Abbildungen der Seite




Bouverte v. WoDSWORTH. A most important case to Clerical question, as to the respective rights of and Lay Rectors,—the first we believe the temporal and spiritual heads of the ever tried in any ecclesiastical court, parish, being now laid down, we as to the exercise of rights and privi. trust that this decision will go far to leges of the latter in the chancel of the allay and settle those disputes, and church,—was brought to a decision in consequent divisions often arising the Consistory Court of the diocese of from them. Peterborough, on the 26th of May last. We here give a full report of the This suit commenced the 4th day proceedings, by which it will appear of January last, by a citation issued that the promoter, Mr. Bouverie, in at the instance of E. Bou verie Esq., of this suit, and his predecessors, have Delapree Abbey, in the parish of exercised certain privileges, of burial Hardingstone, calling upon and citing in an ancient family vault, and of the Rev. Charles Wodsworth, Master erecting, without any ecclesiastical of Arts, vicar of the said parish, and control, tablets and monuments in Prebendary of St. Paul's Cathedral; memory of deceased relatives, for 80 which being duly served was returned years. Having erected a tablet with into the registry, and an appearance out even the knowledge of Mr. Wods- given by Mr. Wodsworth on the 27th worth, the Incumbent of the parish of January. under such presumed right, in 1834, a The Proponent, by his Proctor, Mr. correspondence took place; but on Title, prays for a license or faculty Mr. Bouverie's refusing all amicable to authorize and empower him and arrangements (and the Vicar being his successors, the lay impropriators of unwilling to be his assailant in a the said parish, to continue to enter court at law on that occasion),--and into and through, in the day time, at demanding the key in October 1837, all reasonable times, when and so for the erection of another tablet with often as he or they or those employed out the consent of the vicar, or the by him shall have occasion to enter production of any faculty, the incum and go into the chancel of the said bent ordered it to be removed from church, without any let or moleshis churchyard.

tation, to exercise the right of burial A citation was in consequence issued in an ancient family vault, and also by Mr. Bouverie; and the result shows, the right and privilege of placing that the custom claimed by the Lay tablets on the floor, or erecting them Rector was bad and contrary tolaw; and monuments against the walls, that the Bishop can only grant a faculty within such chancel, to the memory of for some specific tablet, in which the their respective deceased relatives; dimensions, &c. must be set forth; and to ratify and confirm the rights and not a general faculty, as prayed for. privileges so hitherto enjoyed by the The Vicar appeared as his own proctor, said E. Bouverie and his predecessors, and conducted his own case; and we upon the payment of a fee of two observe that the decision of the learned guineas to the officiating minister, judge is in accordance with the whenever an interment takes place, arguments used by the Vicar, to whom In support of the prayer above set the clergy are much indebted for the forth, Mr. Title on 21st of February firmness which he displayed.

alleged — That the party proponent Mr. Title appeared for Mr.Bouverie: have for 80, 70, 60, or at least 40 and the law on this inuch agitated years, had the sole occupation of,

the only pew in said chancel, to sit, kneel, and hear divine service and sermons; and also an unmolested right of burial, in an ancient family vault therein, and of placing tablets or monuments on the walls and floor to the memory of deceased relatives ; that for all such purposes they have, without any let or molestation, passed to and fro through the body of the said church, without paying any other fee than two guineas, whenever a burial takes place.

The said Charles Wodsworth was therefore directed to show good and sufficient cause, why the Lord Bishop of Peterborough should not grant his license or faculty to the said E. Bouverie, Esq., according to the prayer of the petitioner, as set forth in the citation issued,-and in default thereof, that the said Vicar may be condemned in the costs of the suit, and condemned to the due and effectual payment thereof.

On the 24th of March the Rev. Charles Wodsworth, in his own proper person, in reply to the above allegations, stated, that though he admitted the right of E. Bouverie to the free and unmolested right and occupation of the said pew, and to the usual rights of lay impropriators of burial in an ancient family vault,yet he denied that they either have or can have, by law, an unmolested and undisturbed right or privilege of placing tablets on the floor, or against the walls. . .

