor have it not in their power to erect Churches,
c2
XXXVI INTRODUCTION.
or contribute towards their repair, but yet they are
not excluded ; still, they are not to be thrust into
the best places in the Church ; and in every
Church, be it the thronged one of a popular
preacher, or that of a remote village, the need of
the poor is always provided for; in the one case
by open benches, in the other in the unoccupied
pews. Open benches, especially when marked
free, are spurned at indignantly, as though the
word bore the impress of degradation, and insult :
and yet the word means no more than a direction
to the unappropriated seats.
The prior part of the last quotation has been
selected, as a specimen of the arguments produced,
in the endeavour to uphold this question ; but it
is difficult to understand what it means, or to what
it points. It is apprehended, if the poor were
placed in the position contemplated, no benefit
could result, and the contemplation of the supposed
pleasures of opulence, would to them be rather an
ill than a good, and in ill regulated minds would
create feelings wholly in dissonance to those which
seem to be expected from the contact.
The merely being seated side, by side, could
produce no reciprocity of sentiment: and in practice,
however well it may sound in theory, would be
most inconvenient: in the case of a country congre
gation, it would be a thing most disagreeable for
INTRODUCTION. XXX Vll
the poorer neighbour; whilst in towns, the ill
taught assurance of the lower classes could create
only disgust in the rich neighbour, and so in
neither case could a benefit result. A better test
of Christianity than making pews in common, is
that exerted now in country parishes, at all events
in those wherein the minister does his duty ; viz.
the alleviation of the wants of the poorer neighbours
by the visitation of the more fortunate holders of
this world s goods.
The unprovided old age, and sickness spoken of
is too often the result of improvidence ; and it is
difficult to understand how any gratification, or
healing could be afforded the unfortunate persons
by an indiscriminate admixture with their more
fortunate fellow parishioners.
Such an argument may tend to excite sympathy
for the wants, and the distresses spoken of, but can
never have weight to overthrow a vested right. A
thorough acquaintance with the law which governs
the pew right will show it to be administered in a
proper, and reasonable manner. It is such ill
judged, and one-sided arguments as are produced
to overthrow the right ; which tend more to create
dissatisfaction, than the most arbitrary exertion ot
the right would do, for it creates dissatisfaction,
where contentment had place before.
c3
XXXV111 INTRODUCTION.
The poor (as a class) are not the persons who
would stand forth, and level the distinctions of
classes, for such distinctions have existed from the
first dawn of their recollections, and it is trusted,
will exist during the period of their mortal sojourn.
If it be wise, and politic to overthrow the barriers,
and restraints of society, let some other arena be
selected than the House of God, for it is not there
that men should first exhibit their antipathies,
and disgusts ; it is not there that the artificial dis
tinctions, or rather the conventions of society,
should be torn away with a rude hand : let the
experiment be tried, if it is to be tried, amid the
realities of life ; where men are alive to its impulses,
arid wherein is the proper stage for their working.
If there was a total, or what would amount to in
effect, a total exclusion of the poorer members of
the community from the Church, then it would be
time to give out the eager cry, a cry, it is feared^
which has its impulse but in the selfishness of
party. The poor are made the rallying point, and
when they have served the turn may perhaps, as is
too often the case in the world, be cast aside, and
all their claims forgotten.
They are now provided for they are now res
pected in their proper walk of life, their comforts are
studied, and their distresses relieved from the super-
INTRODUCTION. XXXIX
fluities of their more fortunate neighbours I speak
not of the poor of towns ; for it is feared that the
fluctuations of commerce create too often ine
qualities of circumstances ; now abounding in
luxury, now aching beneath the iron nerve of the
lowest poverty, and either extreme is calculated to
deaden the better feelings of nature on the one
hand by the enervations of sensuality, on the other
by the temptations which beset a state of abject
poverty. I speak not of individuals, but of a class ;
and which picture it is to be feared will be too
fearfully realized in those districts termed manu
facturing. There are individual instances of a
contrary conduct, and when it occurs amid the evil
of the surrounding example, and temptation, that
man is worthy of a place, it must be admitted, with
those who are in advance of him in life, for he
would be careful not to offend the prejudices of a
class, amongst whom, sooner, or later, he must be
numbered. It is of the much more numerous class
of poor people which is here spoken of, the denizens
of the villages, the agricultural poor, who live on in
the same unvarying round of life, who have grown
up with their more fortunate neighbours, and who
know all, and are known by every member of
their little community.
Occasionally when the purposes of party deem it
xl
INTRODUCTION.
necessary, harrowing instances are held up to the
public view of over crowded dwellings, and scanty
food ; but where that is the case, the cause can
generally be traced to the improvidence, or idleness
of the individuals.
It is the depraved of the lower classes who (if
the desire exists at all), are wishing to be seated
with their wealthier neighbours : and if the desirable
distinction was obtained, would the feelings which
it would elicit, turn to the account of the propoun-
ders of the theory? The feelings of the upper
classes are not here spoken of; but the unmannered
insolence of the lower. In the particular cases
wherein a decent propriety of bearing was mani
fested; in those very cases, and by those very
persons ; the confounding of the grades of society
would be more regretted than desired. What was
the comment of Lord Hailes, an eminent Scotch
Judge, upon a plea that certain persons had a right
to enter a place of public worship and seize any
vacant place ? did he imagine order would be the
result? It has been thought well to extract his
remark, not that it is necessary to introduce his
great name to support the argument, but in turning
over some works upon Scotch law, the passage
casually presented itself, and which was considered
so pertinent to the subject, that it was judged to be
INTRODUCTION. XU
a favourable illustration. " The plea of the peti
tioner is, that the inhabitants of the parish are to
have the seats at random, and indiscriminately ; so
that he who comes first to the Church will have his
choice. This might have done very well in former
times, when the area of the Church was left void,
and people brought their stools with them, which
they threw at the minister, if they did not like his
doctrine, but it will not do in our age. There is
no necessity for a particular law, in order to divide
the seats in Churches. Good order requires a
division, and no better rule can be devised than
that which practice has adopted, of dividing by the
valued rent : this may be attended with inconveni
ence, as every human institution is, but this is
surely better than that of putting the Churches of
Scotland into the state of the communities of the
Royal Burghs, which cannot be divided," (Hailes,
734).
What are, besides, the argument introduced in
support of the theory ? assimilation to the Romish
places of worship on the Continent? He says there
all are on an equality ; if it were the case, it might,
in some sense, be produced as a reason, but for the
soundness of the proposition, it, unfortunately, is
not true, for there the differences of wealth, and
poverty are presented in the most palpable shape,
xlii
INTRODUCTION.
viz. by an actual money payment for a chair, and
which charge is augmented on the festival days, for
on those days the throng is expected, and, conse
quently, those days are the chair lenders market.
When the hired chair occupies the pavement of the
Church how does it differ from the fixed pew : is
not each a right for the time ? Is it not during
user an exclusive enjoyment ? But even if this refu
tation did not present itself, a great reason against
the proposed amalgamation would be in the dif
ference of the habits of the people. The English
perhaps, of all people beneath the SUH, are the most
cleanly, that part of the community, at least, who
regard appearances at all, and the admixture would
be feared as much, as the confounding of the con
ventional feelings of the community; whereas such
consequences as would present themselves to an
English mind, are never thought of; or if thought of,
unheeded, in too many of the nations which crowd
the area of the Continent of Europe. There is also
much said about the aristocratic exclusiveness of
the English people, but it is difficult to under
stand what weight that could have in the argument,
unless to show the positive impolicy of introducing
a system, to say the least, which would strike deeply
into the prejudices of the community, and have the
effect of arousing a most determined resistance;
INTRODUCTION. xlili
and, on the other hand, if the outcry was too great
to be withstood, it would be the exclusion of that
portion of the community from the parish Church ;
who bear every burden, and would end in the
building of numerous Proprietary Chapels, which
would be conducted on the most exclusive princi
ples, and create, between the distinctions of society,
an impassable gulf.
The poor, so designated, have now the right or
privilege, if privilege it be, of worshipping with
their greater neighbours, and sharing in common
with them the ordinances of religion.
If there could be adduced an argument in sup
port of the proposed system, and a reasonable hope
shown of its accomplishment; then the wonder would
be less at the proposition ; but when Chesterfield
Church is produced as the example, and as that
which is to show its thorough well working, it
is natural that then men should pause, and weigh
well the premises : before much, if any, stress is laid
on a trial so utterly inconclusive, and imperfect.
Where is the admixture of classes which it was pro
duced to show the well working of ? Where are
the seats in common to all, when it is said so
great is the security of the seats, that persons have
provided for them cushions, and hassocks ? Where
is the utter equality spoken of? One luxuriates
upon a soft cushion, the other is seated upon
INTRODUCTION.
the bare board. Ah ! but then it will be said that
the occupant provides them at his own expense.
Would not the same answer apply to the exclusive
seat in the Church ? The sittings are said to be
free, and yet the same individual is allowed to ap
propriate Sunday, after Sunday the same seat. It
is said that the encroachment is never disturbed; if
so, where is the seat in common ? If disturbed, and
the cushion, and the hassock were appropriated by
the first comer, would it riot create a soreness in the
usual occupant, if not a confusion, and, perhaps, a
most indecorous scene? The very words of the
illustration suggest a doubt, which are, "it is rarely
found, &c." (supra, p. xix) ; evidently inferring that,
sometimes, it does take place ; and it is not pre
suming too much to say that when it does, the
scene is more fit for any place, than a Church.
Chesterfield Church (a), vie wed inits most favour
able light, is no more than a Church which has
numerous free sittings without being marked free,
for all the congregation who can afford to pay, are
accommodated in the gallery and in the appro
priated portion of the Church. And it is appre
hended that, before very long, the utter impossi-
(a) It has not been thought necessary to suggest any doubt as to
the legality of the mode of seating the congregation in Chesterfield
Church, but it is broadly laid down that Parliament only has the
power of altering the law with respect to pews.
INTRODUCTION.
bility of carrying out the proposed system will be
manifested, and those seats which are now pro
nounced free, will fall under the usual rules of the
common law, or it will end in the erection of a
Chapel, as above hinted, and if a license be refused,
it will be only opening the door to dissent.
If Chesterfield Church is produced as the Church
wherein the most perfect equally exists, so much so
as to be called " the poor man s Church," it is pre
sumed the luxuries which wealth can create, should
be excluded, or all the seats should be cushioned,
and hassocks introduced, or none be allowed (without
reference to the gallery and the appropriated seats).
What is the real matter contended for in the
advancement of the proposed theory ? It is called
a theory, because it is felt to be a project which
can never be reduced to practice.
Is it the advancement of religion ?
Is it the paving the way for the introduction of
Romanism ?
Or is it the enslavement of men beneath the
yoke of a religious intolerance : under the mask of
an universal charity ?
It is admitted that pews do not add to the beauty
of Churches, but it is difficult to understand how
they, more than fixed benches, can be harbours for
dirt. If more room is the great desideratum, it can
be obtained, where no vested rights interfere, by
d
Xlvi INTRODUCTION.
a new arrangement of the seats in the form of
benches, if such mode be preferred, and if it be, it is
only necessary to close the end with a door, and
allow the common law right to take effect, and in
reality it is a pew : the provision for the parishioners,
generally, is the same, but it is most reasonable that
those who bear the burden should, if there is a
difference, benefit thereby. The rules of equity
leaving every other consideration out of the ques
tion, would teach that.
The new district Churches may be almost said
to be benched, instead of pewed ; St. Peter s, Wai-
worth, for instance ; at all events, the enumerated
difficulties regarding pews, are greatly got rid of.
As to the beauty of benches : it is to be doubted ; if
the beauty of the Church is a consideration, whether
it would be improved, unless they were of carved
oak, or some such material; if so, few are the
parishes which could support the enormous expense
it would occasion. And if the order was universal
to unpew the Churches, and substitute benches,
it would be a hardship felt in wealthy London as
well as in the remote agricultural districts.
Enter the City Churches on Sunday, and, with
few exceptions, what is found ? a thin, and listless
auditory : would it be a benefit to such parishes to
order them to demolish their pews, and bench their
Church ? And who are the men who would pay
INTRODUCTION.
for this expense the thin and listless auditory? or
the citizens who fill the villas in the outskirts of the
metropolis ? Again, visit the villages in the agri
cultural districts, and what presents itself generally,
a dozen unmeaning faces, and an almost empty
Church. Where would be the benefit to them ?
Visit the outskirts of London, and the manu
facturing districts, and what is found there ?
Every half-mile a new Church, or Dissenting
Chapel, and inside a crowded audience listening
to the impassioned discourse of a fashionable, and
eloquent preacher. And who are the congregation?
The aristocracy of money, which can afford to
purchase talent, and make reproof even palatable :
because it is couched in the choicest phraseology,
and breathed in the silver tones of eloquence. Are
the poor forgotten admit these splendid adjuncts ?
Are they thrust into corners, or hidden in the dark
places of the Church? Do they not throng the
steps of the altar, and are they not seated down
the centre passage of the Church ? Have the pew
renters much advantage over their poorer neigh
bours in the space allotted to each? Do the pews
serve as screens to hide inattention, or to court
listnessness ? If, then, they come not within the
category, WHERE is THE OBJECTION ?
In the new district Churches, which are those
last spoken of, by consulting the sections of the
INTRODUCTION.
acts of Parliament enacted for their building, and
governance, it will be found that the most equitable
rules have been put forth and acted upon : and
under the circumstances, those of the common law
have been, as far as possible, regarded. And in
these statutory enactments, the poor have not been
forgotten ; and though the benches appropriated
for their use are marked free, it carries with it, as
before said, no marks of degradation ; is as much
a direction to the churchwardens not to appropriate
as to indicate where the non-renters are to sit.
Whilst the word FREE appear upon the seats, the
rights reserved can never be confounded; but,
as is too often found, unless there is some in
dication whereby a right may be known, it, in
the course of time, is lost by merging into those
surrounding it.
Such are the remarks offered in refutation of
the theory proposed, and if in any one instance they
have the effect of preventing the proposed plan
being carried out, (that is, unpewing the Churches
and introducing in lieu thereof benches, common
to all) the Author will deem himself repaid for his
trouble in classing them, for he feels assured it
would only end in loosening the proper trammels
of society, and would introduce into the House
of God, if not actual strife, at least much indecorum
and ill feeling.
THE LAW OF PEWS.
CHURCH.
A CHURCH (a), in a legal point of view, is a church,
building set apart from secular purposes, and
dedicated to the public worship of Almighty
God. Yet all buildings used for such a purpose
are not considered Churches, either by the com
mon, the statute, or the ecclesiastical law of
England.
It is governed in a peculiar manner, and
has dignitaries, officers, and privileges, annexed
thereto, which privileges have grown up by
usage, or have been conferred by grant or
statute. "The first mention we meet with of churches,
,,, i T- i i i founding of.
Churches in .bnglana, is about ANNO DOMINI
700, when the Saxons in large districts founded
them for themselves and their tenants, and which
were the original parish Churches. Within
those districts others were afterwards erected;
which, in the process of time, have obtained
(a) The word " Church " means only the body of the
building, and any public Chapel annexed thereto : it extends
not to a private Chapel, though it be fixed to the Church, for
he who has the profit should bear the burden. 1 Bum s Ecc.
Law, 357.
B
THE LAW OF PEWS.
tithes, burials, and baptism, and thereby became
parish^Churches." (Com. Diy. f J$*gUi?(C)).
Seiaen, (from whom Comynr<[uotes), writes that
every Church having tithes, burials, and bap
tisms, may be esteemed a parish Church.
However true such a definition may have been,
it is not so in the present day, for we meet with
places of public worship which enjoy all these
privileges, and yet are only Chapels of Ease,
(infra), as they are termed, being in some
way subservient to the mother Church, either
by the right of the presentation being in the
incumbent of the parish, or he receiving some
emolument as a composition for the cession of
his rights.
England was long before its division into
parishes (6), divided into districts, which were
immense tracts of a thinly peopled country
divided from each other by large moorlands or
dense forests. And it is a fair inference to pre
sume that as population increased, so were the
(6) A parish was formerly a precinct within a diocese, which
comprehended one or more vills or lesser territories, for several
may be contained in one parish, and every precinct which
belongs to the same parish Church constitutes a parish ( Com.
Dip. " Parish," (B. 1)). So it must have a Church, church
wardens, and sacramcntalia ; but if it had not a parochial chapel,
wardens, and sacramentalia at the time of the stat. of the 43rd
of Eliz. c. 2, it is not a parish by reputation within the meaning
of the statute, though it had a distinct overseer, maintained its
own poor, and a warden by whom the rates were collected and
paid to another parish ( 76. (B. 2)).
DIVISION INTO PARISHES.
religious wants of the people found to be more
pressing, and th,e Churches too few, or the dis
tance of parts of the district inconvenient: or
it might have been, the districts being in some
instances, comprised of several lordships, the
jealousy of their heads induced a severance. And
as " each baron claimed the right of building a
Church on his own soil," (Com. Dig. (( Es-
glise" (A)), " and the consecration of the tithes
being generally arbitrary," (1 Blac. Com.}, they
obtained or wrung from the ordinary his consent,
and " obliged all their own tenants, in order to
have divine service regularly performed in the
newly-built Church, to appropriate their tithes
to the maintenance of the officiating minister,
* instead of leaving them at liberty to distribute
them among the clergy of the diocese in general,
(1 Blac. Com. 114); and these tracts of land,
whether they were manors or lordships, formed
a distinct parish ; and which supposition is born
out by the fact that a manor rarely, if ever, ex
tends into more than one parish, though in a
parish one, two, or more manors are often found,
(1 Blac. Com. 114, (c)).
" Though gradually the kingdom became meted Extra
into parishes, yet there were some spots, either
because they were situated in desert and remote
places, or because they were in the hands of
(c) The variations to this rule exist more especially in the
neighbourhood of the city of London than elsewhere.
B2
THE LAW OF PEWS.
careless or irreligious owners, which were never
united to any parish, and continue to this day
extra-parochial. And their tithes are now, by
immemorial custom, payable to the king instead
of the bishop in trust, that he will distribute
them for the general good of the Church," (Blac.
Com.).
It is not necessary for the elucidation of the
subject-matter of this Treatise, here to pursue
further this inquiry, or to show how the tithes, in
many instances, were lost to their intended
owners ; whether by a superstitious veneration,
by purchase, or by bequest, and became appro
priated to corporations or individuals on the
one hand by the avarice of ecclesiastical bodies,
on the other by the downfall of these ecclesiasti
cal associations on the dissolution of the monas
teries, and the grant to laymen by the sovereign :
of the domain, the rights and the privileges which
were annexed to them.
ECCLESIASTICAL PERSONS.
Churches, as we nave seen
p. 1), were first endowed, they had the tithes an
nexed to them, and the incumbent was what was
parson, termed a parson or "persona ecclesice? because
he takes upon himself the person of the Church,
and is seised in right of his Church. " That in his
person the Church might sue for and defend her
ECCLESIASTICAL PERSONS.
right, and also be sued by any that have an
elder title." ( Woods List. Bk. 1, c. 3, p. 30 ;
Com. Dig. " Eccl Pers."(B 9), S. P.
Parson is a word used as synonymous with Rector,
that of rector, though Watson, in his Clergy mans
Zaz(;,says,"he is the complete incumbent," mean
ing, it is apprehended, he who hath the spiritual
cure and the temporalities. Comyn treats them as
the same, and says, " he is the rector of a parochial
Church ; and that a rectory or parsonage consists Rectory,
of glebe, tithes, and oblations for the maintenance S? ulf
of a parson, or rector having a cure of souls in
the same parish, and there need not be more
glebe than the soil of the Church, or the church
yard, but there ought to be some land: for if
tithes only be proved, it is not a rectory." ( Com.
Dig. " Eccl. Pers." (C 6)).
When the monasteries obtained the livings vicars, in.
, stitution of.
into their possession, or when, in other words, a
Church was appropriated, it was usual to endow
a perpetual vicar with a cure of souls, though it
was not necessary (Jones v. Ellis, 2 Y. 8f J. 272.
Com. Dig. "Eccl Pers." (C 10, S. P.)\ and, in
some instances, the churches were not served at
all, and, in others, the officiating minister was so
miserably cared for, that it became necessary
for the Legislature to interfere.
It was therefore enacted by the 15 Ric. 2, c. 6, vicar com-
, . . mon law
and 4 Hen. 4, c. 12, that the appropriation right.
should be void if a perpetual vicar was not in
stituted and inducted into the same Church, and
conveniently endowed. Before which time the
THE LAW OF PEWS.
vicars were the mere servants of the monasteries
to which the rectories were appropriated, and
had no rights whatever. The 14 Edw. 3, c. 17,
gave them a right of action for the recovery of
land which had been given the vicarage in alms,
and then followed the 15 Ric. 2, (2 Y. 8f J. 272).
The parish Church and church-yard are the
freehold of the parson, but he hath not the fee-
simple, for that is not in any one, being always in
abeyance ( Wood s Inst. bk. 1, ch. 3), he could not
have had a writ of right. (Com. Dig. " Eccl.
Pers," (C 9)).
But for the benefit of his Church and succes
sor, he shall be reputed to have the inheritance
quodam modo, and, therefore, he may have waste,
and declare ad exhcereditationem ecclesiae. (Com.
Dig. "Eccl P<?rs."(C9)).
By the common law, the vicar had not the
freehold of the Church, or church-yard, nor
could he have had a juris utrum, for his glebe,
nor be named tenant to the prcecipe for his glebe
without the parson : yet after, by 14 Edw. 3,
c. 17, he might have had a juris utrum for lands,
&c., of the vicarage, and recover in other writs
3mrch in as a P arson m ig at have done ; he stands liable to
yard. tne re pairs of the Church, and shall have the trees
in the church-yard. ( Com. Dig. " Eccl. Persons
(C 14)).
Kitfht to the In Jones v. Ellin, it was said to be difficult
freehold of
ehapeisin to support the generally alleged presumption of
law, that the vicar has in him the fee and the
quasi inheritance of all the land on which any
ECCLESIASTICAL PERSONS.
Church or Chapel is built within the parish, and
of the buildings erected thereon, and that the
statutes above recited confer certain rights ; yet
none goes so far as to confer the fee of such Chapels
as exist in the parish upon him. By the com
mon law the general language is, that the Church,
the church-yard, and the glebe, belong to the
parson, which gives a more plausible claim to the
impropriator than to the vicar, 2 Vesey, sen., 1 45, .
only proves that a vicar may have the nomination
to a perpetual and parochial curacy, but whether
he has, or has not, depends upon circumstances.
In Dixon v. Fershatv, reported in Ambler, Lord
Northington supposed that the incumbent of a
parish having a cure of souls, had the right to
nominate a curate to a Chapel of Ease ; neither
of which propositions aid in establishing that the
soil and fee of the Chapel is in the vicar (Jones
v. Ellis, 2 Y. % /., 272, et sequitur, Alexander,
C. B.).
A curate is the lowest officiating minister in curate.
the Church, being in the same state a vicar
formerly was, officiating temporarily, instead of
being the proper incumbent.
A perpetual curate is he who officiates in a
living, wherein all the tithes are appropriated
and no vicarage endowed (being for particular
reasons exempted from the stat. of Henry 4th).
Such curate is appointed by the impropriator
(1 Bl. Com. 393). The ministers of augmented
Chapels are also perpetual curates. 1 Geo. 1,
THE LAW OF PEWS.
c. 10, s. 4 ; 36 Geo. 3, c. 83, s. 3. He may be
a mere stipendiary (Duke of Portland v. Bing,
1 Cons. Rep. 166). A perpetual curacy conveys
an interest for life, unless deprived by the or
dinary in the proper course of law (Brereton v.
Tamberlane, temp. Hard. 1752, 2 Ves. sen. 425).
Line v. Harris, 1 Lee, 146, Sir /. Lee}. And
though by common right, the nomination of a
curate to a Chapel of Ease is in the rector or the
vicar of the parish, yet by custom or composi
tion it may be in other persons (Ib. 156). " The
1st of Geo. 1, capacitates curates belonging to
the Mother Church to be augmented by the
Queen Anne s bounty, and to be subjected to a
lapse on non presentation (Ib. 157). The Chapel
is built upon the ground belonging to the
corporation, and is supported and maintained in
every way by them. The curate and the clerk
receive their salaries from them, and not from
the inhabitants of Saltash generally, who have
the benefit of the use of the Chapel. It is
reasonable, therefore, to conclude the corpora
tion builded it, and the right of the nomination
of the curate was granted to the corporation by
composition."
SEATS IN THE CHURCH.
The body of The use of the body of the Church, and the
the Church. . *
maintenance or repair of the Church and the
SEATS IN THE CHURCH.
seats, belong to the parishioners ( Gib. Cod. 221),
by the custom of England (Wood s List. bk. 1,
c. 3, p. 31), and of common right. " This ought
to be done at the charge of the parishioners,
because they have the benefit of worshipping
God in the Church, and burying their dead in
the church-yard. The parson (quccre incumbent)
only has power to give leave to bury in the
Church, but the churchwardens must be paid
for repairing the floor," (Woods Inst. bk. 1, c. 3,
p. 89 ; 1 Watsons Clergyman s Law, 709).
The disposal of the seats (d), in nave ec- scats, gene-
clesicc, or the body of the Church, belongs to law.
the ordinary (e), and generally he may place or ordinary.
remove persons there at his pleasure (Com. Dig.
"Esglise," (C 3)).
Such is the very general rule of law in re
spect to seats or pews in the body of the
Church ; but which if acted on in its literal
and obvious sense would cause nothing but ill
will and litigation from one end of the parish
to the other, creating confusion and prevent-
(d) Seats are built for the ease of the parishioner to sit, kneel,
or stand in for hearing the word of God read or preached, and
joining in prayers with the other parishioners, and are built
at the general charge of the parish, unless particular persons
are chargeable ( Degye Partons Counsellor, by Ellis, 7th Ed. 209).
(e) The ordinary (orditmrius) is a name taken from the
canonists, and is applied to a bishop, or any other person that hath
ordinary jurisdiction in causes ecclesiastical. He is so called,
quilt habet ordin<iriam injure proprio et nnn per deputationem.-
Co. Litt. 96, a.
10 THE LAW OF PEWS.
ing, (from the confliction of the claims of the
supposed rights of one parishioner and another,)
the orderly administration of the public duties
of religion, and that external decorum so neces
sary for the maintenance of a reverential feeling
towards that Being, the worship of whom is the pre
sumed object of the assemblage, and before whose
throne they, by appearing in such a place, have
consented to lay all their bickerings and strifes.
The real and proper province of the law, is
the prevention of such a state of things as those
above adverted to, and to which decision after de
cision has conduced, until the rights of all, special
as well as general, are clearly defined.
We shall first treat of the general right which
every parishioner has to a seat, and whence a
possessory title may be derived, and in the
second place, of special rights ; first of a faculty,
and secondly of a prescription which supposes a
faculty. It will be also necessary, in order that
the seeming inconsistencies of many decisions
may be accounted for to show the division of the
structure of the Church into nave, chancel,
aisles, and sometimes private chapels ; which two
last are supposed to be additions to the original
building ; and also to show in what part of the
Church the general right usually exists and is
exercised, and how the chancel and the aisles
have generally become annexed to particular
estates; and lastly of Chapels, which in some cases
fall under the common rule of law, and which in
others are governed by particular circumstances.
11
POSSESSORY TITLE.
Fuller v. Lane, * Add. Ecc. Rep. 426].
* By general law an^ common right all the pews of.
in a church are the common property of the pa
rishioners, who are entitled to be seated orderly
and conveniently, and neither the minister or the Minister
111 , and vestry
vestry have any right to interfere with the church- right to
j / o j ntcricTO*
wardens in seating the parishioners (/), (1 PhilL
323 ; 3 Hagg. Eccl. Reports 733, S. P.), for such
right is with them subject to the control of the
ordinary, though the advice of the minister and
the vestry, &c., may be invoked, and, to a certain
extent, be reasonably deferred to.
The duty of the churchwardens is to look to the
general accommodation of the parishioners, and
consult, as far as may be, that of all the inhabitants ^laim ac-^
of the parish who may claim to be seated accord- rai.k.
ing to their rank and station, but in such pro
vision they must not overlook the claims of other
parishioners, if seats can be afforded them, so they
must not accommodate the great above their real
wants to the exclusion of their poorer neighbours."
Bayley^ J., in giving judgment in the case of
Byerly v. Windus, quoted Sir J. Nicholas judg-
( / ) Before the Reformation there were no fixed seats, nor
any distinct apportionment of the Church set apart to particular
inhabitants, except to some very great persons. The seats
were moveable and the property of the incumbent, and were in
all respects at his disposal ; it was customary (i. e. usual) to
bequeath them to their successors and others, as they thought
fit. Johns. 175, et seg. Kew. Parl Aut. 596\
12
THE LAW OF PEWS.
Possessory
title subject
to altera
tion.
ment in the above case, and in almost the words
he used, (7 Dowl. % Ryland, 564).
Parnham v. Templar, 3 Phil. 522]. " The
use of the pews belongs to parishioners, and are
allotted by the churchwardens subject to the
control of the ordinary, but such allotment does
not give a permanent and exclusive right ; it is
liable to alterations as the circumstances of the
parish require, and the churchwardens may
remove persons originally seated or their de
scendants ; but if they do so capriciously and
without just, grounds, the ordinary will control
and correct them."
Right to
change sit
tings, and
dispose of
them.
Arbitrary
exertion of
the right.
Prohibition.
Parishioner,
who.
Astley v. Biddle and Ripley, 1774, in Notis,
3 Phil. 515]. "The right is in the church
wardens, both in London and elsewhere, to dis
pose of pews, for the convenience of the pa
rishioners and the preservation of quiet, but it
must not be executed arbitrarily ; if the church
wardens interfere to take away a seat, and the} r
take it to themselves, the ordinary will interfere,
and they may not unseat a parishioner on refusal
to pay for a pew if they do suit, for perturbation
will lie, and they will be condemned in costs."
Brooks v. Owen, 1718, ib. Drury v. Har
rison, ib.]. " A man, if his house of trade be in
a parish, may be a parishioner, though he lives in
another parish ; so by occupation of a farm he
may, though he does not occupy a house."
POSSESSORY TITLE. 13
Jefferys case, 5 Rep. 63, b.]. A man having
lands in a parish in his own proper possession and
manurance, is in law a parishioner, for by manur
ing lands in the parish he was by that resident
upon them, and was therefore a parishioner as to
this purpose (this case was an appeal against the
payment of a Church-rate, parishioner not being
resident)."
IVoollocomb v. Ouldridge, 3 Add. Eccl. Rep.
2]. " It is immaterial whether the parishioner
occupies the whole building or is rated upon the
books of the parish, or whether landlord is, for
he is of course repaid the rates in the shape of
additional rent."
Tattersal and Knight, 1 Phil. 232]. An
incumbent has no authority in seating and seat
arranging the parishioners beyond that of an
individual member of the vestry. He may
object to a plan which is generally inconvenient,
and which diminishes the accommodation or
disfigures the building, or renders it inconve
nient or dark, in which case he should make
representations to the ordinary," (Ib. 234).
1 Burns Eccl. Law. 358 ; supra, p. 1 1 , in notis]. wins of in
cumbents
" The many wills of incumbents are to be seen relating to
J pews.
wherein they bequeathed the seats in a Church
to their successors and others, as they thought fit."
Morgan v. Curtis, 3 Man. $ Ry. 387. W
Pews, in
34 THE LAW OF PEWS. ,
Bayley, J.]. " Yet the right to the pews is vir
tually in the ordinary, and exercised by means
of the churchwardens, and they place the
parishioners in the different pews."
church- Reynolds v. Mon/cton, 2 Moo. fy Rob. 385,
rhSfto b N.P., Rolfe, B.I. " The churchwarden has a right
place. . iii i-
to exercise a reasonable discretion in directing
where the congregation shall sit, and if he uses
no unnecessary force, he has a right to remove a
Exercise of. person from one seat to another seat." In this case,
a person, a parishioner, insisted on disturbing
another parishioner, who occupied a pew by the
appointment of the churchwarden, who, on com
plaint, went and attempted to remove the intruder
by placing his hand upon his shoulder. (This was
an action of trespass against the churchwarden
for so doing, and the jury gave damages, 10/. )
intrusion, Tum&r v. Oiraud, 3 Phill. 538]. " In a case of
i l r stifi n intrusion into a pew, shewing being placed there
by churchwarden, is a sufficient authority ; the
house, in respect of which the claim is made,
being entitled to a pew."
pew, when Wylmer and Mott v. French, \ Add. Ecc.
h^ Rep. 40, et seq., Sir /. Nicholf]. " When a pew
is allotted by a churchwarden to a parishioner :
on his quitting the parish, it reverts back to the
parish, and though he lets his house, he does
tenant no t therewith let the pew. The new tenant
m should apply to the churchwarden to be seated,
it reverts to
parish.
New
to a house in
POSSESSORY TITLE. . 1
for the pew may be larger than his wants, or which no
* pew is ap-
inadequate to them. purtenaut.
" An appropriation to a house can only be by
faculty or prescription ; but if a tenant continues
in the possession of a pew by long acquiescence of J;"f j|*, "
the churchwardens, his wants being equal to the
pew, his removal by the churchwarden would be
illegal, he not quitting the parish, and they having
no reason to believe he was about to do so. It
is an insufficient reason that they supposed the
pew was allotted to another house."
In Stock v. Brooks, 1 T. R. 428, it is said,
" that a seat in a Church belongs not to the
person, but to the house ;" which dictum must
be received with great caution.
All the decisions tend to establish, as in the case
above, in 1 Add. Ecc. Rep., that though the pew
is allotted to the house, it is so for the accommo
dation of the individual and his family, so long
as he continues an inhabitant, and his wants
are equal to it ; but when he leaves the parish,
the pew reverts back again, and is open for the
appointment of the churchwardens ; it does not
pass as of right to the next tenant (unless it is
annexed to the house by faculty or prescription) ;
so if his family increases, and his wants lessen, Placing se-
the churchwardens may place other parishioners lies
in the same pew with him, regard being had to
the rank of the occupants, (infra, p. 20).
2 Roll. Abr. 288]. " A possessory right to a 5j ttory
pew.
16 THE LAW OF PEWS.
pew, that grandfather whose estate he hath, pos
sessed it twenty years, and he succeeded to it,
held good, against a mere disturber."
process for Walter v. Drury, 1 Consist. Rep. 316, Sir W.
not seating . , r . , n
parishioner. Scott]. " A process was issued against a church
warden to compel the seating of plaintiff, and in
citing churchwarden, it was held not necessary
to allege, that any part of a pew was vacant, an
averment on the part of the churchwarden of
inability to comply with request, because of no
vacancies, would be sufficient.
condition to Averment of a condition to erect a pew on
pay money
to erect a payment of a sum to the parish would be bad,
the consideration being illegal.
XTg o? " ^ ex i stm g P ews are improperly filled, it is a
bad return to say none are vacant ; so also, that
the pews are appurtenant to houses, and are let
by the owners to persons not inhabitants of the
parish ; for all private rights must be held under
faculty or by prescription, and no faculty was
ever legally granted to that effect, for if so, the
ordinary must have exercised his discretion for
the depopulation of the Church of its proper in
habitants, (Ib. 317).
Dvity of " The churchwardens should prevent improper
SaSs. occupancy ; if they do not, they do not do their
duty," (Ib.).
sale of The allegation of a custom for those who have
not pews as appurtenant to houses, to pay rent
for seats, and which rent is to be applied to the
easement of the parish rate, is a practice which
POSSESSORY TITLE. 17
is to be constantly reprehended by the Eccle
siastical Court, and discouraged as often as set
up, (Ib. 317, note (a)). Every man who settles ^^
as a householder in a parish, has a right to call out W-
meat.
on the churchwarden for a reasonable seat, (1
Consist. Rep. 188), and that without payment,
(1 Consist. .Re/3.317).
It is a wild conceit (vide infra,) to suppose property m
that there can be such an use made of pews as pe
there can be of villas or other property (Ib. 32 1 ,
see contra, Watson C. L., citing Corvens case,
12 Coke, 106), and though a condition of sale be condition of
~ sale in a
contained in afaculty it is illegal (Stevensv. Butler, faculty
in notis, Ib. 318). Held, claim on such grounds
is invalid. Neither parishioners by consent, or p ayracn t f 0r
ordinary, or any power but the Legislature, can a
deprive the inhabitants of a parish of their general
right, and such acts are contrary to the law of the
land, (Harford v. Junes, Ib.). So also a grant by Grant for
r n t f A ii- money of a
a vestry tor 10/. ot a pew to A. and his assigns, pew to a
appointed to such a house as he should build,
and he assigned to B.
Mainwaring and Giles, 5 B. Q* A. 361. Ab- pew right,
bott, C. J.]. " In no case has a person a right to
the possession of a pew analogous to the right
which he has in his house or land, for trespass Remedy for
will lie for any injury to the latter, but for intru- of S
sion into the former, action is upon the CASE which
furnishes a strong ground for thinking that the
action is maintainable only on the ground of
THE LAW OF PEWS.
the pew being annexed to the house as an
easement."
" For a pew in the body of the Church (and not
in the chancel which might be the freehold of an
individual) no action at common law can be
maintained for a disturbance, because the pew
is not annexed to any house, disturbance is a
matter for ecclesiastical censure only, a mere
right to sit in a particular pew is not such a
temporal right, as in respect of it an action at
common law is maintainable," (Holroyd, J., 362).
Allotment Fuller v. Lane, 2 Add. Ecc. Rep. 424]. " Me-
the a vestry. morandum by order of vestry ; in consideration
of A. presenting an altar cloth, and of B. his wife,
presenting a salver for use of the communion
service, that A. should have for his own use, and the
use of his family, a certain seat or pew adjoining the
pulpit of which exclusive possession was enjoyed
one hundred and eleven years, when the estate
in respect of which the pew was held, was sold.
The question was, whether the pew should go to
the purchaser, or to a descendant, who had sat in
the pew for eleven years as a visitor only, and in
which time she had done some repairs, and (during
which time the estate was in the family), the
descendant was the wife of a solicitor resident in
London, and who at such time was mortgagee of
the estate, and in treaty for its purchase ; another
descendant, late possessor of the estate, claimed
in right of the memorandum of the vestry, and,
POSSESSORY TITLE.
on his quitting the parish, pretended to confer
the right on the demandant his sister."
On the vendor leaving the parish, his right to
the pew reverted to the parish, and became
liable to disposal by the ordinary. (" The de
mandant s husband purchased some land in the
parish, and built a house thereon, which he
inhabits.")
Wilmer and Mott v. French, 1 Add. Eccl.
Itep.ZS, Sir /. Nicholl]. "The allotment of
pews by purchase and sale (Ib. 38), and sub
sequent transfers by bequests and lettings,
cnves no legal title to them (Ib. 29, 30). Pay- saieand
v J purchase of
ments for pews can, therefore, form no ground of P CW effect.
title, and must be considered as voluntary con
tributions and subscriptions towards the building.
It may be a reason for the churchwardens exer
cising their discretionary right, and such seating
may give a possessory title sufficient as against
a mere disturber. The sale and purchase rather
operate against the claim, for if a person seeks
to found his title on an illegal origin, it goes far
to justify his removal (76. 30). A statement of
payment of money for a pew is bad, the title
should be founded on the seating of the church
wardens (76. 31), and if the churchwardens, with a
view to put an end to illegal letting, dispossess Removin
a person, and place him in another pew equally cndTi
commodious and good, it might not be improper, Iettinp -
(Ib. 32).
20 THE LAW OF PEWS.
" If the population of a parish be increasing,
no pew ought to be put out of the power of the
churchwardens, and if the chief inhabitant has a
placing two pew (allotted) too large for his wants, the church-
inhabitants *
in same wardens may place other persons in the pew
with him, but this must be done only in cases
of very strong necessity," (Ib. 41).
custom for A custom, time of mind of disposing (in al-
parishioners 1 . N/ , 1111 ^ 11
to aiiot lotting) of seats by the churchwardens and the
greater part of the parishioners, or by twelve or
any particular number of the inhabitants, is a
good custom (vide infra, contra), and if the
ordinary interposes, a prohibition will be granted,
and Dr. Gibson quaintly concludes, " which he
humbly hopes will be observed by ordinaries
and incumbents to the end, that such private
practices and bye-laws may not, by long con
trivance, grow so strong as to make head against
the ecclesiastical jurisdiction," (Gib. Cod. 222).
A prescription by the parishioners to dispose
of the seats without the interposition of the or
dinary, will be void, (Com. Dig. " Esglise" (G 3)).
It has been held, that the seats in the body
of the Church are disposed of by the parson and
the churchwardens (citing Moor, 878), but this
must be understood where there is no contention
or dissatisfaction about the matter. It may be
by custom, for the churchwardens to allot the
seats, as in London and some other places. But
some reason must be shewn why it should be so,
POSSESSORY TITLED 21
for a mere general allegation of repair and build
ing by parishioners, is insufficient to take away
the ordinary s power, because this is no more
than they of common right are bound to do,
(Watsons Clergyman s Law, 711), though Dr.
Watson much doubts whether the ordinary had
anciently the power of disposing of the seats in
that part of the Church which the parishioners
repair, (76. 715).
Spy v. Flood, 2 Citrteis, 365, et seq.~]. " Where vestry
. power to
an act of Parliament expressly gives power to let pews.
the vestry to let the pews, or any of them, ex
cepting the free seats of the poor, they may let
all but them, and, by consequence, remove the
rector from one of two pews he possessed from
the time of his induction, and let it to another
qualified person, for the statute law is binding
upon every Court, and no worse justice is ad
ministered than to depart from the plain and
simple words of a statute."
Stocks v. Booth, 1 T. R. 436]. " In an action Possession.
against a wrong doer possession may be primd
facie a sufficient title, and it is not necessary to
set forth so strict a title as against the ordinary,
it was held sufficient laying the pew as appur
tenant to a house, but it must be taken as
legally appurtenant, which can only be by
faculty or prescription. A bare possession Action
J . . i , , a e ainst a
never can give a right, because each parishioner wrong doer.
has an equal right to go into the parish Church,
22 THE LAW OF PEWS.
and a complete title can only be gained by
application to the ordinary for a faculty, or to
the minister or churchwarden to allot a seat, but
if he takes not such trouble he cannot maintain
such an action, even against a wrong doer, be
cause he must set forth that the pew is appur
tenant to a messuage in the parish." (Ashurst, J.).
