The Bishop Of Peterboroug...
A simaNl puiblcation has appuiared wvithi the following title:-"' Statemcent of Two 'Cases dlecidled in TIriniity t'errn, 1824.-Th)e onein the Coutrt of King's Bench-' thc King~ v. the Bishop of Peterborough ;' the oilier in the Arches' Court of Canterbury-' Johin Gates (the Bishop's Secretary) v. the P.ev. J. Chiamnbers, Clerk."'" Ve are in- (luicedi to niotice this publication for the sake of presentintg our readers wtithi the judgminet or' theo Couirt of King's Bench entire, ais the sperch of the Chief Ju-tice contains a manual of the existinig iawv between Bishops, In- cumibents, and( Cuirates. A brief~ explanaitioni of thqe -aatter in itispute mnust njecessarily precede. The Rev. Charles Wethierell, rector of Bv'f4eld, inl thec counity of Northiampitont, and( dtiocess of l'eterborouglh, appointoid a Ml-r. IParis to be hiis assistanit cuirate (hiim- self beinig residlent), withi a stiplendI of' toOt. per an- tiulm. TIo this te bishop addiedi 201. in thte licencee which lie giaited making ihoe wholL salar-y 1201. a- ya.'l'he a(dditon vw suppose, was niot agreeable to tthe incumbent ; n ther cauises of' dissath%faction spring- in p' lIe gave tie curiate wvarning, anid restumed& thit' full, duty himself, lonig before the year hiad expired. Tile curate flew to thec didecsan for protection: his Lordlsiip 1bolditig that the residtent iiitiewnbent could not dischiarge his licensedI curate wvithout thec bishop's, leave, served a mnotii- tion uiponi Mr. WVether-ell to that effect, andi proceeded to the sequestr-ationi of the teinporahities of' the liviupg, for the pay menit of the cuirare's salary, at the rate of 1201. In all thiese plarticulars, bothi as to doctrine and( practice, lila Lordlshii-p appears to have been in th, wvrong. 'rhio i neumi- bent appeals to the Couirt of Kitng's B3ench, whicli first calls upon the bishlop and( the curate to allow cause whiy a lprolii- bition shiould not issue, restr:sining themT fromi IltoceedIing to the sequiostration of the livinig, and afterwards makes thle ruile absolute. It is amititing to observe wvithi liow condescend- itig a kinidniessi the worthy bishop informns the rector- " Here you are wranlg'-" there you mistake the law"- "thirouighiout the whiole of your reatsoning you overlook the " mnaximt, &c.&c."-the wyorthiy bishiop h~imself proving, ul- tiniately to be subject to those errors wvith whi"chibr he harges tile rector. AVe dio niot, however, we are sitre, uise the ex- pression " worilhy bi-lhop" in irony', for wve hiave every reasoni to believe the B`,shop of Peterborouigts to be an ex- cellenitly wortliy maim, albeit tinot always one of the dris- r'reete-st. His anixiety to protect thie curiate is creditable to hiis heart. Her-e follows the sp,~ech of tie Chiief Ju,,ticc, On accounlt of whichl we noticed,this suibject Lord Chief'JUStiCe ASIOTTr.- In the case of"4 the King arid the Bis,hop of PeterboroLugh," whichi was an appulication for a wr-it of pro. tuiiton to stay pr-ceedings on a monlition issued to the Rev. Charles Weth,erll, incumLent of the rectory of l3vfietd, in tile couinty of' iNorthlampton, for the paymnent of the arrear's of stipend Lo his cutrate, the Rev. Samiuel Staniley Paris.. This case was very' elaborately argued bef'ore us upon th;e coinstruction ot' the i7tli of George Ill.', chiapter 99, and the prior acts upon thiis suhject. TPile fats NI0i io whinicti the question hias arisen are shor-tly these :-.11lr. W.etiherell be~ing generally residient on liis rectory. atnd generally discharging. thie ituti' of his parish, was dtesiroits oh ia,iirg somne assistance, andI pein. cipally withi referrrnceroa school which lhad been estahblished, anid which requiired his attention agood rte.slle nteimrnh fSpttue 82 e!)gtigaed Mr. Paris to beco)me hiscur-ate stttie yearly.stipend Iof 1001. No. (ice was given to tite bishop of' thiis nom-ination, andi also statiing thus aurarunt of salary. At the erid of two osonths aft'etr aliplicatiomi, (lie bishop ticetiseti Mr. Peirle as cur.ate, but at a salary of 1201. It was, tlueuu that this contost comnmencedi, for M r. N1retliiarell reinotistrated with the bishoti, that he was to allow hiis citratels. Thec bishnp liaving tixe.d his salary at 12011. per kcllutou, lItILder the