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of the statute law. The rubric in the Prayer Book, however, was not altered, but there is nothing surprising in this, seeing that even our present Prayer Book has not been brought into accord with various changes in the law; so the revisers in 1662 under another form of words repeated the rubric containing the obsolete reference to the second year of Edward VI., and they did so advisedly as an intelligible reference to the existing law after attention had been called to the possibility of a return to the Romish vestments. To these vestments they never meant to return, and never did return; and nobody can therefore impute to them a deliberate intention to alter the substance of the law. In fact the Uniformity Act of 1662, of which our present ornaments rubric forms part, expressly confirms the 1 Eliz. c. 2. It has, therefore, been finally decided by the highest tribunal, the Privy Council, that the Act of 1662 did not repeal the Act of 1 Eliz. or the order taken under it. For this purpose their lordships say there must be a clear and distinct repealing enactment, or an enactment inconsistent or irreconcilable with the former law (k). Their lordships also attached great importance to the abundant evidence which exists, that up to about 1840 the practice was uniformly in accordance with their view.
The position as to vestments generally may, perhaps, be shortly summed up thus. In 1566, the law was settled, and,
, for the next 300 years, the uniform practice was, in parish churches, to wear surplice, black stole, and hood during “service," a black gown for the sermon, and in cathedrals, copes at the Communion were very occasionally used, while the alb, chasuble, tunicle, and biretta were unheard of. It must, therefore, now be taken that this ancient practice is the correct interpretation of the law, for, as Lord Campbell says in another case (1), “There would be no safety for property or liberty if it could be successfully contended that all lawyers and statesmen have been mistaken for centuries as to the true meaning of an old Act of Parliament."
(k) Ridsdale v. Clifton, ubi sup.,
(1) Gorham v. Bp. of Ereter (1850), 15 Q. B. 74, and Jur., cited in Ridsdale v. Clifton, ubi sup., p. 331.
The Ritual Commissioners in 1867 found that, whilst the illegal vestments were by some regarded “as symbolical of doctrine, and by others as a distinctive vesture whereby they desire to do honour to the Holy Communion as the highest act of Christian worship, they are by none regarded as essential, and they give grave offence to many.” (See Cope.)
The peculiar vestment of a bishop is the rochet (q. v.). The mitre and pastoral staff (q. v.) are illegal.
VESTRY, or Vestiary, (1) the place, anciently called the sacristy, where the minister's vestments are kept, and which is primâ facie part of the church (m); (2) an assembly of the minister, churchwardens, and parishioners, so called because commonly held in the “vestry” (n).
The only duties of an ecclesiastical nature which a vestry, as a general rule, now has to perform are :-the election of a churchwarden (2. v.), the levying of church rates (9. r.), and the reception of the accounts of church trustees (q. v.). The vestry cannot clothe the churchwardens with any authority not inherent in their office, and neither vestry nor churchwardens have any power to decide what ornaments of a church
a are proper, or to order them to be defaced (0); or to interfere (except by observation and complaint) with the manner in which the services are conducted. Anciently, it is said, all the affairs of a parish, as such, (whether ecclesiastical or civil,) were regulated in vestry; and the adoption of parochial church councils, which of late years has been much advocated, is a return to the old system (p). Vestries are either general or common, i. e., composed of all
. the parishioners who are ratepayers; or select, i.e., composed of certain selected parishioners, the number being fixed by
(m) Wing v. Taylor (1861), 30 L. J. P. & M. 258.
(n) See Shaw's Par, Law, 561.
(0) Ritchings v. Cordingley (1868), L. R. 3 A. & E. 116. And sce ORNA
(p) The civil duties of vestries are not within the scope of this book. See Steer's Parish Law, Glen's Poor Law, &c., &c.
custom or statute. As a general rule, the same regulations apply to select as to common vestries. Hobhouse's Act, 1831, may be voluntarily adopted in any parish not in the metropolis, provided that “nothing in the Act shall extend to any parish, not being within or being part of any city or town, in which parish there shall not be a greater number than 800” ratepayers. It provides for the appointment of select vestries, and contains various special provisions (9). In the metropolis vestries are elected under the Metropolis Management Act, 1855 (r).
General vestries (except in the city of London and borough of Southwark) are regulated by the common law as supplemented by Sturges Bourne's Act, 1818, and subsequent statutes. Sect. 1 of Bourne's Act has been held to apply only to ordinary common law vestries, and not to parishes created under the Church Building Acts for ecclesiastical purposes only and not separately maintaining their own poor (8).
Meetings. By the common law, a vestry is summoned by the church wardens with the consent of the minister; and by the Act of 1836, the notice convening the meeting must be signed by a church warden, rector, vicar, curate, or overseer of the poor of the parish (1). Therefore a private parishioner may not summon a vestry (u); he must get the church wardens to do so, or, if necessary, apply for a mandamus (q. v.). Three days' notice must be given, and such notice must be affixed on or near the principal door of each of the churches and chapels in the parish previously to the commencement of the service at which such notices were formerly published. The place and hour of holding the meeting, and the special purpose thereof, must be stated (w). The incumbent and church
(9) 1 & 2 Will. 4, c. 60, ss. 1, 43.