" Trespass will not lie in an action on the
case for a disturbance, the plaintiff must prove
Snst tion eii ^ eY Acuity or prescription; declaration for
wrong doer, disturbance of a pew as annexed to a messuage
in the parish, is sufficient against a wrong doer,
for such right would have been colourable," (Ib.
431. Butter, J.).
"Trespass will not lie because plain tiff has not
the exclusive possession, the Church being in
the parson," (Ib. Bay ley, J.).
^ -ddd. Ecc. Rep. 7]. " A possessory right is
only co- extensive in duration with actual pos
session, if abandoned it ceases and determines,
which determination will be shown by him who
had the possession, acquiescing in another person
sitting in the seat for a year, and then applying
for another seat."
Pettman v. Bridger, 1 Phil. 324, Sir /.
a disturber. jVfcAofl]. " Possession is sufficient to maintain
a suit against a mere disturber, for possession
shows an actual or virtual power to place, and
the disturber must show his placing by this
authority, or by showing a faculty or prescrip-
POSSESSORY TITLE. 23
tion, a right paramount to that of the ordinary
himself."
Kcnrick v. Taylor, 1 Wils. 327J. " In a pos- Possessor,
sessorv action against a stranger and mere wrong against a
. ?. stranger.
doer the plaintiff is not obliged to prove any
repairs done by him or them whose estate he
hath, for it is a rule of law that one in possession
need not show any title or consideration for such
possession against a wrong doer, but as against
the ordinary it is otherwise, for he hath the dis
posal of all the seats in the Church, and against
him title must be shown in the declaration, and
proved as building or repairing."
Parnham v. Templar, 3 Phil. 526]. " A pos
sessory right ceases when use and occupation
cease."
Gib. Code, 222]. " Possession, which is a Against
/> f i_ *. ft* j f> wrong doer
pnma facie right, is a sufficient ground ot action,
and repairs need not be alleged."
Byerly v. Jl indus, 7 Dowl. fy Ryland, 591, claim by
et seg.]. " Case, action for disturbance. De- extra-
fendants had built pews in the body of thetopews m
Church by the permission of the churchwardens church
(being a corporation and extra parochial) ; they
built and repaired the same, and had been
in occupation 100 years. On a general repair
of the Church these pews were removed, and
others were placed there for the general accom-
24 THE LAW OF PEWS.
modation of the parishioners, the church room
being confined."
The judgment of the Court was delivered
by Bay ley, J. " The claim to the pews is
partly prescriptive and partly possessive, and
the question is, whether a possessory right
could exist in these parties independently of
a prescription or immemorial custom to enjoy
them ; they being non-parishioners it is quite
clear they can have no right to a pew in
the body of a church without prescription ; the
body of the Church belongs to the parish, and
the parishioners at large and the ordinary has no
right to dispose of seats to those who do not
reside in the parish ; we are, therefore, of opinion
that the defendants can have no right to the
pews they claim, but by prescription," (vide
infra).
r E ight ence f Cross v - Salter, 2 T. R. 639. Lord Kenyan}.
" A libel was exhibited in the Consistory Court
for a perturbation, and the Court adjudged the
right to be in the plaintiff, and admonished the
defendant not to sit in the pew. The Court of
Arches reversed the sentence, but admonished
the defendant not to use the pew again. These
sentences were held not to be conclusive evidence
of the plaintiff s right in an action at common
law for a disturbance between the same parties."
In tne cases cited has been pourtrayed the ge-
to S pews e . rs neral right and interest which every parishioner
POSSESSORY TITLE. 25
possesses in the parish Church, and which he by
the common law is bound to repair, and though
the parishioner has a right to a seat in the parish
Church for the purposes of public worship, still
he must not enjoy that right in a rude and
tumultuous manner, for such an exercise of his
right would be an infringement upon that of
others, and contrary to the public polity of the
realm (a). To prevent such a display, the power Appoint-
r i i. 1.- i. i ,. ment in
ot placing the parishioners is vested in the ordi- whom.
nary, and exercised by the churchwardens, who
for such a purpose are his officers, and though
Dr. Watson (supra, p. 21) doubts whether the
ordinary had the power to exercise such a right
in ancient times, yet as he has the spiritual
(0) In note (supra, p. 11) it will be seen, that though
formerly the Churches were not pewed, still there were move-
able seats, and which, except in particular cases, were not
appropriated. It must be remembered that the time there
spoken of, was when society was very differently constituted to
what it is in the present day, and besides which, population was
very much less extensive. Then rank was reverenced, and,
more than all, the awe with which, under the Romish sway,
religion inspired the minds of the commonalty was more than
sufficient to counterbalance the evil of there being no fixed seat
for each individual. In that time a disturbance in a Church, by-
scuffling for a seat, would not only have been deemed an act of
impiety by the congregation, but would, most probably, have
been visited with ecclesiastical censure ; but in these times such
feelings do not exist, or, at all events, could not be calculated
upon for the purpose of keeping of order, and if the seats were
thrown open, as in some places it is insisted upon (however
illegally), it is feared the observations in the text would at the
least be verified.
26 THE LAW OF tEWS.
care of the diocese, it is obvious that he must be
the person most concerned to keep order, and
at least the appearance of external decency in
the administration of the public worship.
Right of dis- Whether the right is one coeval with the first
position by . p 1
ordinary, apportionment ot Churches into pews, or has
acquired, been usurped or conceded, from its apparent
necessity, it is not our business here to inquire ;
it is sufficient for our purpose to know that the
placing the parishioners in the parish Church
according to their degree, having a due regard to
the wants of all, is a right which the ordinary, in
the persons of the churchwardens, exercises, and
one which is recognised by law, and is, it is
conceived, sanctioned by reason.
possessory When a seat has been allotted to a parishioner,
he has in that seat an exclusive right so long as
he continues a parishioner, and his wants are
power to re- adequate to its use (supra, p. 12). The or-
movepa- ,. 111 p i
rishioner dinary alone has the power of removing him,
from al- . J . F , . f
lotted seat, which, however, is only to be exercised for a
Ecciesiasti- sufficient cause, and he is subject to the super-
supervision vision of the Ecclesiastical Court, which would
curb any wanton display of power, and unless
the Court was satisfied that the cause of dis
turbance was a reasonable one, would, no doubt,
Right gain- condemn the ordinary in costs. Though by the
ed by ap- . _ , , . , i .
pointment appointment of the ordinary the parishioner
of ordinary- i i . . ,.,
gains a quasi right to his seat, it is one which
must succumb to the general convenience ; and
though among the cases cited, it was decreed
POSSESSORY RIGHT. 27
that the grandson should succeed the ancestor Time suffi-
whose estate he hath, and who had held the pew
for only twenty years previously to his death,
yet such decree is not to be taken for the general
rule, for we find in Fuller v. Lane, (supra, p. 18)
that one hundred and eleven years was held
insufficient to confer such a title as would enable
the possessor on selling his estate to convey his
seat to his sister, also a parishioner ; and that even
though she sat in the peweleven years, and during
that time repaired it, the pew in the first instance
being apportioned by the vestry, a memorandum
of which was extant in the minute book.
Again, in the case of Byerly v. Windus, occu
pation for one hundred years, building the pews
and repairing them during that period, was held
insufficient to confer even the right of sitting in
the pews, which the parties (a corporation) had
builded, the claimants being resident in a spot of
land which was extra-parochial, and surrounded
on all sides by the parish.
So, again, the parishioner who sold his house
could not with it convey the right of sitting in
the peculiar pew which he had occupied, for the
possessory right with which the parishioner is
clothed by the allotment of the ordinary is one
which arose out of the circumstances of his posi
tion, and was to him a matter of convenience ;
and though it was to him a matter of conve- Posses
nience, it does not follow as a necessary conse-
quencc that it would be to his successor, for the
c 2
28 THE LAW OF PEWS.
pew might be more than his wants demanded,
or insufficient for them ; in the one case, a cur
tailment of the rights of his fellow parishioners,
in the other, an inconvenience to himself.
If the seats so obtained were allowed to be trans
ferred as of right with the messuage, it is more than
likely a prescription would spring up, which by
long user would end in being a title paramount,
even to that of the ordinary.
Allotment, On the appointment of a parishioner to a seat,
title of pa- . i i v
rishioner. he has a title against all persons but the ordinary,
and any one who disturbs him therein, though
he may not be punished by an action at common
law, yet he may be by citation into the Ec
clesiastical Court, and be made defendant in a
suit for perturbation.
possessory In determining; whether a person has a pos-
rigrht, in- . , . . i
. sessory right to a pew, the mam considerations
of the case are, is he a parishioner, and has
he the appointment of the ordinary ? A mere
admonition from the Court (Ecclesiastical Court)
not to sit in a pew again (upon an action for
perturbation) is insufficient to determine that
the pew is in the person bringing the suit (Cross
v. Salter, supra, p. 24), but if the Court po
sitively decrees the pew to be in the party, then
it will be considered as an evidence of his right.
Occupation it is apprehended, is also a most im
portant ingredient in the consideration of the case,
and though none of the cases go so far as to say
the appointment shall be avoided by non-user, yet
the wants of the person being the inducement
POSSESSORY RIGHT.
29
to appoint, clothed as it is with a kind of right,
the failure of the person to occupy tacitly 1 10
showed he had not the want, and therefore the
consideration failing, the appointment would be
void ; besides, he has only in common with his
fellow parishioners a right to a seat, his bare
appointment, therefore, in some sense, acts as a
hindrance to the others in the enjoyment of
their rights.
If such was the law (i. e. occupation without
user) and if such a course of conduct might be per
sisted in and acted on with impunity, the Church
would eventually be depopulated, and the insti
tution of the minister be rendered of none avail.
The duty of the churchwardens is to appoint Duty of
the parishioners to pews on application, due re- widens.
gard being had to the condition and the wants
(supra, p. 11) of the applicant, and if on the
application, the ordinary fails to appoint him
a sitting, there being some or any vacant, he
may be compelled to do so by process in the
Ecclesiastical Court. And that though the sug- Corapulsory
gestion does not point to any particular seat
being vacant, for unless they be all legally filled,
they will be deemed vacant, and the Court will
compel the ordinary to appoint.
Though the general right of the appointment
to pews is with the ordinary, yet his right is often
interfered with by the faculties, (but which ema
nate from himself) and prescriptions which sup
pose faculties. The consideration of which will
form the next subject of our attention.
30
TITLE BY FACULTY.
A faculty is an instrument granted under the
name and seal of a bishop, and if it be subscribed
by a deputy and not by the chief clerk of the
faculties, and afterwards registered and enrolled,
it is sufficient (Com. Dig. " Courts" (N 5)).
They are granted in the Consistory Court,
which every bishop holds before his chancellor
or commissary for all ecclesiastical causes within
his diocese, which Court seems to have been
erected after the time of Henry 1, on the
ground of a charter by William 1, to the Bishop
of Lincoln ( Com. Dig. " Courts," (N 6)),
Fuller v. Lane, 2 Add. Eccl. Rep. 427]. "The
exercise of this duty is interfered with by facul
ties, and by prescriptions which faculties have
occasioned. The appropriation has sometimes
been to a man and his family so long as they
continue the inhabitants of a certain house in a
parish (vide infra, p. 46, et seq.) , the more modern
form is, so long as they continue inhabitants of the
parish generally ; tba first is the more convenient
mode, the objection which applies to faculties, is,
that they often entitle parishioners to the ex
clusive occupation of pews, of which they are no
FACULTY.
31
longer in circumstances to be suitable occupants,
whatever their ancestors might have been.
A third sort of faculty seems to have been not varieties**.
unusual when the Church had been newly pewed,
wholly or in part : to appropriate certain pews
to certain messuages or farm-houses, the owners
of which in right of them claiming a pew by pre
scription (the faculty itself being lost), and which
claims are the proper origin of those prescriptive origin of ^
rights to particular pews recognized as such rights.
at common law. The claimants must shew
annexation of the pews to the messuages time out
of mind, and reparation by the tenants of such
houses and messuages ; but no faculty either
here or at common law, can be deemed good
to entitle a non-parishioner to a seat in the
body of the Church.
As to an aisle or the chancel, it may belong to ^ c *J s d
a non-parishioner (vide infra) for it is governed
by different considerations, but a parishioner s
right determines on his leaving the parish, and
he cannot sell or assign, or let it as part of his
property in the parish.
Pews annexed by prescription to messuages P^an-
cannot be severed, the tenant for the time has a messuages
by pre-
right to the pew, (Ib. 429). scnption.
Following the times, a strong case, indeed, Faculty,
should be made out to induce the ordinary to used in
i /, i i granting.
appoint any pew by faculty to a particular pa
rishioner and his family," (76. 431. Sir /. Nicholl,
et vide Byerly and Windus, 7 Dowl. fy Ry. 564,
S. P.)-
32 THE LAW OF PEWS.
Faculty, Parnham v. Templar, 3 Phil. 523], " An ex-
r.exed to. elusive right can only be gained by a faculty, or
length of time which presumes a faculty."
" A faculty, if once issued, is good against the
ordinary himself," (3 Add. Eccl. Rep. 5). A
dictum which must be most carefully received,
unless the faculty is presumed to be one which
was regularly obtained and granted, (vide infra).
Faculties, Butt v. Jones, 2 Hag. Eccl Rep. 424]. Fa-
*>. c s culties are granted in the discretion of the ordi
nary, but it must be a sound discretion, having
a due regard to times and circumstances, and
rights and interests of those concerned, and if
an unsound discretion be exercised, appeal will
lie to a superior tribunal. In modern times, the
utmost extent a faculty can go to ; is to a man and
his family, so long as they continue inhabitants
of the parish, though in the old time they were
Faculty ob- sometimes annexed to a messuage (Ib. 424), but
s^Jfrise 7 if it has been obtained by surprise, it is bad,
and will be revoked," (Ib. 417).
Faculty, Woollocombe v. Ouldridge, 3 Add. Eccl. Rep. 4] .
nal " Ordinaries at this day are not to tie up their
hands against such future arrangements in
Churches within their jurisdiction, which may
interfere with the increasing population. A fa
culty, if granted, would not be disturbed, unless it
were clearly shewn to involve the plain violation
of some private right, or gave rise to a consider
able degree of general inconvenience; for faculties
FACULTY.
are matters so much in the discretion of the
local Judge," (76.).
Harris v.Dretve, ZB.fy Adol. 164]. " A faculty
was obtained for a man and his family, the succes
sors, owners, and occupiers, of the house as appur
tenant to which it was obtained. Annexed to the
house was a summer-house, and stables adjoined
the house, which summer-house and stables were,
after the death of grantee, converted into a shop,
and occupied by his widow ; some time after, a
room which was part of the old dwelling-house,
was laid into this building, and the occupant used
the pew."
" The faculty gave the right to the several Apportion-
<* roentofa
persons who should occupy the messuage to use P CW -
the pew: the occupiers of the summer-house,
which was part of the dwelling-house, are entitled
under the faculty. If the occupants of the
premises become too numerous for the convenient
occupation of the pew, and they disagree, they
must settle their differences among themselves.
The churchwardens disturbing the occupiers of
the summer-house are mere wrong doers," (Lord
Tenterden, C. J., ib. 166).
" The right to enjoy the pew was annexed to
the old dwelling-house altogether. The plaintiff
who lives in a part of the house, has some right
to enjoy the pew, and may maintain an action
in respect of it," (Littledale, J., Ib. 167).
" The churchwardens had no right to interfere
c 3
34
THE LAW OF PEWS.
with a person deriving title through a faculty
Division of granted by the bishop. The case of dividing a
ancient . *
house into house into two, must be considered in the same
two, effect .
on faculty, light as it an ancient house was occupied by two
families ; in that case, all the members of the
two families would have right to use the pew,"
(Parke, J., Ib. 167).
" The right of sitting in an allotted space in a
Church may be compared to a right of common
of pasture which may be apportioned," ( Taunton,
J., Ib. 168).
ri 6 ht r con
Seat
Waller v. Gunner and Dewry, 1 Cons. Rep.
319, 321, Sir W. Scott]. "If a pew is rightly
appurtenant to a house, it must pass with it, and
individuals cannot, by contract between them
selves, defeat the general right of the pa
rishioners."
" Whatever the claim of a person may be, it
ceases on m s leaving the parish," ( Ib. 323).
Faculty for Stocks v. JBooth, I T. R. 4281. " A facultv
exchange of . . J
pews. may be for exchanging seats in a Church, after
the statement of the right of a particular house in
the parish to a pew, the ordinary gave his consent
to exchange it for another (but each was annexed
to a house), for there can be no gift of a pew to
Faculty to a a man without a faculty ; a faculty to a man and
man and his . , .
heirs . hisheirs is not good.
Title against Wilkinson v. Moss, 2 Lee, 259, Sir /. Lee].
FACULTY. 35
" Citation why a faculty should not be granted for grant of a
two seats of a pew in a Church. The defendant
appeared, and said they were conveyed to him
for value, and that he had been in quiet posses
sion of them for twenty-five years. The plaintiff
alleged conveyance to him eight years before, by
the cestui que use, defendant being the trustee and
holding in wrong. The Court decreed the seats
to the defendant. On appeal, it was held, that possessory
Moss (the defendant) had a good possessory title."
title.
Par ting ton v. The Rector and Churchwardens c ons
of Barnes, Surrey, 2 Lee, 345, Sir /. Lee]. " The against
. ,, f, i [granting a
considerations against the grant ot a faculty are, faculty,
first, whether the appropriation would be pre
judicial to the Church, or the parishioners in
general, in which case any parishioner might
show cause against the grant, for he has an in
terest ; secondly, whether the right of any par
ticular person would be interfered with, in which
case they would show cause against the grant :
thirdly, whether the applicant is a proper person
to have the grant made to them, in which case
the churchwarden would show cause.
" Held : a person having an estate in the parish Fro , )cr pcr .
worth 100/. a year, and, besides, rents a house in
the parish, though it was let for a part of the year,
but who had always a servant to look after the
freehold : resident in the parish : is a proper per
son, and one to whom a grant of a faculty should
be made," (Ib. 355).
36 THE LAW OP PEWS.
Faculty, In the observations upon the possessory right,
"rant, how ad version was made to the right which every
parishioner hath to a seat in the parish Church,
but which right, as has been shown, may be
limited by the grant of a faculty. The books
are barren of information as to the origin of
the bishop s power to grant faculties for pews,
though the right to grant faculties for all matters
for which the see of Rome could license is
specially reserved by the 25 Hen. 8, c. 21, to the
cognizance archbishops. The cognizance by every bishop
ecciesiasti- o f matters ecclesiastical arising in his diocese
cal matters.
is of a much older date, and before the time
of legal memory as fixed by the statute, though
at a later date than those customs which are said
to be the origin of the common law. The
cognizance of the bishop (i. e. his Consistory
Court) was founded in the reign of Hen. 1, on
the ground of a charter by Wm. 1, (supra, p. 30)
to the Bishop of Lincoln.
Grant of a The grant of a faculty (for a pew) is not for a
what/ matter purely spiritual, or wholly of ecclesiastical
right. It is rather the grant of a temporal right for
the purposes of spiritual enjoyment, and one if
rightly conferred and acted upon in the spirit of
the grant, which not only devests the common
law right of the grantee (infra, p. 62, et seq.),
but overrides at the same time that of his fellow
parishioners, and is indefeasible even by eccle
siastical power.
Right of Whence or how the bishops acquired the
FACULTY. 37
right in question, it is difficult in this day to disposition,
I . rr> ( h w ac-
determine, or to give a sufficient reason tor its quired.
exercise, unless it be that when the grades of
society were more nearly approximating, either
through the downfall of the feudal system, or
the spread of commerce, or both, and the con
sequent diffusion of wealth that conflicting
claims were preferred to the same seats in the
Church, creating disunion in the parish, and
interrupting the orderly administration of the
offices of the Church; and the bishop, in his
character as the head of the diocese, first, perhaps
as moderator, interposed between the parties,
and which interposition afterwards, by repeated
exercise, grew into the right of appointing the
sittings of the parishioners in the parish Church.
Conjecture is all which can be offered upon this
matter, for the books are silent as to the origin
of the bishop s power, whether it grew up by suf
ferance, or whether it is a claim founded in right,
and annexed to his office from its first institution
and the building of Churches, and to arrive at
some conclusion upon the subject, a brief com
ment will be offered upon the possible sources
whence the claim could be deduced.
The power claimed and exercised could not
have been derived from a supposed notion of
his being seised of the freehold of the Church,
for that is in the parson (Com. Dig. " EC. Per-
*" (C 9)) saving such rights as may be in the
38 THE LAW OF PEWS,
founder of the Church, and which could only
apply to a small part of the edifice.
He cannot claim as suzerain, for the sovereign
is the head of the Church, and to him the bishop
does homage on his installation.
It could not be that the right was resident in
the bishop before the Reformation, and so ex-
cepted in the saving clause of the statute of
Henry 8, for Churches, it would appear from most
indisputable authority (Selden ; supra, p. 11,
in notis), were not pewed until a time much
later, and which might also be collected from
the analogy of the Romish places of worship
on the Continent, and which would show that
the right is not coeval with the institution of the
order, and would perhaps lead to the assump
tion that it is one exercised only in England,
probable Therefore, it is suggested, the only probable
way of at all accounting for the institution of such
a power, a power which overrides the common law
right, is to suppose, as above, that its growth was
gradual, for though wealth was more diffused,
yet in the sixteenth and seventeenth centuries
the particular rights of individuals were still but
ill understood, and the classes of society more
broadly defined than they are in the present day.
It might have been policy in those days to allot
to the head families of parishes distinct seats, of
which they bore the burden of repair, and
perhaps enclosed, and that which is looked upon
FACULTY. 39
as rather a hardship in the present day, might, in
the time of its first assumption, have been a bene
fit, as lightening the burden of the parish rates.
If the subject could be traced to its source,
there is little doubt but it would be found to
have originated from a spirit of exclusiveness,
and which is somewhat borne out by the irregu
larity manifested in the distribution of the pews
in many old parish Churches. The pews being
built, and the repairs done by those who appro
priated them, or acquired the right by appoint
ment, might be, and doubtless in the then
state of population, was, rather a good than an
ill ; and if this theory was followed out, it is
apprehended the source whence the bishop
derived his power would be shown.
If the right began in usurpation, it has been per
petuated by acquiescence, and is now too firmly
fixed to be shaken, in those instances at least
wherein a faculty or a prescriptive title can
be shown (of which more hereafter), and if the
right is adverse to the furtherance of spiritual
instruction, as it is to that of the common law, it
remains only with their Lordships not to exercise
that right with which perhaps prescription has
only invested them.
Dr. Watson, in his book on Clergyman s Law,
(p. 717, etseq.\ doubts whether an ordinary has
power at all to grant a faculty ; for he says, " if
an ordinary carmot grant a seat to a person
and his heirs, how can he make a grant to a
house, persons not things being capable of
40 THE LAW OF PEWS,
grants ?" So, if the ordinary has the power of ap
pointing the seats, " the upper and the best seats
will be appropriated, and those of like rank who
come after will be only seated in remote places,
the upper seats being now in the occupation of
the servants." This would appear to be a falla
cious mode of arguing against the right of
appointment, which is in the ordinary.
When Dr. Watson speaks of persons, not
things, being capable of grants, it would appear he
was confounding them, and though the pews are
granted as appurtenant to certain houses, it is in
truth a grant of user to the persons inhabiting the
particular house. If his argument was a good one,
it would apply equally to easements (a] (strictly
so termed) as well as to pews ; for a right of way
is not a grant to a particular field, but a some
thing which the law presumes as necessary to its
enjoyment. So in the case of a window-light, it
is a right (not annexed to the person but to the
thing, and yet it is for the use of the person)
which has grown up by sufferance and is neces
sary to the commodious occupation of the
house; so in the case of a pew, it is a place
appointed wherein persons, the inhabitants of
a certain messuage, have the right to resort for
(a) In Mainwairing v. Giles (supra, p. 18), Lord Tenterden
said a pew right was an easement ; with all deference to so
great an authority, it is submitted, it is not an easement, but a
right in the nature of an easement, for it has many though not
all the incidents which characterize that peculiar class of pro
perty or rights (vide supra, p. 43).
FACULTY.
the purposes of public worship, and which is
esteemed a necessary, if not from a proper sense
of obligation towards the Deity, still by the
enactment of many statutes. It cannot, there
fore, be said, that the pew is a grant to a par
ticular thing, but is rather an incident thereto, in
order to its proper enjoyment ; it passes with the
house, if rightly appurtenant, not because the
grant was to the house, but from the supposition
that the succeeding inhabitants will have an
equal need to attend the parish Church with
that of the original grantee.
It is apprehended that it is only during user
that the right attaches, and it is presumed the
right acquired by faculty may be lost, as any
other right may, by any act which shows an
intention of abandonment (supra, p. 22). Shut- Abandon-
/ i \ nient, pre-
ting up a house (to which a pew was appurtenant) scription of.
without any bond fide attempt to let it, for se
veral years, and suffering it to fall into a ruinous
state, would perhaps be considered such an
abandonment as is here contemplated ; but if
a servant was left in it to take care of it,
or there were continued endeavours to let it,
these would be acts against the presumption
of the intent to abandon. The possession of the
servant would show an intention to return, and
the non-letting would be attributable rather to
misfortune than to will, and therefore would not
act as a presumption against the owner. The
pew, during the non-occupation of the house,
would be free for the appointment of the or-
42 THE LAW OF PEWS.
dinary, subject to the rights which are in the
owner ; for a faculty is only the exclusive grant
of a certain right during its exercise, and one
which is inalienable, whether annexed to the
person or to the thing.
As to the argument that the principal seats
would fall into the occupation of the servants of
the families, to the exclusion of others of equal
rank, it is apprehended that that would never
occur, for in those Churches wherein particular
families have an exclusive right for themselves,
they usually have also for their servants ; and if
the other servants were the only residents left in
the tenements, they would occupy the seats ap
propriated for them, and not those of their masters,
unless by the express appointment of the church
wardens ; for the master has no power to dele
gate his right, and he therefore cannot appoint
his servants, or any other persons to his pew
during his absence. As to houses of equal or
superior degree being built in the parish (6), that
would be only likely to occur in the neighbour
hood of large towns, and in them new Churches
are usually built to meet the increased demand
for church-room. Besides, in so arguing, Doctor
(5) The building mania is almost exclusively confined to
the neighbourhood of large towns, or to the immediate neigh
bourhood of railway stations, in which case a new Church is
usually included in the plans ; but, in remote parishes, if a large
house is built, accommodation can generally be afforded in the
Church, for it is not in the agricultural parishes that Church-
room is so great a desideratum, as to create the distress which
Dr. Watson seems to fear.
FACULTY.
43
Watson forgets the possessory title which a pa
rishioner acquires by the appointment of the
ordinary, and which would be equally a bar
with the faculty, for thereby the parishioner
gains a title which is only to be ousted upon
very urgent necessity (supra, p. 20), and such
necessity would not, it is conceived, be pre
sumed in favour of a new inhabitant of a
newly-built house, though he might be of greater
rank than the parishioner who would thereby be
unseated.
The right gained by the grant of a faculty to Pew right,
O o J J definition of.
a pew, is in the nature of an easement, though
it does not come within the exact definition of
the term, it being much narrower in some re
spects, and larger in others. An easement may Difference
f J from an
be annexed to land, as the right of drainage ; a easement.
pew cannot, but where annexed to a house, the
similarity is most perfect, for in that case if the
house be pulled down, and an intention be
showed of abandonment, the right is in both
cases gone ; but then an easement must always
be in respect of some particular property, and
annexed to it, in order to its full enjoyment, and
may extend over several parishes, as in the case
of a watercourse, right of way, &c., &c., whereas
the right conferred by a faculty may move with
the person so long as he performs the particular
condition, as residence ; and it can in no case
be extended beyond the sphere of the individual
parish or apply to any other building than the
Church. It confers no absolute, though it does
44
THE LAW OF PEWS.
a qualified right of property, for it cannot be
severed from a messuage if annexed thereto, or
if to a person, " so long as he continue an in
habitant of the parish ;" he cannot displace the
right it confers on him, for the purpose of an
nexation to another, and we have seen (supra,
p. 34), that where two possessed faculties, and
they wished to exchange their places, a faculty
was necessary to enable them to do so.
Qualities m The property a faculty confers in common
common. < * L > *
with that of an easement, is of a very qualified
nature, being the mere right of user, and in both
cases in opposition to the common law right.
Difference In an easement, twenty years of undisturbed
between a * i i i
prescription user confers the positive right, but it is not so in
for a pew
right and the case of a pew. which must be by an actual
that of an r J
easement, grant, or such a prescription to which no com
mencement can be shown, though it need not
be the absolute one of high legal memory, and
to the prescription, repairs is a necessary inci
dent as an evidence of the right.
An easement passes with the dominant tenement,
but a pew-right must be construed by the strictness
of the limitation contained in the faculty ; if
claimed by prescription, then it passes with the
messuage in the right of which it is held, and from
which it cannot be severed ; but in no case can the
power to owner let his right to another, apart from the
fronfmes!* tenement, whether it be claimed by prescription
or by (supra, p. 31), virtue of a faculty, for the
grant supposes his necessity, and when that ne
cessity ceases, the grant is void. So, a man,
FACULTY. 45
whether he holds by prescription, or by grant
cannot sever his right if it be annexed to a mes
suage ; neither can he let his right at a rent, f
such letting is wholly unknown to law, and is, rpnt -
therefore, illegal (supra, p. 17).
Some late acts of Parliament have conferred few letting:
by Act of
the power of letting the pews in Churches, Parliament.
but that is only in the cases of new Churches,
built in accordance with the directions of the
various statutes, (infra).
From the cases quoted, it has been shown that Faculty.
1 grant of, in
the power of granting faculties for pews is in whom -
the bishop, and the administration of which it
is said is to be exercised with a careful discretion,
due regard being had to the times, (supra, p. 31).
The Ecclesiastical Courts have assumed to Ecciesiasti.
cal Court,
themselves, perhaps rightly, the power of de- ^^
termining whether a faculty has been properly p wer
obtained, and if so, whether a proper discretion
has been used in making the grant, as whether
it interferes " with a private right," or " gives
rise to considerable general inconvenience."
A faculty, when produced in evidence, must be Faculty,
proved as any other written document would be :
by the production of the faculty itself. Though
secondary evidence may be given of it, if it be
not forthcoming, as if it is lost or destroyed; by
the transcription of it from the records of the
bishop s Court, in the diocese in which it was
obtained, that is, by the production of an exa
mined copy (1 Phill. on Ev. 432, 9th ed.)\ and
it is also absolutely necessary to show, that the
46 THE LAW OF PEWS.
repairs have been done by the party holding, or
those in whose right he holds. In the present
day the most rigid proof will be required, for
the Courts have set their faces against them as
curtailing the common law right, and, therefore,
it is apprehended, the terms of the faculty would
be subjected to the strictest scrutiny, and require
the most satisfactory proof.
Grant to a When the faculty has been "to a man and
man and his , . .
11 " s f am *fy so I n 9 as they continue the inhabitants
of a certain home in the parish." In dis
cussing the words of the grant, a strict at
tention must be given to the nature of the in
strument, and the right which is by it intended
to be conveyed. If these words were used in
respect of a freehold estate of inheritance, it
would confer on the grantee an estate for life, for
the general rule of law is, that the word " heirs" is
necessary to create an estate of inheritance, and
it has been shown that a grant by faculty to a
man and his heirs ( Waller v. Gunner and Dewry,
1 Cons. Rep. 321) is void; so it would seem
with or without the word "heirs" the grant could
not descend, therefore it cannot mean more
than the annexation of a species of easement to
a particular house in the parish which a man
holds for him and his family, so long as he
continues the occupant.
The word " family" it is apprehended is not
used in its general sense, but in a more limited
one, meaning not the lineal descendants of the
grantee : but those whoever they may be, who
FACULTY. 47
are dwelling with him in the house ; the limita
tion being intended to show the description of
persons to be introduced, for the necessity of o" d t heTrlnt
the man is the inducement for the grant (as ofafacult y-
the cession of the common right is the consi
deration) (infra, p. 65, etseq.), and the necessity
of the grant extends to all those dwelling in the
house equally with himself, for it is as equally
proper for them as for him to attend the public
ministrations of religion ; in other words, it is a
grant to a man to occupy a particular pew in com
pany with other persons who may be resident in
his house as part of his family, the grant is to
them equally with himself, and he would have no
power to exclude any member of his family so
long as the individual continued a member, in
habiting with him the particular house to which
the faculty is annexed. But if the grantee whilst Power ot
on the road to, or even at the door of the Church, exclude a
...... member of
inhibited one of his family from sitting in the pew,
by declaring him to be no longer a member of his P ew -
family, within the meaning of the grant, the right
of such person would immediately cease, for he is
only a parishioner in the right of the grantee,
and if the grantee declares that right to be at
an end, there could be no consideration for the
grant (c), for though the grant is to " a man and
(c ) A faculty is a writing, and though the words he not " dedi
et concessi," it is in effect the grant of a right in and upon the
freehold of another, and therefore is it contended there must
be a consideration. It has been held, that a grant may be made
48 THE LAW OF PEWS.
family," &c., it is so only so long as they con
tinue members of his family, and whilst they do
without consideration ; and on the other hand it is said, " A
deed also, or other grant made without any consideration, is as
it were of no effect, for it is construed to enure or to be effectual
only to the use of the grantor himself," (Perk. 533).
There is of course a difference between considerations. In
some cases, relationship is held to be a sufficient consideration ;
while in others, a valuable consideration is necessary to uphold
it, and which may be either an actual act done, as payment of
money or forbearance, as abstaining from suit, on repairs being
done, or forbearing the exercise of a right, as to sit in a par
ticular place.
In a faculty, the consideration does not appear upon the face
of the writing, and if one could not be implied it would, it is
apprehended, be bad ; but where a consideration can be implied,
the law will raise one, rather than vacate the grant. It is said,
" no inference can be raised beyond the words of a grant" ( Com.
Dig. Grant (G 4)). In the case of the grant of a faculty, the
inference, or rather the inducement, is the necessity and the resi
dence of the applicant; and the abstaining from using the common
law right would be a valuable consideration, for it is a right
inherent in every parishioner, and antagonist to the exclusive
right acquired by the faculty, and therefore is it, there must be
some consideration to maintain it ; if not as between the grantor
and grantee, at all events between the grantee and those whose
rights are infringed, and which consideration must be an equi
valent, and it must have a lawful origin. In Tomlin s Law
dictionary, title " Deeds," (after speaking of bad considerations,
it is laid down, " any of such will vacate the deed, and subject
such persons as put the same in use to forfeiture." Now a
faculty, if not a deed, is in the nature of a deed, being an in
strument in writing and under seal, and is registered in the
Court wherein it is granted, and therefore it must be upon a
consideration, express or implied.
Mr. Justice Blackstone (2 Com. 440), makes a distinction
between gifts and grants, and says they are " to be thus distin
guished from each other, that gifts are always gratuitous, grants
FACULTY.
so, it is conceived they have a right, (though
derived through him) as extensive as his own, to
sit in the particular pew set forth in the faculty, and
it is apprehended if the grantee hindered them
are upon some consideration or equivalent." It is impossible
that the faculty can be considered in the nature of a gift by the
bishop, though it proceeds from and is founded on the right in
cidental to his dignity, and which he may or may not exercise :
but for its exercise, there must, in the first place, be a sufficient
inducement, and yet though all the necessaries to the induce
ment exist, such as residence, &c., yet the bishop may refuse to
exercise his power ; so it must be on his part a voluntary act,
though subject to a certain restraint.
Again, a faculty cannot be said to be a gift, because it is a
right to be exercised upon the freehold of another, and which at
the first view may appear to be an anomaly, but then it is a
right to be exercised in accordance with custom, and can be
granted to those, and those only, who can claim the customary
right (infra, p. 66). The bishop or ordinary claims his right to
both the general and exclusive appointment by prescription
(supra, p. 39), or it may be by custom ; and it being a rule of
law that a custom must not be unreasonable, it follows that the
exercise of the custom must be exerted in a reasonable manner.
The appointment by the bishop of an individual to sit in a
particular place in a Church is not unreasonable, he having
the right to sit somewhere ; but at the same time, it is op
posed to the general right of the parishioners, for it is the
appointment of a particular person to an exclusive seat, to enure
so long as the conditions of the faculty are fulfilled : it cannot
be a mere license (vide infra), because it is a direction to do
a positive act and to exercise an exclusive right (during user).
A faculty, for the reasons above stated, must be a grant, and a
grant upon condition.
This note has been considered necessary, because it is stated,
without qualification, that a grant must be upon consideration,
whereas there are a few cases in which a grant would be held
good at law, though there was no consideration.
D
50
THE LAW OF PEWS.
in the enjoyment of that right (they not being
discarded from his family as above), a suit for
perturbation would lie, or case at common law.
construe Having so considered the case with regard to
reA?dto n ^ e individuals of a man s immediate family, we
will look at its operation in regard to lodgers.
In Woollocomb v. Ouldridge (p. 13), it was held
by the Court to be immaterial whether a person
paid the rates and rent in one sum, or whether
in several sums, if in one sum ; the rates were
included, and such person was held to be a pa
rishioner. In the case cited, the person occupied
the whole house, which for the purpose of a
sitting at Church, it is apprehended, would make
no difference, and lodgers occupying a part at a
rent would come within the definition, for
though they pay a sum in gross for a particular
part of the house, yet by the aid of that sum
the grantee is enabled to pay his contribution
towards the repairs of the Church, which is levied
in a rate, and is incidental to his being a pa
rishioner, and which he is liable to pay by the
custom of England : the lodger s spiritual wants
would be equal with that of the grantee : and so
the necessity; therefore: whilst he continues to
occupy a part of the house, he would be, it is con
ceived, within the meaning of the word " family,
and in the contemplation of the ordinary at the
time of the grant ; for it is the same as though
the house was split into several tenements, for a
faculty may be apportioned (supra, p. 33), though
the grantee could, on the spot, under the
FACULTY. 51
circumstances above, inhibit one of his im
mediate family from sitting in the pew, yet
the same power would not extend to his lodgers,
for they would continue members until their
holdings were duly, and according to law,
determined ; and during that time they would in
right of his right be entitled to sit in the faculty
pew, for the right is not to the man as personal
property, but for the use of the inhabitants of
the house, so long as he continues a parishioner,
and it might be the knowledge that the landlord
possessed such a right as the faculty confers, was
the inducement for the lodgers to become his
tenants.
The word "family" would not of course be held Family,
. construc-
tO extend to the servants : for it is the policy of tion -
the law, and justly, to regard the distinctions of
classes into which society is divided, and it is
presumed the words of a faculty would receive
such a construction as would be the reasonable
intendment, regard being had to the particular
rules of law which bear upon the case ; there
fore it is conceived that the servants, though
inhabiting the same house, are not included
within the term " family," which, it is admitted, is
a word of large signification, yet to put such a
construction upon the term as to include the
servants, would be breaking that rule, which says,
all persons have a right to be seated, due regard
being had to their condition" To place the
master in the same pew with his servant would
D 2
52
THE LAW OF PEWS.
Grant of
faculty,
what and
how lost.
Faculty
grant upon
condition.
be an utter disregard of all rules of decorum, to
say the least, and in making the grant the ordi
nary could never have intended to commit an
outrage upon all the proprieties and conventions
of life, and therefore is it that the word " family "
was not intended to include the servants.
The grant in question is a grant for life, or so
long as the condition is fulfilled. If the grantee
let the house, reserving to himself no part or power
other than that which is usually in the lessor,
his right would be gone, but if he continued to
inhabit a single room the right would still enure
to him, but if he once parted with the posses
sion in such a manner as to show abandonment,
the right would be lost for ever, for the condi
tion was residence in a particular house, nor
would it be revived by his re-occupation, for a
less rigid mode of construction could not be
assumed in the case of a faculty than is the rule
when the realty or personalty is concerned ; it
is a grant upon condition, and if the grant were,
as in the case of a realty, " to a man and his
heirs, so long as they continue the tenants of a
certain manor, when they cease to be tenants,
the grant is defeated." So a grant of a dignity
to A. and his heirs, so long as they continued
lords of a certain manor on their quitting the
seigniory of the manor, the dignity is at an end,
(1 Blac. Com. 109); if, then, the right would
lapse in the case of a conditional fee by the non-
performance of the condition, how much greater
FACULTY. 53
is the reason that it should, in the case in dis
cussion ; if the grant be viewed, as in the nature
of a personalty, it would be an absolute gift to a
man, but the right in question cannot be a
personalty, because the grantee can exercise no
control over it, and it must be annexed to a
house.
When the grant is " to a man and his family, Grant to a
j . . 7 T . - -, . man and his
so Long as they continue inhabitants of the parish family, &c.
generally" (which is said to be the more modern
form). In this case the grant is less assimilated
to an easement than in the former case, though
the same arguments may, with equal force, be Jjfjjj^
applied, but with this difference, that in this tive -
instance the grant is motive, and the right would
continue, though the grantee removed to
another house situate in the same parish, and
the word "family" would, it is apprehended,
admit of the same construction as was offered
in the former case, and would be a grant to a
man and those resident with him as his family.
On the grantee s moving to another house in construc-
the same parish, the right which was before
attached to the messuage moves with him, and
is during his residence appurtenant to his new
abode ; and those members of his family only who
moved with him would be partakers of the
benefit of his grant ; and that, though part of his
family remained in the former messuage, for
they only acquired a right through him, and not
an independent right; but yet the right ao
54 THE LAW OF PEWS.
quired, it is conceived, would be sufficient to
maintain (the conditions being alive and fulfilled)
an action on the case, or a suit for perturbation
(supra, p. 47).
If any other construction was admitted, the
very intendment of the grant would be defeated,
for it is meant as a convenience to the grantee,
and through him to his family, or those resident
in the house with him, on his or their attendance
at a place of public worship ; but if all who had
resided with him as members of his family ac
quired an independent right equal to his, his
would soon be rendered worthless, for by possi
bility his faculty pew would become the most
crowded spot in the Church.