It is an axiom, he argued, in all ecclesiastical law, that the freehold of the church is vested in the incumbent, be he rector, vicar, or perpetual curate ; that by his induction, he is invested with what is equivalent to the livery of seizin; that the lay impropriator has only a qualified freehold, and the law points out how he is to exercise his rights :-true it is that he repairs the chancel at his sole costs, and he enjoys privileges exercised by no other parishioner, -that, under certain regulations, of interment in his vault, and putting up tablets or monuments, so that they be not unfit or unseemly, or so as to deface the edifice, or obstruct him and the parisbioners in the enjoyment and use

[ocr errors]

of the chancel. If the prayer of this petition were granted to the extent prayed for, it would go far to secularize the Church, as Lord Ellenborough observed in the case, Beckwith v. Harding. He submitted therefore to the court, if such custom has in fact existed, (and he did not, for the sake of shortening the proceedings as to tirne and expense, intend to deny that it had existed as alleged,) that such custom is bad and contrary to law.

If the prayer of the citation, he continued, had been for some specific purpose, that of erecting a tablet or monument, the dimensions of such should be stated, that the Ordinary might judge whether it were seemily, and would not disfigure the Church, The Vicar would have offered no opposition to the grant of the faculty; and this led him to state to the court why it was that he was cited, and on what grounds he opposed the grant of the faculty sought for.

In the year 1834, he was inducted into his benefice; and shortly after Mr. Bouverie, without any application to him or the Ordinary, obtained the key of his church from the clerk, and erected a tablet to the memory of a lately deceased daughter. The Vicar, believing that no lay in propriator had any legal right thus to enter his freehold without some ecclesiastical control, and believing that he was entitled to a fee for such erection, wrote to Mr. Bouverie on the subject; and as he, in the correspondence which then took place, still continued to think that he had only exercised, and that legally, his rights and privileges, Mr. Wodsworth offered to take the opinion of Dr.Lushington, or by letters permissory to obtain in a friendly suit the judgment of Sir Herbert Jenner, and to pay half the expenses. Both these courses were refused by Mr. Bouverie; Mr. Wodsworth therefore took himself the opinion of Dr. Lushington, which confirmed him, in his supposition, that Mr. Bouverie had acted illegally in erecting his tablet, but that he the Vicar could claim no fee as a matter of right.

The usual course indeed is, that the incumbent's consent being obtained, (which it is by the payment of a compliment or customary fee,) a faculty, though strictly in point of law re quisite, is seldom required; and in such cases, Lord Stowel observes, (vide Maidman v. Malpas) the ecclesiastical court is not eager to interfere. Since the irruption into his church, the Vicar stated that he has kept the key in his own custody; and in October last, upon the lay impropriator sending a tablet without any previous communication with him, and demanding the key by a common labourer, Mr. Wodsworth asked if he had brought a note from Mr. Bouverie, or was provided with a faculty: and on bis producing neither, refused to admit it. He however subsequently communicated to Mr. Bouverie, that if he would acknowledge bis error as to the erection of the former tablet, and would state his wishes as to the one now sought to be erected, and ask his sanction, no obstruction would be offered by him; and that he would leave the payment or not of any fee or compliment entirely to his liberality and discretion. “No reply, Worshipful Sir," continued Mr. Wodsworth," was vouchsafed to this communication, except the citation, against the prayer of which I now appear: as therefore, while I have been willing to grant Mr. Bouverie the free and legal exercise of his rights, being anxious only at the same time to preserve those of the Church, and especially that to which I have been appointed by the Crown, I beg that this suit may be discharged, and the said Mr. Bouverie condemned in the costs. I should add in conclusion, that I consider the prayer to enter and pass into and from and through the body of my freehold, without any let or molestation, is contrary to law, and is not a fit subject for the grant of a faculty; and that a faculty, if granted for such a purpose, would be illegal and void."