idea that the act of Patrlaiament gave hiim tno discretionary power, M r. Wethierell alleges that he cottit( not tiemaitl mnore titan 11)01. The f'act does ap- p'ear to have been, at thie Liir,e wvhen the licence was applinied for, r.'r WVethierell coitirimi-iiiicitted to the biShoD, that thiere was'aim agreeimentt berweer, Mr. Paris suit litisiself that he was to receive less. Difrer- enices having arisen between Mr. \Vetltcrell and( hi-s cuiate, Mhr. Paris claimed his sailaiv itfier thie rate of 1201. Ile applied to the tuisop, ho ssue til umttiten"or the payiment of thecurae' sa- lary', but w-itliout rpecifying the antount. Soon atter Mtr. W1'ethercll received fromi the churchiwarden thie sop- oh' theticence to the curate, stating that Itie sialary at the rate of 1201. would be enforced, arnd that tlie bishop itenieth the piower of Illr. Wethterell to dismiss a crvmte acting uitlder the licence of tiin the lidichp. Mr. W1etlierell ltleit ap. Tulied to thiis court for a writ to 1prohibit the Proceeding tby suonitiots for this excess ifstipend, and also agair.St thle power of the bishop to compel himn to) keep the curate. Thierefore One question is, whethler a cutrate can htave the benefit of proceeding b)y mtonition fbr the, rc. covterc of a salary assigited by the tite;hop witthout thie consent of the thcribet,bing a regittentin rcutmbent, and generally discharging th duities kiniself. TI e process of monition is not accorditig the ge- tieral course of the Ecclcetasticil Court tor a claima of salary. hr. op- VOsition to thlis writ, it was arguedl that the procecilitig was well. rountded ipon the authority of the 53u1 section of thue 5,th Of Geo. Mt., c. 99. by which it was eniacted,i " That it should be lawful for the bishop, and lie is, thiereby required, subJect to the several provi- sions and restrictiornstheact contains, to mippoint to every cura'esuch s;alary as is allowed and spc,cifled in the act, and every licence to be granted to a stipendiary curate under the act should contain and spe- cif'y the amount of the salary allowed by, the bishop to the cuirate; itia provided by the act that every licence which is granted by thebishop to a stipendiary curate tinder that actshall state the arroutit of the salary, and in case any difference shalt arise between any rector, or vicar, or person lholdling any benithee atid his curate, on the subject touching suchi nzipenil or allowance, 'or the paynment thereof, or tIme arrears thet-eof, the bishiop, On CoussPlaitmt to hini madle, mnay and shall summarily hear and determine the sante ; and itt case of wilfuil neglect or refirsal to pay such stipend, salary, or allowance, or the ar- rears thereof, he shallibe, andl is hereby 'empowered to proceedI by nsonitiotn and sequestration, to sequester the profits of tIme berifice fl?r and unttl paymentof suchi stipenilor allowance,or thearrears thereof." WVe think the section relates only to c&.ses where the licence is granted, and the salary is assigned,in some way in coiiformity with tile aet. And we are to inquire if the salary in question, whiich lisa been assigned tol time curate of a resitlent itncombent,. was not to an atmotant that the incumbent ditl ant consent to; for we fire of opinioti, that tlie proceedings; by inDnition cannot be supported-, unless in every case the incumbent desiires the assistanice of a licensed curate. Although in some cases the bishop cati allow a salary greater than the incuim- bent is willing to paly, and the bis,hop has p'ower and autliotity to re- fuse a licenc-e if he consitlers the prOposed stiliend tot be inadequate; but that is very different to granting an allowance of astipnilgreater than what is agreedl on by the incuimbent andi emirate. itinthe argu- ment before us reference was motade to the peceding statutes. A nd th statutesi on the subject are Seato the 12hofQeP'Ane chiap. 12. And the 12th ofAnne gave a sumnmary remedly to the curate for te duepaymet of his stipend : the provisions of tl'a t statute are appicale o t eaeof the absence of theincumbent. Thienext sta- tut onthesubectis the 3fith Geo. III. chiap. 