It is doubtful whether this construction would
apply to the lodgers who might be resident in
the former messuage, for perhaps they become
part of the grantee s family, for the very purpose
of being enabled to attend the Church in the
faculty pew, and if not the only, it might have
been the great inducement, for their becoming
the grantee s tenants ; and if, as it would seem,
the right continued in the grantee, it is pre
sumed the lodgers right would endure at all
events until the end of such time as the law
would imply to be a proper notice for their
peculiar tenancy. It might be, the grantee
leaves his house in the middle of a quarter,
turning over his house and lodgers to some
member of his family, and to whom no pew
FACULTY. 55
right attaches : if the pew by such means be
comes crowded, the grantee could have no right
to complain, for the crowding is the consequence
of his own act, and the law would rather suffer
him to be inconvenienced, than he should do a
wrong to his tenants. If he left the parish, the
right would be disrupted ; and no one through
his grant could possess the faculty pew, the
lodgers right of user would of course cease with
his, and their remedy, if any would then have
to be sought through other means.
The right, on the grantee s leaving the parish, Grantee
j- u I," J ceasing to
would revert to the ordinary, to be by him used be an in.
J ..... . habitant.
for the general advantage, or by possibility it
might be again applied in the same exclusive
form. It must revert to the ordinary, for the
condition is not fulfilled; it is a continuing
condition, and runs with the right, therefore that
rule of law would not apply, " that a condition
once satisfied is gone," for in this case the con-
dition being co-existent with the right ; can only
be satisfied by the completion of it. The words,
it is apprehended, cannot receive a larger signi
fication than that suggested, for the intention
of the grant must be taken into consideration, as
well as the words of it, and the intention is
clearly that the grantee, and those resident in
his house, shall be enabled to attend the solem
nization of public worship in a decent and
reputable manner.
Proof of residence in the last case in the parish, Proof,
56 THE LAW OF PEWS.
cessary to and in the former in the particular house, at the
time of the disturbance, would be sufficient to
support the faculty, but which presumption would
febut f ted OW be liable to be rebutted by showing non-resi
dence in the house or the parish, as it might be,
accompanied by such acts as would show an in
tention of abandonment (vide supra, p. 22), and
no lapse of years would be sufficient to restore
the right, for the commencement of the title
would be shown by its breach, and by conse
quence its abandonment, and by showing its com
mencement an after prescription would Debarred.
Faculty, an The above limitation, it is contended, can be
estate for
life on con- merely an estate for life on condition, and which
dition. .
condition will require an exact fulfilment.
We have now to treat of a faculty which
admits of a larger signification, and which passes
with the messuage ; faculties have been obtained
for a man and his family, the successors, owners
Faculty a P - and occupiers of a certain house (supra, p. 33) ;
purtenantto , . . .
a messuage, in tins case it was held that the right not only
descended to the occupiers of the house, but was
also capable of a division, and on the house being
converted into two, it was held the right should
be apportioned, the proof required was the pro
duction of the faculty, and that the then two
houses formerly constituted the one, as appur
tenant to which the faculty was obtained.
When the faculty annexed to houses is one
of this nature, (*. e.) of the largest extent, the
rights of the persons pointed out, exist so long
FACULTY. 57
as the house and the pew exist, and the right Non uscr ot
tenant.
cannot be lost by the mere abandonment of the
tenant, and his seating himself in another part
of the Church ; but as far as the tenant s right is
concerned, it would, it is conceived, be an
abandonment, and during his possession of the
messuage, the right would-be gone, to be re
vived again upon occupation by another tenant,
and that though the ordinary in the interim had
appointed another parishioner to the pew ; for
by the faculty suggested, the pew is inseparably
annexed to the house as a kind of easement,
but it is not liable to be lost as an easement would
be by non-user as against the future occupiers
and possessors of the house.
If instead of the tenant, it was the proprietor Faculty,
of the house who had done such acts as showed mcnt of by
. ^ r . , proprietor.
an intention of abandonment, and the ordinary
took advantage of such lapse, and appointed,
before he resumed his right, in such case, a sever
ance would be effected, and the exclusive right
to the pew would be gone for ever; for by his
conduc the shows dissent, and thereby repudiates
the grant, showing that he prefers his common
law right (which is made void by the grant)
(infra, p. 65) to the exclusive one conferred by
the faculty. It is very doubtful whether he could
resume the right conferred by the faculty when
he had once repudiated it, and that ; though the
ordinary did not take advantage, for it would
immediately revert, and being a right as shown
D 3
Tenancy in
common.
58 THE LAW OF PEWS.
conferred in violence to the common law right ;
the law would assume the most severe con
struction, because the act of abandonment could
not be accidental, and must, therefore, have been
wilful and voluntary.
Where a house has been divided, and two dis
tinct families inhabit it, or it becomes the free
hold of two distinct individuals, the same rules,
it is conceived, would apply, and the right might
enure as to one part of the ancient fabric, and it
be lost as to the other. So if several families
occupy the same pew, but in virtue of separate
faculties, thojugh they be tenants in common of
the pew, yet during their particular occupancy,
the occupancy of one would not be the occu
pancy of all ; for though they be tenants in com
mon of a particular pew, yet the property in their
respective sittings is several and not joint, and
therefore the holding of one would not be con
strued to be the holding of them all, and if one
did such an act as showed an intention of aban
doning the exclusive right, and resuming that
of the common law, he could do so, and to such
party the right would be lost.
Joint If a pew was granted to two or more in joint
tenancy, tenancy, if one abandoned his right, and the
other or others continued to occupy, such occu
pancy would not, it is apprehended, enure to
keep alive the right of his co-tenant, for though
they are said to be seised " per my et per tout?
yet such abandonment would be construed as a
severance of the estate as effectually, as though
FACULTY. 59
it was by deed for the purpose of barring sur
vivorship ; for by forfeiture, a joint tenancy can Faculty a p .
i j , , 11* i * i piirtenant,
be severed as well as by alienation ; but in the how xwt
case of a pew right, it has been shown that it
cannot be aliened.
It is apprehended, that the same rule would
also apply to a tenancy in common.
Faculties were not only granted for pews, but
are also necessary when any extensive altera
tions is contemplated in a Church, as the erection
of a gallery, or new pewing the Church, which
will form the next heading of our subject.
60
FACULTY FOR ALTERATIONS.
Parnham v. Templar, 3 Phil 527]. " The al
teration of a pew, where no private rights are
infringed, does not require a faculty; but in
important alterations where parishioners are to
be burdened by additional rates, a faculty is
hi S hl J necessary, and it is quite proper and
should be applied for," (Ib. 528).
"A faculty was obtained for new pewing
Church on completement, the pews were allotted
by the churchwardens, and a rent was fixed to
be paid; held such apportionment could not
create a right to the pew as against the con
venience of the parish, (Ib. 532, Sir /. Nicholl).
Faculty for " An alteration, with the concurrence of the
churchwarden, ordered by the curate, if it will
not disfigure the Church, may be done without
a faculty," (Ib. 528).
Blake v. Usborne, 3 Hagg. Ecc. Rep. 732].
A faculty was obtained for the erection of a
gallery, and to encourage contributions, the
pews were allotted for ninety-nine years, at
the end of which time, the rights of the ordi
nary and the parishioners were to revive. " In
this case, it was held no prescription could be
FACULTY FOR ALTERATIONS. 61
claimed, for the origin of the title, of the condi
tions and the terms appear. The possessor of
the faculty pew, on the expiration of the faculty,
would have such a possessory title as only ex
treme necessity would oust (//;. 734) ; and in
such case, an auctioneer promising, by advertise- g s f j
ment to give possession of such pew to the pur- P ew<
chaser of a house in which possessor lived, and
which belonged to him, is promising more than
he had power to perform, and a permission by the
churchwarden to* hold the pew until the pur
chaser should be ready to sit there, though by a
parishioner, and for a parishioner who was seated
in another part of the Church, is illegal and
improper. It is an improper exercise of the Exercise ot
i_ L i > T 11 church-
churchwarden s discretion, and the possession warden s
power,
ot the persons under such circumstances, gams wheabad.
them no right even against a disturber," (Ib. 735).
Groves and Wright v. The Rector and Pa- Faculty for
rish of Hornsey, 1 Const. Rep. 188, Sir JFm. guery.
Scott]. A faculty to erect a gallery was applied for
on the ground of the want of pew room, and was
opposed, on the ground that the Church was old
and would not bear the additional strain, and
that the erection of the gallery would obstruct
the light.
The first objection would be good, if supported, objections
(II. 179) ; the last would be bad if it be shown
the Church is sufficiently lighted, or that it could
receive such additional light by an alteration in
the form of glazing the windows, (II. 196).
62 THE LAW OF PEWS.
Attention of " The majority may incline to unnecessary
the Court to * i i i n T
the wishes expense, against which the Court should protect
of the ma- .*...
jority. the minority; it may refuse the whole parish
joined together, or grant the prayer of one
against the rest. It will pay great attention to
the majority, though it will not be bound by it,
(Ib. 189). The first point to look at, is, whether
disapprobation of the parish can be ascertained by
the resolutions of the vestry. If it be proved
that the order of vestry authorized an application
for a faculty, and was confirmed at a subsequent
vestry, not being annulled at an intermediate one,
such a statement of facts must be taken as the
sense of the majority, unless it can be shewn that
such majority was unduly obtained, (Ib. 191).
Notice of " If it be shown on the plea of no notice that
vestry. ,
due notice was given, and persons do not choose
to attend the vestry, they are not, therefore, to
plead ignorance, though the notice was general
and for parochial purposes only, (Ib. 191).
Majority ob- " If the majority in the vestry was obtained by
tained by a .. ,.. . J . . J
canvass. canvass, it is no objection, though canvasser be
one of the majority, unless the canvass was
corrupt, (Ib. 192).
Reason tor " If it be shown that the Church is too small,
Scuity? and that parishioners cannot be accommodated
in consequence of the building of new houses,
in such case it is reasonable to apply for a faculty,
(Ib. 194).
Appropria- Objection that churchwardens might put
tionofpews.
different persons into the same pew not appro
priated by faculty. They do not say they are not
of the
FACULTY FOR ALTERATIONS. 63
by custom or other title which the Court would
respect, unless disputed in a regular and proper
manner, for they may be appropriated by prescrip
tion, or by the allotment of the churchwardens.
" A prescriptive right cannot be altered by Prescriptive
any authority, (Ib. 195).
ic A possessory title cannot by churchwardens Possessory
only, though it may be by the ordinary, (Ib. 195).
" The Court would be careful to preserve the Preservation
symmetry and proportions of the Church
(Ib. 197).
k< The costs are in the discretion of the Court, costs of op.
. posing ^rant
and are not matters of strict law, but where persons of faculty to
- i MI i !- erect & al -
tactiously oppose, they will be condemned in ler y-
costs, but if be shown that the opposition arose
from a difference of opinion in the parish, al
though all the apparent opposers are of the same
family, costs will not be decreed," (76. 197 ; vide
supra, p. 61, et sequitur}.
Tattersal v. Kniqht, 1 Phill. 2381. " Where a Factious
, . p ! f, , . opposition
vicar objects to a faculty for the erection of a b y vioar.
gallery which would not disfigure the Church,
and is much wanted for the accommodation of
the parishioners, and his objections are factious,
he will be condemned in costs."
Stevens and Hollah v. the Rector of St. Mar- Faculty to
pull down a.
tins, Ongar, and Others, 2 Add. 255]. A church,
faculty was obtained for pulling down a Church
under the following circumstances : St. Martin s,
64 THE LAW OF P.EWS.
Ongar, was united to St. Clement s, Eastcheap,
by the 22nd of Charles 2, c. 11, s. 66, which
was to be the parish Church for the united pa
rishes, and it was directed in the statute, that the
site of the Church of St. Mary, Ongar, and the
churchyard, should be enclosed in a wall, and
used as a burying place for the two united pa
rishes, and for no other purpose whatever ; con
trary to which provision a lease of a part was
granted for the purpose of erecting a French
Protestant Church, which was built partly upon
the old foundation of the Church, and which
was used as such for a long period of time ; in
A. D., 1823, it was delivered up to the church
wardens in a state of great dilapidation, and
application was made for a faculty to pull it
down. " The Court are unwilling to sanction
the demolition of any building which has some
thing at least of the character of a national
Church," Sir /. Robinson. It was requested
that it might stand over, when, if no objection
was offered, the faculty would be granted ;
no objection was offered, and the faculty was
granted.
Faculties for pews has been commented on at
Faculties ^ t
fortheerec- some length in a former part of this treatise
tion of a
fornew!y d ( su P ra > P- 36, et seq.\ but faculties for the erection
Srci? a f galleries and for a new arrangement in the pew-
ing of Churches, must necessarily broadly differ
in their distinctive features from those already
FACULTY FOR ALTERATIONS. 65
discussed ; the one being an appropriation to
an individual or individuals, an appropriation as
has been shown, which is clearly in disruption
of the common law right, inherent in every pa
rishioner ; and yet in one sense, a grant which Faculty
* concurrent
may be made justly and be concurrent therewith, with com.
// mon law
for it is only an appointment in order to its more ri e ht -
exclusive enjoyment.
By the special appointment, (i. e.) the grant of considera-
a faculty) it is contended, that the common law grant of a
f i acuity.
right which the grantee had in common with
his fellow parishioners is extinguished ; at least,
for so long as he holds the exclusive right, or
rather it may be said merge into the grant.
If this view be a correct one, the church
wardens could equally prevent the grantee from
occupying any other seat in the parish Church :
as the grantee could hinder them or any other
parishioner from occupying his seat : and thereby
ousting him from his right and the enjoyment
incidental to his grant.
The grant must have been made upon con
sideration, or it would be void. It confers an
exclusive right, so some thing must have been
given for it as a consideration, in order to its
legal enjoyment ; and, therefore, it is contended,
it takes away the common law right, that being
the only legal consideration which could be
offered in exchange, and which could not be co
existent with the grant.
It would have been an absurdity to suppose
66 THE LAW OF PEWS.
that the grantee could fill two different seats at
the same time, and in virtue of two different
rights springing from the same origin ; for it may
be said, that it is the necessity for the grantee which
is the inducement of the grant, so it is the neces
sity of the parishioner which confers upon him
the common law right to a seat in the Church.
Though none of the cases go to this length, yet,
it is impossible reasonably to conceive it can be
otherwise, and which will be proved by a strict
examination of the principles which govern these
rights,
considera- In these considerations it should always be
tionforthe ,111 . i i i
grant of a remembered why the grant is made, and what
faculty, J ^
what - is the inducement for it. It will, it is conceived,
be admitted, that the common law axiom of con
sideration would apply to the instrument in
question ; if so, it will be also admitted that the
consideration must be a legal one, and in ex
amining the various possible considerations, it
will be shown the only legal consideration which
can be offered in exchange for the exclusive
right, is the cession of that right with which the
common law clothes every parishioner ; and it is
contended, no other legal consideration can be
urged, for if it were shown that money was paid
for it, that would of itself be a voidance.
payment. In the case of The Bishop of Ely v. Gibbons and
Goody, (4 Hag. Eccl. Rep. 173), which was a
claim by a vicar to have his opinion allowed
against granting a faculty to bury in the chancel
FACULTY FOR ALTERATIONS. 67
of a Church, Sir J. Nicholl, in giving judgment,
said, " the opinion of the vicar against such a
grant would have due weight with the ordinary,
but it must have a better cause than his mere
will ; still more so if his consent is to be made
a matter of barter and purchase"
The case of a faculty for exclusive right to
bury in the chancel is much analogous to that of
pews, and it has been shown that payment in
such cases can never be the consideration for a
faculty (supra, p. 19), for it is a thing which the
Ecclesiastical Courts, who are the proper Judges
in these matters, would never tolerate.
It cannot be urged, that the repairs which Repairs.
may or may not be necessary during the occu
pation of the pew, would be a sufficient con
sideration ; for legally they could be no con
sideration at all, and even if they were peremp
tory, it is doubtful how far they would be
allowed to extend in the nature of a consideration,
but we have seen they are a mere evidence of
the right (vide infra).
If they were peremptory, they would not come
within any of Mr. Justice Blackstones defini
tions of a consideration, ( 1 Bl. Com. 444, et seq.).
The grant of the faculty might possibly be a
sufficient consideration for the repairs being
done, but a vague promise to do something which
might or might not be done (for the pew, during
the occupation, might not require any repairs),
could never be construed as a consideration for
68 THE LAW OF PEWS.
the grant, for on an attempt to enforce the
grantee to do them, he could vacate the right
which the faculty conferred, and his refusal to
repair would be construed either as an abandon
ment, or that he had never entered upon the pew
in the right of his faculty, but by the mere
appointment of the ordinary in virtue of his
common law right ; but if repairs could be con
strued to be a consideration, the repairs could be
enforced ; but they have ever and properly been
held only as a mere evidence of the right.
Non-user of The only implication, in the absence of an
express definition of the particular consideration
to be given, would arise in non-user of the
right with which the common law had in
vested the grantee, and which would come
exactly within the definition as laid down in a
note by Mr. Justice Coleridge, in his edition of
Blackstone (1 Bl. 446), in speaking of the con
sideration which arises by implication from a
contract executed, he says, "an implied promise
is that which the law raises from previous cir
cumstances passing between the parties, and
therefore, the foundation must be something
which has a legal value." A right forborne to
be exercised is a thing of legal value.
Residence. Residence could not be the consideration, for
that must have existed before the application for
the grant. And that which was in existence
before and continues afterwards unchanged,
could never directly or indirectly be construed
FACULTY FOR ALTERATIONS. 69
as a consideration ; for it was necessary, before
even application could be made for the faculty,
and is afterwards made a condition. Residence
is necessary, in order to give a person a right to
sit in the Church ; therefore if it be necessary
(and it is) to give such a right during the exis
tence of the right, it must continue, or the right
would be gone. Then it is presumed, that as
residence and the common right must be co
existent, it cannot be extended, so as to become
the consideration for an exclusive grant, es
pecially where another consideration can be
shown.
The common law right is inconsistent with The com-
. mon law
the enjoyment of a faculty, because the same "&ht incon-
J J J J t sistent with
person cannot occupy two pews at the same time, the e rant *
one in his right as the grantee of a faculty,
and one in right of the common law right as a
parishioner. They are besides two opposing
rights, one being a general, the other an ex
clusive right, and which, if allowed, would have
the effect of depopulating the parish Church,
and be a manifest grievance to the parishioners
generally : one or other of the sittings must be
unoccupied, because the grantee or occupant
could not appoint another person to sit in either
of his pews ; the right of appointment to both
being in the ordinary.
By the exercise of his common law right, if it
were not ceded, he could compel the ordinary to
seat him (supra, p. 17), and that, it is presumed,
70
Repairs.
Residence.
Common
law right.
THE LAW OF PEWS.
though he held a faculty pew. If the common
right continued in existence, the application
would be in respect of that right, and the faculty
would be a matter extraneous, and the Court
would not allow the possession of it to enter into
the consideration of the question, or they would
be travelling out of the record. The application
would be that of a mere parishioner, and to
which character the law has annexed a need of
attending the Church, and has conferred a right
of being seated according to the degree of the
parishioner and his wants ; and those rights
which the law annexes to a person, all Courts
are bound to observe.
Therefore, is it contended, that the common
right must be ceded, but which cession could not
be but upon consideration, and if it were possible
to imply a consideration, the Court would do so
rather than vacate a contract in which it was not
expressly set out, especially if that contract was
executed.
Repairs cannot be the consideration for a
faculty. They are mere evidence.
Residence must have existed before the ap
plication for a faculty and exists in the same
state afterwards, and could not therefore be the
consideration.
The common right would be inconsistent with
a faculty, and if it be inconsistent, it cannot exist
therewith ; therefore, the cession of the common
right must be the consideration for a faculty,
FACULTY FOR ALTEHATIONS. 71
because it is a right, and he who has the right
cannot be deprived of it without consideration.
Such are the considerations attendant upon the consider*.
mere grant of a right to a pew, but far different
... , f, -, faculty tor
must be those which press upon the mind of the alterations
,. i / ^ ix or augment
ordinary, when the application is for a faculty to ation.
authorize an extensive change in the interior
arrangement of the Church ; for the faculty is
not for a mere exclusive appropriation of a small
part of it, but for carrying out an object which
might not only so interfere with the common
right, which is vested in the parishioners, to the
extent of rendering it useless ; or at all events,
comparatively so, besides compelling them as a
body to pay largely for privileges which many
may not desire, and perhaps eventually leading
the parish into expenses not contemplated in the
outset. Therefore is it necessary, that a most
vigilant and jealous discrimination should be
used by the ordinary before he exercises his
discretion in granting a faculty ; on the one
hand, to avoid an immense and perhaps unne
cessary expense ; on the other, to have a proper
regard for the general right, which every pa
rishioner has, to be conveniently seated.
It may be by the building of new houses in
the parish, or from other causes which Lave in
duced an increase of population, that the body
of the original parish Church has become totally
inadequate to the wants of the parish, and it is
reasonable, that as all have an equal right to be parishioner*.
72 THE LAW OF PEWS.
to be seated. sea ted in the parish Church (unless where dis
posed of by faculties and prescriptions), it follows,
if the accommodation which it affords, can be
supplied by a new arrangement of the pews or
by the construction of a new gallery, it should
be done.
Right of The right which every parishioner has in his
to r seat? ner seat, may be considered as in the nature of a
resulting use (upon condition), which vests im
mediately upon its fulfilment, (i. e.) on his
becomirg a parishioner, creating a species of
tenancy in common which shall endure so long
as the condition is fulfilled, but which is imme
diately devested on its non-performance and
liable to be so upon non-user ; and yet, as in the
consideration of an easement (supra, p. 43), the
likeness was not exact, so here there is also a
dissimilarity, for there may have been no previous
right and no intermediate estate ; nor can it be
brought exactly under the definition of a spring
ing use, for in that case there must be a person
seised to uses at the time of the contingency hap
pening ; whereas in the case of a pew the use or
right vest immediately, on a person becoming a
parishioner, and that though there was no previous
estate to support it ; so it is difficult to determine
what particular property a pew is, it is neither
real or personal estate, yet it partakes of the
nature of both ; so it is neither an easement or
an use, and yet it is in the likeness of both.
The considerations which should guide the
FACULTY FOR ALTERATIONS. 73
ordinary in his exercise of this right, are broadly
laid down by the late Lord Stowell, in his judg
ment in Groves and Wright v. The Rector and.
Parishioners of Hornsey (supra, p. 57). He
there says, that the wants of the parishioners
generally are to be considered, and which wants
are to be collected from the conduct of the pa
rishioners in the vestry, wherein the matter is
introduced, but in the consideration of which
the Court will exercise a due discretion ; for
by possibility the majority of the parish may
incline to an unnecessary expense, but which he
qualifies by saying, the Court would pay par
ticular attention to the majority. Still the vested
vested rights of every person concerned are to rM
be consulted, and if their objections are pro
nounced valid, will be allowed. So if the
majority be for the proposed alteration, the
parson is to be consulted ; for his freehold is not
to be disfigured with incongruities, and the
symmetry of the Church is not to be destroyed.
So again, the obstruction of the light, which
would be a grievance to those seated in the body
of the Church, would be regarded.
In the judgment it is said, " If it be shown obstruction
that the Church would be sufficiently lighted, or
that it could receive such additional light by an.
alteration in the form of glazing the windows,
the plea of the obstruction of the light would
be bad." The terms "sufficiently lighted" and
E
74 THE LAW OF PEWS.
" such additional light? are both at the best, but
vague and uncertain, and if the definition is
correct, the converse will hold. Is it there
fore to be considered, that any interruption of
the light, and which could not be supplied by
an alteration in the form of the glazing, would
be fatal to the application for a faculty ? The
Erection of erection of the gallery must in a degree be an
interruption of the light, and if the text be true,
fatal.
With all deference for a dictum from so
great an authority as Lord Stoiuell, it is
presumed, that a material obstruction of the
piea, ob- light is intended, and the proof required would
struction of , . . ~ 1 -i
ii?ht. be of a most positive nature, for it would seem
that the plea of the obstruction of the light,
if proved, would be fatal ; this construction
of the words " sufficiently lighted," is contended
for on the ground of the maxims of law, which
hold, that all rules of law must be construed ac
cording to the dictates of common sense, or
rather must not be irreconcileable therewith.
Therefore, pleadings which are based upon
the rules of law must be reasonable ; but it would
be unreasonable to hold that a trifling interrup
tion in the enjoyment of a common right, of
which a few have possessed themselves, should
act as a disherison of that right, in the case of
numbers of others having a right equal to that
of those in possession
pi ca ,church So if the Church is old, and it be suggested
Oeing: old.
FACULTY FOR ALTERATIONS. 75
that the walls will not bear the additional strain
which the erection of the gallery would occasion.
If proved, it would be a sufficient plea, and very
properly so, for it is said, " if the Church falls
down, the parishioners are not bound to rebuild
it," (Woofs Inst. Bk. 1, c. 7, p. 89).
" If churchwardens add any new thine: to any- Faculty,
> when neces-
thing in the interior of the Church, the license sar > -
or faculty of the ordinary is necessary, as well as
the consent of the parishioners ; for he is a judge,
in law, of what is proper and decent there, and,
in this case, the major part of the parishioners
cannot conclude him, (Wood s Inst., Bk. 1, c. 7,
p. 89).
It is usual sometimes on decreeing a faculty Faculty on
,. i . P . , . . erection ofa
tor the erection ot a gallery, in order, as it is
alleged, to encourage contributions to grant a
faculty to a contributor for a certain term of
years of the pew allotted to him, as an an
nexation to his house, but which faculty, after the
term has expired, can in no case be made the
ground of a prescription ; nor does it invest the
descendant or alienee of him, who holds in right
of the original grantee, with any property in the
pew ; for, on the lapse of the term, the right
simply reverts back to the ordinary, as in the case
of faculties upon condition, (supra, p. 56); but if
the descendant or alienee of the grantee be in
possession at the time of the lapse, the right to
the sitting would still continue with him, but
he would be then supposed to have been placed
E 2
76 THE LAW OF PEWS.
there by the ordinary, and his right would be
only a possessory one.
Such then is a general summary of the rea
sons which can be used for or against the grant
of a faculty for licensing the erection of a gallery.
Faculty for A faculty, under certain circumstances, may
down a De a l so for pulling: down a Church, as in the
Church. r
case instanced, (supra, p. 63).
A faculty obtained merely for a new arrange
ment of the pews in a Church, would, of course,
be governed by considerations differing from
those adduced above, in the consideration of a
faculty for a gallery ; for in the case now under
consideration, the general convenience of the
parishioners, by affording a greater accommoda
tion to them generally, would be the great in
ducement for the grant of the faculty, due regard
being still had to those private rights which were
existent before : whether created by faculty, or
which have grown up by a prescription, and
which will form the next heading of our sub
ject.
77
PRESCRIPTION.
Pews and vaults are not within the statute of pews and
the 3 & 4 Wm. 4, and, therefore, must be proven necessity of
to have existed from time immemorial, (Gibbons
on Limitations, 216, et vide Statute}.
Walter v. Gunner and Dewry, 1 Consist. Rep. prescription
Sir Wm. Scott.] " A house built only eighty
ve
tn
years, is not a building sufficiently ancient to Ancient
establish a prescription, because the presumed sufficient"
. , r r r ^ . proof, what.
evidence of a grant of a faculty is not extin
guished in that time, (76.319).
" If there be a prescriptive right, it cannot be prescriptiv
exercised by transferring it to other persons not
resident in the parish, or inhabitants of a house
therein, (Ib. 319); for it would be an illegal
exercise of an exclusive right, (Ib. 322).
" To exclude the jurisdiction of the ordinary Jurisdiction
of ordinary,
from the disposal of a pew, possession must what ex.
eludes.
be shown for many years, and that the pew,
had been built time out of mind, and repaired ;
repairs being the strongest evidence of the
right ; repairs for thirty or forty years will not Repairs for
exclude the ordinary, (Ib. 322) : the posses- forty y yirs.
Bion proved must be ancient, going beyond
T i i i I, i i tion proof
memory ; I do not mean the high legal memory, of.
7.8 THE LAW OF PEWS.
but it must go beyond this case (i. e. eight}
years), (Jb. 322).
six years Six years possession is not sufficient against
possession r
a mere disturber," (Ib. 322), wde Gibson s Cod.
222, contra).
Rogers v. Brooks and Wife, M. 9 24 6r0. 3,
#. .R., t notis; I T. R., 431,/o/io]. " Where
it was proved that the space whereon the pew
stood was a blank space, or open pew, forty years
before, and that the Church was pulled down
and rebuilt, and that the rector and the chiirch-
wardens then put in A. It was held that thirty-
years pre- . . .
seription. six years possession was sufficient to presume a
legal title in A. (allegation being that the pew
was appurtenant to a messuage)."
On a motion for a new trial, Lord Mansfield
held, that thirty-six years acquiesence was a suffi
cient presumption of the right ; a gift cannot be
made without faculty.
" On rebuilding of a Church, it is usual to leave
the adjustment of the pews to the rector and the
churchwardens," Willes, J.
prescription, Woollocomb and Ouldridge, 3 Add. Ecc. Rep. 7].
" A prescription for sixty years and upwards
*
to lands. r i i
for a pew, as an annexation to an estate, is a legal
absurdity^ for it can only be for a house, and never
for lands only, and he who occupies the house
is entitled ; not he who possesses the land, and
that though reparation had been pleaded."
PRESCRIPTION. .79
Griffiths v. Mathews, 5 T. R. 296]. Case Forty year-,
i i prescrip-
f or a disturbance ; the pew was in the chancel, tion.
and laid, as annexed, to an ancient messuage,
and was claimed as appurtenant thereto. The
jury, under the circumstances of the case, which
were the erection of the pew, c., by another to
accommodate a difference (and which time was
within legal memory, being thirty years), by the
permission of the vicar, were of opinion that the
pew was not appurtenant to the ancient mes
suage, and gave their verdict accordingly. The
rule was obtained for a new trial.
On cause being shown, it was held, " that Prescription
whether the pew, under the circumstances, was fact for jury,
appurtenant to the house, was a fair question for
the consideration of the jury, and that, they appear
to have decided rightly, where there is evidence
to go to the jury, as in the case of Rogers and
Brooks, (1 T. R. 428), that the right vyas im
memorial, and not a new right ; showing that Prescrip-
the pew was enclosed forty years, is sufficient ; sufficient
J J . proof of.
but where the plaintiff declares upon a prescrip
tive right, and shows its commencement in very
modern times : the pew is claimed as appur
tenant to an ancient messuage, and is shown
to have existed only since 1758, I think it is
different, (76. 297), Lord Kenyan, C. J.
" A seat in a Church may be annexed to a
house by faculty, or by prescription, and from J^ e n 8 g u !JJ p -
long usage, a faculty may be presumed, and it Jj"^"/ a
is impossible to determine, a priori, what evi- tion -
80 THE LAW OF PJEWS.
dence will or will not be sufficient to support
such a right. If it had not appeared when or at
whose expense this pew was built, or that it had
not been a pew before 1758, possession from
that time would have been a sufficient evidence
to warrant the jury in presuming a faculty had
Necessaries been obtained by the plaintiff s ancestor to build
aprescrip. this pew in the chancel, (Ib. 298), Buller, J.
4< The jury should presume everything which
they fairly can presume against a wrong doer,
Grose, J." (Ib. 298). (Rule discharged).
Pettman, by his Guardian v. Bridger, 1 Phill.
316]. "A prescriptive right must be clearly
proved ; the facts must not be equivocal or
inconsistent with the general right. It must be
shown that use and occupation has been exer
cised from time immemorial, and as appurtenant
to a certain messuage, not lands (for of such the
ordinary cannot grant a faculty).. It must also
be shown that the inhabitants of the messuage
upheld the right ; as repairing at their own ex
pense ; the burden and the benefit must go
together, mere occupation does not prove the
right, however long the possession. Uniform
and exclusive possession by the inhabitant of a
what* 8 messuage connected with the burden of main
tenance and repair is the evidence necessary to
establish a prescriptive title, (Ib. 325).
cushioning The mere putting cushions, and re-lining
and lining . ? i_
i>ew, effect, pew is not a matter of repair but of ornament,
PRESCRIPTION.
and is in no degree inconsistent with the fact of
the pew belonging to the parishioners, such
things are supplied by the occupants for their
convenience. The proof of the repairs and the
prescription will be very strictly required," Sir
/. Nicholl
Lining was held not to be repairing by Lit-
tledale, J., in 3 Man. % Ry. 393.
3 Man. % Ry. 393, Bayley, J.]. " The fact
of enlarging a pew, though it would not destroy
the prescription, might not operate upon the jury
in exciting considerations whether such a pre
scriptive right had any existence at all, since, if
it existed, the party would not hazard the right
by enlarging the pew."
Gibson s Cod. 221]. Reparation must of Rep airs,
necessity be alleged, (in case of pews in nave and *" epa
body of Church), because the ordinary, in the
body of the Church, hath the right of disposing
of the seats, and it is only private right, ac-
coupled with reparation, which can devest him
of it."
Gibsons Cod. 222]. " Priority of seat, as well Priority or
as seat itself, may be claimed by prescription ; 8 e..tatio
the plaintiff claimed an upper seat."
Morgan and Curteis, 3 Man. $ Ry. 387].
E 3
82
THE LAW OF PEWS.
Sght. np e
It was proved that previously to the erection
of the pew in question the site was occupied by
two old open seats and a box, for the reception
of the communion plate, and a stool beyond.
The pew was built in the year 1773, by Lord
Hood, who purchased a cottage in the parish,
but the former possessor sat in the open seats, as
did also strangers ; the vicar, the lay-rector, and
another had closed seats in the chancel : that in
1809 the altar steps were repaired by the parish.
Lord Hood sold the property to the plaintiff,
but said he did not sell the pew, and the con-
Rebuttai of veyance was not produced. " The proof of the
open seats destroys the prescription, and it was
for the jury to say whether a faculty existed, and
that it required strong evidence to induce the
belief of the grant of a faculty to erect a seat in
the chancel, belonging to a lay or clerical rector."
Park, J.
"The right of allotting the pews is virtually in
the ordinary, and is exercised by the means of the
churchwardens, and they place the parishioners
in the different pews. Pews generally go with
a house, but the mere occupation of a pew is
not sufficient to force a jury to find a right. It
is no uncommon thing to introduce the specifi-
. f . i-i-ii i i i i
cation oi pews into old title deeds, which is done
. , . .
title deeds, with two objects, to have a sort of warranty
of the right from the vendor, and to possess
documentary evidence of that right. If there
introduc
tion of spe
pews into
PRESCRIPTION.
had been any grant from the lay rector, the
presumption is that the grant would be forth
coming," Bayley, J.
Lousley v. Hayward and Another, 1 Y. $ J.,
5S5,etseg. Macdonald, C. B.]. " In a case of *, the
prescription for a pew in the body of the Church
as annexed to a house not in the parish, unin
terrupted possession was proved, and to defeat
which it must be shown that the right was
of necessity void in the beginning, unless the
prescription itself was rotten and bad from some
legal vice. " In early times Churches were
founded or built by the lords of manors, or other
lay founders, and parishes were not reduced
to the exact circuits and boundaries by which
they are now known and apportioned for eccle
siastical purposes. When Churches were first
built, certain districts were allotted, over which
the officiating minister had the superintendence,
and this district was not a parish in the sense in
which we now understand the word ; their
boundaries were settled long after the foun
dation of the Churches, and the ecclesiastical
districts have since been much narrowed when
ever other new Churches were built : how then
is it to be said that the ancestors of the pos
sessors, or of those with whose rights he is
invested of the house or estate in respect of
which this pew is claimed, did not build or
endow the Church, or some part of it, and this
84 THE LAW OF PEWS.
house, though not within the bounds of the
parish, was not within the ecclesiastical limits
Distinction of the Church district. The distinction between
between .
pew in body a prescription for a pew in the body of the
of church r /
and aisle. Church as annexed to a house out of the parish,
and a prescription for a pew in the aisle is
merely made a doubt or a question in some books,
but there is no case in support of it, and there
is no distinction in the reason of the thin itself. ^
tion SC eV P f -Loj/ft* 42 3, Ashurst, J.]. " A pew being im-
dence of. memorially used with a house, is .a ground of
prescription, or building a pew may found a title :
and it need not be alleged in the declaration,
that repairs were done, nor need it be proved,
for the pew might never have wanted any re
pairs. Memory, of which no man can remember
to the contrary, is sufficient to support a claim
of right. It is not necessary to prescribe from
the time of Richard L, the repairs are only
Repairs evidence of the right," (Aston, J.). "Perhaps a
evidence of 1 . . . -, , . , c
the right, claim against common right, as in the case of a
toll, requires consideration to be alleged and
proved."
Repairs of Pepper v. Barnard, 7 Jurist, 1128]. A pew
evidence of i n the parish Church of Dunmow was claimed
repair of
others. i n respect of an ancient house in the parish. The
house to which the pew was claimed as appur
tenant, was proved to be sufficiently ancient.
It was also proved that there were three adjoin-
PRESCRIPTION. 85
ing pews, one of which was occupied by the
family, one by the servants and one by a farm
tenant. The farm house was anciently a man
sion, and the residence of the family. As to
what is proof of a prescription, Butler, J., was
quoted, (5 T. R. 298).
" The plaintiff in this action being of the
Roman Catholic religion and many of the
servants, it accounted for the unfrequency of the
occupancy, the verdict was for the plaintiff. On
a motion for a new trial, it was held there was
sufficient proof at the trial to warrant the jury
in finding the prescription. " It appears that all
three pews were used under one and the same
cause of right, that is, in respect of an ancient
messuage, and the proof of repairs done to one,
furnishes some evidence as to all, and, of course,
among the rest, to the pew in question, the rule
was discharged," (76. 1129. Lord Denman).
Degges Parsons Counsellor, by Ellis, 1th ed.
209, 213]. " Though the freehold of the Church in P arson -
is in the parson, he cannot pull down any seats
anciently erected, or of late erected, but by the
license of the bishop or consent of the church
wardens." (Fide note, citing 1 Phill 235, Sir
J. Nicholl, contrb, ib. 214).
" A man who is 6wner of an ancient Prescription
., . in right of
messuage may prescribe for a seat in any part ancient
of a parish Church within which parish the
86 THE LAW OF PEWS.
messuage stands, although he be not used to
repair it." (76.214).
prescription Watsons Clerqumaus Law. 7131. "It was
& & J
formerly held that a person could not prescribe
for a seat (citing Moor, 878), but if it be in
an aisle, remedy for disturbance shall be at the
common law (2 Buls. 150); and it was also
said a pew cannot belong to a house, though the
opposite is now held. If a man has a house in
a parish time of mind, and he and those whose
estate he hath have used a certain pew, and the
ordinary displaces him, he shall have prohibition,
for by prescription he has as good a right to the
seat as he has in the house (vide supra, p. 17,
contra), which seems to be now settled (citing
12 Coke, 106). In action on the case for dis-
turbance, plaintiff may entitle himSelf without
alleging repairs, but for a prohibition, repairs
prohibition, must be shown. Against a wrong-doer a great
nicety need not be used in setting out a pre
scription, for a general prescription for a seat
in the Church which he and they whose estate
he hath had repaired as often as was neces
sary, it was held sufficient, though the alle
gation was not that they repaired the seat,"
(citing 2 Levintz, 193; infra,- 11. 714).
So e n C what ^ prescriptive right to a pew is based upon
the supposed grant of a faculty, in which case
PRESCRIPTION.
the prescription must be proved in that way in
which prescriptions are only capable of proof,
that is, by uninterrupted and long user, an user Proof >r.
extending far beyond the memory of living man,
and of which no origin can be shown, yet the
very strictness of legal memory is not required
in cases of the description which are now under
comment (supra).
It is laid down by Mr. P/iillipps, in his
book on Evidence (vol. i. p. 504), " that if a
prescription be alleged in bar, it is an entire
thing, and must be proved to the extent laid ;"
and further (in p. 510), he says, " A party must
prove a right commensurate with that claimed."
Such are the proofs which would be necessary ^Silwry.
in an action against the ordinary, but as against Against
-i 11 i wrongdoer.
a wrong-doer, the proof required would not be
of so strict a nature.
As the prescription is supposed to be based upon 2^^-
the prior grant of a faculty, so the supposition of
is never limited to the grant of a faculty merely
for the life of the person who obtained it, but
is always founded upon the supposed grant of
a faculty of the largest extent, and as appur
tenant to a house, and, therefore, the house to
which it is laid as appurtenant, must be ancient,
and that in the fullest acceptation of the word.
Proof of the enjoyment of a pew for eighty years,
(supra, p. 77), was held insufficient to confer a title, Enjoyment
because it was shown that the house to which the eighty
years, effect.
pew was claimed as appurtenant, had not been
THE LAW OF PEWS.
built for a longer period, and the time was held
as too short to favour the assumption of a grant
Enjoyment of a faculty, whilst on the other hand, proof of
lor thirty- . J . .
six years, possession for thirty-six years, (supra, p. 78) was
deemed sufficient, for there were grounds for sup
posing that though the holding of the pew was
comparatively new, still as the Church had been
rebuilt about that period, it was assumed that
the new right was founded upon an old one, es
pecially as the house, in respect of which the
pew was claimed as annexed, was an ancient one.
It may, therefore, be assumed that when the
prescriptive right is claimed as annexed to an
ancient messuage, and repairs be shown, or in
the absence of the proof of the repairs that it be
not shown that the parish had repaired (for by
possibility the pew might not have wanted any
proof of re- repairs within legal memory), the proof will be
rchuSed w a ^ owe d> so even P ro f of repairs by the parish
may be rebutted, it is conceived, by showing
some special circumstances or remonstrances
against such usurpation of the right, for the re
pairs might have been done for the express
purpose of avoiding the right which the faculty
conferred upon the grantee.
claim for If the claim be for several pews as appurtenant
pews, re- to a house and repairs be shown to have been
pairs done
to one. done to one, in the absence of evidence to the
contrary, it was held to be evidence of the repair
L gJ|i"f car * of all the pews, (supra, p. 84). Mere ornaments,
cushions, as l mm g Sj cushions, hassocks, carpets, &c., will
PRESCRIPTION. 89
not be considered at all in the nature of repairs,
but merely as luxurious additions adapted to the
taste, or placed there for the purpose of further
ing the comforts of the possessors.