On the 26th of May, the judge, Dr. Butler, the chancellor of the diocese, gave judgment as follows:

“I consider that the general faculty thus prayed for, goes to the length, not only of prohibiting all interruption on

the part of the Vicar, but also excluding, by a novel concession on the part of the bishop, all future exercise of the authority now vested in him, (save only in cases of such tablets or monuments as should be complained of as nuisances): thereby virtually relinquishing a portion of the rights of the bishop as ordinary. The present right of the bishop to interfere, is not only established by all law precedents, but admitted by the petitioner in the very act of applying for this faculty. But the petitioner claims a right founded on PRESCRIPTION, extending as far back as 1650, which the Vicar alleges, without denying that such custom has existed, “is bad and wholly contrary to law :' and I find in the case, Seager v. Bowle, it is ruled that no practice can absolutely legalize the erection of a tablet or monument without a faculty. The whole fabric of the church, including the chancel, is committed to the care of the Ordinary, that it may not be injured or defaced by the caprice of individuals. The consent of the incumbent is taken on such occasions, (the erection of a monument) as well as that of the Rector of the chancel.

“In this case the Rector, being the promoter, bas no reason to require the Vicar's consent for the exercise of his legal privileges ; nor can the Vicar refuse him admission into the chancel through the only door by which he can have access to the church, or demand, as a matter of right, a fee for such permission. But the grant of this prayer for a general faculty, instead of a special faculty, thus to erect tablets or monuments, would not be a legal exercise of promoter's right; as the Ordinary cannot part before hand with that episcopal control, which is a portion of his peculiar rights and privileges, and which, in behalf of himself and his successors, and for the benefit of the Church, he is bound by oath to maintain.

“ As to the question of the right of the incumbent withholding admission into the church, he has certainly, in the first instance, the right of possession of the key of the church; and the churchwardens even have only

under him the custody of the church; but if he refuse, on fitting occasions, access to the church, he exceeds his authority and abuses his power. Now, cases of interment in an ancient family vault are fitting occasions for such access; and the incumbent cannot refuse admission, on payment of a customary fee, ou such occasions. In cases of such interment, the petitioner requires no faculty; but in EVERY CASE for the erection of a tablet or monument, he is bound by law to apply for a SPECIAL faculty.

"According to the prayer of the petition of the promoter, (received, it is supposed, by tbe judge, since the last court, as the Vicar heard notbing of such application ; and if he had, we have authority to state that he would have offered no opposition to such prayer,) I now grant permission to the said Edward Bouverie, and his family, so long as he or they continue inhabitants of his present mansion, in the parish of Hardingstone, to stand, kneel, &c. in the pew of the said chancel; to

hear divine service and sermons, &c.; to permit the use of the said ancient family vault, for the interment of said E. Bouverie and his family, on payment of fee to Vicar of two guineas on each interment; to set up a tablet, of dimensions not exceeding two feet, nor projecting more than two inches from the wall of the said chancel, to the memory of Major Francis Bouverie, son of said Edward Bouverie.

“ With respect to costs, they must be borne exclusively by said E. Bouverie ; as the citation taken out by him asserts a larger right than I conceive he is legally entitled to claim, and calls upon the Vicar to show cause why a faculty should not be granted confirmatory of that asserted right; non constat that any opposition would have been offered by the Vicar, had the prayer of Mr. Bouverie been confined within the limits of the faculty, which the Court has now thought proper to grant.

« I therefore dismiss Mr. Wodsworth with his costs."


