Page images

Churches, but since the Reformation the office has been in abeyance. Most of the functions of a patriarch are performed by the sovereign. In Russia the patriarchate of Moscow is now vested in the Holy Governing Synod.

The Archbishops of Canterbury and Armagh, and other Metropolitans, have in a limited degree patriarchal powers.

PAUPER. Thepoor of England, till the time of Henry VIII., subsisted entirely upon private benevolence and the charity of well-disposed Christians; and though it appears that before that time at common law the poor were to be sustained by the rectors and parishioners, and statutes were passed with reference to the poor, yet, till 27 Hen. 8, c. 25, there was (in the words of Blackstone) no compulsory method chalked out for this purpose (c). The monasteries did a great deal for the relief of the poor, but upon their total dissolution the inconvenience of thus encouraging habits of indolence and beggary was quickly felt throughout the kingdom, and the poor-laws were the result. The administration of these laws is now in the hands of the Local Government Board. Two or more parishes are united, and called a union, the affairs of which are managed by a representative board of ratepayers and owners, called the “Guardians of the Poor." Each union has to provide for the burial of paupers, and generally employs a permanent chaplain (d).

PECULIAR is an ecclesiastical district which is exempt from the ordinary jurisdiction of archdeacon, bishop, and archbishop, and subject only to the visitation of the Crown as head of the Church. There were, as appears from the Report of the Ecclesiastical Commissioners, in 1832, upwards of 300 of such special ecclesiastical jurisdictions in England, including royal peculiars, of which there were eleven. Most of these were abolished by 6 & 7 Will. 4, c. 77, and the Orders

(c) 1 Bla. Com. 359.

Sir G. Nicholl's History of the Poor
Law; Glen's Poor Law Statutes.

in Council made in pursuance thereof; but the cathedral churches, the royal residences, and the churches or chapels founded therein or annexed thereto, including Westminster Abbey, were excepted, and therefore still remain peculiars (e). (See Visitation.)

The bishops, however, have jurisdiction over peculiars for the purposes of the Church Discipline Act (q.o.) ().

PEWS. Of common right the use of pows in the body of the church belongs to the parishioners at large (g). The disposal and arrangement of the seats belong to the ordinary, but he usually leaves the matter in the control of the church wardens, who for that purpose are his officers (h). In London there is said to be a custom that the churchwardens alone have the ordering of the seats. In a cathedral, not being a parish church, it would seem there can be no allocation of seats unless by the bishop (ë). The minister has no right to interfere except by making a representation to the ordinary. At common law, the right to a pew is only a right to use it for the services of the church and at times when it is open for use, subject to the regulations of the church ; and there is no right of access to it or to use it for any other purpose except repairs. It gives no freehold interest in the soil of the church, or right to a vote for the county, and this has been held to be so on the construction of private acts which served to give a freehold interest (j). The rector, lay or ecclesiastical, is entitled to the chief seat in the chancel, unless it be prescribed for by another (k). The parishioners have a claim to be seated according to their rank and station, but the churchwardens must not accommodate the higher classes

(e) See judgment of Chitty, J., in Combe v. De la Bere (1882), 22 Ch. D. 328; see also 3 & 4 Vict. c. 113; 13 & 14 Vict. c. 76.

(f) 3 & 4 Vict. c. 86, s. 22. (9) 12 Rep. 105.

(h) Per Bowen, L. J., Halliday v. Phillips (1889), 23 Q. B, D. at p. 63. And see CHURCHWARDENS; BRAWLING.

(i) Re Londonderry Cathedral (1863), 8 L. T. N. S. 861.

(3) Brumfit v. Roberts (1870), L. R. 5 C. P. 232; Greenway v. Hockin (1870), L. R. 5 C. P. 235.

(k) Spry v. Flood (1840), 2 Curt. 357 ; Bradford v. Fry (1878), 4 P.D. at p. 114,

beyond their real wants to the exclusion of the poorer; all being equally entitled to accommodation (1). These general rights may be cut down by particular rights : thus, a possessory right (i.e. mere occupancy), though not good against the churchwardens and ordinary, will carry weight, for the ordinary would give a person in possession cæteris paribus the preference over a mere stranger (m). No churchwarden is justified in dispossessing any one of a sitting he has held for a time, without giving him notice and offering an opportunity for explanation (n). A possessory right is sufficient to maintain an action in the Ecclesiastical Courts, but not in the common law Courts, against a mere disturber; but by mere possession in itself no right can be established (0). For this there must be a faculty, or a prescriptive right from which a faculty may be presumed. A pew may be attached to a house, but not in any case to lands; nor can a faculty be granted to a man and his heirs (p), or to an extra-parochial person (1). A faculty may be granted by the ordinary for a term, c.g., ninety-nine years, in which case the right of the parishioners to the use of the pew revives at the end of the term (r). If there be no proof of a faculty there may be proof of such “immemorial” usage as presumes the grant of a faculty at some time. Thus, though mere possession of a pew by the owners of a certain house for 200 years is by itself not sufficient, long-continued enjoyment (e.g., for about seventy years), if accompanied by the performance of acts inconsistent with mere possession by permission of the churchwardens—such as repairs, and the keeping the pew under lock and key, non-payment of rent, where rent is usually payable, &c.—will justify the presumption of a lost faculty (8). A prescriptive right to a pew, whether in the

(1) Fuller v. Lane (1825), 2 Add. 426.