The repairs necessary to be proved are such Repairs,
as are of a substantial nature, as new flooring,
repairs of door, seat, steps, &c. &c., and where
repairs are proved, it is not always a conclusive
evidence even though the proof of the repairs
extends to a period of forty years. It may be that
the repairs were done with the covert intent the P re -
. sumption.
oi raising a prescriptive right, and thereby de
priving the ordinary of his power to appoint,
and in rebuttal of the supposed right, the rule
of law would step in that no man shall take ad
vantage of his own wrong.
Prescription, when claimed, must be claimed
as annexed to a house in the particular parish
wherein the Church is situated, but not in that
of an adjoining one, unless the two parishes had consoiida-
J tion of two
been consolidated, in which case, in law, the two P a " shcs -
would be only one parish ; but the consolida
tion, to prove a prescriptive right to a pew as
annexed to a house in the parish in which the
church was not, would have to be shown, as of
a very ancient date, fully as long as that which
would be necessary in the proof of a prescrip
tion, if not of a longer period (a).
(a) The consolidation which is here spoken of, is not meant
one which has taken place in accordance with the enactments
of the statutes of the 17 Car. 2, c. 3.
90 THE LAW OF PEWS.
It was laid down by Chief Baron Macdonald,
in one case, Lousely v. Hay ward and Another ,
(supra, p. 82, see Appendix for this case at
claim of a length), that a pew might be claimed in the
purtenant" body of the Church, as appurtenant to a house,
in L^her though it was situated in another parish ; be
cause, he says, the house, though it is not now in
the parish, yet, it might have been within the
ecclesiastical district, and hence possibly the
house of the founder of the church ; and then
commenting upon the difference between a pew
when in the aisle (of which hereafter), and when
in the body of the church, he says, the distinc
tion is merely made a doubt or question in some
books, (vide supra, 83, et infra, p. 112).
With all respect and deference for the opinion
of the learned Judge, it is submitted such a
reason would not be a valid one, for districts were
severed and apportioned into parishes at a time
long anterior to that of pewing the churches, and
if the reason for the division is correctly rendered
(supra, p. 2, et seq.) it would be impossible, but that
the founder s house would be situated near the
Church, and it would be as easy to show that the
house, in respect of which the right is claimed
was the residence of the head family of the
district, as it would be reasonable to suppose that
the house of the founder of the original Church
was in the after severance of the district into
parishes or manors, excluded from its place, or
situated in a manor of which he was not the
PRESCRIPTION. 91
lord, both of which, it is apprehended, would
be incapable of proof.
If a man possessed the seignioral rights and Alienation
11 of manor
the property of a manor, and aliened them, he aruiseier-
1 r J nioral
thereby parts with the lordship and the property risms,
of the manor, and with such rights as are incidental
thereto, among which would be the occupancy of
that particular part of the Church he had chosen
for himself, for the faculty cannot be removed from
the messuage to which it is appurtenant, (supra,
p. 34), and which, as will be seen," (infra, p. 101)
was usually the chancel, an aisle, or private
chapel, and then the alienee would claim the
rights which were before in the lord as the founder
of the original district Church, and he would
claim not in right of the estate, for a claim in
respect of land is bad, but of the messuage
erected thereon.
It is presumed the particular manor in which
the district Church was situated would, in the
after severance, become the parish of the Church, severance
. . , of a district,
and the cure of its minister, because the lord, probable
. t i effect.
on parting with this manor, would part with tne
advowson of the Church, unless it was specially
reserved, and most likely he would not choose
that his alienee should profit by his tithes for
the presentation to the Church would be in the
grantee, and it may be reasonably supposed the
lord, in the exercise of the right then universally
claimed, would build and endow another Church
with the remaining part of his tithes, (supra, p. 3).
92 THE LAW OF PEWS.
Sro? g hthe The claim through the founder could only
founder. enure, provided there was a house on the manor,
for it might be the Church was built in one
manor of the seigniory and the house in another,
and yet both be in the same lordship, and
constitute only one parish, for several manors
are often found in a parish, but rarely more than
one parish in a manor. Churches were sup
posed to be built originally for the convenience
of the lord and his tenants, and therefore it is
reasonable to suppose the Church would be
near his residence for his special convenience,
and most certainly within his own boundaries.
^ P ursue tne argument, we will suppose the
endow lord aliened the manor whereon the house was
Churches.
built, and the new lord following the custom,
which was then general, built a Church, and
endowed it with his tithes, the then parish or
district would of course be severed, the new
Church being sufficient for the spiritual wants of
those inhabiting that part of the district wherein
it was built, the right appertaining to the house
in right of the founder, viz., the attendance upon
the old Church would fail, for the necessity of
its occupant has ceased, or it might be the new
lord had erected another house for himself on
the manor, then he would most probably annex
his right as the founder to his new house,
in which it is likely he would reside.
But on the building of his new Church the
rights annexed to the old messuage in respect
PRESCRIPTION.
of the founder of the original Church would
fail. The building of the Church would show Abandon
ment ot
a clear intention of abandoning the old right, for #* j
he provides for the wants of the inhabitants of the
house in a place different from that appointed
by the supposed grant. On the other hand, the
founder having parted with his messuage has
parted with that which was the channel by
which his right was preserved, for the supposed
grant would not be appurtenant to the person,
but to the house (unless it was a grant for life,
which would only enure during residence), and
if he built another house, the right he would
acquire would not be that of founder, but in
respect of his being the chief inhabitant of the
parish.
The claim, it is admitted, is prescriptive,
and which is supposed to be based upon a iio "
faculty ; if then the faculty, and which case
after case has shown must be the foundation of
a prescription, was void on its being granted, no
user, however extensive, could convert it into a
right ; a grant to a man not being a parishioner
would be a nudum pactum, for it would be made
without consideration ; and a grant, when it
interferes with the rights of third persons, must
be made upon consideration, (supra, p. 47, in
notis), whatever might be the construction as
between the grantor and grantee ; and if, on the
other hand, the claim was even founded upon a
prescription in the usual (not in the limited) sig-
94 THE LAW OF PEWS.
nification of the term, it would be necessary to
show user beyond the time of Richard 1, and it
has been indisputably shown by Selden, that
Churches were not pewed until after the Re
formation, except in very rare instances, and
the exceptions were only in favour of a few very
great families, (supra, p. 1 1 , note).
Division of Districts were divided into parishes at a time
districts into . . _ , i / t T /
parishes. long before the period or the JLvetormation ;
if then the division into parishes was before
the pewing of the Churches, how could it be
possible for a stranger to acquire an exclusive
right to a particular spot in the body of a
Church wherein the very parishioners themselves
had no part of the Church exclusively appro-
claims of Plated to themselves; and if such an anomaly
risMoner bv as the claim of a stranger was existent among
fhfn Crip them, it would be a circumstance which would
be certainly handed down from generation
to generation, and also the claim of right by
which the appropriation or grant was acquired,
and it would not be unreasonable to presume that
some documentary evidence would be forth
coming to support so singular a claim.
The prescription supposes a faculty, and a
faculty which is a grant must have been made
upon consideration, and the only consideration,
(supra, p. 71), which can be given in exchange
for the faculty, would in this case be wanting,
and the grant would of necessity be void.
Upon reviewing arguments submitted, it is
PRESCRIPTION. 95
contended, a prescriptive right can only be
claimed in respect of a house in the parish, the
case above adverted upon is the only decision
wherein the contrary is held, and which decision
with great diffidence it is suggested is untenable,
as being opposed to the principles upon which
the law of pews is grounded, (vide infra).
And it has been judged well, in order to sup- Non-pan-
J & r shioner.
port the arguments adduced above to collect
the authorities, which are scattered through this ti
work, and, bearing upon this particular case,
into the form of syllogisms, that the proof may
be rendered more clear.
DUTY.
Everv obligation enjoined by law is a duty. Duty of
J J . J attending
" The attendance upon the public services of churches,
religion is enjoined by law." (o Burns Justice,
tit. " Lord s Day ").
THEREFORE: attendance upon the public
service of religion is a duty.
CHURCHES AND INCIDENTS.
Churches were founded for the public and churches.
convenient administration of the offices of reli- fn. e "
gion, and are by law appointed for the attend
ance of the inhabitants of the district or parish
wherein they are situate, (supra, p. 1).
THEREFORE : the parish Church is the place
wherein such duty is to be performed.
96
THE LAW OF PEWS.
Right in
herent in
parish
ioners.
Obligation
to repair
parish
Church.
Faculty,
what.
Considera
tion for a
faculty.
The liberty tosit in the parish Church (6)during
the public administration of the offices of religion
is inherent in the parishioners, (supra, p. 9).
THEREFORE : it is a right common to the
parishioners.
By law those who are entitled to seats in the
parish Church are bound to repair it, (supra, p. 8).
Parishioners alone are entitled to seats therein,
(supra, p. 9).
THEREFORE: they alone are the persons
bound to repair it.
FACULTY.
A faculty confers an exclusive right, (supra,
p. 32).
An exclusive right is incompatible with a
common right, (supra, p. 65 and 70).
THEREFORE : the faculty ousts the common
right.
A faculty is a grant, (supra, p. 32, et infra}.
A grant must be supported by a consideration,
(supra, p. 47, in notis, et 65).
THEREFORE: a faculty must be supported
by a consideration.
CONSIDERATION.
The consideration must be certain, (supra, p. 67).
Repairs are uncertain, (supra, p. 67 and 68).
THEREFORE: repairs cannot be the con
sideration.
( 6) Chapels wherein the Ritual of the Church of England is
used, are here included under the general word " Church."
CONSIDERATION. 97
The consideration must be an act to be done
or forborne, (supra, p. 68).
Residence is not an act to be done or for
borne, (supra, p. 70).
THEREFORE: residence is not a consideration.
The consideration for a faculty must be coeval
therewith, (supra, p. 32) (c).
Residence is not coeval, because it must have
been pre-existent (and continues unchanged),
(supra, p. 70).
THEREFORE : residence is not the considera
tion.
A seat in the parish Church is a common common
right, (supra, p. 17). rtSUwTT
The cession of such right is an act done or
forborne, (supra, p. 68).
THEREFORE : it is a consideration.
There can be but one consideration for a
faculty, (supra, p. 71).
The cession of the common law is a considera
tion, (supra, ib.).
THEREFORE: the cession of the common law
right is the only consideration.
The consideration for the grant of a faculty Grantor a
faculty.
(c) It is said that the consideration for a faculty must be
coeval therewith, because the only consideration which can
arise is one by implication, viz., the cession of the common Ian-
right, and which is coeval, the right is not coeval, but the
cession is, for it must take place (or rather be implied) imme
diately upon the grant being acted upon (supra, p. 6).
THE LAW OP PEWS.
eonsidera- must be the cession of the common law right.
tion for.
(supra, p. 70).
A non-parishioner has no such right to cede.
THEREFORE : he cannot be the grantee of a
faculty.
GRANTEE OF A FACULTY, WHO MAY BE.
grantee of a A parishioner to be the grantee of a faculty
new inci. must be resident, (supra, p. 32).
All parishioners are not resident within the
parish, (supra, pp. 12 and 13).
THEREFORE: every parishioner cannot be
the grantee of a faculty,
Grantee of a A faculty can only be granted to an inhabi-
faculty, who J J
-maybt. tant householder of the parish, (supra, p. 31).
A non-parishioner is not an inhabitant house
holder of the parish.
THEREFORE: a non-parishioner cannot be
the grantee of a faculty.
PRESCRIPTION.
Prescrip- A prescription for a pew pre-supposes a
faculty, (supra, p. 79).
A non-parishioner cannot receive the grant of
a faculty, (supra, p. 32).
THEREFORE : a non-parishioner cannot pre
scribe.
99
CHANCELS AND AISLES OF
CHURCHES.
The aisles and chancels of Churches are
governed by other considerations (2 Add. Eccl.
Rep. 439) than those enumerated, and of which
it will be necessary shortly to treat.
Com. Dig. tit. Etfflue." (G 3)]. The rector Prescription
ought to repair the chancel of the Church : he SiJTSi!*
may, therefore, prescribe for a seat therein, and
allege he hath the rectory impropriate.
Bishop of Ely v. Gibbons and Goody, 4 Hag. Cus t omfor
30, per Curiam]. There may be a jfrepafr"
custom for the parish to repair the chancel, in chanceL
which case if the custom be found by a jury, it
will, in the Ecclesiastical Court, be considered as
valid, and a composition or an agreement will
be presumed.
In London the custom for the parish to repair custom in
the chancel exists generally, it may be upon London>
peculiar ground ; but the inference is, that such a
custom may exist in country parishes, (Ib. 163).
Though the burden of the repairs rests upon the Repair O f
rector, lay or spiritual, yet the use of the chancel
belongs to the parishioners for the celebration of
F2
100 THE LAW OF PEWS.
the communion, the solemnization of marriage,
and that part of the morning service which is
directed by the Rubric to be read from the com
munion table, and which is appointed to stand
in the body of the Church or the chancel. The
ordinary is the protector of the rights of the pa
rishioners, future as well as present, and he must
take care that their accommodation is not unduly
prejudiced ; therefore his assent is necessary to
enable the rector to make vaults or make pews
therein, (Ib. 171, Sir /. Nicholl).
Such a custom also is in other cities and large
towns where there are no tithes to be charged
for the repair of the chancel, (Wood s Inst. bk. 1,
c. 7, p. 90).
The chancel by the custom of England shall
be repaired by the incumbent, (Gibson s Cod.
223), or him to whom the repairs belong, (Ib.
222), it may be the custom for the parish to
repair it, (Ib. 223).
impropri- The impropriators are of common right bound
of chanSei. r to the repair of the chancel, and as before rec
tories became lay fees, they were liable to seques
tration, and as the King was to enjoy them as the
religious had done ; only what they enjoyed,
therefore, was conveyed, (i. e.} the profits above
finding the service, repairs of the chancel, and
other ecclesiastical burden : 31 Hen. 8, c. 13,
s. 14, saves all rights any person had before.
It would, therefore, seem to follow, that they
CHANCELS AND AISLES OF CHURCHES.
might be compelled to repair by sequestration, H
but it has been held they could not, and the ar-
gument used against it was, that the allowance
of such a step would be giving the ordinary
power to augment vicarages, as they might have
done and did before the dissolution of the
monasteries.
Ib. 223]. The repairs of the chancel is a dis-
charge from the repairs of the Church, but the
impropriator is rateable for the repair of the
Church on such lands as are not parcel of the
parsonage, notwithstanding his obligation as
parson to repair the Church.
The seats in the chancel are under the dis-
position of the ordinary in like manner as those
are which are situated in the body of the Church,
because the freehold of the Church is as much Authority
in the parson as the freehold of the chancel, and to seats m
this hinders not the authority of the ordinary in
the body of the Church. The rector impro- J
priate is entitled as such to the chief seat in the
chancel as of common right, in regard to his
repairing the chancel, but it may be that by pre-
scription another parishioner hath it, (Ib. 224, parishioner.
vide Gib. Cod. 222), wherein he says, " when the
repairs are done by the parish the common right
of the ordinary ensues," (infra).
Spry and Flood, 1 1 Curtei*, 356]. A rector CM* *at ,
would be entitled according to the common law
to the chief seat in the chancel, whether he be
102 THE LAW OF PEWS.
endowed rector or spiritual rector only, unless
some other person is in condition to prescribe
for it himself from time immemorial (1 Noy, 133),
and the Ecclesiastical Court would allot the
possession to him of such sitting, and protect
him against the disturbance of his right.
5fe P chancel 1 ^M 6 8 P arson s CoUH. by ElllS, 7th ed. 209,
* the Can n
law and the custom of England the repair of the
chancel is to be done by the parson, and he is
compellable thereto by ecclesiastical censure,
suspension, and sequestration, as if there be a
perpetual vicar to the vicar. (Com. Dig. "Esglise"
( G 2 )) The % impropriator is compellable to
questration ^ o the repairs by ecclesiastical censure, for he is
chargeable therewith, but the impropriate tithes
cannot, therefore, be sequestered.
Watson s Clergyman s Law, 710]. An impro-
fe r rei e ce dif " P riation is wn en the parsonage is in lay hands.
between. An appropriation, when it is in the possession
or some ecclesiastical corporation, sole or aggre
gate. Corporations aggregate are not capable
of excommunication, (Ib. note, 59).
Aisie, right If an inhabitant of a parish, time out of mind,
to, by pre- , r
has been used to repair the aisle of a Church, and
to sit there with his family and bury there, it
makes the aisle proper and peculiar to his house,
(Etiam Gib. Cod. 221), and he cannot be dis
placed. The mere user without repair confers no
CHANCELS AND AISLES OF CHURCHES. 103
pre-eminence, for by the user and the repair the
presumption is, that the aisle was erected by him
whose estate he hath. If the ordinary places * 1 ^ ^
another in a seat in the aisle with the proprietor, scat with
1 e * prescnber.
an action on the case would lie against him, and
if he be impleaded in the Spiritual Court pro
hibition will lie.
If a private person sits in the proprietor s ^
seat, or buries in the aisle without his consent, aude^
action on the case will lie, and that though of pro-
the fee of the aisle is in the incumbent, (Ib. 710,
et seq.).
Rogers v. Brooks, in Notts, 1 T. R. 431, folio,
Bayley, /.]. An aisle is always supposed to be hou8e
held in respect of a house, and will go with the
house to him who inhabits it.
Gibsons Cod. 221, et seq.]. In a prescrip- Allegation
i i_ 11 i on pre-
tion for an aisle repairs need not be alleged, scnption for
, aisle.
because the particular persons are supposed to
repair, so they need not show it : the foundation of
the right may be for other causes than repairing,
as being founder or contributing to its building.
1 Burns Eccl Law, 357]. Though the Repair of
churchwardens are not chargeable with the re- church-
pairs of the chancel, they are with the supervision duty,
thereof, to see that it be not permitted to dilapi
date, or fall into decay ; and when dilapidations
happen and no repairs are done, they must make
104 THE LAW OF PEWS.
a presentment thereof to the ordinary at the
next visitation.
Aisles an- Frances v. Ley, Cro. Jac. 3661. If an inhabi-
nexed to a
messuage, tant and his ancestors have used, time out of
mind, to repair an aisle in a Church, to sit there
with his family, to hear divine service, and bury
there, it makes the aisle peculiar to his house,
and he cannot be displaced by the parson,
churchwarden, or even by the ordinary himself;
sitting and but sitting and burying without repair doth not
Sou? gain any peculiar property, and if the aisle be
repaired from time to time by the parish, the
ordinary may appoint whom he pleases to sit
there, notwithstanding any usage to the con
trary.
prescription Watsons Clero. Law, 7151. The question
for an aisle a .
in right of whether the prescription to an aisle in a Church
as belonging to a manor, where the person hath
only land, was not resolved by the Court, yet
they were inclined to think the prescription was
not good.
Grant of Clifford v. Wicks and Another, 1 Barn. $
Aid. 498.] Trespass for breaking pews in the
chancel held under grant from a former rector
(in arguendo Campbell), if the rector had the
power of aliening he might alien the whole or part
of the chancel to the inhabitants of a different
parish, and the parishioners be thence excluded
CHANCELS AND AISLES OF CHURCHES. 105
from the chancel, and, perhaps, ultimately, by
increase, be deprived of sitting in the Church.
" Held, the plaintiff could not recover, for this
is a grant to him and his heirs of a part of the
chancel, not to be held as chancel or to be used
as such, but generally without guard or restraint
whilst in the hands of the rector, it is under
restriction and regulation, but in the hands of a
grantee that restriction ceases ; it is the duty of
the rector to retain such power over the chancel
as to enable him to see that it is appropriated to
the purposes for which it was originally built."
(Lord Ellenborough, C. J., 506).
" The rector is entitled to the principal pew, e ri * ht
but the ordinary may grant permission for others
to sit there ; but in this case it would be taking
the chancel out of the jurisdiction of the ordi
nary." (Bayley, J., 507, II.).
" The rule that the ordinary cannot grant a
seat in the body of the Church without annex- a
ing it to a messuage, applies to the case of a
seat in the chancel, the rector cannot make a
grant like this, which is inconsistent with the
rights of the parishioners, nor deprive succeed
ing rectors of the power of disposing of the
right of seats and sepulchre, to future inhabi
tants of the parish." (Abbot, J., 507, 76.)-
" No part of the chancel can be separated from
the rectory, and the rector has the fee of it in
the same manner as he hath of the Church and
the churchyard ; before the dissolution of the
F 3
106 THE LAW OF PEWS.
monasteries he could not have aliened any part
of it without the assent of the ordinary, and in
31 Hen. 8, c. 13, s. 14, there is a saving clause
which leaves such right as it existed before, and
the chancel is, therefore, inalienable in the
rector." (Holroyd, J., 508, Ib.}.
Ssfe"what. d Tne cnancel an(i aisle of a Church, which
latter is said to be a small chancel or chapel, are
never in the original right held by faculty, but
must be always prescribed for, though where
the ordinary has gained the right of appointing
the parishioners to seats in the chancel or aisles,
in common with the body of the Church, he
could, doubtless, grant a faculty for any part
thereof to a parishioner s exclusive use ; the
considerations upon which an exclusive right in
the chancel or aisle is held, is very different to
that of an exclusive right to a pew in the body
of the Church, the prescription which springs
from a faculty, and the consideration on which
the grant is based, has already been explained,
( su P ra > P- ^7), but the consideration for the
noldin g o f a pew in the chancel or aisle, is
church* grounded upon the supposition that the ancestors
of the claimant in the case of the chancel was
the founder of the Church, and in that of the
aisle that it was built by the claimant s progenitors,
or that they had aided the Church by donations ;
such is, then, the difference of the consideration
of the two claims. It is apprehended, therefore,
CHANCELS AND AISLES OF CHURCHES.
that it cannot be said, that by having an exclu
sive place in the chancel or aisle, the common
law right, which every parishioner hath in the
body of the Church, is gone. If the proprietor
of a seat in the chancel was to accept a seat in
the body of the Church, by the appointment of i
the ordinary, it would not avoid his right to the
pew in the chancel, for such an act would show
no abandonment, the seat in the chancel being
held in the right of the founder, whilst that in
the body of the Church is held by the common
law right as a parishioner, and there would not,
therefore, be anything incompatible in the joint
enjoyment of them. The holding of an exclu
sive right in the chancel, as being by descent
from the founder, is borne out by the fact, that
a non-parishioner, as it is said, may prescribe
for a seat in an aisle, but which, it is presumed, Prescription
for un fti*!i\
is very doubtful. Between a prescription for examination
a pew in an aisle, and a pew in the body of
the Church, Macdonald, C. B., (supra, p. 83),
said he saw no distinction, for if a non-pa
rishioner could prescribe for one place, he could
for the other.
The observations which have been made above,
(p. 90, et seq.), would in some degree apply to
this case, though not with equal weight, as they
would to a pew situated in the body of the Church.
It is not very difficult to suppose that a non- N ,, n ,, a .
parishioner might be a great donor to the Church, don<?i
and the right of sitting in an aisle might be granted C
by the ordinary with the assent of the rector and
Church.
108 THE LAW OF PEWS.
Grant of a parishioners, and that without an infringement of
pew right to \ .
a non-pa- the common right or every parishioner as to sit-
rishioner. . . . J f -11
tings, and which right applies most particularly
to seats in the body of the Church ; and if the
grant upon such a consideration is valid, it would,
it is contended, be so only for the life of the
rector, and not for a longer term.
Reasons as The freehold of the Church and churchyard
to its inva- m J
lidity. !s in the parson, and, therefore, it would be an
ousting of future incumbents from their right,
and so, also, that of the succeeding parishioners,
for they gain nothing in exchange ; it will, per
haps, be answered, the same may be said of the
Grant to grant of a faculty for an exclusive sitting in the
rishioners body of the Church, the cases are not exactly
men? on the parallel, for in the latter, the parishioner, to whom
Foner s only the grant can be made, gives up his common
right, whilst in the former it is an encroachment
upon the common bury ing-ground, and, there
fore, an infringement upon his right at common
law of being buried in the churchyard without
Right to be charge for breaking the ground, whereas by the
churchyard. custom of England the clergyman may charge
for burying in the body of the Church and
the chancel, (Com. Dig. " Cemetry" (B)), and
where there is a custom, the churchwardens also,
for they are bound to repair the pavement. When
the prescription is for an exclusive right to sit,
and bury in an aisle, the clergyman looses his
right to his customary fees. On the prescrip
tion being lost, by those in whom the right is
vested, the right to bury in the aisle would not
CHANCELS AND AISLES OF CHURCHES.
return to the parishioners, as being part of the
churchyard, but would be in the parson, as now
constituting a part of the Church.
It is doubtful, to say the least, whether such a
prescription can hold if tested by the principles
of law which should guide grants of this nature.
A contract must be upon a valid consideration,
and which must be imperatively to do some act,
or to bear some burden, or forbear some right ;
and if it be not imperative, the contract must of
necessity be void, unless in cases where the law
will raise an implication and compel satisfaction ;
It cannot be said that repairs which are only an Repairs,
whether
evidence of the right, can be taken m the nature compulsory.
of a consideration, for there could be no com
pulsion to do them, even in the case of an aisle,
and the Ecclesiastical Court would have no
power to compel them to be done.
If the aisle became dilapidated, the church- Dwyof
warden could only make report of it at the next warden.
visitation, and the ordinary would direct the re
pairs to be done ; if they were done by the pre- Repai
scriber, of course his right would remain, but if *-"-
by the parish, his right would be for ever gone,
and the common right which parishioners have
in the nave of the church, would extend to the
aisle.
If the building of the aisle was a good con
sideration, it would extend through the whole
duration of the thing, and so long as it existed,
so long would the right enure which the consi-
.irs to
done
n.
110
THE LAW OF PEWS.
Money
given as a
considera
tion for a
faculty.
deration purchased, for a consideration is a thing
perfect in itself, the building may confer the
right to sit, but the repairs are something ex
trinsic, and are, as it is rightly said, " an. evi
dence of the right." If the right itself was con
ferred by grant, and the grant itself was in esse,
what evidence should be necessary other than
the production of the instrument ? and which, if
the consideration was perfect in itself, would
be sufficient ; custom, it is said, imposes the
repairs, if the consideration was good, and the
grant itself valid; custom could in nowise con
trol it, for customs must be reasonable. If the
repairs were made a part of the consideration,
then the repairs would be imperative. If the
repairs be not done, the rights of the other pa
rishioners, are interfered with, and the Church
rendered inconvenient by the want of their be
ing done, and, therefore, is it, on neglect, the
parish takes the burden, and as it is an axiom of
law that the burden and the benefit should go
together, the rights which the builder held is
ousted, and that of the parishioners vests.
In the consideration of the grant of a faculty,
it has been shown before (supra, p. 17), that if
it be proved that money was given as the con
sideration for a faculty, it would be void ; even
money given for the purpose of building a gal
lery was held an invalid consideration, though
faculties are sometimes granted for a term to per
sons having contributed towards the building of a
CHANCELS AND AISLES OF CHURCHES. Ill
gallery, but their contributions have been received,
not as considerations for the faculty, but as dona
tions towards the building or the repairs of the
Church. A parishioner only could be the re
cipient of such a faculty, and which was attached
to his messuage. In the case of an aisle, it is
said the building and the repairs are the con
sideration .
The building of the aisle may be, it is said,
the inducement for the grant, but it is very
questionable whether it can be the consideration,
for if it were, to say the least, it might create
very great confusion.
If a non-parishioner may prescribe for a seat
in an aisle, it, with equal reason, may be urged,
he can sell his right, for his holding must be for animation
a something extrinsic of that necessity which is
the usual foundation to a claim for sittings. We
have seen (supra, p. 104), where in a case which
came before the Court, and in which the ques
tion was, whether a man could prescribe for an
aisle in the chancel as lord of the manor in which
he held only lands ? The inclination of the
Court was, that such prescription would not be
good. How much greater then would be the
force of the reasoning as applied to any other
person ? Shall the mere holding of a house in
another parish, coupled with a tradition of some
benefit conferred upon the Church, be greater than
his right ? who, though he only holds lands, most
probably represents the founder of the Church
112 THE LAW OP PEWS.
itself and who pays, besides his quota, for the
repair of the Church in respect of the lands
which he holds.
The books contain no express decision,
wherein it is positively laid down that a pre
scription by a non-parishioner for a seat in the
aisle is good. Though Macdonald, C. B., held
the prescription might be for a seat in the body
of the Church, which is certainly putting the
case in the very strongest points of view (supra)
p. 83). His decision have been before discussed
in this Treatise ; it proceeded upon the ground
that if a non-parishioner could precribefor a seat in
an aisle, he might also do so for a seat in the body
prescription of the Church. It must be admitted, if the
by non-pa- . , ,
rishioner, reason is good in one case, it would apply almost
failure of * * *
w ith equal force to the other, but 11 the prin
ciples of law are to be the guide, the very founda
tion of the right, which is the inducement and
consideration, fails in both cases (i. e.\ habitation
and the common law right to a seat in the Church.
The case of Barrow v. Keen, reported in
Keble, and as Barrow v. Kew in Siderfin (infra),
it is apprehended, is greatly the cause of the
confusion which has arisen upon this subject:
this case was a motion in arrest of judg
ment. The declaration in the original action
(which was trepass for breaking a seat) stated
that the plaintiff was an inhabitant of another
parish, and prescribed for the aisle of the Church.
The defendant, instead of demurring, pleaded in
CHANCELS AND AISLES OF CUURCHES. 113
justification, that, because he has a house in
the parish, c., and traversed prescription, and
the verdict was against him. When the case
came on for hearing at Bar, the Judges held, " a
prescription for a seat by an inhabitant of another
parish is ill, unless he prescribed for a seat,
or pro sedile, or show he used to repair, but
after verdict, these are intended."
The terms of the judgment appear to be con
tradictory, for, in one part, the Judges held that a
prescription for a seat by a non-parishioner is ill,
and then say, unless he prescribes pro sedile, or
shows repairs. This latter is probably some in
accuracy in the reporter. The case is some
what important, for it is the foundation for the
dictum in the various books, and which were,
in a great degree, the aids by which Mac-
donald, C. B., arrived at his conclusion. It is
apprehended, the case, as reported, does not at
all bear out the conclusions which have been
deduced therefrom. It came before the Court,
not in a shape to try the prescription, and, there
fore, cannot be held to be conclusive; if instead of
being a motion for a new trial, if it had been a de
murrer, the right would have been fairly in issue,
and the conclusion, at least an authority, but
which is at the present open fairly to a doubt
The right which the rector possesses in the Right of
. rector to
chancel, is one which must be exercised in such chancel.
a manner as not to interfere with the convenience
of the parishioners, it is not a right which he
114 THE LAW OF PEWS.
can alien as he would his house or lands, but
one of which he is possessed for a special purpose,
and in which he has only a qualified right of free
hold ; and it was held in a case (supra, p. 104),
where a rector aliened a part of the chancel, that
it was a bad grant, for he holds under the sur-
veilance of the ordinary, on the ground, it is con
sidered, of a supposed privity between them, but
which would not exist as between the ordinary
and the assignee. If then the rector cannot
grant a right or exemption, how, it might be
urged, is it possible for a non-parishioner to gain
such a right in an aisle as will support a pre
scription? And, it is contended, that if the
rector has not the power to alien a part of the
chancel to a parishioner, no one can have such
a right in the churchyard as to allow its being
covered and connected with the Church in de
feasance of the parishioner s rights of burial.
115
CHAPELS.
It will be necessary, before this subject is
closed, to comment shortly upon pews in chapels.
Showing in what cases they are governed by
other rules than those of the common law, and
how this difference has been created whether by
special grant, custom, or express enactment, and
how, and in what cases the common law right
may attach to them. It will, therefore, be ne
cessary to show what a Chapel is, how it is con
stituted, and what are the forms of its govern
ment, and that, whether they be proprietary, or
originating from statutory enactments, &c.
There are several opinions as to the derivation
, f derivation
of the word capella or Chapel, but as none ot O f the word.
them are so pointed as to indicate the use, it is
unnecessary here to speak of them.
Of Chapels, there are only three sorts, viz., sorts of
free Chapels, Chapels of Ease, and private
Chapels recognised by the Ecclesiastical Law,
but of late times, a fourth has been added, called
proprietary Chapels.
Free Chapels, by the 1st of Edw. 6, c. 14, were, Free
with some few exceptions, given to the King, from
the supposition that they were builded by the
Kingsor by persons through their express license,
116
THE LAW OF PEWS.
Donative
what.
Donatives,
attributes
of.
Minister.
and were exempted from the visitation of the ordi
nary, and though the head or members receive
institution from him, it may still continue a free
Chapel, (Gib. Cod. 237) ; so it is said, the King
may license a subject to found a Chapel within
such exemption, which Dr. Gibson seems to
doubt, (Degges Parsons Counsellor, Ib. 185,
237), and it is perpetually maintained and pro
vided with a minister, without charge to the
rector or the parish, (1 Wood s Inst. bk. 1, c. 3,
p. 31; Wats. C. L. 645 (S. P.)): such Chapels
are usually termed donatives, (i. e.) when it can
be conferred by the mere gift or disposal of the
patron, and subjected to his visitation only, and
not to that of the ordinary. It vests absolutely
in the clerk by the patron s deed of donation,
without presentation, institution, or induction,
(3 Stephens, Com. 82). When the King founds
a Church, hospital, or Chapel, and exempts it
from the jurisdiction of the ordinary, it shall be
a donative, and that without express words of
exemption. So also when the King grants a
license to a subject to build a Chapel, to be
exempt from the jurisdiction of the ordinary.
Generally speaking, where a donative has not
presentation and institution, it has not a curam
animarum, and therefore is it that the incumbent
need only have the donation of the patron ;
but he should be infra sacros ordines, for his
function is spiritual ; he must be twenty-three
years old, and in deacon s orders, and subscribe
CHAPELS.
and read, &c., as for any other benefice ; though
he need not prove the performance of such
duties. He may be cited to take a license from citation t<
the bishop, and a prohibition does not go, though *j*
it is not necessary that he should have a license
to preach or to perform the ordinance of matri
mony.
In cases where the Church is parochial, and
the patron refuses to make a donation, the ordi- church,
nary may compel him ; for though the Church
is exempt, he is not: if he presents by simony,
it is within the statute, 31 Eliz. c. 6. If on the
death of the patron, a donative is void, the pre-
sentation descends to the heir ; if it were pre- ^Tom"
sentative, the executor would have title.
The patron and not the ordinary visits the visitor,
donatives ; if the King be patron, he visits by his
Chancellor. If a subject be patron, he visits by
commissioners: so also the patron shall solely
inquire of the reparation and of the ornaments,
and if the bishop intermeddles, a prohibition
will go ; so also deprivation is by the patron, for JffiSS?!
heresy and other offences.
A lapse does not occur for want of presenta
tion if it be not specially provided in the founda
tion, and if the incumbent be disturbed, the
patron shall have a quare impedit and count
upon the special matter. If it be doubted
whether it be a donative or a presentative, and
any one sues for induction, a prohibition does
not go ; for until induction, the incumbent has
118
THE LAW OF PEWS.
by incum
bent.
Two pa-
trons.
Presenta
tion, effect
of.
no remedy to try the right ; if it be a donative,
Resignation the induction is null. If the incumbent resigns
his Church, it must be to the patron ; and when
in the words of the donation as of his Church,
the whole of the property is devested out of him
without further ceremony. If there be two
patrons, resignation to one with assent of the
other is sufficient, (Com. Dig. "Donative" (A)).
A presentation by a stranger and admission and
institution thereupon does not make the Chapel
presentative ; but if the presentation be by the
patron, it for ever after shall be presentative,
(3 Stephens Com. 83 : Gib. Cod. 236, S. P.).
Formerly all bishopricks were donative, by
the delivery of the crozier and the ring, and
were so until the 17th of John; prebends and
chantries may be donative, ( Com. Dig. " Dona-
perpetual tive " (A)) ; nearly similar to a donative is the
curate, simi- p \ i r
manner of becoming a perpetual curate, for it
. . , . . . .
requires neither presentation, institution, or
induction ; but before the perpetual curate can
legally officiate, he must obtain the license of
Exemption the bishop (Stephens Com. 81). The Churches
of certain
churches wherein perpetual curates exist, were, for some
fromstat.
Hen. 4. reason, exempted from the stat. of Henry 4. c. 1 2 ;
and the impropriator is bound to provide some
person in holy orders to do the duty, and to pay
him a proper remuneration for his services,
(Stephen s Com. 75, et seq.), such ministers are
those which are termed perpetual curates, and a
donative.
CHAPELS.
119
Chapel having a perpetual curate, may, in some
instances, prescribe as against the mother
Church for tithes, (Gib. Cod. 235).
A Chapel of Ease is a place of worship,
which is built for the ease of those parishioners
who dwell far from the parochial or mother
Church, it is for their ease and convenience in
prayer and preaching only, (Gib. Cod. 235), for
the sacraments should be performed at the
mother Church, (Ib. p. 30). Here, generally,
the curate is removable at the pleasure of the
rector or vicar ; but a Chapel of Ease may be
parochial also, and have a right to sacraments
and burials, and to a distinct minister by custom,
though subject in some respects to the mother
Church, (Ib. et seq.).
Brereton v. Tamberlane, temp. Hardw. July,
1752, 2 Fes. sen. 425]. It belongs to the
jurisdiction of this Court (Chancery) to esta
blish the right of nomination and election at
large to a chapelry or curacy, a Chapel having
all sorts of parochial rights belonging to it, as
clerk, warden, and of the right of performing all
the divers and several rights of baptisms and
sepulchre is a strong evidence to prove it is not a
bare Chapel of Ease to the parish to which it
belongs, but stands upon its own foundation,
(Ib. 427), for two parishes may unite, one may
continue a parochial Chapel to which the old
rights may be appendant, (Ib. 427).
120 THE LAW OF PEWS.
chapci Com. Dig. " Esglise? (D)]. If a chapel has
ro2i pa parochial rights as clerk, wardens, &c., rights
of divine service as baptism, &c., and the inha
bitants have a right to them there, and not
elsewhere, and the curate has small tithes and
surplice fees, and an augmentation, it is a per
petual curacy, and the curate is not removable
at pleasure.
So it is said to be a Church built within the
precinct of a parish Church, to which burial and
sacraments are incidents, belongs to the parish
Church and the parson of it, and he ought to
find a chaplain for a Chapel of Ease within his
precinct, or officiate there himself,
Repairs of Deoqe, P. C. 1871. In the case of new Chapels
Chapels. . . yy . , . .
it is a question whether the ordinary can com
pel the inhabitants to repair the same, but
where a number have joined to build a Chapel,
and procure for it consecration, which was the
original manner of erecting Churches (supra, p.
3), it would seem reasonable that the bishop
should have the same power to compel the
repairs and to visit it. If the greater part of the
inhabitants of the chapelry agree to repair it,
and give the collector a right to distrain for
rates, the majority shall bind the rest, (Ib. et seg. ;
vide infra).
A Chapel which has a font and a burying-
place is judged in law a Church, (3 Inst. 363).
CHAPELS.
Tamworth v. The Bishop of Chester, 4 B. Sf C.
568, slbbott, C. J.]. But where a Chapel of
Ease has been erected within legal memory, the
incumbent of the mother Church is entitled to
the nomination of the minister, unless there has
been a special agreement to the contrary (supra,
p. 8), to which the parson, the patron and the
ordinary are parties, and no person can be au- consent of
thorized to preach publicly in a Chapel to which to?2S
all the inhabitants of a district have a right to Cbape1
resort without the consent of the clergyman to
whom the cure of souls is given, (Sed vide, I $2
Viet. c. 107, s. 7).
A private Chapel is, when it is appended to Private
the house of a nobleman, or it may be built by Cl
a man for himself and two or three neighbours,
in which cases the incumbent of the parish has
no power to present to it or maintain a chaplain
therein, (4 B. $ C. 568).
Chapels erected upon condition are not to chapels
prejudice the mother Church, and the chaplain SS?S>n-
shall account for the oblations on pain of sus- *
pension, (Gib. Cod. 335).
Proprietary chapels are so called because Proprietary
they are the property of private persons, who Chapeh
have purchased or erected them with a view to
profit or otherwise, (3 Stephen s Com. 152).
22 THE LAW OF f>EWS.
Hatvkins and Coleman v. Compeigne, 3 Phil.
16]. A Chapel was built and consecrated in
A. D. 1696, the pews were personal property,
and only the owners of the pews or parties
who had an interest or property in the said
Chapel had any right therein ; that all the
disbursements, as the repairs, &c., had been
paid for by a general rate on the owners of the
pews in proportion to the value of the pews as
agreed, upon the building of the Chapel ; that
certain repairs were necessary to the Chapel, and
the churchwardens convened a vestry, and laid
out money for repairs as ordered by the vestry ;
a subsequent vestry ordered a rate for the pay
ment. The suit was to compel the payment of the
rate. " By the general law, the repairs are to be
done by the land-owners of a parish or chapelry.
per- It is not ancient, for it was built in 1696. Pews
sonal pro- i ,
being personal property is contrary to the law,
the ordinary may grant a particular pew during
residence, or there may be a prescription, the
allegation of usage must be ancient : but here
the time the Chapel was built is alleged. To
establish a distinction the conditions of the con
secration must be stated, and how the usage
onaw a how e WRS esta kh sne d> or it must fall under the general
hanged, law. For the Ecclesiastical Court to support
contribution it must be shown to be legally laid."
Parliament only can change the general law.
(Gib. Cod. 235, S. P.; 1 Add. Eccl Rep. 29).
CHAPELS. 123
The repairs of a Chapel are to be done by a Repairs of
111 1-1 f the Chapel.
rate on the land-owners, and as in the case ot a
Church may be enforced by ecclesiastical cen
sure, but such repairs are no discharge for those
of the mother Church.
Moysey v. Hilcoat, 2 Hagg. Eccl. Rep. 44]. proprietary
Previously to A. D. 1735, a Chapel was built
by twelve individuals, and they agreed to allow
the rector of the parish wherein the Chapel was
situated 40/. a-year to officiate therein, and as
proprietors they considered themselves entitled
to let the pews. They paid the rector and clerk,
and then divided the profits.