(r) 18 & 19 Vict. c. 120; and see further, as to select vestries, 1 Ste. Com. 123—126; Steer's Par. Law, and Phill. E. L. 1890; and R. v. Soutter, (1891) 1 Q. B. 67.
(8) R. v. Barrow (1869), L. R. 4 Q. B. 577.
(t) 1 Vict. c. 45, s. 3.
(2) See Dawe v. Williams (1824), 2 Add. 139.
(x) 58 Geo. 3, c. 69, 8. 1; 1 Vict. c. 45, ss. 2, 3.
wardens have absolute power to fix the time in the day, and the parishioners cannot alter it (y).
In small parishes meetings are held in the vestry room, and sometimes, it seems, in the church, but in large parishes in a room specially provided or hired for the purpose. By an Act of 1850, where the population of any parish exceeds 2,000 at the last census, an order of the Local Government Board can be obtained upon application of the churchwardens or overseers, pursuant to a resolution of the vestry, ordering that after twelve months from the making of the order no vestry meeting or any other meeting of the inhabitants of the parish, except for Divine worship or some ecclesiastical or charitable object, or some other purpose approved by the bishop, shall be holden in any consecrated church or chapel, nor, except in case of urgency and with the previous approval of the Board, in the vestry room attached to such church or chapel; and in the same Act provisions are contained for the purchase or hire of suitable rooms ().
The rector, vicar, or perpetual curate is entitled to preside at all meetings. In his absence the vestry proceed to elect a chairman by votes (a). For although the minister is the proper head of the vestry, he is not an essential part of it (6). It is doubtful whether a curate, or locum tenens of any kind, has a right to take the incumbent's place (a). The chairman has a casting vote (a). He must not improperly refuse to put an amendment. Thus, in a recent case, it was proposed at a vestry meeting that a certain person should be re-elected churchwarden. An amendment was moved that a correspondence as to certain charity funds should be first produced. The vicar refused to put the amendment, and declared the person proposed duly elected churchwarden. It was held that the vicar was wrong (1) in refusing to put the amend
(y) Reg. v. Wilson (1880), 49 L. J. Q. B. 870.
(3) 13 & 14 Vict. c. 57, ss. 1–5; 24 & 25 Vict. c. 125.
(a) 58 Geo. 3, c. 69, s. 2; but see 1 Vict. c. 45, 8. 3, ante ; Wilson v. McMath (1819), 3 Phil. p. 87.
(6) Mawley v. Barbet (1799), 2 Esp. 687.
ment; (2) in not putting it to the meeting whether the person proposed should be elected churchwarden (c).
Minutes of the proceedings and resolutions of every vestry must be entered in a book, and signed by the chairman and such other of the inhabitants as shall think proper (cc). The mode of election in vestry is by show of hands, but a poll is demandable as of right; the chairman is the proper person to grant it (d). The poll must be kept open sufficiently long, and be of sufficient notoriety, to enable one and all to vote, regard being had to numbers and distance (e). All qualified inhabitants, whether present at the show of hands or not, are entitled to vote at the poll (f). It is generally better, as regards disputed votes, to adjourn the poll for a scrutiny than to discuss the votes when tendered; but the chairman may decide as to the validity of the votes tendered. A scrutiny cannot be demanded as a matter of right (g). All persons who pay or are liable to pay rates can vote, whether inhabitants or not; persons assessed under 501. being entitled to one vote, over 501. one vote for every 251., but no person can have more than six votes. Non-ratepayers or persons who neglect or refuse to pay rates are excluded from voting (1). The clerk or agent of a corporation or company may vote on its behalf (i). A ratepayer may add property held by him as executor to his own property in order to obtain an extra vote (j).
A meeting may be adjourned by the chairman, even against the will of the majority present, but on his own responsibility, if in so doing he improperly disturbs the proceedings (k). Business not finished may be lawfully completed
(c) R. v. Hagbourne (1886), 51 J.P. 276.
(cc) See note (a), previous page.
(d) R. v. D'Oyley (1840), 12 A. & E. 139.
(e) R. v. Winchester (1806), 7 East, 573.
(f) R. v. St. Mary (1838), 8 A. & E. 356.
(9) Steer, P. L. 168, citing R.
v. Hammersmith (1863), 3 B. & S. 504.
(h) 58 Geo. 3, c. 69, ss. 3—5; 59 Geo. 3, c. 85, ss. 1, 3; 16 & 17 Vict. c. 65.
(i) 59 Geo. 3, c. 85, 8. 2.
(1) R. v. Kirby (1861), 31 L. J. Q. B. 3.
(k) R. v. D'Oyley (1840), 12 A. & E. 139.