Domestic.—There have been, since our last Retrospect, several very important discussions in Parliament, but which nevertheless have led to no other result, than to show the incapacity of Ministers, and to expose the means by which they are allowed to retain their places: The debate in the House of Lords, especially on the Spanish question, has been most conducive to this result, in which the more than extraordinary fact was elicited, that our ships of war had been authorised to fire upon certain Sardinian vessels, which were supposed to be about to bring munitions of war to Don Carlos. Happily, such an event did not happen, from some cause or other; but this overbearing insolence towards a feeble power like Sardinia, which sets at defiance all the principles of international law, forms a melancholy contrast to the base truckling shown to Russia in the affair of the Vixen. We are anxiously

expecting the discussions likely to arise on the latter point.

FRANCE.—A blockade of the ports of Mexico has been declared by France, in order to enforce certain claims made by French residents in Mexico, for alleged confiscations of goods and other injuries; which are, however, generally thought very exorbitant and unjust. How far Mexico may be compelled to acquiesce by the means adopted, is doubtful; at present, she refuses to submit, but the evils of the blockade may eventually compel her. In Africa, the arms of France have subdued nearly all opposition; and her colonizing projects seem to prosper in all directions, as the Arabs at length begin to acquiesce in the presence of the French.

THE NETHERLANDS.-At length the long pending dispute between Belgium and Holland seems on the point of adjustment. Belgium has again roused up the revolutionists on her soil to

oppose the settlement; but her protector, France, in conjunction with the other great powers, will compel her to abide by the basis of final division between the two countries already laid down in the treaty of the 24 Articles.

SPAIN.—The independent chief, Muniagori, is likely to play a prominent part in the future contest between the rival parties in Spain ; as he has been promised cooperation on the part of the British forces on that coast, and the party of the Queen seems willing to allow the Basque Provinces to enjoy their peculiar

rights and privileges, in their future connexion with the rest of Spain, and in their incorporation into the new Constitutional system.

TURKEY.– The Pasha of Egypt seems at length resolved on renouncing his state of vassalage to the Porte, and a war seems almost inevitable in consequence. The rebellion in Syria having been crushed by the Egyptian, leaves him at full liberty to pursue his ambitious designs, should not England and France interfere to prevent him, and to counteract the plots of the Russian Czar, who is with justice believed to be the fomentor of the quarrel.



TRIBUTES OF RESPECT. The Rev. Thos. ROBINSON.-A magnificent testimony of respect and affection has been lately presented to Archdeacon Robinson, of Trinity College, and Lord Almoner's Reader, and Professor of Arabic, in the University of Cambridge, on resigning the Archdeaconry of Madras, by his numerous friends and admirers in that Presidency, of which the following is a description:

It consists of a superb Centre-Piece, an elegant Inkstand, and the materiel of the table, of the costliest description.

The centre-piece is a tripod, rising from which is a plantain tree, loaded with luxuriant bunches of fruit, while its graceful drooping leaves overshadow the group below, and its stem supports a basket, containing a beautifully-cut glass for flowers.

On one side is a Brahmin, seated in the posture peculiar to his nation, and, with downcast face, attentively perusing the Tamil Prayer-Book; the representation of the native churches of Tanjore, so long under the affectionate and especial care of the Archdeacon. .

On the second is a Persian, habited in the costume of his country, reading the Old Testament, translated into that language from the original by the Archdeacon, during a residence of twenty years.

On the third is a sheep and lamb, with a crozier, emblematic of the Christian Church generally..

Beneath the Brahmin is a pagoda, in alto-relievo, with the waves dashing to its base, and the sun rising from behind the hills.

On the second compartment is the Cathedral of St. George's, surrounded by its palms, and executed in a similar manner; while on the last is the following inscription :

« Presented to

Archdeacon of Madras,
in testimony of the esteem and affection with which he was

regarded by the Clergy and Laity of his Archdeaconry." Nothing can be more appropriate than the design, or more perfect than the execution of this elegant tribute, which is in frosted silver, relieved occasionally by bright touches, and stands on a massive plateau, corresponding with the chased and highly finished ornaments.

The inkstand is equally beautiful in its workmanship, and bears a similar inscrip

« ZurückWeiter »