" A license to preach does not infer consecra- License to
i i / preach.
tion, but is rather adverse to the inference, for
if it were consecrated the rector could preach
therein without license ; on consecration, notice Arguments
would be entered, and found in the bishop s conlecra-
register, which would show endowment, if any,
and the other terms on which the Chapel was
set up, (Ib. 46). If no such right was granted, proprietary
the Chapel is known only as a proprietary ShStTin
Chapel, which is an anomaly and unknown to la
our Church and to the ecclesiastical establish
ment ; it can exercise no parochial rights, and
which, if exercised, would be mere usurpations ; License for,
the license may be to preach, to administer the what
sacrament, and to perform all the offices of reli
gion according to the forms of the book of the
Common Prayer. (76. 47). Primd facie all
o2
124 THE LAW OF PEWS.
parochial duties belong to the incumbent of the
Riffhts, how parish, and the fees, &c., belong to him, and
such rights, can only be granted to the Chapel
by composition, with consent of the patron, in
cumbent, and ordinary, (Ib. 48), the consent of
each being necessary, as each has an interest,
and it has been held the consent of all would,
perhaps, be insufficient, without compensation to
future incumbents, which compensation and
endowment would be recited in consecration
Right to act, (Ib. 49). If the proprietors cannot, from
shut up. , .
any cause, let these pews, what is there to
prevent them, though the Chapel be conse-
conversion crated, from shutting it up, if it be not conse-
to secular ^ ^
purpose. crated, to convert it to any secular purpose. If
chapei, im- a Chapel exists from time immemorial, and the
memorial _
existence of, performances of the offices of baptism, matn-
countedfor. mony and burial, is not otherwise accounted for,
it might be presumed there was originally a
License by composition. The license is to a rector and his
rector to .
bury, effect, successors, and he being ignorant of the law
might think it better to lay dead bodies under
the Chapel, than (if not consecrated) to devote the
vaults to another purpose, but it would not affect
the rights of future incumbents. The payment for
the use of the vaults was receivable by the pro
prietors, and the fees were accounted for to the
Assessment rector i assessment of a building to the parish
of building, . . L
effect. rates is an argument against consecration. (Ib.
51). Chapels without authority lawfully given
cannot keep separate registers, for they would
CHAPELS. 125
not be receivable in evidence, (Ib. 52). Patrons Keeping
. . . separate
or proprietors forming a joint-stock company registers.
cannot appropriate a part of the Church dues,"
(Ib. 53, Sir /. Nicholl.)
Hodgson v. Dillon, 2 Carteis, 388]. A license uc
is granted to A. as the minister of a proprietary PJC
Chapel, authorizing him to perform all the
duties belonging to that office. I know not of
what functions, according to the law of the
Church of England, the appointment of a
minister to an unconsecrated Chapel, confers,
or of the ecclesiastical duties belonging thereto ;
there is here no reservation, it is a simple license.
The law of the Church of England stands as
follows : No clergyman has a right to officiate u
in any diocese, unless he has lawful authority,
which he can only receive of the bishop, it may
be by institution, as in the case of a benefice,
or a license, when the clergyman is to officiate
as a stipendiary curate, (76. 292). The ancient
canon law knew nothing of proprietary Chapels
or unconsecrated Chapels, the necessities of the *w.
times gave rise to the creation of Chapels of this
kind, and the licensing ministers to perform
duties therein. The license of the bishop on
such occasions emanates from episcopal autho-
ritv but it could not be without the consent of consent ot
J . incumbent
the rector, or of the vicar. They who assert it is necessary,
in the power of the bishop to confer a permanent
as against himself, must show that such
126 THE LAW OF PEWS.
power has been conferred by the ecclesiastical
Power of law. It is not in the power of the bishop to
bishop to i i i i T i
revoke estop himsell, and he is bound according to the
license. . . , , i ,. T
exigencies of the case to revoke such license if
the good of the Church requires it."
^ bequest of 200/. to repair a free Chapel
was ne }d good, because it was only to support
that which at the time of the will was in mort
main, (AmU. 651 ; 2 Burns EccL Law, 556,
S. C.).
Augmented Prout v. Cresswell, 1 Lee, 381. The bishop
curacy; J
has power to sequestrate an augmented curacy,
for it was by the 1 Geo. 1, c. 10, put in many
respects on the same footing with presentative
livings.
and Augmented Churches and Chapels shall be
considered in law as a benefice, and the license
is to operate in the same manner as institution or
induction, 36 Geo. 3, c. 83, s. 3 (a), which it was
intended should, and did, bring them under the
provisions contained in the 21 Henry 8, c. 13,
(a) The term benefice comes to us from the old Romans, who
used to distribute the land of the conquered amongst their
soldiers, and those who enjoyed such reward were called benefi-
ciarii, and the lands beneficii, hence came the word as applied to
Church livings, for the ecclesiastics held for life like the soldiers,
and the riches of the Church arose from the beneficence of princes ;
but Mr. Fraser says the word has rather a feudal signification,
and means a grant of land for a limited time by a lord to his
vassal for his maintenance, (1 Burns Ecc. Law, 135,
CHAPELS. 127
whereby acceptance of a benefice, unless by
express license, incurred the forfeiture of those
held previously, which statute is now repealed by
the 1 & 2 Viet. c. 106, and which in some degree
ameliorates the stringency of the former statute,
and excepts certain cases from its operation.
1st Geo. 1, c. 10, s. 4. The benefit is to Augmenta
tion by
extend not only to such persons, &c. &c., who Queen
come in by induction and institution, but to Bounty.
those also who come in by donation, or who are
only stipendiary preachers or curates officiating
in any Church or Chapel wherein the Litany
and the rights of the Church are used, most of
which, not being corporations, cannot take a grant
of the augmentation, all such Churches and
Chapels (by reason of the advantage which the
patrons might possibly take) which shall be
hereafter augmented are declared and established
from such time to be perpetual curacies and
benefices, and the ministers and their successors
shall henceforth in law be considered as corpo
rations, and be able to take in perpetuity all
lands which shall be purchased by the commis
sioners of Queen Anne s Bounty, and that the
impropriators, patrons, their heirs and rectors,
and vicars of the mother Church, whereunto
such Chapel doth appertain shall be utterly
excluded from having directly or indirectly any
interest, profit, or benefit, by such augmentation,
and shall continue to allow the minister, as by
ancient custom, or of right, not bounty, as should
128
Cure of souls
not dis
charged by
augmenta
tion.
To be sub
jected to
lapse.
Subject to
the visita
tion of the
ordinary.
Augmenta
tion not to
be without
consent of
patron.
THE LAW OF PEWS.
be paid before, and which they by law might be
compelled to pay, such sum and bounty (aug
mentation) shall be vested in the minister and his
successors.
Sec. 5. Those who have the cure of souls are
not to be discharged therefrom, and all rights of
the rectors or vicars as to dues to continue.
Sec. 6. Such augmented cures to be subjected
to lapse.
Sec. 14. And though they were before exempt
they shall be subjected to the visitation of the
ordinary.
Sec. 15. No donative shall be augmented
without the consent of the patron in writing
under his hand and seal.
129
PROPRIETARY CHAPELS.
Of all the various denominations of Chapels f f^; c
above enumerated, those alone of a proprietary gco
nature, it is conceived, are severed from the
general usage, or common law.
? Free Chapels were erected by the license of Pronto
the King, for the purposes of public worship; don
and may have arisen from the exertion of the
Royal prerogative, in attempting to humble the
pride of some haughty Ecclesiastic : by showing
him the Sovereign had still sufficient power to
create places of worship, independent of his
jurisdiction, and which power it might have
been very necessary to exert during the middle
ages, in which period history is filled with the
account of struggles between the Crown, and
the Church, arising either from the exercise of
a right, or the usurpation of a privilege. The
statute conferring the free Chapels upon the
King, is silent as to their origin.
Chapels of Ease, are, as the name imports, chapc-is
the institutions of necessity, and were either ot.
built by public subscription, general assessment :
or, which was more usual, by some pious person
for the advantage of his fellow parishioners; or
it might have been in accordance with some
superstitious vow. In those times, the rapacious
G 3
130 THE LAW OF PEWS.
spirit which is manifested in these days, was un
known, or, at least, unpractised, by the lay com
munity in spiritual things : for they were deemed
to be sacred objects, and unfit for the purposes
of trade and traffic. These erections, whether
prompted by necessity, or devotion, were dedi
cated to the public worship of God, and resorted
to by all the parishioners in common, and hence
the Chapels of Ease (in the strict sense of the
word).
^ n tne P r g ress f time, the spirit of enterprise
was awakened, and commercial acuteness aroused,
it was then men began to traffic in the religious
wants of their fellows, and Proprietary Chapels
were instituted ; a name formerly unknown to
the Canon law, and to the Ecclesiastical estab
lishment. These were buildings reared by the
speculations of private individuals, who obtained
a license (in some cases Consecration) from the
bishop, that the Church service might be used
therein, and by agreement with the incumbent
of the parish, either appointed him to preach,
or paid some other minister of the Church of
England, by his permission, to do that duty.
The pews were apportioned among the specu
lators, who let them at a rent that the minister
might be paid, and they receive a profit. Such
then was the origin of Proprietary Chapels, and
it was necessity only which allowed their insti
tution, for population had increased without a
corresponding accommodation. In these Chapels
PROPRIETARY CHAPELS.
131
(and others to be spoken of hereafter, which are
built in accordance with the express enactments
of Parliament), the common law does not take g
effect ; for therein the sittings may be let at a ousted.
rental, in the same way as the proprietors might
let a house or a room, but it does not follow
because such Chapels on their first creation
were proprietary, that they should always con
tinue so, for such rights may be lost, and the
buildings come under the denomination of
Chapels of Ease.
It is considered abstaining from the exercise off Jjjw
the right of receiving rent for the pews allotted -
would, in time, devest the proprietors of any <
power in the Chapel, as, in the case of non-user
for twenty years, and the parishioners repairing,
appointing Chapelwardens, and doing other acts
of ownership, unless by express grant, upon con
dition, or otherwise.
The user and repair, in the absence of a per
mission, would be considered adverse, and that,
though in some instances rent was paid, for it
would be considered rather as an exception
against the legal right than the general rule.
In Watsons Clergyman s Law, p. 712, it is church
y * . i e i ained
said, " if a layman, on the dissolution ot the
religious houses, had a Monastery, of which a
Church is parcel, and for sixty years (the then
prescription), the parishioners come and use it as
the parish Church, it shall give jurisdiction to
the ordinary, to dispose of the seats, because by
132 THE LAW OF PEWS.
constant usage and sufferance, it has become a
parish Church, though before, it was not subject
to the visitation of the ordinary ; but if the
patron had placed any persons in the seats, the
ordinary could not dispossess them, because he
hath all the time used his right ;" which is a case
exactly in point with that in discussion, and they
who paid the rent would be deemed to be those
who were the appointee s of the original pro
prietors, which would account for the departure
from the general rule, and over the other part of
the Chapel, as in the case of the Church, the
ordinary would have the power of appointment,
more especially if the Chapelwardens had un-
resistedly appointed persons to seats, for they
are only the servants of the ordinary. In Haw
kins and Coleman v. Compeigne, supra, p. 1 22,
it was pleaded, that they who occupied the pews
paid for the repairs according to the respective
value of their holdings. It was held, the usage
could not be as laid, because the year of the
erection was shown not to be ancient, and to
establish a distinction, the condition of the con
secration must be shown (the Chapel did not
appear to be rated to the parish, so the conse
cration was presumed), or it must fall under the
general law. In such a case, the pews might be
appurtenant to houses by faculty.
cha pr ei etary ^ * s a PP renen ded, where the seats in a Chapel
were once a PP r P r iated in a peculiar manner,
ordinary. an( * t ^ 1G "St * S ^ OSt tnat tnen tne Common
PROPRIETARY CHAPELS. 133
law right immediately vests, and the scats in
such Chapels assimilate to those in the chancel
of a Church or an aisle, in both of which the
ordinary had no power of appointment, and yet
we find that on the loss of the rights of those
who were entitled by prescription to the seats :
the ordinary had the power of appointment, not
only through the medium of the Churchwardens,
but in exclusive appropriation by faculty.
The building of the chancel would be coeval
with the Church, and, therefore, as ancient as
the nave ; not so the aisles, which might have
been erected (comparatively) but recently ; at all
events, in such time that the date of the erection
might be known, and are, in few instances, if in
any, as ancient as the structure of the Church.
If the building be not ancient, whether it be
forty or a hundred years, its estimation in law
would be the same, and if any certainty as to
its date could be arrived at, it would take it out
of a prescription (unless it be a time beyond
that of strict legal memory), and in such a view
an aisle is exactly similar to a proprietary Chapel,
which by some means has become the common
property of the parish. The ordinary in an
aisle (in similar circumstances), may appoint a
parishioner to a seat, or grant a faculty ; why
should he not have the like power in the case
of a once proprietary Chapel ? An aisle is built
on the freehold of the parson, a Chapel is not;
yet on becoming annexed to the parish as com-
134 THE LAW OF PEWS.
mon property, the soil whereon it is built vests
in the parson, for he has the spiritual cure of the
parish.
Where a proprietary Chapel is consecrated,
unless in the deed of consecration, a special right
is reserved to the speculators, it is presumed the
fee of the soil vests in the parson, and he only
would be entitled to the burial fees, as he is, in
all such cases, entitled to the customary surplice
fees, (supra, p. 123).
proprietary So, it is apprehended, a proprietary Chapel,
mented. au5 ~ though the proprietors were engaged in the
full exercise of their speculation, repairing,
letting, and bearing all the expenses of the es
tablishment : if they, from ignorance of the effect
of the statute of the 1 Geo. 1, c. 10, or from the
supposition of a benefit to themselves, allowed the
minister s salary to be augmented from the Queen
Anne s Bounty Fund, from that moment their
rights, and privileges would cease ; and though
they held the land and Chapel in fee, it would,
by the effect of the statute, immediately vest
in the minister ; as far as the freehold was con
cerned, for the benefit of himself and successors,
and the pews would become common to the in
habitants of the Chapelry or parish, and be in
the disposition of the ordinary, for every man is
supposed to know the law, and it would act as
an appointment under the Statute of Mortmain.
The augmentation could only be conferred by
the consent of the patron, in which light, it is
PROPRIETARY CHAPELS. 135
conceived, the proprietors would be held (vide
supra, p. 127); if the consent was without reser
vation, it would take effect as above, and the
Chapel would become a benefice, and a per
petual curacy.
It would be difficult to understand the section construe-
tkmlGeo.i,
many other way, for the express words of the enact- c. 10, s. 4.
inent are, " that the impropriators, patrons, and
their heirs, and the rectors and vicars of the mother
Church, whereunto such Chapel doth appertain,
vshall be utterly excluded from having directly or
indirectly, any interest, property, or benefit by
such augmentation :" and if any other construc
tion than that contended for above can be
allowed, how could the words of the statute take
effect ; for it is presumed that the words " direct
ly, or indirectly," were inserted to exclude even
the colour of profit, and if the proprietors were
still allowed to hold the property as heretofore :
would it not be a premium conferred upon them
for the purpose of letting their pews ? To do an
act in direct contradiction to the polity of the
common law ? Would it not enable them to get
greater talent to fill their pulpit, by their being
enabled to offer a higher salary to the minister
than they hitherto had ? and by trafficking in
his talent, to fill their pews, and thereby reaping
a greater advantage ; such must be allowed
would be the effect, and if so ; would it not be
in positive opposition to the very express words
of the statute ?
136 THE LAW OF PEWS.
Augmenta- If on the augmentation, the matter was made
tion bargain , . , , . ,
and sale, one of express bargain, it would then be go-
effect. ..jj JJ
verned by very different considerations. Ihe
curate s salary, independently of the augmenta
tion, would be secured upon the pew rents (as is
the customary appointment in the statutes for
building new Churches), and, besides, a part of
the pews would be set aside as free seats, to
accommodate the poorer parishioners.
And as in connection with pews (as well as
with other matters), it is a rule of law that the
benefit and the burderx should go together; it
Augmenta- would necessarily follow, if the Chapelry was
tion without , . , . , c
reservation, augmented without reservation on the part ot
the proprietors, they would not be compelled to
pay the minister the salary they had paid before ;
besides, the permission for augmentation might
be considered as an act of abandonment of the
property to the general use, and to the wants of
the parish, throwing upon them the onus of
repair, &c., as well as the benefit in the increased
accommodation which it would in common afford
to all the parishioners.
proprietary Whether the Chapel was consecrated, or only
licensed, licensed, for the purpose of the exercise of the
augmenta- ordinances of religion, according to the estab
lished forms of the Church of England, the
statute, it is apprehended, would still take effect ;
stipendiary for stipendiary preachers are expressly named
preachers. , r , i i i i
in the fourth section, and which, in a great de
gree, appears to direct this particular disposition.
PROPRIETARY CHAPELS. 137
By the sixth section, it is said, all augmented
Churches or Chapels shall be subjected to lapse,
and (supra, p. 128), we have seen they have been
judged liable to sequestration ; and by the 36
Geo. 3, c. 36, s. 3, it is said, they shall be con
sidered in law ; as benefices presentable. So the
augmentation, if it had any effect at all, would
convert the licensed Chapel into a benefice, pre
sentable, and the minister into a corporation
sole. And the same act (i. e. the augmentation),
if without reservation, would vest the Chapel in
the parish generally, for the purposes of public
worship; the dedication, by that act, to the
parish would be perfected, and, it is considered,
could never more be devested.
If the building had not been consecrated : or, Bishop,
if there was a doubt, (no certificate thereof ap- "ose teraS"
11.1,. on con""
peanng in the bishops register; supposing con- crating
secration to be a necessary act. In the legal
institution of a Chapel): it is considered, that the
bishop on attending for that purpose, could not
impose terms upon the parishioners in contra
distinction to those, which they acquired, when
the proprietors assented to the augmentation : or
in other words, the bishop could not by the deed of
consecration set apart certain pews for free seats,
and impose a rent upon the remainder for the
purpose of paying the minister an additional
sum, besides that acquired by the augmentation.
It is conceived, the only power the bishop would
have in the disposition of the seats, would be in
on conse-
atinp
Chapel.
138 THE LAW OF PEWS.
his character of ordinary, and which power must
be exercised in strict accordance with the common
law right which is resident in every parishioner.
The building is a Chapel in the strict sense of
consecra- the word before the consecration, and it does not
ot. n change the thing, but only appropriates it to an
exclusive use, an effect it is presumed which the
statute also produces.
stipendiary The statute specially mentions, and without
preachers, / i-
construe- qualification, " stipendiary preachers, which
statute. words must have been intended to include all
ministers whose salary was dependent ; and as
in the days when this act was passed, proprietary
Chapels were known, it is presumed, if they
were to be excluded they would have been ex
pressly named; and when general words are
used in a beneficiary statute, all persons would
be included who could be brought within the
definition, regard being had to its obvious in-
tendment, which was the augmentation of the
salaries of the poorer ministers of the Church of
England, whether beneficed or stipendiary ; not
the exaltation and elevation of benefices, but
the improvement of the condition of the working
clergy (6).
ch a e pei ed ^ licensed Chapel comes within the exact
(6) Dissenting ministers could not be included within the
meaning of " stipendiary preachers," though it be a word of very
large signification, because the statute was passed for an express
purpose, and by no effort of reasoning could they be included
in its intendment.
PROPRIETARY CHAPELS. 139
definition of a Chapel of Ease. The only pre- similarly to
,. i . , -Chapel of
sumption for its being licensed is the want of Ease.
Church-room, and it is, therefore, in ease of the
mother Church, and is under the superintend
ence of the incumbent of the parish, for no one
could officiate therein without his permission.
If then it is a Chapel in ease of the Church, it
must be clearly within the definition of the act,
and though by immemorial custom it may not
be annexed to the mother Church, still during
the time of its being licensed (if consecrated,
there could be no doubt) it is under the imme
diate superintendence of the incumbent, and it
is by his permission ; the minister is enabled
to officiate, (if licensed) ; yet he is not deprived
of his right, for the cure of souls is still with
him : and, if he hath the direction of the minister,
which (in one sense) he has, for if any improper,
or heretical doctrine was preached in the Chapel ;
under the cloak of the ritual of the Church
of England, he could revoke his permission,
and the minister would be compelled to with
draw : if he resisted, by libel, by citation, or by a
criminal proceeding in the Ecclesiastical Court.
Therefore the minister is under his direction, and
may be viewed in the nature of an assistant:
and with great consistency. In fact it must be
said, that during the time of the license and per
mission of the incumbent, that Chapel doth
appertain to the rectory or vicarage.
Though the effect of the license is to sever it Effector
140 THE LAW OF PEWS.
licensing- a from secular things only during the time it is
appropriated for the purposes of public worship
according to the ritual of the Church of Eng-
statute, land. The statute would in effect be a per-
tion of petuation of the license, for by it the freehold is
license. r *
vested in the minister, and by such vesting he
becomes a corporation sole.
impropri- It may perhaps be objected that the words,
patron, con- " impropriator and patron," are not sufficiently
struction. . . _ . , . ,
large to include proprietors, in which case it
would apply to the Chapel, though consecrated.
A merely licensed Chapel might again be ap
propriated to secular things, but the building if
once consecrated would for ever be set apart and
could only be devoted to the purposes of religion
(supra, p. 124) ; therefore if the objection sug
gested has any power, it would act as a preven
tive to the operation of the statute, and prevent
the augmentation of any minister s salary who
was officiating in a Chapel which had been once
proprietary. But such is not its operation ; and
on application at the Queen Anne s Bounty
Office, it will be found that many Chapels which
were once proprietary are now, through being
augmented, termed Chapels of Ease and per
petual curacies.
consecra- It is not laid down in any of the authorities
incommon within reach and which have been consulted, that
statute. consecration by the bishop is absolutely necessary
for the purpose of creating a benefice, though
doubtless it has always been the custom ; and it
PROPRIETARY CHAPELS. 141
is therefore contended, that the act would have
the same effect on a licensed building, as the
deed of consecration : for in both cases it would
be an appropriation of a thing for a special
purpose, in the one case by express direction,
and in the other by implication.
The intention of the statute of 1 Geo. 1, c. 10, intention ot
was to extend as widely as possible the advan- i ceo* " te
tages of the late Queen s beneficence, and the
policy of the act was the enlargement of the
powers of the Bounty commissioners, rather than
their restriction ; and the intendment to benefit
all officiating clergymen who in their appoint
ments were inadequately provided for.
The stipendiary minister of a licensed proprie- stipendiary
tary Chapel is as much a clergyman of the Es- Proprietary
tablishcd Church as though he was presented to a
benefice, and his case is precisely parallel to that
of a curate appointed by the incumbent of a
parish to a district Chapel, and their positions
are exactly similar to that of the vicars of the ap
propriated benefices before the statutes of the
14 Edw. 3, c. 17, and the 15 Ric. 2. The
policy of the statute of the 1 Geo. 1, c. 10, is in
effect the same, (. <?.) to make the appointment
of the curate permanent, and for the prevention
of caprice in the removal of a minister from a
Church, wherein he had doubtless become inti
mate and identical with the spiritual interests of
the congregation, and also that the Church
should be properly filled which latter reason
142 THE LAW OF PEWS.
would apply with twofold force to the case of
the minister of the proprietary Chapel,
statute of It may also be objected that the various
implication Statutes of Mortmain would take effect upon the
grant, if the implication be as above insisted
on. If it were considered to be an alienation
in mortmain, it would be one of which the
Crown only could take advantage, and which
under the circumstances would be re-granted
for the purposes of the alienation ; but in the
case of the augmentation of poor livings, there is
an express proviso in several statutes, " 29 Car.
2, c. 8, since extended by 1 & 2 Wm. 4, c. 45,
and the 1 & 2 Viet. c. 107, and 3 & 4 Viet,
c. 3, s. 76, that augmentations of poor livings may
be made in such manner as is therein provided,
free from the restrictions of the Statutes of Mort
main ; and upon the same principles, provisions
have been likewise made relaxing the laws of
mortmain in favour of the governors of Queen
Anne s Bounty, 2 & 3 Anne, c. 11; 43 Geo. 3,
c. 107 ; 2 & 3 Viet. c. 49 ; 3 & 4 Viet. c. 20,
s. 5," (1 Stephens Com. 427, et seq.), even if it
were not excepted by the acts above mentioned,
it is conceived, it still would be within the spirit of
many of the late statutes for building Churches
and Chapels; for it would be an absolute dis
herison of the lands from the estates of the
proprietors, and an immediate vesting for the
purposes of religious uses.
Proprietary The case supposed, is one which is, perhaps,
PROPRIETARY CHAPELS.
scarcely likely ever to occur, yet still it is within
the range of possibility, and would fairly serve as
a channel for the conduction of the argument,
whereby the principles which could be brought
to bear on the like complexion of the case,
would be elicited. The proprietors are supposed
to be seised in fee of the Chapel and land : be
cause, thereby the matter is simplified; if the
proprietors were merely lessees of the building,
in such case, there could be no augmentation :
because, the consent of the superior landlord
would be wanting, who only could be regarded as
(or stand in the place of) the patron, and which
would be necessary before the augmentation
grant could take effect.
The proprietary Chapels which are most likely
to be subjected to the operation of this statute,
are such as have been for a long time past in the
hands of the parishioners, and though there may
be a tradition relating to the time and terms
upon which the Chapel was built, yet there may
be no record of the consecration, if any ever
existed, or if the ceremony was ever performed ;
for it may be, the consecration was presumed by
the user, and the building, on its general adop
tion by the parish, or by a particular part of it,
for the purpose of Church service, ceased to be
rated in the parish books, and such would be
taken, in absence of anything to the contrary,
as an evidence of consecration, though, perhaps,
144 THE LAW OF PEWS.
originally, it was a mere licensed building, and
had never been consecrated.
claim of The tradition of its first vesting in the parish-
pew, after
pew, aer , , P i
chapei has loners, may be lost, and the memory ot tne
parish. terms on which the Chapel was built, only kept
alive by some individuals claiming pews, and,
however illegally, making the same a matter of
bargain and sale ; for whatever were the terms of
its first user by the parish, or however it became
vested in the parishioners, for the purposes of
public worship, whether by consent or suffer
ance, which had grown into an absolute right.
On such vesting, the common law right would
Right of the apply, and nothing short of a faculty would have
ordinary. ^ effect of giving a parishioner an exclusive
right to a pew or sitting ; for if the time of its
appropriation was known, it would be against
any presumption of "time beyond whereof, &c. ;"
and, therefore, a prescriptive right could not
apply. On its vesting in the parish, the right of
seating the parishioners would, it is presumed, be
in the ordinary ; and however long, or on what
ever pretence, an individual claimed an exclusive
right: in the absence of a faculty, it would be
supposed the appointment to the seat was con
ferred by the ordinary, and its continued occu
pation, was by his sufferance : from the suppo
sition that the wants of the person were adequate
to the accommodation it afforded. Therefore it
could never have been adverse to him, and, con
sequently, could not vest in the claimant.
PROPRIETARY CHAPELS.
145
Free Chapels or Donatives may, in some par- Donatives,
7 l . likeness to
ticulars, be likened to Proprietary Chapels, which pr e i 1 e s tary
have become vested in the parishioners; excepting vested in
in such vesting they would be subjected to the oners.
visitation of the ordinary. It is supposed they
were created by the exertion of the absolute will
of the sovereign, his license being sufficient ; and
as it is said (Gib. Cod. 235), built generally on
his lands, to serve him for a place of worship
when he resorted there. They are also known
to exist on land which never was in the posses
sion of the sovereign, and, therefore the building
must have been the effect of his mere license.
It is more than likely they were never consecrated :
and if the supposition above (supra) p. 129), is
correct ; the most reasonable conclusion would
be, that they were not. If the king s license is
sufficient, there could be no need of consecra
tion ; besides, if they were consecrated, it is
more than likely the bishop would reserve to
himself the power of visitation, which we find is
expressly in the patron (supra, p. 116), for con
secration is a ministerial act, as well as an act of
spiritual appropriation. Yet we find these Chapels
are subject to augmentation : and to become
perpetual curacies and benefices ; which, as it is
contended, would be the effect of the augmenta
tion upon proprietary Chapels, and greatly favour
the argument adduced in support of the position
above advanced, (supra, p. 130, et seq.}.
H
THE LAW OF PEWS.
Proprietary Chapels (in the absence of an
express enactment), may be said to be the only
places of public worship wherein the common
law doth not take effect.
lt wil1 be neces sary shortly to notice the se
veral statutes relating to New Churches; wherein,
necessity has compelled a departure from the
rules of the common law.
147
PEWS IN NEW CHURCHES.
58 Gco. 3, c. 45, ss. 18, 19, 20 (a). Churches Perpetual
curacies.
built iu accordance with this Act, are, during the
life of the incumbent, to be perpetual curacies,
and subject to him ; on his decease, the proposed
division, as directed by the Act is to be carried
out.
Sec. 75. Before the consecration of a Church
or Chapel, built under the direction of this Act, family.
a pew capable of containing six persons, in the
body of the Church, and on the ground floor,
contiguous to or near to the pulpit, is to be set
apart for the use of the minister and his family ;
and others, not among the free seats, to the
number of four, for his servants ; and besides a
certain portion of the Church is to be set apart
for free seats.
Sec. 76. Subscribers towards the building of choke of
a new Church, are to make choice of the pews subscribers.
therein, in the order of the amount of their
several subscriptions.
Sec. 77. Gives power to let the pews, re- Letting
serving rent, to be payable quarterly. jerring
Sec. 78. Gives power to alter the pew rent, To a iter
pew rent.
with consent, &c.
Sec. 79. In the event of the rent being be- Right of
entry in
(a) Sec Appendix, for the sections of the Statutes at length
relating to pews.
fl 2
THE LAW OF PEWS.
i payment three months, and a notice in
, n
parish
ioners.
ment p of wr * tm g demanding payment, having been given,
reserved the churchwardens may enter upon such seat,
and let it to another, until the rent in arrear and
the costs be satisfied, or are empowered to sell
the same by auction, since repealed by the 59
Geo. 3, c. 134, s. 25.
59 of Geo. 3, c. 134, in aid of the above.
!f21" gto Sec. 32. The seats, or pews, are to be let
only to the parishioners, so long as they continue
inhabitants of the parish ; every pew to be sub
jected to forfeiture by non-payment of the rent ;
not the sale, or letting, of the pews, to be by private
auction. contract, and not by auction.
Appropri- Sec. 33. Subscribers towards the building; of
ation for a , /
term, and the Church may be discharged from the pay-
right of as- J
sigament. ment of the pew rent, for a term, or for life;
wholly, or in part, in such a way as the commis
sioners may see fit, and they may allow the sub
scriber, if he removes from the parish, to assign
the remainder of his term over to another
parishioner.
Rebuilding Sec. 40. W here a Church is taken down and
or enlarging
Fac 1 uit h ~&c en * ar g e d under the provisions of this Act, those
who enjoy pews or sittings in the Church, by
reason of a faculty or a prescription, shall have
a pew or pews allotted to them as nearly in the
same situation, and of the like dimensions in the
new Church.
3 Geo. 4, c. 72, declaratory of the above.
Transfer of Q _ TX7 .
faculty right oec. 26. With the consent of the owners of the
from oldto
new church, pews, (/. e. by faculty or by prescription) the
CHURCHES Bi:iLT BY STATUTE.
commissioners may transfer any right which they
have to the sittings in the old Church or Chapel
to the new Church or Chapel, if they reside in
the division wherein it is erected : and therein
they are to enjoy the same right and title which
they had in their old pews, and such rights are
to be so directed in the assignment, as in lieu
thereof, without a faculty. Such assignment
shall be registered in the registry of the diocese,
and a duplicate thereof be deposited in the
chest of the Church, but no larger right is to be
gained in the pew of the new Church, than was
held in that of the old Church.
Sec. 24. Contains regulations as to notices for jjjes f r
the letting of pews ; a list is to be made of those P CWS -
pews which are unlet at the end of the year, and
is to be posted upon the Church door, and if
thev be not let within fourteen days, they may Power to let
* . . . , to inhabit-
be let to the inhabitants of the adjoining parish, ants of ad-
_, . joining pa-
&c., (wherein there is not sufficient pew accom- rishes.
modation), at the rent affixed, for any term not
exceeding the end of the year : when such pews
shall again be considered as vacant, and inserted
as such in the list.
Sec. 25. In any case where a term for a Rteh* of
f acceptancy,
longer period than a year has been granted to how lost -
an inhabitant of a parish, or a district, wherein
the new Churches are situated, and he shall
leave the parish or district, or discontinue his
attendance for the space of a year, such pew
shall be considered vacant, and may again be let.
1st and 2nd of Wm. 4, c. 38, citing the above Acts.
150 THE LAW OF PEWS.
power to let Sec. 4. In Churches built in accordance
adjoining with these statutes, provides for letting the pews,
parishes. ... /Y i i i
according to the rates amxed by the trustees,
and in event of the pews not being taken within
fourteen days from the end of the year, they
may be let to the parishioners of the adjoining
parishes, wherein there is want of Church room,
with as like limitation as is contained in 3 Geo. 4,
c. 72, s. 23, (supra, p. 149).
Sec. 22, and if the commissioners think fit,
all things done under this Act relating to pews
may be assimilated to the Acts above recited.
Such are the statutory enactments which in
terfere with the common right, there are also
others of a local nature, applying to a particular
Church, in which case also, the statutory enact
ment is paramount to the common law.
church-^ Sprey v. Flood, 2 Curteis, 364.] And if the
obedience to Act ffives power to the churchwardens to do
the statute i i i i
law. certain things, and they neglect to act in accord
ance with such direction, they are liable to an
indictment for the violation of an Act of Par
liament. The statute law is binding upon every
Court, and no worse justice is administered,
than to depart from the plain and simple words
of a statute, (Ib. 365).
In examining the various provisions con-
statutory tained in the above recited statutes, it will be
provisions.
assimilated, as far as may be, to those of the
common law. And the Parliament in autho-
CHURCHES BUILT BY STATUTE.
rizing a rent, have been careful that the rights
of the poorer parishioners should be preserved,
and have therefore directed, that a portion of
the Church shall be left unpewed and benches
erected for their accommodation, and on which
no rent is reserved. It will be remembered that
every parishioner has a right to be seated in the
parish Church : and therefore this provision.
It may be said, that by the common law pay- Jjy^ 1 0|
ment of rent for a pew is illegal, and with truth ; com
yet it may be replied, that Church room was
absolutely necessary, and which could only be
obtained by private subscription, or a large
general tax upon the parish ; not only for the
erection of the Church; but for the payment of
minister and the necessary officials. If then there to pay rent.
could be a mode suggested whereby the tax
could be avoided, it is conceived such mode
must be better than one which would cause ill
will in many, perhaps in the largest portion of
the parishioners ; for it would not be the whole
of the parishioners who would benefit by the
new building; many being already provided for
in the mother Church, and that without a par
ticular cost to themselves ; and generally, they
who are provided for without cost, are but too
apt to forget the wants of their fellow parishioners ;
and who bear equally the burthen of the repairs
with themselves ; yet the need of the unprovided
for is equal to that of them, whose right is founded
upon the claim and the appointment of an earlier
date : and was therefore successful.
152 THE LAW OF PEWS.
provision on By the statutes, that part of the parish wherein
death of in- J . . .
cumhent. the new Church is situated is, (on the death of
the then incumbent of the parish) for the pur
poses of the Church to be severed from the
other parts of the parish, and the parishioners
therein residing are to bear the particular burthen
which it imposes, and yet the pews are not ex
clusively appropriated to them, but are supposed
to be for the accommodation of the parishioners
generally (i. e.) for those already unprovided for
in the mother Church. To lighten the burthen
upon the parish, a rent is demanded for the pews,
and which demand in these particular instances
is legalized by statute.
Faculty Faculties originated from a feeling of ex-
rights, pro- . i
vision in clusiveness, and so pews are set apart tor those
new Church. . , . .
who choose to have a particular sitting appro
priated to them ; the common right is not there
fore gone, for the free seats are open to all. The
grant of a pew at a rent, it is considered, confers
on the renter during the time of the payment of
the rent and inhabitancy in the parish, an ex-
elusive right to the use of the pew ; and as pay-
ment of the rent is the consideration for the allot-
!by ment, so during the time of non user the right
is with the renter and not with the church
wardens to appoint : even in his absence.
There is a special enactment contained in the
statutes above cited, that in pews which have
been allotted to a person for a longer period
than a year ; that removal, or non user for a year
shall vacate the right.
CHURCHES BUILT BY STATUTE.
When the pews arc let, there is no condition Letting
annexed that the person shall occupy, but only condition
. i , annexed.
that he pays rent ; the supposition being that he
will use the pew. So, when a person rents a
house, there is no condition annexed that he
shall occupy, the supposition being that he will
occupy : and so long as he pays rent, and prevents
any injury to the property, so long would his
tenancy enure ; unless the landlord gave notice,
for the purpose of determining it, and then the
tenancy would continue until the expiration of
the notice. But the law would not give the
landlord possession at a period anterior; nor
would non occupancy alone be a sufficient ground
for the foundation of an action of ejectment.
Houses are intended to be dwelled in : pews for
the purpose of conveniently attending the public
ordinances of religion : and between the two
there is, it is conceived, an exact similarity,
regard being had to the particular intendment.
If there be a rent reserved, and residence in usual dc-
. . IT- claratory
the parish, such appropriation would, it is con- notice,
11 effect of.
ceived, be an exclusive appropriation: to be used,
or not used, and it is very doubtful how far the
usual declaratory notice, " that seats will not be
reserved after the first lesson would apply ;" if RlUe O f i aw
the letting be in writing, it is most clear it could written *"
not, for it is a rule of law, that a parol statement af
shall not alter a written document ; the writing
is perfect in itself; the notice is a something
extraneous and totally unconnected. If the
H 3
154
THE LAW OF PEWS.
letting be by parol, then the renter must at
least have notice of the condition to be made
available against him. It is doubtful how far such
notice posted upon the Church door, or painted
within the Church, would be such a notice as
could be applied in the nature of a condition ;
for it is a something beside the letting, and if
intended to control it, should be made a part of
the agreement. The remarks, (supra, p. 66, et
seq.\ cannot be brought at all to bear upon this
particular species of pew right ; for in such rights
as are there discussed, it is expressly said that
payment, or even payment of rent, for a pew is
illegal and confers no right, but rather militates
against its presumption ; and as there must be a
consideration, the consideration there stated is
law the only one which can attach. Here the case
is essentially different, it is expressly enacted
that a rent may be reserved ; and the rent must
be the consideration, for it is said, "contributors
towards the building shall have preference ac
cording to the amount of their subscriptions ;"
thereby putting the question beyond a doubt :
then if the rent be the consideration, it must
during the period of the letting confer upon the
renter an exclusive right, and a right which is
independent of the general convenience and the
rights of his fellow parishioners and if it, as it
is contended, confers an exclusive right, it would
warden" he illegal (unless the letting was on condition),
*_> /^
for the churchwardens to place any other persons
in the pew, for by possibility the owner or owners
(JIIUIU IIKS BUILT BY STATUTE.
155
of the pew, or pews might present themselves
immediately before the end of the prayers, or in
the middle of the sermon ; and it is very doubtful
the churchwardens having placed some person
in the pew, if it would not he considered such
an intrusion would be a sufficient ground for an
action of trespass : for it would be the hinderance
of the enjoyment of a purchased, and positive right.
If A. obstructs B. in entering into his (B. s)
house, B. shall have trespass against A., because
during his possession he has the exclusive right.
So has the pew renter, and during his absence
the churchwardens are only depositees for a
special purpose, and that not for the general con
venience but for the exclusive right of the renter.
It has been shown (supra, p. 65) that the
inducement for the ordinary to seat a parishioner,
is the necessity he has for attending in the
Church during the administration of the offices
of the public worship of God, and the right to
be seated is conferred by the common law. And
as a faculty is a grant upon consideration, the
cession of the common law right, as has been
shown, is and can be the only consideration.
Therefore, the necessity of the parishioner may
be said to be the inducement for the grant of a
faculty. If, then, the necessity of the parishioner cjrantoc
be the inducement for the grant of the faculty, in pew in
mother
what position would be the grantee of a faculty church,
pew in the mother Church, if he rents a pew in JJJ.J5
the district Church ? It has been shown each are church,
exclusive grants, the one on condition (a faculty)
THE LAW OF PEWS.
the other absolute ; and in each the consideration
is different, the one being the cession of the
common law right, the other payment of rent,
and each consideration is, in itself, sufficient,
and are not, primd facie incompatible.
The possession of the faculty would not, it is
clear, make void the pew granted upon a rental,
but it is more than doubtful if the pew, which is
rented, would not make void the faculty, not
voidable, but absolutely void, for there would be
no necessity to continue the grant, and as the
necessity for attendance at Church is, in a great
degree, the foundation of the common law right,
so also the necessity of the attendance may be
said to be the inducement for the grant of a
faculty : if then the consideration fails, what is
t0 SU PP rt the facult J ? Jt is tru e the common
right which every parishioner possesses to attend
the parish Church for the purposes of religion is
not extinguished by the renting of a pew in the
new Church, for it is only a particular mode of
enjoyment, and is supported by a different con
sideration. During such occupation it may be
said to be in abeyance. The new district
Church is in ease of the mother Church, and
for the parishioners to perform their religious
duties ; it is not a building common to all the
world who choose to pay for a sitting, but it is a
building appropriated (with a single exception) to
eec the use of the parishioners, for, if it be not such a
>n faculty, vacation of the faculty right as is above suggested ;
an individual would be exercising a double right
CHURCHES BUILT BY STATUTE. 157
in the same thing when the law has distinctly
defined his necessity to be single, and has con
fined it to a single occupation.
If there be two particular modes of enjoying
the common law right which is inherent in
every parishioner, and to a parishioner there has
been appointed a special and particular mode of
enjoyment, and which he has accepted and used,
and afterwards, the other mode of enjoyment
being open to him, he applies to be and is ad
mitted to it. Such application and admission Renting
pew, vaca-
would. it is conceived, be held to be an election, tion of ap
pointment
and would vacate the prior appointment. And ofchurch-
that whether the common law right be in enjoy
ment by the allotment of the churchwarden or by
the special appointment of the ordinary.
It has been shown that a faculty is merely an
exclusive mode of enjoying the common law
right, and that the renting a pew is not an occu
pation differing from it, but an election to enjoy
it in a particular manner, and if there be such
election, and the common law right is still en
joyed, where is the consideration for the faculty ?