83. Thisg act begins by reitin at engt the provisions of the statute of Queen Anne, and it urthersets " Andl wshsreas in many places the provision mnad in and by the staid statute for the support and maintenasnce of such curare is now become insufficient." And it then pioeeeedIs to enact, That it shalt and mnay be lawful for the bishop or ordinary to appoint undier his handI and seal any stipend or allowatice for any curate heretofore nominated or employed, Or hereafter -so be nomi. nated or etnployed, net exceeditig 751I per annumn." Fromi thewords of thlis section, connectinig this enact'ment with the sobsequient pro- visions Of the act, we think its operation was intended to be confined to thecuarates of nott-resident incumbents. It gives the saine autbo.. ritv over curates employed thoeugh not regularly nominated as over curater, who have been or shall be duly nominmated ; whereas the statute of Anne only reIates to cnrates nomninated. The other sec- tion on the subject is the sixth section, which, after reciting that it is epdet the authority of ordlinaries to license curates and to rernove =cese utates shouldi be fuirther- explained, enlarged, and con- firmed, enacts, -' That it shall he lawful for tIme ordinaryw license any curate who is or- sahil be actually employed by the rector, vicar, or other incuimbent of any parishi, chuech. or chapel, although no express nomination of Buch curate shiall have been mnade either in words or in writing to the Ordlinary by the said rector, vicar, or other incumnbent, anid that the ordinar-y shall have power to revoke siurmna- rilY without process any licence granted to any c-arate employed within his jurisiction, and to remove such curate, for suchi good and reasonable cause as he shall approve, subject nevertheless to an aPPeal, as well in the case of a grant of a licence to a cuirate who ha-s not been nomninated, as in the revocation of a licence grantd toa cuate. Now looing at tIme construction of thissecionof he satue wth efeence to the words of the firs secionwhtc inrodue te wotl emplyed" it appears to u tht ths sctin aplie ony totim eaate t~ no-resildent in- cumbnt;thee i notingto howthatit as ntededto extend to the curate$ of residen t incumbents. Trhen we conae to the 53d Geo. III., chap. 1409, whlich begins by reciting the title of the 12thi of Anne and the 36tht Of Gen. 1II. It also states, that whereas by a Canonj- or Ecclesiastical Co nstitution made in the 7.ear of our Lord "I0l, In the reign of His Mlajesty King4.amindf I., ifvrh 0frOvlded, that "4 No curatte or, minitster shouldi be permitteEd to serve in any place, without examination and admission of the bishop of the dic- cese, or ordinary of the place having episcopal jurzisdictiols, in. writ- ingr under hiis hand and sea!, having respect to thle greatness of the cutre andt meetness, of the party. And that the said curates and mi- oisterq, if they remove from one diacese to aniother, should nor by Iai y means be admittedI to serve without testitmony of the bishop of the diocese, or ordlinary of the plae as aforesaid, whence they came, its writing, of their hionesty, abIliy and conformity to the ecclesias. ticsl laws ot1 the Chutrch of Engad. And thatrnone should serve mnore than one chuirch or chapel uponi one day, except thatt chiapell he a nsern ber of' the parish chuirch, or united thereto and unlesis the said church or chapel,. where Bs,th minister should serve in two places, hoe not able, in the judgment of the bishop) or ordinary, as atoresid, to. maintain a curate. and whereas the provisions of' the said acts and cation, and of the laws in fobrce with respect to curTates, hanve been found Insufficient, and it is necessary that more effebctual pirovision shouldI be made to secure a comTpetonit maintenance to cu- rates, in order to ensure the due anid regular performa-nce of' the ser- vice of the Ctjhrch of Enigland in parishies where in-umbents do not resRide." It then enacts~ ,I That every incumbent oe orperson hold. ing Any benefice, donattve, perpetuial curacy, or parochiial chapelry, who does not or shiall not duily residle thereon (uInle83 such person shiall do the duty of the same, hiaving a legal exemption from resi- dence, or a licenIce to reside out ef thle same, or to reside otut of the parsonage-lsouse, or vicarage-house, or othier usual house of' residence lhclongilig to thie saame), andi whio shall for the pecriod of' six months after