(m) Pettman v. Bridger (1811), 1 Phill. Rep. 324.

(n) Horsfall v. Holland (1859), 6 Jur. N. S. 278.

(0) See Halliday v. Phillips, ubi inf.

(p) Stocks v. Booth (1786), 1 T. R. 428.

(9) Byerley v. Windus (1826), 5 B. & C. 1. And see PARISHIONER.

(r) 3 Hagg. Ecc. R. 733.

(s) Halliday v. Phillips (1889), 23 Q. B. D. 48; and in H. L., (1891) A. C. 228.

body of the church or in the chancel, must be clearly proved (t). The “immemorial” use, and repair required to establish it, need not be the period of “high legal memory,” but must be for a time extending beyond the period of living memory, e.g. about seventy years—thirty or forty years would not suffice (u). A conclusion adverse to the pew owner is, however, not to be drawn from the fact that no repairs have been done where no repairs have been necessary, but Lord Penzance presumes that some repairs would be required in a period of seventy or eighty years (x). The Prescription Act is said not to apply to a pew (y). Twenty (or now, perhaps, twelve) years' adverse possession seems to bar the right to pew (s). If the prescriptive right is proved, the pew must not be repaired or altered without the owner's consent (a). Where the members of a corporation have as such occupied a particular pew, the repairs of it may be charged on the borough fund, although the pew does not belong to the corporation, it being considered a species of occupation essential to their duties (6). It would seem that a corporation cannot claim a pew by prescription, but may obtain one by faculty (c). Extra-parochial persons cannot claim a prescriptive right to seats in the body of the church, though they may claim by faculty or prescription seats in the aisle or chancel (c). A pew in an aisle, or even in the nave of the church, or a chancel, or an aisle, may be prescribed for as appurtenant to a house out of the parish (d). If a pew is an easement, the remedy for a disturbance may be by action for damages in the Queen's Bench Division (e); but in ordinary cases the Ecclesiastical Courts have jurisdiction in actions relating to pews. Priority

(1) 1 Phill. R. 325. (u) i Hagg. Cons. R. 322 ; and see Halliday v. Phillips, ubi sup., p. 234.

(2) Crisp v. Martin (1876), 2 P.D. 28.

(y) Crisp v. Martin, ubi sup.; 2 & 3 Will. 4, c. 71, s. 2

(z) i Phil. 328.

(a) Knapp v. Willesden (1851), 15 Jur. 473.

(6) Queen v. Warwick (1846), 15 L. J. Q. B. 306.

(c) Byerley v. Windus, ubi sup.; Fuller v. Lane (1825), 2 Add. 427; Halleck v. Univ. of Cam. (1841), 1 Gale & D. 100.

(d) Churton v. Frewen (1866), L. R. 2 Eq. 656.

(e) Mainuairing v. Giles, 5 B. & Ald. 361.

in a seat, as well as a seat itself, may be claimed by prescription, and there is a remedy at common law (f). The right to sit in a pew may be apportioned where the messuage is divided (g). A pew annexed by prescription to a house cannot be severed from the occupancy of that house, and the tenant for the time being has de jure the prescriptive right to the pew (1), which cannot be sold or let separately without a special Act of Parliament or under the provisions of the New Parishes and Church Building Acts. An exchange may, however, be made by faculty (i).

By the New Parishes Act, 1869, all kinds of pews, whether held on trust or otherwise, may be surrendered by deed, with or without consideration, to the bishop or the Ecclesiastical Commissioners, and thereupon such pews become subject to the general law, save that in unconsecrated churches and chapels they shall absolutely belong (but only until the consecration) to the bishop or the commissioners as the case may

be (k).

By the Union of Benefices Act, 1871, upon any union of benefices the bishop is authorized to alter and readjust the seats and the appropriation thereof by faculty, so that not less than one-half of the sittings be left unappropriated, and all such seats, whether appropriated or free, shall be made as near as possible of the same size and general appearance (1).

A faculty for a gallery will be granted if more accommodation is required (m).

PEW RENTS. In new churches rents are often charged for pews. They form part of the endowment, and cannot be mortgaged by the minister (n); though they may be assigned for building purposes, subject to church expenses, with the consent of the commissioners (o).

(f) Carleton v. Hutton, Noy, 78.

(9) Harris v. Drewe (1831), 2 B. & Ad. 164. (h) 1 Hagg. Cons. 319.

Stocks v. Booth, ubi sup. at

(k) 32 & 33 Vict. c. 94, ss. 2–5. (?) 34 & 35 Vict. c. 90, s. 7.

(m) Evans v. Slack (1869), 38 L. J. Ecc. 38, and cases there cited.

(n) See INCUMBENT as to mortgage. () 59 Geo. 3, c. 134, s. 27.

p. 431.

« PreviousContinue »