If other arguments were wanting, it is expressly j^" 1 ^
said above (supra, p. 148), that if a parishioner movai of.
has a faculty right in the old Church, that the
commissioner (he being resident in the district)
may transfer such faculty right to the new district
Church, to be enjoyed in the same manner and
in the same degree as the former right.
This is not a peremptory, but a permissive as
well as a discretionary power in the commissioners,
158 THE LAW OF PEWS.
for the consent of the faculty owner must be
first obtained. If the faculty holder does not
choose to accord with the terms of the act, or the
commissioners to exercise their discretion, shall
it be said, therefore, that he shall have power to
enjoy a double accommodation for a single want,
and that to the exclusion of others having an
equal right with himself? The provision in the
statute proves that the intention of the Legis
lature was to provide for the wants of those pa
rishioners who were unprovided for, and not to
enable the wealthy to exclude their poorer or
less favoured fellow-parishioners. Therefore, a
person having a faculty which he does not choose
to transfer to the district Church : or the commis
sioners to concur, as the case may be, would, it
is conceived, be shut out from the district Church,
and would not be allowed to rent a pew therein.
It cannot, it is conceived, be said in answer
to the above argument that as a faculty is not an
exclusive appropriation for user or non-user, that,
therefore, the churchwardens, during absence,
can appoint, and no inconvenience arise. It
must be remembered that the general erection
of pews was not alone for the mere convenience
of the parishioners, but also for the convenience
of an orderly attendance upon the duties of reli-
Argument gion. If a parishioner was allowed to hold two
faculty pews, one in the old Church by faculty or ap-
renting 1 pointment, and another in the new Church by
right being , , . ,
co.existent. rental, he could appropriate the pew m the new
Church to any person he pleased, and fill the
CHURCHES BUILT BY STATUTE. 159
Church with strangers (for if one man had the
power to do so, the rights of all being equal, all
could lay claim to the same right), and, thereby
those whom the law has appointed as occupants,
would be ousted of their rights.
The same argument which is here applied
particularly to faculties, would act with equal
force upon the prescriptive title (when in favour
of a pew in the nave of the Church) and also
upon the possessory title, and it is submitted that,
in each case, it would be an election, and, con
sequently, would be a subversion of the prior
right, be the claim of whatever nature it might.
So if a person being a parishioner rents a pew, Renting
pew, and
and afterwards quits the parish, it is presumed afterwards
, quitting
that the holding would continue to the end of parish.
the term of letting, and not be void immediately
upon leaving the parish.
There seems to be an anomaly in the statute, Letting
viz., the right to let, unlet pews to the pa- neighbour-
i i -i i i_- i ing P arisn -
nshionersof the neighbouring parishes, but which loners.
is a great strengthener of the argument, that rent,
and rent only, is the consideration for the use
of the pews built in the Churches erected under
the provisions of the statutes.
But then the statute expressly limits the right, Limitation
^ *^ ,T.f i,.* t ii.ii-
it does not give the parishioner of the adjoining
parish a concurrent right with that of the pa
rishioners of the parish wherein the Church is
situated, but says, " pews, unless let within
fourteen days after the end of the year may be
let to parishioners of the adjoining parishes,
of lettinp.
160 THE LAW OF PEWS.
thereby clearly inferring that if there be an
overplus of room after the accommodation of the
parishioners, then such overplus room may be
occupied by those other persons specified in the
statute ; but such letting is in no case to enure
for a longer period than a year, and which pews
are at the end of the year again to be posted on
the Church doors as unlet; but parishioners
only have the power of taking them over the
non-parishioner who rented them before; there
by making a reservation in favour of any new
parishioner whether he becomes an inhabitant
by the building of more houses in the parish or
from other causes,
construe- The intendment of the words. " neio-hbourino-
tion, neigh- T ,
di s . parishes, may be reasonably questioned ; for in
the act it is said, that after the death of the then
incumbent, the districts are to become district
parishes ; and the question, therefore, would be,
is the word neighbouring " to be limited to the
several districts which before made one parish,
or to other parishes, between which and the dis
trict in question, there has been no former con
nection ? If then it is to apply to the parishioners
of foreign parishes, a district in each parish
might join. Is then the limitation to be con
strued as applying only to that particular district,
or to the whole of the parish of which it was
formerly parcel ? For it must be remembered
that until the death of the then incumbent, the
districts are not to be severed from the mother
parish.
homing
tricts.
161
REMEDY FOR DISTURBANCE, &c.
Parnham v. Templar, 3 Phil. 522]. A per- Jjtcrrup-
son who is entitled to a pew by immemorial
prescription has such an interest in it that on
interruption the interrupter is guilty of an eccle
siastical offence.
Dawtree v. Dee and Others, Bridg. 4]. r s * urbancc
Action on the case for a disturbance.
Declaration stated plaintiff was seised of the
fee of a capital messuage, &c., of the annual
value of 100/., &c., and that in the Church of
Petworth, there is a little chancel, &c., and time
out of mind there were seats in the chancel, and
the plaintiff and those whose estate he hath, time
out of mind, repaired at their charges the
chancel, and by reason of which, &c., he, &c.,
hath liberty to sit, and bury therein, and to give
permission to bury any dead bodies therein, and
that no other person, time out of mind, have
been used to sit or bury in the said chancel.
Nevertheless, the defendant intending to disin
herit, &c.
Pleas: the Earl of Northumberland, &c., is
seised of the fee of the honour of Petworth, and
of the said little chancel as parcel of the said
162 THE LAW OF PEWS.
honour, and the defendants at the Earl s com
mands, &c., which are the impediments com
plained of.
To which plaintiff demurred.
Held : the declaration was good, and par
ticular enough, as in a quare impedit, the plain
tiff did allege generally that the defendant
hindered him to present, and that was good, and
all the Judges agreed that the plea in bar was
utterly deficient, for one cannot have the free
hold of a Church or any part thereof. Judg
ment for the plaintiff.
Disturb- Merchant v. Whitepane, 2 Lev. 193]. Case:
seisin in fee of messuage, and all, &c., have had
a seat in the Church, and toties quoties necesse
fuit have repaired it, and the defendant disturbed
him of his seat. After verdict for plaintiff upon
plea of non culp. 9 it was moved in arrest of judg
ment, that the plaintiff had not prescribed time
out of mind.
Court held: it is said he was seised in fee,
and that he, &c., and the fee has been time out
of mind, &c., by consequence all those whose
estate, &c., have time out of mind had this seat,
but in this action, it being founded upon his
possession it is sufficient.
Disturb- Bunton v. Bateman, 1 Lev. 71]. Case for
disturbance of seat in aisle of Church, prescrip
tion that he and all the tenants of such a house
163
REMEDY FOR WRONG.
had all the seats in the said aisle. It was moved
in arrest of judgment, that he had not showed
any cause or consideration for the prescription
as to repair, c., held, it is good in an action on
the case against a disturber, but not in a pro
hibition. In case, where one claims a title
against the ordinary, he ought to show a title by
repairing, &c., but not when against a trespasser
or tort feasor. Judgment for plaintiff affirmed,
and also upon writ of error.
Wylmer and Mott v. French, 1 Add. Eccl.
Rep. 41]. A curate acting in opposition to
the churchwarden, in altering a pew, would be
punishable by citation, into the Ecclesiastical
Court, at the suit of the churchwardens, for the
curate has no authority to alter the seats, (Ib.
526).
In a suit for perturbation, if the complainant was Dismissal of
not improperly disturbed, the defendant will be turbation.
dismissed, but there will be no further question,
the Court will not confirm the disturber in the
>n of the seat.
1 Burn s Eccl. Law, 359]. If any seat be
taken away by a stranger, the churchwardens,
and not the parson, may have their action
against the wrong doer.
Degges Parsons Counsellor, by Ellis, 7th ed., Removal of
211]. If any person builds a seat, without the
164
THE LAW OF PEWS.
licence of the ordinary, or the consent of the minis
ter and the churchwardens, or in any inconvenient
place, or too high, it may be pulled down by the
order of the bishop, archdeacon or churchwar
dens, with consent of the parson, (quccre, in the
case of a faculty). The freehold of the Church,
and of all things annexed thereto, is in the par
son ; and if any one cut or pull down a seat
annexed to the Church, though he set it up, the
parson may have trespass, but if the seat be set
loose, he that builded it may remove it at pleasure.
Ib. 214]. Though the freehold of the Church
is in the parson, he cannot pull down any seats
anciently erected, or if late erected, but by the
, in permission of the churchwardens. If any be
pulled down, the property of the materials is in
the parson, and he may use them, if placed in
the Church, without legal authority ; but when
by the parishioners, on good authority, I take it,
the property, on removal, is in the parishioners.
seating by Watsons Clergyman s Law. 7111 If the or-
ordinary in , . , ,
proprietor s amary places another in a seat in the aisle with
seat in aisle, i
the proprietor, he may have an action on the
case against the ordinary ; and if he be im-
pleaded in the Spiritual Court, inhibition will
issue : so if a private person sits in the proprie
tor s seat, or buries without his consent, in the aisle
an action on the case will lie, and that though the
fee of such aisle is in the incumbent.
REMEDY FOR WRONG.
Because the Church is dedicated to the
service of God, and is for the use of the inhabi-
tants, and was erected for their convenience, whom.
The use thereof is common to all the people who
pay for the repairs of it; and if a seat affixed to
the Church be taken away by a stranger, the
churchwardens and not the parson shall have an
action against the wrong doer.
If a man with the assent of the ordinary builds
himself a pew in the nave of the Church, and P
another pulls it down or defaces it, trespass
will not lie; for the freehold is in the parson
and the remedy is in the Ecclesiastical Court,
(Ib. 718).
1 Siderfin, 203, Lord Hale]. Title to a seat Action*
at common law is in an action on the case, and law.
though the plaintiff need not show reparation in
his declaration, he should prove it in evidence.
insr th<-
Gibson v. Wright and Another, Noy, 108].
Trespass against churchwardens for removing
a pew, (which had been erected without permis
sion), and cutting up the timber. Court held,
that though they had a right to remove the
pew as churchwardens, yet they cannot cut up
the timber of the pews. The verdict was against
them.
Barrow \. Keen, 2 Keble, 342]. Trespass Breaking
166 THE LAW OF PEWS.
seat, action for breaking a seat belonging to the plaintiff,
prescription for house being in another parish.
The defendant justified, that he had a house
in the parish, and by reason thereof used
to repair and therefore sit therein as was lawful,
and traversed the prescription of the plaintiff.
Motion in arrest of judgment ; because for his
house in one parish he cannot have a seat in
another by prescription sed non allocatur. This
seat being in the aisle, and issue being taken
upon the prescription, which hath waived the
other matter ; but the Court conceived a pre
scription for a seat by an inhabitant in another
parish, is ill, unless he prescribed for the aisle,
or pro sedile, or show that he used to repair ;
but after verdict, these are intended, and are
necessary evidence, (et vide, supra).
Trees m Watson s Clergyman s Law, p. 21 1]. If trees
are cut down in the churchyard by any other
than the incumbent, he may sue such trespasser
in the Spiritual Court, to have him punished
but not for damages.
parish Anonymous, 3 Salkeld, 85]. Faculty for a
o? till S- 1 seat in the nave of a Church, (nave Ecclesi(B\
by prescription : some special matter must be
shown, as repairs, otherwise ; if it be of an aisle.
but in the body of the Church, he may give the
repairs in evidence ; but an aisle may be on the
lands of a private person ; the repairs done to
REMEDY FOR WRONG.
an aisle, must be done by the person, and not
with the help of the parish, or the ordinary may
appoint to the seat.
3 Salkeld, 89]. When two parishes have been TWO pa-
united, one parish is extinct, and both must united.
repair the Church.
Jarratt v. Steele, 3 Phil. 167]. The impro- Forcible-^
priator of tithes forcibly entered the Church church by
three several times by various ways, and pulled
down two pews, and erected others in the
chancel. Sir /. Nicholl, in giving judgment,
said, " All persons ought to understand that the
sacred edifice of the Church is under the pro
tection of the Ecclesiastical laws, as administered
by these Courts ; the possession of the Church
is in the minister, and churchwardens, and no
person has a right to enter it, unless when open
for divine service, without their permission,
and under their authority ; pews already erected
cannot be pulled down, without the consent of
the minister and the churchwardens, unless after
cause shown by a faculty, or license by the
ordinary."
Snelgrove\.Brograveand Others, Palmer, 161].
Two who are tenants in common in a pew, can
not have a joint action, it must be a several.
Lee, V. J., said, " when they maintain their
right of possession by a title which is derived
168 THE LAW OF PEWS.
through prescription, they ought to prescribe
severally, for their title is several ; for there can
be no maintenance of a joint title by prescription,
which can render them accountable as tenants
in common, (Watson s C. L. 719, S. P.).
Com.. Dig. "Abatement" (0 8)]. In a case
of joint tenancy it is different, for if one sues by
himself, the defendant may plead that the plain
tiff has nothing, except jointly with such and
such an one.
Com. Dig. " Ac. on the Case, Disturbance"
(A 3)]. An action on the case may lie for a
seat in the aisle of a Church, where a man has a
right by prescription, or in the body of the
Church (nave Ecclesice), or the chancel, or for
priority in a seat against a stranger. It is suffi
cient to declare upon his possession, without
alleging usage to repair, prescription, or other
ground of action, for it is sufficient if it be
proved in evidence ; so it is sufficient to say
defendant disturbed him, without mentioning
specially how the disturbance was.
province of The province of the law is to provide a re-
thelaw. IP i
medy for every wrong: and as the wrongs in
themselves differ, certain forms of action have
been adopted to meet the exigencies of each
particular case.
Right of pa- It has been laid down (supra, p. 11), that
rishionerin ... \ r . .
the parish every parishioner has a right to a seat in the
REMEDY FOR WRONG. 169
parish Church, and the law has, therefore been church, dis.
careful that he should be enabled to exercise
that right in a full and satisfactory manner : and
if he be molested in his appointment, whether
it be merely in right of the appointment of the
ordinary ; exercised by the churchwardens, and
termed, "a possessory title," (supra, p. 11): or
whether it be by the special appointment of the
ordinary, by the grant of a particular pew, or
sitting, by an instrument in writing termed " a
faculty ;" or whether it be by prescription, which
is supposed to be based upon a faculty, the law
has provided a remedy : in the first case, (viz.,
the possessory title), by a suit for perturbation Necessities
L -r* i i >i i i to maintain
in the Ecclesiastical Court, against the intruder, suit for per-
c i -i T turbation.
tor an inhibition or admonition not to disturb
the plaintiif.
For the purpose of maintaining this suit, the
first ingredient is being appointed by the church
wardens to the pew ; the house in respect of
which the pew is claimed being entitled there
to, (supra, p. 14). Long acquiescence of the Longac-
, , , . quiescence
churchwardens in a person occupying a seat, ofchurch-
. , . 11111 wardens in
without appointment, would be deemed an ap- occupation
11 1-11 of seat,
pomtment, and they could not disturb the occu- effect.
pant, without a very sufficient cause, his wants
being equal to the pew, (supra, p. 15, ; by the Appoint-
. , . , meut ot
possessory right or appointment the pew does church-
, , , . warden,
not become annexed to any house, but is a mere effect,
right of user in the person so long (provided it
does not interfere with the general convenience
170
THE LAW OF PEWS.
effect.
of the parish), (supra, p. 15), as he is a resident
parishioner, and his wants are equal to the
appropriation, (supra, p. 19) : for the sustainment
of this suit, the appointment of the churchwar
den is sufficient.
Sale and purchase would operate against the
claim, (supra, p. 19), and it is more than doubt
ful whether such possession would give a suffi
cient possessory title against a disturber : above
(Ib.), it is said, it may give a title, and which is
said by Sir J. Nicholl very doubtingly, if the
allegation, whereon the action is founded be on
the wrongful title, it would seem, according to
the general rule of law, impossible to maintain
it ; for however proper the person in possession,
(if such a term may be used when the occu
pation is not continuous), may be to occupy
the seat, the disturber may also be a person
equally eligible. The presumption in the case
of the allegation, as above, could never arise
from the acquiescence of the churchwardens;
for their power extends merely to the appoint
ment of the parishioner, and not to the confirma
tion of an illegal title, (supra, p. 16), because, on
their confirmation, the title by which the occu
pant held, would be a new title, and by the
appointment. The complainant would, it is
presumed, be in the position of a parishioner
relying merely upon his common right to oc
cupy any unappropriated seat, and, without the
appointment, it would be a mere occupancy from
time to time, and any parishioner taking pos-
REMEDY FOR WRONG. 171
session of the seat before its usual occupant,
would not be in delicto, and if he be not in de-
licto, he could do no wrong, for he had an
equal right with the other to occupy an unap
propriated seat.
The suit for perturbation could only arise suit for pei -
upon intrusion, and, therefore, at the time ofwhen . 10 "
the taking possession, the seat would be unoccu
pied. The right of each parishioner would be
equal, and each being equal in rights, the one
could not do wrong to the other, and, therefore,
it is that it is said to be very doubtful if such a
title could support a suit for perturbation :
(supra, p. 21), and, it is conceived, the same Possession
j v ij i ./> . ofunapprn
doubt would apply, even if it were a stranger yriated seat
i i . r . by astran-
wno took possession, tor the parishioner has no ger, effect,
title, unless it be his general common law right,
wherefrom to give even color, and it is thought
the right would be too general to support the
suit, though it would be sufficient to maintain a
suit against the churchwarden, on a suggestion,
for refusal to appoint, there being unoccupied,
or illegally appropriated pews, (supra, p. 16).
The right to attend the parish Church, is in
herent in every parishioner, and the duty to
attend a place of worship is obligatory upon
every Christian, and, therefore, though not a
parishioner, the stranger is doing no wrongful
act by his occupation, though he is interrupting
the common right of a parishioner to a seat in
his Church.
i 2
172 THE LAW OF PEWS.
Right of suit If there be a right of suit in any one before ap-
before ap- . . 111-1 T
pointment pomtment it would be in the ordinary, by reason
of church. , . . , . . ,
wardens, on of the interruption of him in the administration
a stranger, of his office ; but if the churchwarden, upon the
intrusion, appointed a parishioner to the seat,
the right to the seat would immediately enure,
and possibly he could bring the suit ; but with
out the appointment it is apprehended the title
would be insufficient to support a suit even
against the stranger, (sed vide supra, p. 23).
Parishioner On the other hand, if the parishioner was in
in a seat, .
forcible possession of his usual seat, though not by ap-
ejectment. r . , ,
pointment, and another parishioner came and
ejected him by force, then the remedy would
be by an action of trespass, so it might be
by citation into the Ecclesiastical Court for
brawling in the Church, and by indictment,
but it never could, it is conceived, be the founda
tion of a suit for perturbation, (supra, p. 14).
Appoint- The appointment of the ordinary is for the
mentofthe . r- i /^(i i
ordinary, purpose or preventing; contusion in the Church.
remedy for J .
disturbance " A mere right to sit m a particular pew is not
such a temporal right, as in respect of it an
action at common law is maintainable; dis
turbance is a matter for ecclesiastical censure
only," (supra, p. 18). If in a suit for pertur
bation it be shown, that the plaintiff was not
improperly disturbed, the defendant will be dis
missed : the Court will not thereon confirm the
plaintiff in the possession of the seat } (stt/pra).
Title by faculty confers upon the grantee
, a right to sit in a particular pew, and during the
REMEDY FOR WRONG. 173
fulfilment of the condition is an exclusive right;
during use. A prescription which is based upon
a faculty also confers the same right.
For disturbing the grantee of a faculty, or he
who can adduce a prescription, the remedy at law.
common law is an action on the case.
" The action upon the case is founded upon a
wrong," (Action on the Case, Com. Dig. (A)), what.
and formerly it concluded contra pacem,
(Ib. (C)) ; " it will lie in all cases where a man
has a temporary loss, or damage by the wrong
of another:" (Ib. (A)); " and was substituted
originally for the wager of law, (Doc. PI., p. 27).
From its nature, action on the CASE is aptly
constructed so as to answer the purpose of
bringing to an issue almost all disputes arising
between man, and man : or for obtaining a just
restitution, and satisfaction for any illegal in
fringement of human property." (Doctrina Pla-
citandi, p. 27). " When the act is not imme
diately, but, only by consequence, injurious to the
plaintiff, case is the proper remedy ; but if the
act be immediately injurious to the plaintiff: Trespass,
damage done to the plaintiff s colliery by what
defendant has done in his own, upon his own
soil, though several others lie between them, the
damage is not immediate, but consequential :
therefore : trespass vi et armis will not lie," (" Ac.
on the Case? Com. Dig. (A)).
" To maintain the action there must be a
temporal damage," (Ib. (B 2)), " and it must be
174 THE LAW OF PEWS.
a particular damage to some person," (II. (B 2)) ;
" there may be a damnum sine injurid, and it is
admitted an action will not lie for a damage
without an injury. But from thence it does not
follow that an action will not lie for an injury
without showing some special damage, for every
injury implies a damage. If there be an injury,
though no damage, an action at common law
will lie, if it be a common law injury, for the
remedy is always of the same nature as the
injury, (Doc. Plac, p. 27). And though there
be damage if the act be not prohibited by law,
the action does not lie, (" Ac. on the Case? Com.
Dig. (B 3)). Nor where the damage happens by
the default of the plaintiff, (Ib. (B 4)) ; nor for a
wrong which is a felony [: (Ib. (B 5)), nor for a mere
trespass ; as pulling down a wall : or taking the
tiles off a house ; unless it be alleged that thereby
the timber was rotted, (Ib. (B 6)) ; nor where
the law, or a statute has provided another re
medy, (Ib. (B 8)).
Such are the general rules which govern this
action, and they are here particularly set forth
to show how reasonable is that rule of law which
says ; trespass may not be had for the disturbance
of a pew right : and which in every phase em
braces the particular injury which is sustained
by the intrusion ; it is needless to go again
through the statement; for it would be only
uselessly swelling the text,
case, neces- Having shown the action will lie, it is con-
REMEDY FOR WRONG. 175
sidered well to give the necessaries of the deck-
ration. " A naked promise would be a nudum
pactum, and is not in law a sufficient foundation
for an action ; there must be a consideration, and
the consideration must be particularly set forth
in the declaration, so that the Court may judge
whether it be sufficient to maintain the action,
(Doc. Plac. p. 28). In the case of a disturbance
of a pew right, "the declaration should state the
possession of the messuage, the right by reason
thereof to use a pew in the parish Church
during divine service, and the disturbance of the
right by the defendant," (Roscoes Dig. of Evid.
6th Ed. p. 349. See Appendix for Declaration}.
" Against a wrong-doer possession, primd case,
facie, mav be a sufficient title, and it is not ne- wrong-doer,
cessary to set forth so strict a title as against the
ordinary ; it was held sufficient to lay the pew
as appurtenant to a house, but it must be taken as
legally appurtenant:" (supra, p. 21); so where one
claims a title against the ordinary, he ought to
show a title ; &c., but not when against a tres
passer or a tort feasor (supra, p. 163). The usual
mode of declaring is, " that the plaintiff was (is)
possessed of a certain messuage, and by reason
thereof, ought to have for himself and family
inhabiting the said messuage, the use and bene
fit of a certain pew" (1 T. R. 430) ; but " such
an action can only be maintained on proof of a
faculty, or by such evidence as leads to the pre
sumption of a faculty,"
176 THE LAW OF PEWS.
The learned author of the able work, A Prac
tical Abridgment of the Ecclesiastical Law
(F. N. Rogers, Esq.) lays it down (p. 175),
" that the above general mode of declaring in an
action for a disturbance, is, in all cases sufficient,
although a distinction is taken in some of the
old cases between ^ making a title against the
ordinary, and a title against a wrong-doer."
With great deference, it is considered such a
conclusion cannot be supported, for in all the
cases upon the subject, a distinction is made,
and it is apprehended the distinction between
the two cases is well denned, and is not the mere
" splitting of a hair."
Declaration In the case of a wrong-doer, possession by a
wrong-doer, rightful title is sufficient : the word rightful title
is used in contradistinction to that possession
which a man has in a house : in such case
his need compels him to be sheltered, and,
Title by pos- therefore : the law considers his holding without
session,
what. occupation, a possession ; and into that house no
one has a right to intrude, even though the pos
session is in wrong ; unless, by the authority of
Title to a the law. But in the case of a pew, the most ab-
pew, what.
solute title confers the mere right of the exclu
sive user of a thing built upon the soil of another ;
therefore : when the occupant of the pew is right
fully in possession as against a wrong-doer, his
possession is sufficient, because, by his possession,
he has a primd facie title.
Action But as against the ordinary, the case is far
against the J
REMEDY FOR WRONG. 177
necessaries.
different, for he, in virtue of his dignity, " has, ordinary
for the prevention of disorder, the right of dis
posing of the pews, and it might be the general
convenience of the parish demanded an altera
tion in the disposition of the parishioners ; and
he would, in such case, have the power of re
moving any parishioner, unless he could shew a
title to the sitting paramount to his; and which
he could only do, by proving a faculty, or a
prescription.
The ordinary s right in the case of pews is
in the nature of that of a lord paramount, and
therefore : it is considered something more than
a bare right should be alleged : as against a wrong
doer, the plaintiff s repairs need not be proved :
but as against the ordinary, repairs should both
be set out and strictly proved (vide supra, et
infra), for the faculty, or the prescription is a
controlraent of him in the right which is annexed
to his dignity, therefore, it should be alleged with
the greatest certainty.
For these reasons : it is said to be very doubtful Easement,
: . . . similarity ot
whether, showing a mere possessory title in the action,
declaration, in an action against the ordinary, is
sufficient : though possibly it might be sufficient
in actions on easements (really such) ; but then
much certainty must be used in setting out the
right, and it must be strictly proved.
CASE at common law is the remedy for a dis
turbance : and TRESPASS for an injury to property.
The reason why trespass cannot be brought is ;
i 3
178 THE LAW OF PEWS.
that for the purpose of warranting it, the freehold,
or property must be vested in the person : which
it cannot be said to be in the case of a pew right,
for the soil of the Church, &c., is in the parson.
Trespass, Trespass, in its largest, and most extensive
action of. r
sense, signifies any transgression, or offence
against the laws of nature, or society ; taking or
detaining a man s goods are trespasses, but in its
more limited and confined sense" (Doc. PL p. 4 15),
(and in which phase it is here to be considered)
it signifies no more than an entry upon another
man s ground without a lawful authority; and
doing some damage to his property; (Tb. 415),
for every man s land, in the eye of the law, is set
apart from his neighbours, either by a material, or
an ideal fence.
Trespass, One must have a property, either absolute or
who can , ., , , . .
maintain, temporary, in the soil to be able to maintain
trespass, and though he has the freehold, he
must have entered, and have become possessed,
(76. 416, et Com. Dig. " Trespass (B. 3) S. P.).
Trespass The difference between TRESPASS and CASE is,
and case, . . .
difference that in trespass, the plaintiff complains or an
between. f
immediate wrong, and m case of a wrong in con
sequence of another act, (Doc. P/.422). Trespass
is maintainable by the party to whom the
wrong is done, ( Com. Dig. " Trespass" (B. 6)).
Materials of It was laid down in Gibson v. Wright and
severed, in Another (supra, p. 165), that a person who
entered the Church a mere wrong-doer, and
builded a pew which the churchwardens removed
REMEDY FOR WRONG. 179
and cut up; that such wrong-doer could maintain
trespass against them, riot for the removal
of the pew, but for the destruction of the
materials.
It is very difficult to understand what right {;;*$"*
the wrong -doer could have in the property of
the materials of which the pew was constructed,
after it was once fixed to the freehold; for
on the fixing to the freehold, the right to the
thing becomes vested in the freeholder ; and
that in a case where the affixing was done under
a good title : as in the case of a tenant : how
much stronger then should be the argument
where the addition is made by a mere wrong
doer. Is it meant to be said that because he
enters, and thereby does a wrong, that he shall
again enter, and do another wrong ? for if he
enters to remove the materials, he must commit a
trespass : or, is it to be contended that if the par
son, or churchwardens refused him entrance, that
trover, or detinue, would be maintainable for the
materials ?
It is considered that the case as reported in
Noy, is not law, because it is opposed to the
principles of law, for if the materials once be
come the property of the parson, as it is pre
sumed they do, shall it be said that the removal
of them shall devest them, and give the wrong
doer the original right which he had in them ?
In the case of Jarratt and Steele (supra, p.
180 THE LAW OF PEWS.
167) the person entering the Church was the lay
impropriator, and who entered for the purpose of
removing certain pews from the chancel to which
he laid claim as of right, and to erect others. But
in giving judgment Sir John Nicholl held no lan
guage which could at all besaidto be arecognition
of the case above ; but the very opposite : and
though there is a difference between the tech
nicalities of the Common law, and of the Ecclesi
astical Courts, yet the grand leading principles
are the same, and the latter Courts in temporal
matters are bound to respect the decisions of the
common law Courts.
erected b ^ ^ * S Sa ^ ^at ^ mater i a ^ S f tne P ews
the parish. wn ich are erected by the parish, and for the
general convenience of the parishioners, shall,
on being taken down, belong to the church
wardens, and not to the parson. It is pre
sumed the principle which would guide the case
above, should also have weight in this in discus
sion ; the pews are affixed to the freehold, not
as mere fixtures, or ornaments, but as part, and
parcel thereof; the churchwarden has not the
possession of the pews, but the care of them,
and the right to them, it is conceived, vests
in the parson upon their erection, unless the
right was specially reserved.
Repairs, The repairs which the parishioners bestows
upon them is not for the benefit of the freehold,
but for their own convenience ; a tenant, on erect-
REMEDY FOR WRONG. 181
ing premises upon a freehold, repairs them, but by
such repairs (though there be no covenant) he
does not devest the right of the reversioner.
The analogy between the erection of pews in
a Church which is the freehold of another, and
the erection of buildings by a tenant, is com
plete ; in both cases it is apprehended the builder
has a mere right of user.
It may be said that a Church is a building
dedicated to a special purpose, and that the
pews are necessary adjuncts to carry out the
purpose in an orderly and convenient manner.
It is admitted they are necessary adjuncts,
but to prove the objection it must be shown that
without them the special purpose could not be
carried out. Orderly behaviour (for disorder
would be the real objection) may be compelled
by citation into the Ecclesiastical Court, but
that would be a measure which, it is presumed,
would be found not to work well : yet, if it can
be done ; and it can, it proves that though pews
exist, they are not part, and parcel of the special
appropriation.
It may also be said that the founder, in the Founder s
chancel has such a property in the banners and neht<
the tombs, of his ancestors erected therein, as will
enable him to maintain an action against a
person removing or defacing them ; truly, but it
is in consideration of a supposed special reserva
tion in him at the time of founding the Church,
182 THE LAW OF PEWS.
and that the intention of the foundation was to
provide for his particular wants.
Materials of The property of the materials of the pews in
pews erect- . . .. . . , , , , ,
ed by the question might be in the churchwardens, but it
could only be by the special agreement of the
parson, it could not be of common right, because
after the time of legal memory pews were erected,
and, therefore, there could be no custom that
the churchwardens should have the old mate
rials, and though the parson is seised of the fee
of the Church he could not destroy or pull
away any of the pews erected under a rightful
title, for the parishioners, for particular purposes,
may be said to be tenants in perpetuo of the
Church, but if they remove the pews, the mate
rials (unless by special agreement) belong, it is
apprehended, to the parson, and he, perhaps,
could compel the erection of other pews upon the
site of those removed.
injury to a It is said also (supra, p. 165), that if a man,
pew, right i i i -n
of action in by the consent of the ordinary, builds a pew and
whom. J ,
another pulls it down, or defaces it, he shall not
have trespass, but shall cite the offender into
the Ecclesiastical Court ; trespass will not lie, be
cause the freehold is in the parson, but it is pre
sumed the parson could have trespass, and not,
as it is said, the churchwardens, for the injury is
an injury to his freehold.
Trees in a The trees in a churchyard are in the incum-
yard? h " bent (qucere parson) (supra, p. 166), for it is said
REMEDY FOR WRONG. 183
they are for the purpose of repairing the chancel.
If the reason is correctly given, it is apprehended
the right to them would be in the rector, for he
is the person who is compellable to the repair of
the chancel of the Church, and if the trees are
to be appropriated for that purpose, he would
be the person injured by their removal or de
struction, for the freehold of the Church is said
to be in the parson rather than in the incumbent
(supra, p. 7).
184
PROHIBITION.
when it Bollocks v. The Master and Fellows of the
awarded. University of Cambridge, 9 Doivl. P. C. 583].
In this case it was said the University had usurped
the seats to the exclusion of the parishioners, and
the application was for a prohibition against the
grant of a faculty to the University for the erection
of a gallery. " This Court has not the power to
prohibit the Ecclesiastical Court from granting
a faculty, which is not denied to be properly
within the limits of its jurisdiction. The suit in
that Court must, therefore, be allowed to pro
ceed, and this Court must wait and see what the
Ecclesiastical Court will determine in respect of
it. It would be improper to assume that the
Ecclesiastical Court will not limit the faculty to
those objects for which it may be lawfully
granted, (Ib. 586. 1 Gale % Davidson, 100.
S. C.)).
Buhner v. Hose, 3 East, 220]. The Court of
Queen s Bench will not grant a prohibition
to the Court below against the grant of a faculty,
which, when obtained, is no more than a
PROHIBITION.
license (a) of the ordinary to do a certain act,
and would not bind the rector against his con-
(a) It is apprehended that a faculty is a grant, and therefore
materially different from a license, for it confers an absolute and
exclusive right. A license might not be incompatible with a
grant, for it might be a mere permission to do a certain thing at
certain times as to sit in a pew, when they who held it by pre
scription, or claimed it by faculty, or even by a possessory title,
were absent.
A grant would clearly be incompatible with a grant, for it
would be an exclusive right to the same thing to be exercised
by two different persons at the same time, which would be
a thing impossible, and therefore : a grant cannot be co-existent
with a grant.
In the case of a parishioner, by the license of the ordinary, using
a pew during the absence of a person who has an exclusive right
therein, it is apprehended such person could not proceed against
the ordinary in the Ecclesiastical Court in a suit for pertur
bation, or in the common law Courts in an action on the case
for a disturbance, for the user is only at a time when he who has
the right is absent, and is only an exercise of a right which
is inherent in every parishioner, viz. that of being seated in the
parish church.
The effect of a faculty, we have seen (supra, p. 32), is to
confer an exclusive, and so long as the condition is fulfilled,
a right paramount even to that of the ordinary himself ; it is
presumed that though the faculty confers on an individual,
or individuals, an exclusive right to sit in a certain place in the
parish church, yet the inducement for the grant is the necessity
of the grantee, and therefore vests only during the time of
its user, and not whether present or absent ; and as all pa
rishioners have a right, equal one with the other to be seated,
and it follows that the exclusive right is only conferred during
user, or by possibility the parish church might be empty of
its proper occupants, apd yet there be room sufficient for all.
And, therefore, b it said that a license would not be iucom-
185
186 THE LAW OF PEWS.
sent, if by law it was necessary ; if the faculty,
when obtained, was used against the rector s
consent, it is time then for him to resort to
his legal remedy. If he can be properly made a
party to the suit below, and urge a just reason to
the Court why the faculty should not be granted,
and it be disregarded, it will be ground of appeal
to the superior Court, and if the reasons urged
by the rector be improperly overruled, it is
ground of appeal, and not prohibition. Lord
Ellenborough, C. J.
Jones v. Stone, 2 Salkeld, 550, Holt, C. /.].
A bare inhibition only is not sufficient ground
for a prohibition, unless it concerns a layman.
piea before Anon. 2 Salkeld, 551. Holt, C. /.]. Before
prohibition. *. . , . i i r ,
a prohibition the parties must plead, for perhaps
they may admit the plea.
patible with an exclusive grant, or faculty, the license might be
to use the seat, or pew during the absence of the grantee : and at
such times only ; (but a faculty could not be so limited), and suit
could not be against the ordinary for such a license. But in
the case of a grant upon a grant, perturbation or case would lie,
for they are things incompatible.
It is with the greatest deference that the above exposition is
offered ; but in the judgments of great men, a false definition is
too apt to be seized upon, and put forth in argument, not as a
mere dictum, or definition, but as a decision, and on which case
on case is too often reared, until that which is in positive opposi
tion to the very basis of law, which is PRINCIPLE, is received as
Jaw itself.
PROHIBITION.
187
Sands and Adam v. Unwin Noy, 153]. No
prohibition may be originally granted out of the
common bench unless there be a plea depending
in the Spiritual Court for the same thing, and
not upon the bare surmise.
Burdett v. Newell, Lord Raymond, 1211].
On a motion for a prohibition there must be hibi1
an affidavit that the matter suggested to have
been pleaded was pleaded in the Spiritual
Court.
Jacobs v. Dallow, 2 Salk. 551]. If a modus
be pleaded and admitted no prohibition shall go ; shaii go.
but if the question be, whether it be a right or no
right, then a prohibition shall go ; and whenever
the matter suggested is foreign to the libel, it
must be pleaded below before a prohibition can
be granted, not so when it appears upon the face
of the libel.
The plaintiff declared in prohibition, setting forth
a prescriptive rightjn the plaintiff and those whose
estate he hath, to a seat in the Church, and de
fendant, surmising an usage, time out of mind,
libelled against him in the Spiritual Court for
disturbing him, and showed he denied usage in the
Spiritual Court, and the Judge refused to allow
his plea : the defendant traversed the plaintiff s
prescription, and pleaded his own usage, on
\vhich there was a demurrer. Mr. Eyre urged,
that though the plaintiff, by his demurrer, con-
188 THE LAW OF PEWS.
fessed his prescription to be false, and by conse
quence that he had no right to the seat, yet the
defendant, grounding his libel below on a custom
which is not triable there, he could not have
a consultation. Holt, C. J. <( If the plaintiff
had no title by prescription he ought not to
disturb the possession of the defendant, and the
ordinary hath connusance of such disturbance,
and may settle it according to usage and pos
session, unless there be a temporal prescriptive
title hurt by their sentence. Defendant might
well sue in the Ecclesiastical Court to have his
possession quieted, and might admit his pre
scription to be tried there ; as a defendant does a
modus, or a pension, by prescription.
Prohibition, Carlton v. Hutton, Noy, 78]. Claim of the
tipper seat by prescription, and is disturbed;
the Bishop sends an inhibition until the matter
be determined before him ; a prohibition was
awarded, because it does not belong to the
Spiritual Court, for as well priority of seat as
seat itself may be claimed by prescription, and
case lies for it at the common law.
Matter of Gardener v. Booth, 2 Salk. 548]. Where it
appears in the libel, or in the proceedings in the
cause that its cognizance does not belong to the
Ecclesiastical Court, a prohibition may be moved
for and granted after sentence in all cases except
where one is sued, but out of his diocese, for
itly of
ordinary.
PROHIBITION.
there, if be taketh not advantage of it before
sentence, he shall not have a prohibition after,
because the cause is within the jurisdiction of the
Spiritual Court. If not to the particular Spi
ritual Court wherein tried it doth to some other,
and not to the temporal Courts.
Presgrove v. The Churchwardens of Shrews-
bury, 1 Ralk. 167]. A prohibition was prayed
to a suit in the Spiritual Court where the church- den
wardens prescribed to dispose of the pews ex
clusively of the ordinary (sed per curiam], that
cannot be, the ordinary not acting might be,
because there was no occasion for his inter
meddling, but that cannot vest the right in them
who are only a corporation capable of receiving
goods, but not of inheritance, sed adjournatur.
Greatcherchy v. Beardsly, 2 Lev. 241]. " Por-
hibition was prayed on a suggestion that time
out of mind the parishioners built and repaired
the seats of the Church at their own charges,
and, ratione inde, #c., have time out of mind
been disposed of by the churchwardens, and now
the Bishop took upon himself to dispose of them.
Jones, J., delivered the judgment of the Court.
Of common right, the ordinary hath the disposal
of all the seats in the Church, and, of common
right, the parishioners ought to repair them.
Then what have they done here to oust the ordi
nary from his jurisdiction? They have said they
190 THE LAW OF PEWS.
repaired the seats at the parish charge, which
is no more than their duty, for which they have
the easement (vide supra, p. 43) of sitting therein
according to the disposal of the ordinary. A
prohibition was denied."
prohibition, Watson s Clergyman s Law, 7181. " The
reason for. , , - . , ,, , i i
reason why a prohibition shall be granted where
a prescription, or custom is denied ; I take to be
that the notion of a custom, and a prescription
is differently considered by the Ecclesiastical
Courts, to what it is by the common law Courts,
as to the times in which such customs, and pre
scriptions may be created; the Ecclesiastical
Courts allow of different times in creating cus
toms, or prescriptions, and generally of less time
than is allowed by the Courts of the common
law, which own in such cases, but that whereof
there is no memory of man to the contrary :
therefore : the common law Courts, will not suffer
the Spiritual Courts to try prescriptions, whereby
they might affect, and charge person s inherit
ances by judging them to be good, which by the
common law, are no prescriptions."
Wood s Institutes, bk. 4, c. 1, p. 499]. " By
the 13 Edw. 1, stat. de circumspecte agatis, a
prohibition lieth not for penance, corporal, or
pecuniary enjoined for deadly sin ; as fornication,
adultery, or the like ; also for not fencing the
churchyard, or not repairing the church, or suffi-
PROHIBITION. 191
cicntly adorning it, nor for oblations, tithes, mor
tuaries, pensions, laying violent hands upon a
clerk, defamation, where money is not demanded,
nor for breach of faith."
" By the Articuli Cleri, or the 9 Edw. 2,
c. 1, 2, 3, 4, 5, c. For tithes (not where the
right ariseth from the rights of patronage, nor
where they amount to the fourth part, &c.) ob
lations, obventions, mortuaries, commutation of
corporal penance for money, laying violent hands
upon a clerk, defamation, tithes of a mill newly
erected, no prohibition shall be granted."