thie passing of this act, or after Ihis induction or appointmsent, or after the d-cathi or removal of' a former cur ate, neglect to nominate a proper curate to be licensed by the bishop of' thie djocese, or ordi- nary of the place havinig cpiscopall jurisdlic tion, to serve his church or chapel, or who shall for the period of' three months after the death or resilgnation of any curate who hias sterved his church or chatpel, neg- lect toI ntify to tile bisliop of the diocese suich death or resignation, shall forfeit and lose all the benefit of any dispens%ation or exemnption from- residence or licenc tor non.residlence, atndt be subject and liable to suich and the I lte penalties for anon-residence, as if he hiad no such dkispensation, exem-ption from residence, or licence for njon-residence." This first sectioni therefore platinly relates only to cuiate% of non.re- sidlent incumbents. The 2d sectiopj of this act is the one from- whichi the 53d section of the f,7tlt Goo. I1Lc. 99. is admittedi to be taken. It enacts, "T'Ihat it shiall be lawful for thec bishop or ordinary, and lie is hereby required, subject to the seyeral provisons hereiniafter contained, to appoint to every curate so licensed such stifficient sa- lary as is allowed and specified in this act." It then proceeds to give tlte summary jurisdiction in cases of diffkereucee between tile curate andi inicunbent for rtet reexivery of thie arrears of tile stipettd. Ttils section is an addition to ithe first, and thierefore it cannot be applied to any casies except tl;ose mi-entionedl in the Ist section,uliess by siome othier ptart of the act there shiall appear to be a clear distinction. The 3~L section has reference to thieresidence of the curate in the par- sonage-house, in case of the non-residence of the incumbetnt. Lfie 4th also relates to the parsouage-house. TIle 5thi section is also ini respect to the giving up of possession of the parsonage-house. Thec tLii regulates the filingp. in ttite registry of the diocese, licences anid revocations. Tue 7tti enacts, that "1in case any person shall be iniducted tu any beniefice or shiall lie nominated to any' donative, per-' petuial curacy-, or parichsial chapelry, and shall mot reside thereon, uniless such person shall do the duty of the same, havinig a legal ex- emnptioni from residence, or a licensec to reside out of the satno, or to reside out of the parsonage or vicarage, or other usital hiouse of resl. dence belougizig to the sa'me, the bishop or ordinary shall appoint fur thec curate licensed to serve sitch benefice, donative, or perpetual cit. racy, or parochial -chapelryof'such non-resilient incumibent or person in itis ab-ietic, sutch satlary, according to lthe groqls annual value of the benefice, &c." It then giyes ithe scale of salartea, which in uti-ny cases mnay amrount to tihe witole valltie of' the benefice: anti therefore the 8tis section enacts, "1 that in such case whiere the bi-siop Or ordlinaryr appoints for a curate a salary equal to the whole atiniual vnlue of thie benefice, that suchi salary shiall be suibject to all such andI the like charges anti otltgeings9 AS May legallY affect the vallue Of such beniefice." The gth relates to where the Incumbent shall serve the cure of' an atljoining parish, in which case thie salary is to be re- gulatedI in this way, tltat "1 the salary to be receivesI by him for serv- ing each of the sanid churches or chapels shall be Ilefs by a sum not execeeding 301. per annmtm tisan the salary whichi, in thie several c-ases hereinibefore menitioned, the bishop or oirdinary Is requiretl by this atto appoint." So that this also applies to the case of non-resi- denice. Tite 0th sectioni introdlttees, for the first time, the case of ain incumnbeiti who tany be resident ; but it is rather incidentally, for it satys, " that in every case in which it shall he made out to the matisfa,tciott of the bishopor ordinary ot'anyrllocese, that any incumn. bent or person holding any benefice, donative, perpetual curare, or parochial chapeiry, is or has becom;e iton-residetit, or incapable of lIerforutiing the dutties thereof fromi age, sickness, or other unavoiod- abe cause, and that from these or from aniy other special or pecti- liat circumalsances of' the case, great