" As in temporal causes the King by his
judges doth hear and determine the same by
the temporal laws ; so in cases spiritual, or eccle
siastical, the King by his ecclesiastical judges
doth determine the same by his ecclesiastical
laws. Therefore where the right is spiritual,
and the remedy only by the ecclesiastical law,
the cognizance doth belong to the Ecclesiastical
Court. But where the common or statute law
giveth remedy (whether the matter be temporal
or spiritual), the cognizance belongs to the King s
temporal Courts ; and though the matter is
spiritual, it shall be tried by a jury ; and the
Court, being assisted by learned advocates in
that profession, may instruct the jury in the ec
clesiastical law, as they usually do in the common
law. Thus it is, unless the jurisdiction of the
Ecclesiastical Court is allowed, or saved by
statute. Yet if the Ecclesiastical Court gives
192 THE LAW OF PEWS.
sentence in a matter of which they have cog
nizance, though against the reason of the common
law, the judges ought to give credit to it, and
believe it to be consonant to the law of the
Church."
Temporal "Li the time of the Saxons there was in
England no distinction between the lay and the
Ecclesiastical jurisdictions, the County Court was
as much a Spiritual, as a Temporal Court. For
this purpose the bishop of the diocese and the
alderman (earl) or in his absence the sheriff of
the county, used to sit together in the County
Courts : and had there cognizance of all causes,
lay, as well as spiritual ; a superior deference
being paid to the bishop s opinion in spiritual,
and to that of the lay Judges in temporal mat-
uivision of ters," (3 Bl. Com. p. 61). After the Conquest the
the jurisdic- -IT /. i /-i /-.
tions. bishop was withdrawn from the County Court
" in obedience to the Charter of the Conquerer,
which prohibited any spiritual cause to be tried
in the Secular Courts," (Ib. 63).
Revival of Henry 1st revived the union between the Civil
and the Ecclesiastical Courts, but which union
writ of pro- only continued for a short period. (The writ
of prohibition ought to be granted ex debitio
justicitz, (Com. Dig. " Pro/lib") (C), it is of very
ancient date, and in the reign of Henry 3,
through the Archbishop Boniface, urging the
clergy to resist the jurisdiction of the Temporal
Courts, there were frequent contests between
PROHIBITION.
193
the temporal, and the ecclesiatical jurisdictions;
and which caused at that time, the writ to be in
repeated use. To the Spiritual Court it will be
granted in all cases where the Ecclesiastical
Judge proceeds in a matter which is out of his
jurisdiction, and that, though the Temporal
Court has not cognizance of the matter for
which the libel is in the Spiritual Court ; for, it
is a sufficient cause for a prohibition that the
Ecclesiastical Court exceeds its jurisdiction,
(Com. Dig. "ProAi&.") (F).
" The writ of prohibition issues properly out writ, of pro.
of the Court of Queen s Bench, being the who may
grant.
sovereign s prerogative writ. It may also issue
out of the Court of Common Pleas, and the
Court of Exchequer," (3 Bl. Com. 112). Coniyn
says, " the Chancellor and Chief Justice have
power to determine what pleas ought to be pro
hibited in causes ecclesiastical, and, therefore : a
prohibition may be granted by the Court of
Chancery. So, the common bench may grant where it
a prohibition, and the Court of Exchequer,
though no plea be depending therein of sucli
matters; (Com. Dig. " Prohib.*) (B) (a), and
Blackstove says, " where they (the Spiritual
matters
maers a
Courts) concern themselves with matters not cessory to
the spiritual
te sprtu
within their jurisdiction, prohibition will go as matter.
(a) The Courts of Law at Chester, and of Great Sessions in
Wales, may grant writs of prohibition to the Ecclesiastical
Courts within their jurisdictions. Com. Dig. " Prohibition,"
(13).
194 THE LAW OF PEWS.
if they attempt to try the validity of a custom
pleaded, and if in handling matters within their
congnizance, they transgress the bounds pre
scribed to them by the laws of England, as
where they require two witnesses to prove the
payment of a legacy, c., (Bull N. P. 214, S. P.)
and these questions, though they be not properly
spiritual questions, are allowed to be decided in
these Courts, because they are incident, or ac
cessory to some original question within their
jurisdiction, it ought, therefore, where the two
laws differ, to be decided, not according to the
spiritual, but by the temporal law," (3 Bl Com,
112, et vide Rogers s Eccl. Law, p. 710, et seq.
S. P.), or the cause would be determined different
ways, and thereby create confusion.
" 1 rac t n > (B)407 says, "a prohibition lies that
judgment should not proceed in an Ecclesiastical
Court, sometimes by reason of the parties to,
and sometimes from the nature of the suit, as
when the cognizance thereof pertains only to the
Crown and the Royal dignity. As, if a layman
implead a layman before an Ecclesiastical Judge,
concerning a lay fee, or something appertaining
to a lay fee, because no privilege, such as the
privilege of those who have assumed the cross (a),
( a ) The tenants of the Templars and Hospitallers enjoyed a
privilege as well against the King as against the lord to be free
from tenths and fifteenths, and discharged from purveyances,
and not to be sued for an Ecclesiastical cause before the ordinary,
but before the conservators of their privileges : and also to give
PROHIBITION. 195
nor of any other person, can alter the royal juris
diction in this respect, even though the King will
it; yet, he sometimes connives at it, (dissimulat
tamen hoc quandoque\ although it is against the
privilege of his Crown, and dignity. Also,
neither the promise, nor the oath, nor the volun
tary renunciation of the parties, can alter his
jurisdiction, although the parties prejudice them
selves in the matter by their agreement. So a
prohibition lies by reason of the parties to, or
subject of the suit ; as if a clerk, sue a layman,
or a layman, a clerk, in the Ecclesiastical Court,
concerning any of the things aforesaid ; also by
reason of the subject only, as if a clerk implead
a clerk in an Ecclesiastical Court, concerning
any of the things aforesaid ; because, if the Ec
clesiastical Judge should decide in such matters,
he cannot order his judgment to be enforced:
because there is no sheriff, or other minister of
the law, who is compellable to obey him in
executing the judgment, and if of himself he
sanctuary to felons, &c., these privileges at length became to
be so greatly abused ; that persons who were unconnected with
either of the societies used to erect crosses upon their lands,
(which was the distinguishing mark of the real tenants), and
therefore claimed the various privileges enjoyed by the tenants
of the Templars, and the Hospitallers. To correct this abuse,
and which had become excessive, and to the great interruption
of the orderly and proper administration of the laws, the stat of
Westminster 2, 13 Edw. 1st, c. 32, was enacted, which restrains
all persons (not tenants) from erecting crosses upon their lands,
under the penalty of having them declared within the provisions
of the statutes relating to mortmain ( i. e. forfeited to the lord).
K 2
196 THE LAW OF PEWS.
executed it; an assise of novel disseisin would
lie against the Judge and him who executes the
judgment.
" I say of a lay fee to distinguish it from
FRANKALMOIN, which is more properly so called
when it is dedicated, as it were, to God, as land
given to the Church by way of endowment, at
the time of its dedication : which is more pri
vileged, and the cognizance whereof belongeth
to the Ecclesiastical Court, than if it were given
in Frankalmoin to Churches, and religions men,
and of which the judication, and cognizance
belongeth to the temporal Courts."
A suit for A suit for prohibition must be brought in the
prohibition, &
where temporal Court, and whether the defendant pro-
brought.
ceeded, or not after prohibition, an attachment
goes to bring him into the Court, (Com. Dig.
"Prohibition? (C)). "The party aggrieved in
the Court below, sets forth the matter of his
complaint, it being drawn ad alium examen, by
a jurisdiction, or manner of process disallowed
by the laws of the kingdom ; this used to be
done formerly by filing of record what was
called a suggestion, not traversable ; but now,
by the 1 Wm. 4, c. 21, application for a writ of
prohibition may be made by affidavits only (6),
(6) Where a motion for a prohibition has been discharged,
the Court will not allow the motion to be renewed, upon affi
davits stating matter not before presented to the Court, but
existing at the time of the original application, ( Bodenham v.
Ricketti, 6 Nev. M. 537 \
PROHIBITION. 197
that is, in the wav of an ordinary motion, by a Affidavit for
rule HIM.
rule to show cause. If the matter alleged, ap
pears to the Court, upon the showing of cause
to be sufficient, the writ of prohibition imme
diately ensues, commanding the Judge not to
hold, and the party not to prosecute the plea,"
(3 Stephens Com. p. 688; infra, p. 206).
Where the point is too nice and doubtful to Declaration
be decided upon mere motion, the person who hnfifio
makes the application, is directed to declare in
prohibition, and which declaration (should con
tain a venue, (Raym. 387), and therein must be
set forth in a concise manner, so much of the
proceedings as may be necessary to shew the
grounds of the application.
If the Court incline against granting the pro- when
.,, , granted.
hibition, they will not put the party to declare
in prohibition, because the same application may
be made to another Court, (Lin do v. Rodney,
613, n.) ; but where the inclination is to pro
hibit, then leave is granted to declare in pro
hibition, (Rex v. Bishop of Ely, \ II . Bl. 81).
To the declaration, the party who is the de- Pleas to de _
fendant (plaintiff in the other Court) may de- claration -
mur or plead by way of traverse or otherwise,
(Hall v. Maule, 5 Nev. $ Man. 455), such
matters as may be necessary to show the writ
should not issue, and conclude by praying such
writ may not issue, 1 Wm. 4, c. 21, s. 1.
In a prohibition, both parties are actors, and
may take traverse, upon traverse, (1 Tidd, 700).
198 THE LAW OF PEWS.
If a plea be ill pleaded, and the question be
improperly raised, the Court will direct that it
shall be amended, (Newson v. Baldry, 7 Mod.
70).
T rov!so 7 ^ a defendant ma j nave a tr i a l by proviso,
without any laches of the plaintiff, (1 Tidtfs
Pr. 780).
costs. As the judgment is, so will be the costs of the
fjpplication, and the proceedings attendant there
on, judgment shall lie to recover the same. If
the verdict be given for the plaintiff in such de
claration (i. e., prohibition), then a jury shall
assess the damages, and the judgment shall be
for them also, but whether the jury do or do not
assess damages, the costs will be given all the
same, (Ib.}.
case, when Where a person has his rule made absolute
not within . *.
statute. tor a prohibition, and is not put to declare the
case is not within the statute, (Rex v. Keating,
1 Dowl. P. C. 440).
costs where Nor where the prohibition is granted for the
allowed. , f . . , .
sake of a trial, as to try a parochial boundary ;
the costs incurred in the Ecclesiastical Court,
before prohibition, will not be allowed, (Tessi-
111 mid v. Yardley, 5 B. $ AdoL 458).
wrong: con- Prohibition will lie when the Ecclesiastical
struction of /-, / T- T
an Act of Courts construe an Act of Parliament in a
Parliament. , . ,
manner different to that allowed by the common
law Courts. Lord Ellenborough, after reviewing
the various decisions which had gone before,
mentioning particularly those wherein several
PROHIBITION.
Judges had given their opinions, as Eyre, C. J.,
in Home v. Camden, 4 Term Rep. 382 ; Lord
Louqhborovgh, in Rymer v. Atkins, 1 //. Bl. 187,
and Mr. J. #M//0r, in tfowe v. Camden, and Lord
Vaughan in //i// v. GW, Vaughan, 306 ; and he
says, " that for these reasons, and that the rule
may be laid down with more precision, and cer
tainty, in what cases the Court will interfere by
prohibition after sentence; to correct the mis
construction of an Act of Parliament (supposing
it to have been misconstrued), as well as to con
sider whether it has been misconstrued in the
present instance, we think it fit to order the
plaintiff to declare in prohibition, Gore v. Gap-
per, Clerk, 3 East, 479, et seq.
In the case of Lord Catnden v. Home in Error,
Buller, J., said, " if it were competent to decide
on the second question, whether or not the Court
of Appeal had misconstrued an Act of Parlia
ment, I should desire further time to look into
the authorities, particularly those of Lindo v.
Rodney, and Wemys v. Linzee, before I deli
vered my opinion upon it, not being at present
advised, am inclined to differ from that given in
the Court of Common Pleas; but I think that is
not now competent to this Court to examine
that question," 4 East, 596. The matter is now
well settled, as stated in the text.
Where in a declaration for a prohibition it where it
t i i l i will not be
was declared by the plaintiff, that he had been
libelled by the defendant in the Spiritual Court,
200 THE LAW OF PEWS.
and had excepted to the libel on different
grounds, one of which was as to the construc
tion of an act of Parliament, &c. Held, he had
shown no grounds for a prohibition, as it did
not appear that the Court below were proceed
ing to decide upon such construction of the act
of Parliament, or that it would decide contrary
to the common law, (Hall v. Maule, 3 Nev. $ P.
461).
Refusal to Refusal of the Spiritual Court to deliver to
on*e r i. c py the defendant a copy of the libel, according to
the statutes 2 Hen. 5, c. 3, and 2 & 3 Edw. 6,
c. 13, is the ground of a prohibition which will
issue, quosque, $c., after which the Spiritual
Court cannot proceed until a copy is granted ;
Refusal to so .also if the proceeding be ex qfficio : there
and V merits y cannot be a prohibition for denying the de-
jSedl* B fendant a copy of the libel, and the merits to
gether; if a prohibition for the refusal of a copy
of the libel be discharged, there may afterwards
be a prohibition upon the merits: but prohi
bition for a refusal of a copy will not be
made, unless an affidavit be made of the refusal,
(Com. Dig. F. 15).
joinder in If several libels be exhibited against A. and B,
in a matter in which the Court hath not cogni
zance, A. and B. cannot join in a prohibition ;
so also if the plaintiffs be several.
When two or more are allowed to join in
prohibition and one dies, the writ shall not abate,
for they only seek to be discharged, ( Cro. Car,
162, sed vide Yefo. 128, Owen, B.),
PROHIBITION. 201
A question of practice in a cause strictly of ^
ecclesiastical cognizance, is not a matter for pro- asticai
i . i 1 Court.
hibition ; and the only instances in which the i**^
temporal Courts can interfere to prohibit any
particular proceeding in an ecclesiastical suit,
are those in which something is done contrary
to the general law of the land, or manifestedly
out of the jurisdiction of the Court, (Ex parte
Smyth, 5 Nev. $ M. 145).
On a motion for a prohibition, the Court are issue in
. . . suit not ne-
not bound to wait until the suit in the Spiritual cessary be.
Court is actually at issue ; if the latter is clearly hiwtioii.
in progress towards the trial of a question over
which it has no jurisdiction, (Byerly v. Windus,
Dowl. $ Ry. 564, supra). So, if the want of
jurisdiction appears upon the face of the process,
the Court will prohibit the sentence, (Roberts v.
Humby, 3 Mee. & Wels. 126) ; but it will not court win
T-, i i n, MI i 1 not Presumi-
presume that the Ecclesiastical Court will decide Ecri. siasti-
. , cal Court
improperly in a matter over which it has conu- win deei.ie
" I / . wrongly.
sance ; and though a faculty to appropriate
certain parts of a parish Church be larger than
the Court has power to grant, the Court will not
interfere in prohibition, (Hallock v. Cambridge
University, I Gale $ Dowl. 100, et supra).
Where the Spiritual Court has no jurisdiction, suit at
, i /.request of a
a prohibition may be granted upon the request ot stranger.
a stranger, as well as upon that of the defendant
himself; because they deal in that which apper-
taineth not to their jurisdiction, (2 Inst. 607).
But no one is entitled to a prohibition, unless he
K 3
202 THE LAW OF PEWS.
is in danger of being injured by some suit actually
depending, and therefore for a mere petition to
the archbishop, or the Ecclesiastical judge, no pro
hibition quia timet lies, (Bac. Abr. Prohib" (C)).
Prohibition A prohibition is granted after sentence.
tence. Istly, Where there is a defect in the original
jurisdiction, (i. e.) where the Court has not
when no jurisdiction over the subject matter; whether the
" defectappears upon the pleadings, or proceedings,
or is brought to the notice of the Court collate
rally by affidavits, for a party never comes too
late where there was an original want of juris
diction.
General 2ndly, Where, though there is a general iuris-
jurisdiction. ,. . . 3 J
diction, it can be shown from the proceedings in
the Spiritual Court, that such Court has pro
ceeded in a way which the law does not war
rant, either in the
Extent of the inquiry.
In handling of temporal incidents.
In the construction of acts of Parliament,
(supra, p. 198, Rogers s Reel. Law, 749).
If there be a general jurisdiction over the
suit, the defect of the jurisdiction must appear
upon the face of the pleadings.
Refusal of For refusing such proof as the temporal Courts
lowed by would allow, in any temporal matter which be-
teraporal . . , . . , .
court. comes incident to a suit within their cognizance,
is ground for prohibition after sentence; but
after sentence, it does not go on suggestion of
PROHIBITION.
203
matter which does not appear by the libel, (Coin.
Dig. " Prohib" (D)) .
If the Spiritual Court extends its jurisdiction
beyond the point to which it should extend, pro
hibition may lie after sentence ; as where church
warden was compelled to deliver his accounts,
and the Court proceeded to decide upon the
propriety of the charges contained therein, (Le-
man v. Goulty, 4 T. R. 3). Where the Spiritual
Court has jurisdiction over some of the matters
charged on the libel, though there be others
over which their jurisdiction is doubtful. After
sentence it must be expressly proved, in order to
obtain prohibition, that the Court proceeded
upon the articles over which they had no juris
diction ; otherwise it will be presumed the Court
acquitted upon those charges, over which they
had no jurisdiction, (Hart v. Marsh, 5 Add. $
Ell 602).
Where the ground of prohibition is not pro JJjJ ct < >f
defectu juris die tionis, but pro defectu triationis,
the objection must be taken before final sen
tence ; and a party neglecting to contest the
jurisdiction in the first instance, and taking his
chance of a favorable decree shall not be allowed
after sentence to allege the want of jurisdiction,
to try as the ground of a prohibition, unless the
defect appears upon the pleadings, (Rog. Eccl.
Law, 751).
Lord Mansfield said, " If a party comes for a
prohibition before sentence, this Court will grant
204 TIIE LAW OF
it for the sake of the trial : he is afterwards too
late." (Full v. Hutchins, Cowp. 424).
So in the case of The Churchwardens of Mar
ket Bosworth v. The Rector of Market Bosworth,
1 Lord Raym. 435. The libel was founded on
a custom which was denied, and the decree was
custom or against the custom ; application for prohibition
no custom. ^
was that custom or no custom is triable at law,
but the Court held that the plaintiffs grounded
their libel upon a custom which would have been
well grounded, had it not been denied ; if they
submit to the trial, and the custom is found
against them, prohibition shall not go, for the
design was only to excuse the costs.
Disobedi- Disobedience of a prohibition is a contempt
ence of a c -. . L
prohibition, of the superior Court that awards it, and is
punishable by attachment, which issues against
the Judge, and the party for proceeding; and for
which they are subject to fine, and imprisonment.
(F. N. B. 40). Such attachment may be awarded
against a peer, (Bac. Abr. " Prohibition " (M)).
Proceeding after the writ is delivered, is a con
tempt, but still it is a matter examinable whether
the Court has jurisdiction, or not. If it has not,
the Court will prohibit finally, and give satisfac
tion ; if the Court has jurisdiction, the party is
not to have damages, but if they have not, it has
acted against the prohibition of the law, and
done the party wrong. If a new suit be insti
tuted for the same thing, an attachment lies,
(Leon, 111).
PROHIBITION.
205
Prohibition cannot issue to the King, (5 Ne
ville 8f Man. 147).
A prohibition is intended for keeping every
Court within its proper jurisdiction, and the law
as to prohibitions can only be changed by act of
Parliament, (Coin. Dig. " Prohib" (C)).
A. was sued in the Spiritual Court for dis- Disturb-
. , ance, pro-
turbing a person in his seat at Church, and
suggested for a prohibition that he purchased
an ancient house in the parish, with the seat in
question, to him and his heirs, which was
pleaded below. ( Per curiam) This is enough to
show that the temporal right is in question,
prohibition was awarded, (1 Wilson, 17).
For prohibition, surmise that A. was seised
of the manor of B., and that he and those whose
estates he had, had used, time out of mind, to
have a peculiar pew in the body of the Church,
and that defendant by suit in the Ecclesiastical
Court sought to dispossess them, (Boothby v.
Bailey, Hob. Reports, 69). Held no sufficient
ground of prohibition, though the freehold of
the Church, &c,, is in the parson, the use,
and repair is common to all the parishioners.
And for avoiding of confusion, the distribution
and disposing of seats and charges of repair
belong to the ordinary, and therefore no man
can challenge a peculiar seat without special
reason. If it had been prescribed that A.,
time out of mind, at his only cost did main
tain the pew, and had the sole use of it,
206 THE LAW OF PEWS.
the prescription might have stood, and been
a warrant for a prohibition, though the pew
was in the body of the Church. And so it is
in the case of an aisle, or chapel adjoining to the
body of the Church, whether it has been main
tained by the whole parish, or by particular
persons.
A Court of common law is not bound to
wait until a suit is actually at issue in the
Spiritual Court, but where it is fairly to be seen
that the Spiritual Court is really progressing
towards the trial of a question over which it
vvhenpro. has no jurisdiction, a Court of common law
hibition , TI r i c i_*i_*^.*
may be is at liberty to interfere by a writ 01 prohibition,
and remove the cause before a proper tribunal.
(Byerly and Windus, 7 Dowl Ry. 595, et
seq.).
Declaration A party has a right to declare in prohibition,
and the Court will assume, that if the defendant
finds that he is wrong, he will submit, and re
fuse the declaration, and then the Court will,
on his application, stay the proceedings. (Lord
Denman, C. J.).
It is not quite clear that the Court could pre
vent a declaration in prohibition, because, if we
made a rule absolute, and the defendant pro
ceeded afterwards, the other party would have
recourse to a declaration in prohibition, which,
before 1 Wm. 4, c. 21, was a qui tarn declara
tion, for it supposed a contempt, for proceeding
after the writ had been delivered, ( Coleridge., J.,
PROHIBITION.
supra, p. 197 ; Regina v. The Judge of the
Episcopal and Consisforial Court of the Bishop
of Lincoln ; Rennington and Another v. Dalby,
8 Jurist, 1135).
The case of Burder v. Veley, (12 Adol. ^f
Ellis* 233), when the above was argued, was
relied upon by Mr. Kelly, counsel for the de
fendant, (in prohibition).
207
APPENDIX.
IN THE EXCHEQUER OF PLEAS.
LOUSLEY v. HAY WARD and Another (a).
(1 Young fy Jervis s Reports, p. 583).
CASE for disturbing the plaintiff in the possession p
of his pew. At the trial at Gloucester, before a church
Lawrence, J., the right to the pew was claimed by prescribed
the plaintiff, on the ground of reparation and en- tena nttoa
joyment for a considerable length of time. The th" parish.
pew was situated in the body of the Church, and
the house, in respect of which the plaintiff was, as
he contended, entitled, was not within the parish.
A verdict was found for the plaintiff; and at the
trial, Mr. Justice Lawrence, in answer to an ob
servation made, that a prescription might, under
such circumstances, be good for a pew in the aisle,
but not in the body of the Church, said, he saw no
substantial distinction.
A motion was made to set aside the verdict, on
the ground of this distinction ; and also, that the
(a) This case is reported, almost verbatim, from notes taken
by the late Mr. Dauncey. The MS. is in the possession of Mr.
Serjeant Ludlou; to whose kindness the Editors are indebted
for the means of submitting an important decision to the atten
tion of the Profession.
210 APPENDIX.
right, either by prescription or faculty, could only
be appurtenant to a messuage in the parish.
On the part of the plaintiff it was urged, that a
seat in the nave, or the body of the Church, might
be prescribed for as belonging to a house, or in the
aisle, though by an inhabitant of another parish.
1 Gibs. Cod. (b) ; 2 RoL Abr. (c) ; and Davis v.
Witts (d), were cited.
That there was nothing expressly confining the
claim in the body of the Church to houses within
the parish, and no substantial distinction between
that and the aisle, reparation being the ground of
the right, which equally benefitted the parish, which
was bound otherwise to repair, whether it was per
formed by the parochial or extra-parochial claimant.
A parishioner has no exclusive right to a seat in
the body of the Church, but only by prescription
grounded on reparation, and that as annexed to a
house, which an extra-parochial claimant may have
in the aisle. Davis v. Witts. In Barrow v.
jew (e), a prescription for a seat by an inhabitant
of another parish was held ill, unless he prescribe
for the aisle s or pro sedile, or shew that he used to
repair, which after verdict would be intended. If
this were a contest with the ordinary, stricter
evidence might be required, but, as against a wrong
doer, enough is proved. Gibs. Cod. (f) ; Kenrick
v. Taylor (g\
(6) p. 197, Ed. 1761.
(c) p. 288.
(d) Forrest, 14.
(e) 2 Keb. 342.
(/> P- 222.
( 1 Wils. 326.
APPENDIX.
In Stocks v. Booth (A), the words "a house in
the parish," were only used by Buller, J., because
the fact was so in that case. By common right
the parson impropriate, and by consequence his
farmer, ought to have the chief seat in the chancel,
because he ought to repair it ; but by prescription
another person may have it. Hall v. Ellis (i). It
is true that the land is chargeable for the reparation
of the body of the Church, but that affords no argu
ment why a foreigner, proving prescription and re
paration, may not have particular privileges. The
parishioners are, unless the contrary can be shewn,
liable to repair the aisle ; Frances v. Ley (k) ; and
if so, and the ordinary can appoint to both body and
aisle, why should not reparation by a foreigner give
the right in each ? No distinction is made in the
form of the license to erect pews in a chancel for
the " better sort " of the parishioners, between the
body and the aisle, the language being, " whereby
others may be the better placed in the body and
aisle of the Church." 2 Gibs. Cod. (I). And so in
note 17 of section 4, " processus in causa sedilis"
the decree is, " that the pew, which was built by,
&c. shall continue and stand still for, &c. whenso
ever they shall please either to inhabit in the parish,
or to come to the Church there." So again, in the
same work (m\ the following form is given : " Li-
centia familue ad frequentandam aliam ecclesiam
quam suam parochialem, ratione vicinitatis ;" then
(A) IT. R. 4-28.
(i) Noy sRep. 133; Buls. 1/il.
(k} Cro. Jac. 366.
(I) p. lltil.
(m)p. 1468.
212
APPENDIX.
why not by prescription and reparation proved by a
foreigner ?
The LORD CHIEF BARON (n\ in giving judgment,
said : The only question which the Court has to
decide is, whether there can in law be a prescription
for a person living out of the parish to have a pew
in the nave of the Church. There is, in the present
case, an uninterrupted enjoyment ; and although
the origin of the right to the pew cannot be traced,
it is undoubtedly ancient, notwithstanding there is
nothing to shew upon what circumstances it was at
first assumed or grounded. And in the absence of
all evidence against the right, the question is,
whether, upon the mere principles of law, the Court
can say, that, notwithstanding the enjoyment of the
right in fact, it could never have had a legal origin.
To defeat the claim of the plaintiff, it must be
shewn that the creation or assumption of the right
was absolutely, and of necessity, void in origine ;
and unless the prescription is of itself rotten and
bad, from some legal vice, there is nothing else to
affect it. But as to the legal possibility or impossi
bility of the thing, a very short inquiry is sufficient.
It appears from Selden (o), that in early times, by
the Pope s license, Churches were founded or built
by Lords of Manors, or other lay founders ; and
that parishes were not then reduced to the exact
circuits and boundaries by which they are now
known, and particularly for ecclesiastical purposes ;
that when Churches were first built, a certain dis
trict was allotted, over which the officiating minister
(n) Macdonald.
(.0) Vol. 3, pt. 2, p. 1121-2, edit. 172.5.
APPENDIX.
was to superintend (/>). This was a kind of di
vision, not a parish, in the sense in which we now
understand it. The boundaries of parishes were
settled long after the foundation of Churches ; and
those ecclesiastical districts, formerly belonging to
Churches at their first institution, have been since
much varied, and in many cases abridged and nar
rowed, when new Churches were built (q). How,
then, can we now say that the owners of the house
or the estate in respect of which this pew is claimed,
did not build or endow the Church, or some part
of it ; or that this house, though now not within
the parish, according to its present boundaries, was
not formerly within the ecclesiastical limits of the
Church ? Very probably it was so. But without
going farther, it might have been so, and that is
sufficient ; for we are now only upon the question,
whether a person can, for a house out of the parish,
prescribe for a pew in the body of the Church ; or
whether the prescription must of necessity be bad
in law. The history of Churches shews the con
trary. The distinction between a prescription in a
house out of the parish for a pew in an aisle, but
not in the body of the Church, is merely made a
doubt or question in some of the books ; but there
is no case in support of it ; and there is no dis
tinction in the reason of the thing itself.
The rule was discharged (r).
<-/>) Selden, vol. 3, pt. 2, p. 1120, 1206.
(9) Id p. 1212, 1213.
(r) See the case of Byerhy v. Windus, 7 D. & R. 56 J ;
S. C., 5 B. & C. 1 ; Pym v. Gortcin, Moore, 878.
214 APPENDIX.
DECLARATION IN CASE FOR DISTURBANCE OF A
PEW RIGHT.
In the, &c.
The day of , A. D. .
() To wit, c. For that whereas the
plaintiff before and at the time of the committing
by the defendant of the grievance hereinafter men
tioned was and from thence hitherto hath been
and still is lawfully possessed of a certain messuage
or dwelling-house with the appurtenances situate in
the parish of A, B., in the county of C. D. (b) t and
during all the time aforesaid did and still doth with
his family inhabit and dwell therein, by reason
whereof the plaintiff during all the time aforesaid
had and still of right ought to have for himself and
his said family so inhabiting and dwelling in the
said messuage or dwelling-house with the appur
tenances as aforesaid, and as to the said messuage
or dwelling-house with the appurtenances belonging,
appertaining, and appurtenant, the sole use, occu
pation, possession, and enjoyment of a certain pew
in the parish Church of the said parish of A. B. for
him and them to hear and attend the celebration
of Divine Service in the said parish Church at his
and their free will and pleasure, yet the defendant
well knowing the premises, but intending to injure
the plaintiff and to deprive him and his said family
of the sole use, occupation, possession, and enjoy
ment of the said pew, did, whilst the plaintiff and
(a) The venue is local.
(b) Should be the same county as the venue.
APPENDIX.
his said family so inhabited and dwelt in the said
messuage or dwelling-house with the appurtenances,
and was so entitled to the sole use, occupation,
possession, and enjoyment of the said pew as afore
said, and before the commencement of this suit, to
wit, on the - - day of , A. D. - - (c), and
on divers other days and times afterwards unlawfully
(and without the leave or license and against the
will of the plaintiff) enter into and continue within
the said pew during the celebration of Divine Ser
vice in the said Church, and thereby greatly dis
turbed and hindered the plaintiff in the use,
occupation, possession, and enjoyment thereof, and
also thereby then unlawfully prevented and hin
dered the plaintiff by himself and his said family so
inhabiting and dwelling in the said messuage and
dwelling-house with the appurtenances as aforesaid,
from sitting in the said pew, and from having the
sole use, occupation, possession, and enjoyment
thereof, in so full and ample and beneficial a manner
as he otherwise might and would and ought to
have done, and thereby then otherwise greatly dis
turbed and molested the plaintiff by himself and his
said family in the use, occupation, possession, and
enjoyment thereof. To the plaintiff s damage,
&c. (tl)
( c ) About the day the disturbance was committed.
(rf) When the faculty is to a man and his family so long as
lie resides within the parish, (supra). In such case, the right
is not appurtenant to any PARTICULAR messuage, but exists so
long as he to whom the grant is made is resident within such
parish. A count to meet such a state of facts may be easily
framed from the above.
216 APPENDIX.
DECLARATION IN CASE AGAINST THE ORDINARY
FOR DISTURBANCE OF A PEW RIGHT BY PRE
SCRIPTION.
In the, &c.
The - - day of - - A.D. 1845.
Middlesex to wit. () For that whereas the defendant here
tofore, to wit, on the - day of A.D. (b)
and long before was, and from thence hitherto
hath been and still is, by Divine Providence, Lord
Bishop of the diocese of , and by virtue of the
said rank, office, and dignity, he did during all the
time aforesaid, and on the day and year aforesaid,
exercise the office and duties of. and then was, and
is the ordinary of the parish Church of in the
county of (c) within the said diocese. And
whereas also the plaintiff before and at the time of
the committing by the defendant, as such ordinary
as aforesaid, of the grievance hereinafter mentioned,
was, and from thence hitherto hath been and still
is seised in his demesne, as of fee, of and in a certain
ancient messuage or dwelling-house and premises,
with the appurtenances, situate in the parish, county,
and diocese aforesaid, and therein with his family
during all the time aforesaid did and still doth in
habit and dwell and by reason thereof the plaintiff,
and all those whose estate he now hath during all the
time aforesaid and at the time of the committing by
the defendant of the said grievance hereinafter
mentioned, had as to the said ancient messuage or
(a) The venue is local.
(&) The day of the disturbance, or about it.
(c) Same county as venue.
APPENDIX.
dwelling-house and premises, with the appurte
nances belonging, appertaining, and appurtenant
from time whereof the memory of man is not to
the contrary, and still of right ought to have for
himself and themselves, and his and their family,
respectively inhabiting and dwelling in the said
ancient messuage or tenement and premises with
the appurtenances, the sole use, occupation, pos
session, and enjoyment of a certain pew in the
parish Church of aforesaid, to hear and
attend the celebration of Divine Service therein,
at his and their free will and pleasure, and by
reason of such sole use, occupation, possession, and
enjoyment as aforesaid, the plaintiff and all those
whose estate he now hath, as aforesaid, frpm time
whereof the memory of man is not to the con
trary, has and have repaired and maintained, and
have been used and accustomed, and still of right
ought to repair and maintain the said pew, when
and as often as it should be necessary, at his
and their own proper costs and charges, for the
sole use, benefit, and convenience for the purpose
aforesaid, of himself and themselves and his and
their families, so inhabiting and dwelling in the
said ancient messuage or dwelling-house and
premises, with the appurtenances. Yet the defend
ant as such ordinary as aforesaid, well knowing the
premises, but intending unlawfully to injure the
plaintiff and to deprive him, whilst the plaintiff was
so seised of the said ancient messuage or dwelling-
house and premises, with the appurtenances as
aforesaid, and inhabited and dwelt therein of the
said use, occupation, possession, and enjoyment of
L
217
APPENDIX.
the said pew, to which he was so entitled as afore
said heretofore, to wit, on the - day of - , afore
said (c), and on divers other days and times after
wards between that day and the commencement of
this suit, unlawfully and without the leave or license
and against the will of the plaintiff entered and
caused and procured divers other persons to enter
into and continue in the said pew during the cele
bration of Divine Service in the said Church, and
thereby greatly disturbed the plaintiff in, and
thereby hindered him and prevented him from
having the sole use, occupation, possession, and en
joyment thereof, in so full and ample a manner as
he ought and otherwise might and would have done,
whereby the plaintiff could not, during the time
aforesaid, have the sole use, occupation, possession,
and enjoyment, of the said pew for himself and his
family so inhabiting and dwelling in the said ancient
messuage or dwelling-house and premises, with the
appurtenances as aforesaid, in so ample and beneficial
a manner, as he otherwise might and ought to do
and would have done ; and thereby then otherwise
greatly disturbed and molested the plaintiff in the
use and enjoyment thereof. To, &c.
(c) Day of disturbance, or about it.
APPENDIX.
SCOTCH LAW.
A short digest of the law relating to pews in
Scotland, has been appended, because it was presumed
it would be interesting, if not from its positive use,
at all events from the peculiarity of its construction.
The area of a Church is generally divided ac
cording to the rules which regulate the expense of
building it, and whether any of the heritors or
their tenants be dissenters or riot, it makes no dif
ference in the allotment, or the burden of the
expense.
In purely Landward parishes, the area is divided
among the heritors according to their value, or it
might be their real rents. Each heritor is entitled
to a pew for his family, corresponding to his rent,
but the priority of choice amongst the heritors is
determined by their valuations the highest valua
tion being entitled to the first choice, and so on.
After the family seats are all chosen, each heritor
is entitled to a share of the remainder of the
area ; but the allotted portions of the Church do
not become the private property of the heritors,
they are merely pertinent to his lands for the ac
commodation of his family, &c., and the right to
them passes by a disposition of the lands, though
no mention of them be made, for they cannot be
separated from the lands to which they are perti
nent. If a part of the estate is sold, the pur
chaser is entitled to a rateable proportion of the
allotment. If there was a common possession of
the whole of the area by the owners and tenants of
L 2
219
220 APPENDIX.
an estate, several parts of which had been sold, it
must continue so, until the area be divided ac
cording to the several rights of the parties.
The patron of the Church is entitled to a family
seat for himself, and in the choice of which he has
a preference before any of the heritors if he be a
heritor as well, he would not be entitled to more than
one family seat, though he might to such a portion
of the area, distinct from the family seat, as would be
equal to the extent of his property as heritor.
The minister of the parish is also entitled to a
pew for his family, as near the pulpit as possible.
Some seats, generally those which occupy the
place of the communion table, are appointed for the
poor.
The right of occupying the family seat is ex
clusive, and if the heritor did not occupy it himself,
he probably would be entitled to let it, or commu
nicate the right of sitting therein to any person he
pleased, certainly if he be a heritor or inhabitant of
the parish : over the other part of the area he has
not the same power ; his tenants are entitled to
sittings therein without payment of rent for the
same, and he cannot let to their exclusion. Gene
rally, all the persons dwelling upon the heritor s
lands are entitled to sit in the area, whether they
be tenants or sub-tenants ; and if the area allotted
be insufficient to accommodate them, the heritor
has no right to appoint, but they who first present
themselves have a right to the sittings.
The property in the materials of the pew continues
in the heritor, and he may sell them, though he
cannot alienate the part of the area upon which it
is built.
APPENDIX. 221
When the parish is partly Burgh and partly a
Landward district, then the expense of building the
Church is borne by the fuars and heritors jointly,
and the area is allotted accordingly. (It has been
held, that where the area has been, by immemorial
usage, possessed in definite proportions by the town
and the landward heritors, that such state of posses
sion could not be disturbed ; but it is said, that
whether such an effect would be given to the usage
is more than doubtful). In cases where the com
munity of a Burgh are to have a share allotted, they
are entitled to a seat for their magistrates.
In Burgh Churches, or where the parish is partly
Burghal and partly Landward, in that part of the
Church which appertains to the Burgh, the magis
trates may levy rent for certain limited purposes (if
the practice be sanctioned by immemorial usage).
They must not make it a source of profit for the
general good of the Burgh, but must exclusively
confine it to the maintenance of the fabric of the
Church, and the defraying of the expenses of the
public ordinance, (if not otherwise provided for by
law), including the stipend of the minister, where
no tiends or other local taxes are appointed for the
purpose : for any other purpose, no length of pos
session could give the right to levy a rental upon
the seats.
In Landward parishes, or the landward part of
Burghal and Landward parishes, the heritors have
no right to levy rent, even if the proceeds are to be
appropriated for ecclesiastical purposes. The dis
tinction seems to be, that in Landward parishes the
stipend of the minister is provided for out of the
222 APPENDIX*
tiends, and by law the heritors were burthened
with the maintenance of the Church. The magis
tracy of the Burghs were not liable for the stipend
of the minister, and have no definite means secured
for " operating their relief " from the burthen of
upholding the fabric of the Church, and therefore
acquire the right to charge rents for that purpose
by prescription. If a Burgh be divided into several
parishes, the whole (with respect to the expenses
being paid out of the seats), must be treated as one
parish, and the levy must be made as for one
common fund for defraying the expenses.
The magistrates of a Burgh, if timely challenged,
could not sell or dispose of the seats allotted to the
Burgh.
The sheriff is the proper Judge, in the first in
stance, to determine the appropriation of the seats,
but in a case wherein the Kirk Sessions had for a
long period been allowed to act as managers of the
parish, and to dispose of the seats, the Courts
recognised their power to pew out a part of the
area, and bind the heritors by their agreements.
The subject is brought before the sheriff in a suit,
termed a process of division, which may be insisted
upon by a single heritor, in which case the sheriff
determines any disputes, and finally decrees, subject
to the Court of Sessions for a revision, if necessary.
If all the heritors agree, they can make a valid
division without the help of the judicature ; but
any heritor not consenting may afterwards challenge
it, and insist upon a process for a division : but if
a certain state of things has existed for a long
period, though there be no evidence, a regular
APPENDIX. 223
division will be presumed ; but if there be no
grounds for presuming such division, though it has
been persisted in for a period of forty years, it will
not so fix the right as to exclude a legal division.
Such are the usual rules which apply to the pews
in Scotland : there are some few exceptions which
particular cases have introduced ; as where on the
rebuilding a Church the parish agrees with the pro
prietor of an aisle to allot him a portion in the new
Church, equal in extent to the aisle, and though
there was no judicial division of the area, the
agreement of the heritors was held to be sufficient,
and in the interlocutor of the Lord Ordinary the
propriety of the division of the heritors was re
cognised.
So also in the division of the Cathedral Church of
St. Andrews, the Court appear to have recognised
the rights of the Crown and of the University to
a certain extent of the area, and which recognition
was upon the ground of long user.
So also in the case of North Leith, they recog
nised private rights of this nature in favour of
certain incorporations of the Canongate of Edin
burgh and the Trinity House at Leith, neither of
which had any legal residence or property in the
parish, and contributed nothing towards the re
building the Church, except so far as they might
be considered to have a property in the site and
materials of the old Church : the right in case of
the incorporations, &c., arose from the grant of a
Chapel, on the site of which the parish Church was
built. On the part of the Trinity House, by the
grant of a part of the old area by the Kirk Sessions
224
APPENDIX.
to them, as the managers of the parish. This deci
sion stands alone, being governed by peculiar
circumstances.
If a heritor sells his estate in lots, he would have
the power of attaching the family seat to one of the
lots.
If by prescription and possession under a con
veyance, private individuals be held to have ac
quired a right to particular seats, they may convey,
or let them to others, but such alienation cannot
be to strangers, to the exclusion of the inhabitants
of the parish.
Where the magistrates of a Burgh of Barony
agree with certain inhabitants on payment of a low
rent for ten years in advance, to grant tacks of those
seats for such time as will repay the advance with
interest ; and which tacks were to be assignable
under certain conditions ; and when such tacks
came to an end, the subscribers and assignees should
be entitled to such seats at such rents ; where for
more than forty years after the expiration of the
period granted, the magistrates allowed the seats
to be so possessed, the Court held that the magis
trates could raise the rent of all such seats as were
not belonging to the original subscribers, or unless
the holders had succeeded to, or obtained assign
ment from them prior to the " expiry" of the tacks
by the repayment of the subscriptions.
So where three pews had been disposed of by the
magistrates of a Burgh to a person, his heirs, exe
cutors, and others, his nearest representatives, what
soever, resident in the parish, it was held, that
where there were three representatives, one daughter
APPENDIX.
of the whole blood and two of the half blood, that
each would take a pew. One of the pews being
sufficient for the necessities of the family of the
daughter of the whole blood.
This digest has been principally arranged from
a work upon the Parish Law of Scotland, by Mr.
Dunlop.
225
L 3
226 APPENDIX.
STATUTES.
AUGMENTATION.
1 CEO. 1, c. 10.
2 Ann, c. 11. " WHEREAS it is necessary for the governors of
7 An" , c . 27! tne bounty of Queen Anne, for the augmentation of
The bishops the maintenance of the poor clergy, in order to the
shall inform , . fe%7
themselves more regular making proper augmentations, to be
yelriy value i n f rme d as exactly as may be, of the clear improved
of every yearly value of the maintenance of all such par-
benefice, sonSj vicars, curates, and ministers, officiating in
any church or chapel within that part of Great
Britain called England, the dominion of Wales, or
town of Berwick-upon-Tweed, where the Liturgy,
and rites of the Church of England, as now by law
established, are or shall be used and observed,
whose maintenance is intended to be augmented."
" IV. And whereas her said late Majesty s royal
bounty to the poor clergy was intended to extend,
not only to parsons and vicars who come in by pre
sentation or collation, institution, and induction,
but likewise to such ministers who come in by do
nation, or are only stipendiary preachers or curates,
officiating in any Church or Chapel where the Li
turgy and rites of the Church of England, is now by
law established, are and shall be used and observed,
most of which are not corporations, nor have a legal
succession, and, therefore, are incapable of taking a
grant or conveyance of such perpetual augmentation
as is agreeable to her said late Majesty s gracious
intentions, and in many places it would be in the
power of the impropriator, donor, parson, or vicar,
to withdraw the allowance now or heretofore paid
to the curate or minister serving the cure, or, in
APPENDIX. 227
case of a Chapelry, the incumbent of the mother
Church might refuse to employ a curate, or permit
a minister duly nominated or licensed to officiate in
such augmented Chapel, and might officiate there
himself, and take the benefit of the augmentation,
though his living be above the value of those which
are intended to be first augmented ; and the main
tenance of the curate or minister would thus be sunk
instead of being augmented :" Be it therefore enacted AII auj.
* 11 i_ rf^ii "L mentcu
by the authority aforesaid, that all such Churches, churches,
curacies, or Chapels, which shall at any time here- JgpiSS be
after be augmented by the governors of the bounty benefices.
of Queen Anne for the augmentation of the main
tenance of the poor clergy, shall be, and are hereby
declared and established to be, from the time of
such augmentations, perpetual cures, and benefices,
and the ministers duly nominated and licensed
thereunto, and their successors respectively, shall
be, and be esteemed in law, bodies politic and cor- and the
porate, and shall have perpetual succession by such Jjjj^jj*
name and names as in the grant of such augmenta- bodies
tion shall be mentioned, and shall have a legal ca- p(
pacity, and are hereby enabled to take, in per- and shall be
petuity, to them and their successors, all such lands, pr
tenements, tithes, and hereditaments, as shall be
granted unto or purchased for them respectively by
the said governors of the bounty of Queen Anne for
the augmentation of the maintenance of the poor
clergy, or other persons contributing with the said
governors as benefactors ; any law or statute to the
contrary notwithstanding : And that the impropria- impropria-
tors or patrons of any augmented Churches or do- augmented 1
natives, for the time being, and their heirs, and the churches,
rectors and vicars of the mother Churches whereto rC eVors, & c e ,
any such augmented curacy or Chapel doth apper- JjJJJJ^
tain, and their successors, shall be and are hereby churches,
utterly excluded from having or receiving, directly, " O e n e 1 x t c h 1 " de(
or indirectly, any profit or benefit by such augmenta- benefit of
tion and shall from time to time, and at all times, from Dentation,
and after such augmentation, pay and allow to the and shall
228
APPENDIX.
allow the ministers officiating in any such augmented Church
Sons,&c!i an( * Chapel respectively, such annual and other
to the ^ pensions, salaries, and allowances, which by ancient
officiating, custom, or otherwise, of right, and not of bounty,
ought to be by them respectively paid and allowed,
and which they might, by due course of law, before
the making of this Act, have been compelled to pay
or allow to the respective ministers officiating there,
and such other yearly sum or allowance as shall be
agreed upon (if any shall be) between the said
governors and such patron or impropriator, upon
making the angmeritation, and the same are and
shall be hereby perfectly vested in the ministers
officiating in such augmented Church or Chapel
respectively, and their respective successors.
NO rectors, V. Provided always, That no such rector or vicar
mother of su ch mother Church, or any other ecclesiastical
be^dis 1 * 68 10 P erson or persons, having cure of souls, within the
charged parish or place where such augmented Church or
souTs. CUre f Cna pel shall be situate, or his or their successors,
shall hereby be divested or discharged from the same;
but the cure of souls, with all other parochial rights
arid duties, (such augmentation and allowances
to the augmented Church or Chapel, as aforesaid,
only excepted) shall hereafter be and remain in
the same state, plight and manner as before the
making of this Act, and as if this Act had not been
made.
Augmented
"
void six
shaii lapse
&c
" VI. And for continuing the succession in such
augmented cures, hereby made perpetual cures and
benefices, and that the same may be duly and con-
stantly served:" Be it enacted by the authority afore-
saic ^ *k at in case such augmented cures be suffered
to remain void by the space of six months, without
any nomination within that time of a fit person to
serve the same (by the person or persons having the
right of nomination thereunto) to the bishop or
other ordinary, within that time, to be licensed for
APPENDIX. 229
that purpose, the same shall lapse to the bishop or
other ordinary, and from him to the metropolitan, and
from the metropolitan to the crown, according to
the course of law used in cases of presentative livings
and benefices, and the right of nomination to such
augmented cure may be granted or recovered, and
the incumbency thereof may and shall cease and
be determined, in like manner, and by the like
methods, as the presentation to, or incumbency in
any vicarage presentative may be now respectively
granted, recovered, or determined.
XIV. And be it further enacted by the authority Augmented
f -ji 11 i_j i i donatives to
atoresaid, that all such donatives which are now be visited
exempt from all ecclesiastical jurisdiction, and
shall be augmented by virtue of the powers given
by this Act, shall be subject to the visitation and
jurisdiction of the bishop of the diocese wherein
such donative is to all intents and purposes of law
whatsoever.
XV. Provided always, That no donative shall be
augmented without the consent of the patron or
patrons in writing, under his or their hands and
seals first had and obtained.
AUGMENTED CHAPEL TO BE A BENEFICE.
36 GEO. 3, c. 83.
III. " And whereas by an Act, passed in the first Ge - i,
ti * %/ T7" /~\ Slat. -:, C. 1(1
year of his late most gracious Majesty King George
the First, it was enacted, That all Churches, Curacies,
and Chapels, which should be augmented by the
governors of the late Queen Anne s bounty, should
be from thenceforth perpetual cures and benefices :
And whereas it is expedient that such augmented
ating
may 1
like stipend.
230 APPENDIX.
Churches, Curacies, and Chapels should be subjected
to the same rules as benefices, with respect to the
avoidance of other benefices ;" be it further enacted,
churches That such augmented Churches, Curacies, and
hySeen ed Chapels shall be considered in law as benefices pre-
Anne s sentative, so as that the license thereto shall operate
bounty, to . , ... ^ i ^
be deemed in the same manner as institution to such benefices,
preSSa- an ^ shall render voidable other livings, in like
tive, and manner as institution to the said benefices ; and that
curate it shall be lawful for the bishop or ordinary, within
may have a whose jurisdiction such augmented Church, Curacy,
or Chapel shall lie, to appoint, under his hand and
seal, any stipend or allowance for the officiating
curate to be nominated or employed by the perpetual
curate, or incumbent thereof, not exceeding seventy-
five pounds per annum, for which payment the said
curate shall have the same and like remedies as
are hereinbefore given to the curates of rectors and
vicars.
STATUTES RELATING TO PEWS.
58 GEO. 3, c. 45.
WHEREAS the population of Great Britain, and more
particularly in the Metropolis and its vicinity, and
in other cities and great towns, has greatly in
creased, and the Churches "and Chapels now exist
ing in the Metropolis and its vicinity, and in many
great and populous parishes and extra-parochial
places, are inadequate to the accommodation of the
inhabitants thereof: And whereas it is therefore
necessary that such evil should be remedied, and
that additional Churches and Chapels for the cele
bration of divine service according to the rites of
the united Church of England and Ireland as by
law established should be erected and maintained
APPENDIX. 231
in such parishes and places, and that a certain
number of free seats should be made therein.
XVIII. Provided always, and be it further New
enacted, That during the incumbency of the exist- S
ing incumbent of any such parish every new "shes t
Church therein built, purchased, assigned, or pro- SlapSs of
vided as the intended parish Church of any division Ease during
, , ,. . J . , the existing
intended to become and be a distinct parish shall incum-
remain a Chapel of Ease, and shall be served, bency
during the incumbency of such incumbent of the
original parish, by a curate to be nominated by
such incumbent, and licensed by the bishop of the
diocese, and paid in manner hereinafter directed.
XIX. And be it further enacted, That every such New
distinct and separate parish as aforesaid shall, when
such division as aforesaid shall become complete by sion c m -
the death, resignation, or other avoidance of the rectories,
existing incumbent of the original parish, be JjfJJSSSai
deemed either a rectory, vicarage, donative, or curacies,
perpetual curacy, and the spiritual person serving *
the same the rector, vicar, or perpetual curate
thereof, or person having cure of souls therein,
according to the nature of the original Church of
the parish so divided, and shall be for ever there
after subject to the laws, provisions, and regulations,
as to presentation and appointment, and as to insti
tution, collation, induction, or license, and to all
such jurisdiction of the bishop, or other jurisdiction,
and to holding benefices, as are by law applicable
to the original parish.
XX. Provided always, and be it enacted, That Donatives u.
lapse, if
appoint-
all such donatives and perpetual curacies shall be lapse u ""
subject to lapse as benefices, if no appointment of a
spiritual person thereto shall be made within six months.
months after any death, resignation, removal, or
other avoidance of the incumbents thereof respec
tively : Provided also, that no spiritual person
232
APPENDIX.
Pews to be
provided for
minister,
c., and
free seats
for poor
persons.
No rent,
&c., on the
pews of
minister
and poor
persons.
appointed to any such donative or perpetual curacy
shall be removable at the pleasure of any person,
or body corporate or politic, having the power of
appointment thereto.
LXXV. And be it further enacted, That before
the consecration of any Church or Chapel under
the provisions of this Act, a seat or pew sufficient
to hold six persons at least shall be set apart in the
body or ground floor of the Church or Chapel, and
contiguous or near to the pulpit, for the use of the
minister of the Church or Chapel for the time being
and his family ; and other seats in some other con
venient part of the Church or Chapel, not among
the free seats, capable of containing not less than
four persons, shall also in like manner be set apart
for the use of the minister s servants ; and that
pews, sittings, or benches in every such Church or
Chapel, to be marked with the words " free seats,"
amounting in the whole to not less than one-fifth
part of the whole of the sittings in every such
Church or Chapel which shall be built, either
wholly or in part, out of any rates, or with any
money raised upon the credit of any rates of the
parish or extra-parochial place, shall also be appro
priated and set apart for the use of poor person*
resorting thereto for ever ; upon which pews so to
be set apart for the minister, his family and servants,
and the pews, sittings, or benches so appropriated
for the use of the poor, no rent or assessment what
ever shall at any time be charged or imposed.
choice of LXXVI. And be it further enacted, That all
Subscribers, subscribers, being parishioners to any Church or
Chapel built under the authority of this Act, shall
have choice of pews at the rates fixed by the com
missioners under the provisions of this Act, in the
order of their amount of subscription ; and as to
subscribers of the same amount, in the order of their
subscription.
APPENDIX. 23
LXXVII. And be it further enacted, That all p ews tobe
the pews or seats in every such Church or Chapel If* to raise
, . . J .11 the sum re-
(save and except the pews or seats particularly quired for
set down as free seats) shall for ever be charged salaries rc.
and chargeable with the several and respective
yearly rents or sums set opposite to the figures or
numbers marked upon each of the said pews or
seats, as they shall be particularly numbered and
set down in a list or schedule to be made and signed
by the commissioners, and annexed to the deed of
consecration of every such Church or Chapel ; and
which said respective yearly rents or sums shall be
paid by the possessors and occupiers of the pews or
seats to the persons who shall from time to time be
appointed the churchwardens of the said Church or
Chapel, by two equal half-yearly payments in each
year, namely, on the Monday next after the nativity
of our Saviour Christ, and the nativity of Saint John
the Baptist, in the vestry room of the Church or
Chapel, between the hours of nine in the forenoon
and four in the afternoon.
LXXVIII. Provided always, and be it further churchwar-
enacted, That it shall be lawful for the church- JJJJ a n y ;
wardens of any such Church or Chapel, at any sentof n-
time thereafter, with the consent in writing of the patron"and
incumbent and of the patron of the Church or bish P. alter
rv, i !/>! i > n t P ew rents.
Chapel respectively for the time being, and of the
bishop of the diocese, to alter any such yearly rent
or sums ; and in any such case a new list or sche
dule of rents or sums, and the pews or seats upon
which the same are respectively charged, shall be
signed by the churchwardens, incumbent, patron,
and bishop respectively, and shall be deposited with
the deed of consecration of the Church or Chapel.
LXXIX. And be it further enacted, That every For the
person or persons possessed of a seat or pew in p^w^rents*
every such Church or Chapel shall pay the rents half-yearly.
charged thereon as aforesaid at two equal half-
234 APPENDIX.
yearly payments, to wit, on the Monday next after
the Nativity of our Saviour Christ, and the Nativity
of Saint John the Baptist, in every year ; and in
case the rent of any such pew or seat or any part
thereof shall happen to be behind and unpaid by the
space of three months next after the same shall
become due, and notice in writing demanding pay
ment thereof shall have been given to the owner or
occupier of such seat or pew, then the said church
wardens for the time being of the Church or Chapel
shall and may either enter upon and hold such seat
or pew, or let the same to any other person or
persons, in such manner as such churchwardens
shall think proper, until the rent so in arrear, and
all costs and charges which shall have been occa
sioned by the non-payment or in the recovery
thereof, shall be duly paid and satisfied ; or other
wise to sell the same pews or seats respectively by
public auction to the best bidder, and out of the
money thence arising pay and satisfy the said rent
in arrear, rendering the overplus (if any), after
deducting all reasonable costs and charges occa
sioned by or in consequence of such rent being in
arrear and in the recovery thereof, to the owner or
occupier of such pews or seats respectively (as the
case may be) ; or the said churchwardens, at their
discretion, may sue for and recover the said rent
so in arrear by action of debt or upon the case, for
the use and occupation of such pew or seat, to be
brought against the owner or owners, or any occu
pier or occupiers thereof, in the name of "the
churchwardens of the Church or Chapel of [describ
ing the Church or Chapel]" ; and no such action or
suit shall abate by reason of the death, removal, or
going out of office of any churchwarden.
APPENDIX. 235
59 GEO. 3, c. 134.
XXXI. " And whereas circumstances may arise
in which it may become expedient and necessary to
alter the rents at which pews may be let, in any
Churches or Chapels built or provided under the
provisions of the said recited Act and this Act :" be
it therefore further enacted, that it shall be lawful church and
for the Churchwardens and Chapelwardens of any ^rdens
such Church or Chapel, and they are hereby re- y alter
quired, when ordered and directed so to do by the by^orderof
bishop of the diocese, with the consent of the patron bi ?hop, and
j. , i . . 1-11 with con-
and incumbent, and in any case in which the pew sent of
rents shall have been assigned to the parish, then P atron * c -
with the consent of the vestry of the parish, to make
such alteration in any such pew rents as shall be
directed or approved of, with such consent as afore
said.
XXXII. And be it further enacted, that it shall Pews to be
not be lawful for the Churchwardens or Chapel- S n r e a ; s
wardens of any additional Church or Chapel, to let or only, and
sell any pews and seats, except to parishioners, aSctiorf- by
during the time such parishioners shall continue to re j? ts . v &y :
i . f , . n i r . , , able in ad -
be inhabitants ot the parish ; and every sale of any vance.
pew or seat shall be subject to such reserved rent as
shall have been fixed under the provisions of the said
recited Act or this Act, and shall be by private
contract, and not by public auction ; and all pew
rents under the said recited Act and this Act, shall
be payable in advance ; (that is to say), one year s
rent shall be paid on the admission to the pew or
seat, if such admission shall be given at Lady Day
or Michaelmas, or if at any intermediate period,
then the proportion of the half-year to Lady Day
or Michaelmas, as the case may be, and a half-year s
rent over and above such proportion ; and there
after half-yearly payments shall be made in advance,
commencing on the Lady Day or Michaelmas im
mediately following the taking of such pew ; and
236
APPENDIX.
HOW pew
forfeited.
HOW far
every such pew and seat shall be forfeited and be-
come vacant by the discontinuance of any such
payment in advance for two following half-years ;
any thing in the said recited Act to the contrary
notwithstanding.
church.
XXXIII. And be it further enacted, that it shall
l aw ^ for the commissioners to discharge any
discharge subscribers towards building any Church or Chapel,
subscribers in / ? />
from pay- wholly or m any part, from the payment 01 pew
rents in the said Cnurca or Chapel, for a limited
time or for life, in such proportion to the amount
of their respective subscriptions as the commis
sioners shall see fit ; and to allow any such sub
scriber, if he shall remove from the parish, to assign
the remainder of such term to any other parish
ioner inhabiting the parish.
Rates may XL. And be it further enacted, that when any
any^arish parish shall be desirous of extending and increasing
for rebuild- the accommodation in the parish Church, and it
ing or en- i n * *> \ -, > -,
shall be round necessary or expedient to that end
to ta k e down the existing Church, and to rebuild
the same on the same site, or on a more convenient
site, it shall and may be lawful for the church
wardens of any such parish, with the consent of the
vestry, or persons possessing the powers of vestry,
and with the consent also of the ordinary, patron, in
cumbent, and lay impropriator, if any such there be,
to take down such existing Church, and to rebuild
Money may the same upon the same or upon a new site ; and
tne sa ^ church wardens are hereby authorized and
empowered to borrow and raise, upon the credit of
the Church rates, or any rates made under the
said recited Act or this Act, of any such parish,
such sum or sums of money as shall be necessary
for defraying the expense or any part of the ex
pense of the taking down and rebuilding such
Church, and to make rates for the payment of the
interest of such sum or sums of money so to be
borrowed and raised ? and for providing a fund, of
APPENDIX. 237
not less than the amount of the interest of the sum
advanced, for the repayment of the principal
thereof, or for repaying such principal in such
manner, and at such times, and in such proportions
as shall be agreed upon with the persons advancing
any such money : provided always, that no Church NO church
shall be so taken down and rebuilt, by means of any & c k ^f d d i7. n
rates upon any parish, if such proportion of dissents, scntsig-
as are in this Act specified in relation to any appli- Serein men-
cation to build or to enlarge any Church or Chapel, tioned -
either wholly or in part, by means of rates, are
signified in writing in manner directed by this Act ;
and such Church, when consecrated, shall be to all
intents and purposes the parish Church of such
parish, for the celebration of Divine Offices, and the
solemnization of Marriages, according to the rites
and ceremonies of the Church of England: pro- Proviso for
vided always, that one-half of the additional accom-
modation, which shall be obtained by the rebuilding tin &s-
such Church, shall be set apart for free and open
sittings.
3 GEO. 4, c. 72.
XXIII. And be it further enacted, That it shall be commis-
lawful for the said commissioners to transfer any rights "JJJf"* 3
to any pews, with the consent of the owners thereof, sent of
in any existing Church or Chapel, belonging to any S^JJsfer pe w
person residing in any division of any parish or rights from
i i_ - L r^t i Xi i t_ n existing
place in which any new Church or Chapel shall churches to
have been or shall be built, acquired, or appropri- "Arches
ated under the provisions of the said recited acts, &c.. of
to the Church or Chapel of the division in which jipor-
any such person or persons shall reside, for the P se of f
/ i i j i making free
purpose ot enabling the said commissioners to make seats.
or increase the number of free seats in the Church
or Chapel from which such rights shall be trans
ferred ; and the persons from whom any pews shall
238
APPENDIX.
be so taken for such purpose as aforesaid, and to
whom any pews in lieu of their former pews shall
be assigned by the said commissioners in any other
Church or Chapel, shall have, hold, and enjoy the
same respective rights and titles to the pews so as
signed, as they respectively had, held, and enjoyed
in their former pews, or such right and title as shall
be directed and set forth in such assignment in lieu
thereof, without any faculty, instrument, or other
process than such assignment as aforesaid ; and
every such assignment shall be registered in the
registry of the diocese in which the Church or
Chapel shall be, and a duplicate thereof deposited
in the chest of the Church or Chapel in which any
NO greater such pew shall be so assigned as aforesaid ; provided
"h^VJnthe a ^ wa y s > tnat no larger or greater or other right shall
transfer of be given to any pew in any new Church or Chapel,
upon any such transfer, than belonged to the owner,
proprietor, or occupier of the pews in the existing
Church or Chapel, in the pews in respect of which
any such transfer shall be made.
Regulation
XXIV. And be it further enacted, That in every
case * n wn * cn rents shall have been fixed upon
the pews in any Church or Chapel under the pro
vision of the said recited acts for the purposes
therein specified, notice shall be given for six suc
cessive weeks at the end of each year of all the
pews which are vacant or which will become vacant
at the commencement of the next year, by affixing
the same in writing upon the doors of the Church
or Chapel and vestry room thereof respectively ;
and all such pews as shall not be taken at the rent
respectively fixed thereon within fourteen days after
the commencement of the ensuing year, shall in
every such case be let to any inhabitant of any ad
joining parishes or places in which there shall not
be sufficient accommodation in the Churches and
Chapels of the parish or place for the inhabitants
thereof, at the rent respectively so affixed upon
APPENDIX. 239
such pews, for any term not exceeding the end of
the year ; and at the expiration of the year, and
also of every succeeding year in which any such
pews shall be rented by inhabitants of any adjoining
parishes, such pews shall be inserted in the list of
vacant pews, to be taken in preference by the in
habitants of the parish or place to which the Church
or Chapel shall belong ; and all such pews as may
not be so taken by any inhabitant of the parish or
place, may again be let, and so on from year to
year, to any inhabitants of any adjoining parish or
place; any thing in the said recited acts to the
contrary notwithstanding.
XXV. Provided always, and be it further enacted, For av id -
mi . , X i ance of pevs-
Inat in case any inhabitant to whom any lease or leases,
demise of any pew, seat, or sitting in Church
or Chapel, of the parish or place or division or
district of which he shall be an inhabitant, shall be
granted for any longer term than one year, shall
cease to be an inhabitant of the said parish, place,
division, or district, or shall discontinue his or her
attendance at the Church or Chapel for the space of
any one year, then and in every such case his, her,
or their lease, demise, term, estate, and interest in
such pew, seat, or sitting respectively, shall, at the
end or expiration of the then current year of the
said term or period, cease and determine to all
intents and purposes whatsoever ; and such pew,
seat, or sitting shall and may be again let in like
manner hereinbefore mentioned.
1 & 2 WM. 4, c. 38.
IV. And be it further enacted, That the pews or p e ws may
sittings in such Church or Chapel shall be let by be let -
the churchwardens or chapelwardens, or by some
person appointed by the trustees, or person or per-
240 APPENDIX.
sons building and endowing the same, to act in that
behalf, according to a scale of pew rents fixed by
the trustees or such person or persons as aforesaid,
and approved of by the bishop, which scale it shall be
lawful for the trustees or such person or persons as
aforesaid, with consent of the bishop, to alter from time
to time as occasion may require : provided always,
that all such pews as shall not be taken at the rent
respectively fixed thereon, within fourteen days
after the commencement of the ensuing year, shall
in every such case be let to any inhabitant of any
adjoining parishes or places in which there shall not
be sufficient accommodation in the Churches and
Chapels of the parish or place for the inhabitants
thereof, at the rent respectively so affixed upon such
pews, for any term not exceeding the end of the
year, and at the expiration of the year, and also of
every succeeding year in which any such pews shall
be rented by inhabitants of any adjoining parishes,
such pews shall be inserted in the list of vacant
pews, to be taken in preference by the inhabitants
of the parish or place to which the Church or
Chapel shall belong ; and all such pews as may not
be so taken by any inhabitants of the parish or
place may again be let, and so on from year to
year, to any inhabitants of any adjoining parish or
place.
churches XXII. And be it further enacted, That it shall
jctedto SUb " be lawful f r the said commissioners if they shall
provisions think fit, in all such cases as shall come before the
actsTs to S{ "d commissioners, to order and direct that such
pews. Church or Chapel shall be subject to all the pro
visions of the said recited Acts or this Act as to
apportionment of accommodation in pews and free
sittings, and as to pew rents.
APPENDIX.
241
PROHIBITION.
1 WM. 4, c. 21.
WHEREAS the filing a suggestion of record on ap
plication for a writ of prohibition is productive of
unnecessary expense, and the allegation of contempt
in a declaration in prohibition filed before writ
issued is an unnecessary form ; and it is expedient
to make some better provision for payment of costs
in cases of prohibition ; Be it enacted by the King s
most Excellent Majesty, by and with the advice
and consent of the lords spiritual and temporal, and
commons, in this present Parliament assembled,
and by the authority of the same, that it shall not Applications
be necessary to file a suggestion on any application for writs of
for a writ of prohibition, but such application may
be made on affidavits only ; and in case the party
applying shall be directed to declare in prohibition only.
before writ issued, such declaration shall be ex
pressed to be on behalf of such party only, and not,
as heretofore, on the behalf of the party and of his
Majesty, and shall contain and set forth in a concise Cont cnts of
manner so much only of the proceeding in the declaration
Court below as may be necessary to shew the ground P art^is the
of the application, without alleging the delivery o f directcd . to
a writ or any contempt, and shall conclude by prohibition,
praying that a writ of prohibition may issue ; to
which declaration the party defendant may demur,
or plead such matters, by way of traverse or other
wise, as may be proper to shew that the writ ought
not to issue, and conclude by praying that such
writ may not issue ; and judgment shall be given,
that the writ of prohibition do or do not issue, as
justice may require ; and the party in whose favour Defendant
judgment shall be given, whether on nonsuit, ver- may demur
to declara-
M tion.
242
APPENDIX.
diet, demurrer, or otherwise, shall be entitled to
the costs attending the application and subsequent
proceedings, and have judgment to recover the
same ; and in case a verdict shall be given for the
party plaintiff in such declaration, it shall be lawful
judgment, for the jury to assess damages, for which judgment
costs. shall also be given, but such assessment shall not be
necessary to entitle the plaintiff to costs.
INDEX.
ABANDONMENT of a pew, what, 22.
effect of, 22.
presumption of, 41.
AISLE, right in, 31, 99, 102, 106.
annexed to a house, 103.
building, effect of, 109.
repair of, 102, 104.
repair by parish, 104.
prescription for, examination of, 107.
seating by the ordinary in the proprietor s seat, 164.
ALLOTMENT of pew by vestry, 18.
ALTERATIONS, not disfiguring Church, 60.
factious opposition to, 63.
faculty for, consideration of, 71.
ANCIENT MESSUAGE, prescription by owner, 85.
ARTICULI CLERI, 191.
AUCTIONEER, power to give possession, 61.
AUGMENTATION, of livings, statute for, 133.
construction of, 133.
AUGMENTED CHAPELS, 127.
sequestration of, 126.
on condition, 136.
without reservation, 136.
when licensed only, 136.
BARE POSSESSION, right acquired by, 21.
BISHOPRIC K, in ancient times, 118.
BURYING, in the Church, 9, 108.
in the churchyard, right of, 108.
CASE, action on the, when maintainable, 23, 86.
incidents to, 168, 173, 177.
declaration, 161, 175.
against wrong doer, 1 75.
against the ordinary, 177,
CHANCEL, 99, 106.
chief seat in, 101, 104.
annexation to a messuage, 104.
annexation to the rectory, 105.
acceptance of seat by founder in the body of the
Church, effect, 107.
M2
INDEX.
C H AXCEL continued.
grant of part by rector, 104.
repair of at common law, 99 102.
exercise of the rector s right in, 1 1 4.
by incumbent, 100.
by parish, 99.
seats in, 101.
CHANTRIES, 119.
CHAPELS, 115.
incidents to, 2, 119.
land on which built, 7.
nomination to, 121.
consecration, 120.
repair of, 120.
cure of souls in, 139.
of Ease, augmentation of, 8.
nomination to, 8, 121.
subject to lapse, 8.
composition, when presumed, 8.
Free See DONATIVES.
private, what, 121.
proprietary, 121, 129.
in law, what, 123.
erected upon condition, 123.
repair of, 122.
pews in, 122.
right to shut up, 124.
assessment of building, 124.
origin of, 130.
right to, how lost, 131.
appointment of seats, when in the ordinary, 132,
144.
likeness to aisles, 132.
augmentation, effect of, 134.
consecration, 134.
consent of minister to preach in, 121.
bishop, right to impose terms on, 137.
effect in common with stat. 1 Geo. 1, c. 10, 140.
stipendiary minister in, what, 141.
wherein stat. of 1 Geo. 1, c. 10, likely to take effect,
143.
claim of pew after, 144.
CHURCH, what, 1.
first mention of, 1.
definition of, 1, 2.
endowment and foundation of, 4, 83.
appropriation of, 5,
freehold of, 6, 7, 85, 108, 162,
repairs of, 6, 8, 96.
use of, 8.
INDEX. 245
CHURCH-confmued.
floor of Church, repair of, 9.
division of the Church, 10.
attendance at, necessity of, 171.
CHURCHWARDEN, duty of, 1 1, 16, 29.
right to dispose of pews, 12, 20, 169.
arbitrary exertion of, 12.
improper exercise of, 61.
illegal exercise of, 16.
power of, 170.
appointment to seat by, effect, 26.
acquiescence of, 169.
process against, to compel seating, 16, 29.
assault by, in removal of intruder, 14.
interference with appointment of, 29.
interference with faculty right, 34.
claim to seat independent of ordinary, 189.
gained by prescription, 131.
of several pews in one right, 88.
COMMON RIGHT inconsistent with exclusive right, 69.
cession of, 70.
CONSISTORY COURT, foundation of, 36.
CONSIDERATION, what, 67.
implied, 68.
COSTS, how awarded, 63.
CORRUPT CANVASS, effect, 62.
COURT, attention to the wishes of the majority, 62.
at Chester, 193, n.
of Great Sessions in Wales, 193, n.
CROSS, abuse of, 195, n.
CURATE, what, 7.
perpetual, 7, 118.
interest conveyed by appointment of, 8.
opposing churchwarden in altering pew, 163.
CUSHIONING PEWS, effect, 80, 88.
CUSTOM to pay rent, 16.
must be reasonable, 110.
DISTRICT (Ecclesiastical), what, 2.
division of, into parishes, 3, 83.
DISTURBANCE, remedy for, 17, 18, 161.
necessaries to declaration, 161.
declaration in. See APPENDIX.
remedy for, 162.
DISSENTING MINISTER, 138, n.
DONATIVES (free Chapels) 115, 1 16, 145.
1C 3
246 INDEX.
DONATIVES continued.
bequest to repair, 126.
how preferred, 116.
parochial Church, 117.
presentation to, by Simony, 117.
lapse on non-presentment, 117.
resignation of, 117.
augmentation of, 129, 133.
origin of, 129.
likeness to proprietary Chapels, 1 45.
DUTY of attending Church, 95.
EASEMENT, what, 43.
quality, in common with pew right, 44.
similarity to action for, in the case of a pew right,
177.
ECCLESIASTICAL JURISDICTION, in the time of the
Saxons, 192.
division of, 192.
revival of old rule, 192.
final severance, 192.
control of ordinary, 26.
Ecclesiastical matters, cognizance of, 36.
irregularity of practice, effect, 201.
want of jurisdiction, 201.
presumption in favour of, 201.
defect of trial, 203.
EJECTMENT from a pew vi et armis, 173.
ENGLAND, division into districts, 2.
division into parishes, 2.
EXTRA PAROCHIAL PLACES, 2.
rights of inhabitants, 23.
FACULTY, title by, 30, et seq.
what, 30, 52, 96, 1 85, n.
varieties of, 31.
grant of, 31, 35.
argument against the grant, consideration of, 39.
effect of grant, 32, 36, 65.
necessaries to, 32.
obtained by surprise, 32.
when final, 32.
for a term, 60.
for a man, family, successors, owners, and occupiers.
33.
and family during inhabitancy of a particular
house, 46.
inhabitancy generally, 53.
apportionment of, when, 33.
title against grant of, 35.
INDEX. 247
FACULTY -continued.
proper person to receive grant, 35.
inducement for the grant of, 46.
effect in regard to lodgers, 50-
grant for life, 52.
how lost, 52.
grantee ceasing to inhabit, 55.
lapse of right, 57.
tenant of house, abandoning right, 57.
non-user, effect, 57.
proprietor, abandoning right, 57.
consideration for, 47, 65, 70, 96, 97.
money payment for, effect, 66.
opinion of vicar against grant of, 67.
to bury in chancel, 67.
grantee, who may be, 98.
evidence of, 166.
how proved, 45.
appointment of several to the same pew, 63, 184, ..
proof necessary to support, 56.
how rebutted, 56.
remedy for disturbance of, 72.
FACULTY FOR ALTERATIONS, 60.
to erect a gallery, 75, 61.
in old Church, plea, 61.
for pulling down Church, 63.
FAMILY, construction of the word, 48, et seq.
FOUNDER, right of, 181.
GENERAL right of parishioners, deprivation of, 17, 24.
how to be enjoyed, 25.
law, how changed, 122.
GRANT of a pew right to a non-parishioner, reasons against its
validity, 108.
consideration for, 47, n.
HOLDING of a pew for one parishioner by another, 61.
HOUSEHOLDER, right of, 61.
IMPROPRIATOR and patron, construction of, 1 Geo. 1, c. 10,
140.
INCUMBENT, what, 5.
right to appoint to Chapel of Ease, 8.
power to seat parishioners, 1 3.
objection to the plan of seating the parishioners, J3.
willing pews, 13.
INHIBITION, where granted, 86.
effect of, 106, et vide, " PROHIBITION."
INTRUSION, into a pew, justification for, 14.
248 INDEX. *
JOINT ACTION, when, 167.
JOINT TENANCY, 58, 168.
LAW, province of, 10, 168.
how changed, 122.
LEGAL MEMORY, what, 78.
LETTING PEWS, right of, 45.
LIBEL, refusal to deliver copy of, 200.
LICENSE, to preach, effect, 123, 140.
revocation of, 125.
perpetuation of, effect of the statute, 140.
LIGHT, obstruction of, plea, 61, 63, 74.
LINING PEW, effect, 81, 88.
MATERIALS, of pews, in whom, 115180.
when severed, 179.
MAJORITY, obtained by canvass, 62.
MORTMAIN, statutes of, 143.
NEW PEWING CHURCH, faculty for, 60.
NEW CHURCHES, 147.
Churchwarden placing a stranger in a rented pew,
effect, 154.
minister, what, 147 152.
faculty rights in, 152.
transfer of, into, 157,
pews in, choice of, 147.
for minister, 147.
letting for rent, 147, 151.
alteration of pew rent, power to, 1 47.
to be let to whom, 148.
inhabitants of adjoining parishes, when,
150, 159.
construction of, 160.
right of entry, 147.
sale by auction, when, 147, 148.
appropriation for a term, 1 49.
right to, how lost, 149.
right acquired by, 152.
without condition, 153.
declaratory notice, effect, 153.
renting, effect upon a faculty, 152, 155, 156.
effect upon appointment, 156, 157.
renting, and quitting parish, 159.
statute, intention of, 158.
statutory propositions, examination of, 151.
NOMINATION TO CHAPELS, 119.
NON-PARISHIONER, donor to the Church, 107.
INDEX. 249
NON-USER of Common law right, 68.
NOTICE, of vestry, 62.
OCCUPATION OF SEAT, failure to effect, 29.
OLD CHURCH, plea of, 61, 74.
ORDINARY, who is, 9, n.
right of, 9, 11, 14,37,82.
objection to, 25, 39.
action against necessaries to, 23.
declaration. See APPENDIX.
why vested in, 26, 72.
examination of, 26.
to exclude jurisdiction of the, 77.
PARISHES, division into, 2.
consolidation of two, 89, 167.
PARSON, what, 5.
PARISHIONERS, general right of, 10.
claiming to be seated, rule, 1 1.
who is, 12.
PERTURBATION, suit for, when, 12,28, 161, 171.
necessaries to, 169.
when it will lie, 171.
right of suit before appointment, 172.
PEWS, common right to, 11, 168.
interference with, 11.
appointment, when subject to alteration, 12.
when it reverts back to the parish, 14.
right, what, 14, 172, 176.
acquiescence in by churchwardens, effect, 15, 170.
payment for, 16.
owner letting, effect, 16.
property in, 17.
right to, nature of, 17.
allotment of, by vestry, 18.
purchase and sale, allotment by, 19.
when appurtenant, 1 5, 34.
delegation of right to sit in, 42.
right, definition of, 43.
alteration of, when a faculty required, 60.
right, statutory, and Common law, 1 54.
defacing pew, 165, 182.
removing and destroying materials, 1 65.
exclusive right, how gained, 32.
erection, to accommodate differences, 79.
enlargement, effect, 81.
PEWING CHURCHES, time of, 38.
POSSESSION, title by, 170, 176.
for 111 years, effect, 18.
250
INDEX.
POSSESSION continued.
when sufficient to maintain an action for, 22, 23.
POSSESSORY TITLE, how derived, 10, 11.
effect of, 16.
consideration for, 43.
evidence of right, 24.
confirmation of, 27.
right of sale of, 27.
transfer of, 28-
necessaries to, 28.
duration of, 19.
PREBENDS, 118.
PRESCRIPTIVE RIGHT, origin of, 31
effect of, 31.
to dispose of seats without the ordinary 20
PRESCRIPTION, 77.
for eighty years, 77.
for thirty-six years, 78.
for sixty years, 78.
proof of, 77, 98.
attached to lands, 78.
matter of fact for the jury, 79.
presumptions in favour of, 79.
transfer of, 79.
necessaries to establish, 80, 87.
rebuttal of, 82.
for house not in the parish, 83, 90.
examination of, 90, et seq.
evidence of, 84, 85.
time of prescription, 84.
what, 86, 161.
proof of, 89.
repairs of. See REPAIRS.
an aisle, examination of, 1 IK
PROHIBITION, 184.
when awarded, 190.
plea before, 186.
when granted by Common Pleas, 186.
motion, affidavit, 187, 197, 201.
when shall go, 187, 204.
after sentence, 188, 202.
reason for grant of, 190.
writ of, 192.
whence issued, 193.
restraint of the Ecclesiastical Court, 194.
when brought, 196.
declaration in, 197.
trial by proviso, 1 98.
costs of, 198.
when not within statute, 198.
INDEX. 251
PROHIBITION continued.
two, when allowed to join in, 199.
right of defendant to declare in, 206.
PROPRIETARY CHAPELS. See CHAPELS.
REASONS, for granting a faculty for alterations, 62.
RECTOR, what, 5.
RECTORY, what, 5.
REGISTERS, in Chapels, 125.
RENT, reserved upon alterations, 60.
REP AIRS, effect of, 67, 70.
refusal to effect, 68.
to support prescription, 89.
when insufficient to oust the ordinary, 20.
by parish, how rebutted, 88.
of Church, obligation of, 96, 97.
discharge from, what, 101.
what, 84.
RESIDENCE, 68, 70.
RIGHT, inherent in parishioners, what, 96, 72.
when sufficient to support case or perturbation, 54,
169.
evidence of, 24, 84.
examination of, 43.
RULES OF LAW, construction of, 74.
SALE, condition of, contained in a faculty, 17, 19, 70.
SEATS, in a Church, disposal of, 9.
disposal of, by parson and churchwardens, 20.
priority of, 81, 188.
taking away, 26, 163.
removal of, 164.
SEQUESTRATION, when it issues, 101.
STATUTES, construction of, 21.
1 Geo. 1, c. 10, intention of, 141.
wrong cohstruction by the Ecclesiastical Court,
198.
STIPENDIARY PREACHERS, construction of Augmentation
Statute, 137.
TEMPORAL MATTERS, accessory to the ecclesiastical suit,
193.
TENANCY in common in a pew, 58, 59, 167.
TITHES, dedication of, 3.
TITLE DEED, specification of pew right in, 82.
TREES IN A CHURCHYARD, 167, 182.
252 INDEX.
TRESPASS, for disturbance, 22.
action of, 177.
who can maintain it, 178.
UNAPPROPRIATED SEAT, possession by a stranger, 171.
VESTRY, allotment of pew by, 18.
power to let pews by statute, 21.
order for alterations, effect, 62.
VICAR, who, 5.
VICARAGE, endowment of, 5.
WRITTEN AGREEMENTS, construction in law, 153.
WRONG DOER, action against, 21.
necessaries to, 23 See PERTURBATION.
presumption against, 80.
APPENDIX.
Lousely v. Hayward and Another, 209.
Pleadings, 214.
Scotch Law, 219.
STATUTES,
Augmentation, 1 Geo. 1, c. 10, ss. 4, 5, 6, 14, 15, 226.
Augmented Chapel to be a Benefice, 36 Geo. 3, c. 83, s. 3,
229.
relating to Pews :
58 Geo. 3, c. 45, ss. 1, 18, 19, 20, 75, 76, 77, 78, 79,
230.
59 Geo. 3, c. 134, ss. 31, 32, 33, 40, 235.
3 Geo. 4, c. 72, ss. 23, 24, 25, 237.
1 & 2 Wm. 4, c. 38, ss. 4, 22, 239.
Prohibition, 1 Wm. 4, c. 21, s. 1. 241.
LONDON;
PRINTED BV RAYNER AND HODGES,
109, Fetter Lane, Fleet Street.