hardship and iticonvenience wouldl arise it' the ftitll amoutitt of salary specifiedI in this act shiouldi lie allowed to the citrate, thecn anti its sitch case it shall be lawfttl for suich bishop) or ordiniary to asstign to the ctirate aniy suchi salary less titan the said full amtTount." Bitt this provision is also very isuitable to what mighlt be the case of a tson-resident Incumbent. In~ many eases thte act had ptreviously fixedl tte amount of sialary, leavitig no- thi-ng to be fixeti by the bishop. It would appear that tlie clause its to incaptacity of peroitn the dutty musat have been introducerl into tii scion rather bwaof cauition) than to rory in arty manner the constrtlctionofit prevIous clauses. Then the 11tb section manifestly relates to thece which is given by the 7thi section, aitd in consequence niust be oniered as applicable to thie case of a cu- rate of' a non-resident icment. Tue 12th also relates to the case of a non-resident ticiutubent ; for it provides, " That where the biiihop shall appoint for the licensed curate srrvinig any benefice w'here the salary is not less thati che whole gross anitual value of the samie, and where, in addiition to such -salary, thet curate Is directedi to reside ini the parsonage. or vtcctrage-h4ouse, that such curate shall be liable, doting his so swrving the cure, to the saute taxes in re- spect of' stich houise, '&c., of whicii he is in tSite occupation, as if he had beeni incfucted to the benefiece." Tite l'dth section providesi for the ca,e of' a benefice witose actual annual incoine exceeds 4001., and it authorizes the assignivrient of' a salary to t".e curate of' 1001., not- withstanruditg the population o1' suchl garisit or place " may hiot ap. pear to amiostitit to 3t10 persions ; and that its any parTish or place where the actual anitual irncome shall appear as aforesaid, and wlhere the politilation shtali also app,ear, a% af'oresaid, to amnotntr to or exceedi 5tIl pesos Ital be lawhi.tl for tlte bishop) to assign to the curate of' such parish or place, being resident In the same, and sierving no other cure, any larger stipendi or allowance, so that the siame shali nlot exceedI by tnere thian 501. per annum the amiount of thie stipend or allowance hiereinl before re%pectively required to be assigned to suchi curate." This must be considered wtth reference to tite 7th section. The l4th section is one upon witich much, stress was laid in the argitnlent at the bar. It recites"1 that iitohing in this act con- t,inred sliall authorize or emipower any, bishop or ordittarYt EOssign to any curate or any person hotlding any benefice, d .unatlve, or pserpetual curacy, or paroichial cliupefry, before the passing of ntils act,upo an)y sudsi benefice, doniative, perpetualt curacy, or parchial hapery, held by such person before tic pass- ing oftitis ct, aniot whiclh suchl person is or shall be noni-re- sidnt y iccteeorexetuption, or to the curate of' any person htoldbtg any bneihe &c.1who hall duly reside thiereuipon, or wh shall do the ditt of he aint haing a legal exemption froni reBidenco,or a licence to esie ut f te arsottage or vicarage-hduse,or oteir usual houtecof resienc beongng o te sme,anygreater stipend or allowance for h,ecurte ho sallbe icesedto serve for suchi benefice, &C., tarn is allo'ebytestuesi force before the passing of this act, utnless with h cneto h hernn holding such benefice, &c. Nose the cases ere prut are tree. First-It is the case otl a curate of a beeic tld before tile passing of the act, Ithe incumtbent ofwtich shiall be non-resident. Secondly~-Tro the curate Of an inCUtDbentof a betictice usho shall dttly reside thereon. And, TLhirdtly..-.To ttite case of'a curate ofan iticsosbent who lsaltl hiisesli tin the dluty of the same, hiaving a legal exemption Ironi residlence, or a licence to reside out of the satne. 'Here is; a new clause, but 'we think it is so framed, that it cannot, accortling to any rule of souitd con.8trutction, be deemned to give a hiew piower to the bisthop. No such inference can Teasotiably be drawn froist it. It leaves thie bishop recisely,in the situation he teas before the passing of the act, as to Iis reshoidety in flxittg the salary for the curate ofaii incumbenit who Ireie It dtoes not give the bishopi any power which he did not before possess. t,Ve think It trill appear, by a reference to tile lst and 7thi sections, to have been introtduced only by the way of caution, as many other provisions of the same nature are introduced. The Ifsth section relates to agreements made by the incumibent and the citrate, in fraud and derogation. of the provisions of the act. Tue 16th is a provisiotn that no licetice shall he granted to serve inore than two chitrches in one day. The 17th provides for the cale of an iensLvi- heist lhaving two or more benefices, residing partly in one and partly in another, whiceh is, in fact, a provision for the curate of a non-resi. dent incumbent. The 18th section relates particularly to applica- tions for a licence from non-residents, and it requires that the in.' cutuibeit shall state the salary wlichitoli putrposes to give his curate. The 19th secction refers to the particulars which are to he stated from the incumbent himself, who appliets for a licence for non-residence. The other remaining sectionsi have no application at all to thisi ques- tion. Upon this ret'iew of the statute, we are of opinion that it does not authorize the bishop) to fix ihe salary of a curate of a resident incumbetit without his consent. Thiis statute being all repealed by thie 67th of Geo. 11I.,c. 99.,t.he sectionsof it are now referred to, not as the litw, but only in explanation, and to asgsist us in the construction of tht late act. lJpon an attentive perusal of the late act, it ap pears that almost every clau se of it is taken from seine clause in the fo,rmer act, whItlisome variations of language, somne of which certainly are very important variations. But the otilly clause whlichi appears to have any referenice to the present inquiry ts the 53d, which autho. rizes the bishop to appoint a curate with v. certain salary, where it shall appear to hiun that the ecclegiastical duty of the benefice is iadeuatly erfomed Th cae before the Court is not oneof ha decrptin. tfvin mnutlycommented on the claues f te fomerae;, I woud h whllyunneceissarv to refer to hen agin.I tillonl sa, tat ookngat the co-rrespond.. ing laues f te to ats2thee i nohin wecan find to authorize us o sy tat e tinkthi cae cmeswitinthe PSiII sec'tion. It S nt part of eur duty to proisounee any opinion as to the expediency of giving authority to the bishop to say witat salary shall be given to the curate of a resident incumbent. The Legislature undoubtedly might have given the power if they had chosen so to do; and in Stome eases, with certain restrictions, they have given the porer of ordering the salary which shall be paid to the curate; but in this case we think they have not given it. We must, therefore, infer that the Legisla- ture have hitherto thought such a power would be inconvenient. Whether they thought that if such a power was given, the resident incumbent mtght be det?rred very often from egang acurate, and rmight rather choose to perform the duty himsel, though in some re- spects it might be imperfectly perfor ed_. hether it was from that, or from some othercause, we do not sIy. Oar judgment s given in this particular. case upon its own particular circurdatances, as to giving the cittat i greater salary than the reSidentfncqmbcat pro- Posed. Our judgtnent ia not forsued upon the general question on the authority of tbishop to enterta a suit fr the Qarate's saisry irt a formal manner according to the usage. Thc Court abstains m giving any opinion upon the power of proceeding by monition with regard to the curate of a non-resident incumbent. In this case, no doubt, the right rev. prelate thought be was discharging his duty ac- cording to the proyigions of the act but we think .le has been mis- taken r the .plication of the statute to the particular case.' We telreorethim ltthe rale for the prohibition meet be made absolute.- Thie rule absolute. The case in the Arches' Court is an atterispt to inculpate the Rev. J. Chambers, for takiug the duty during a inm- lisposition of Mr. W'etherell, to the extclusion of the zealous curate. And this attempt fails also; the cause being dis- missed, and the promoter of the suiL (very properly) con- demned in costs. - CaUe4 Lord MasTow%tsy1sAot. t The 48th Oaionm TIlE BISIFOP OF PETERBORO UGH.