« AnteriorContinuar »
sionis, and therefore I have taken rather more time to consider it than I should otherwise bave done.
As the Book of Common-prayer was appended to the Act of Uniformity, it follows that the provisions contained in the rubrics, which form a component part of the Book of Common-prayer, have the force and validity of statute law; I am therefore of opinion that the solution of the question propounded is to be sought for in the rubrics alone.
The rubrics authorize the collection of “alms for the poor and other devotions of tie people," during the reading of the offertory, whether the offertory be followed or not by the communion.
Further, after the termination of divine service, the rubric enjoins, that “the money given at the offertory shall be disposed of to such pious and charitable uses as the ministers and churchwardens shall think fit."
Thus the collection may consist of "the other devotions of the people," as contradistinguished from “ the alms for the poor."
Again, there is no limitation of the money collected at the offertory to parochial purposes. The only direction given is, that it shall be applied to “ pious and charitable uses."
From the best consideration, then, that I have been able to apply to the facts detailed in the case, I am led to the clear conclusion that the incumbent of C. may, with the concurrence of the churchwardens, apply the money collected at the offertory in the manner he purposes, and that there is nothing illegal in the practice which he is desirous of introducing into his parish.
As to the second point, it is undoubtedly competent to the church wardens to ob. ject to such an appropriation of the money collected at the offertory as the rector contemplates; and if such objections be persisted in by both or either of the churchwardens, the question at issue must be referred to the ordinary, i.e. to the bishop, whom the law has constituted sole arbiter, if any disagreement should arise between the minister and the church wardens, as to the mode in which the money thus collected should be distributed.
Joseph PHILLIMORE, Doctors' Commons, Jan. 7, 1843.
OPINION OF COUNSEL ON THE PROPOSED STATUTE
OF FEB. 13. A PAMPHLET recently appeared bearing the following title: -“ Case as to the proposed degradation and declaration in the Statute of February 13th, submitted to Sir J. Dodson, Kot., Queen's Advocate; and R. Bethell, Esq., Q.C., with their opinion of its decided Illegality : accompanied with Notes on the History and Nature of Academical Degrees, and on the History of Subscription in the University of Oxford.” It is impossible to make any abstract of this long and elaborate case ; but we here subjoin the concluding part, containing the questions submitted to counsel, on such statements, with the opinion of the eminent lawyers before whom the case was laid :
"Counsel are requested to advise, on behalf of several members of the university, who are anxious that no illegal measure should be passed in convocation, upon the following questions :
"1. Whether corporations in general have the power of passing privilegia or penal bye-laws against their members : and if not, whether there is anything in the nature of the university of Oxford to take it out of the ordinary rule?
“2. Whether the statute “ De Degradatione," authorizes the House of Convocation to take away degrees by an exercise of its legislative power, and if not, whether it authorizes the deprivation of degrees in arts for a theological offence, such as that imputed to Mr. Ward ?
3. Whether, if Mr. Ward's case were within the class of offences contemplated by the statute“ De Degradatione,"it would not be necessary that it should be adjudicated upon by a court competent to inquire into offences against the doctrine and discipline of the church of England before the university could proceed to deprivation ?
" 4. Whether the proposed deprivation of Mr. Ward's degrees can be supported in law on any other ground ?
“ 5. Whether it is competent for the university under the statute, Tit. x. sect. 2, to pass the proposed new test without licence from the crown, supposing them to be otherwise incompetent to do so in law ?
“6. Whether, assuming there to be no impediment under the statutes of the university, the power of compelling any member of the university to re-subscribe the articles with the proposed declaration of the sense in which he subscribes, upon pain of banishment from the university, can be legally conferred upon the vice-chancellor by the House of Convocation."
OPINION. “ We are of opinion that the House of Convocation has not the power of depriving Mr. Ward of his degrees in the manner or on the grounds proposed.
“A degree is a certain dignity or title of honour, which the university derives its right to confer by grant from the crown, and to the rank or status thus conferred, the law has annexed many privileges, both ecclesiastical and civil. The university can have no power of taking away this dignity and the franchises with which it is accompanied, unless such power be derived from the same source, namely, royal grant, or has been created by some statute or bye-law which has received the sanction of the crown, or been confirmed by Act of Parliament.
“But upon an examination of the statutes of the university, we do not find any statute which confers upon or recognises in the House of Convocation a jurisdiction or authority to deprive any one of its members of his university franchise, except only in the subordinate office of publicly executing the antecedent decree of a court of competent jurisdiction; and we are therefore of opinion that the proposed act of degradation will, if it passes, be illegal; and inasmuch as, by its consequences, it would deprive Mr. Ward of certain legal rights, we think it may be properly made the subject of application to the Court of Queen's Bench, and that such court would by mandamus compel the university to restore Mr. Ward to his degrees, and to the status and privileges which he now holds in respect of them.
“We desire to observe, that we give no opinion on the question whether Mr. Ward, by the publication of the doctrines contained in his book, has or has not committed an offence against ecclesiastical law, which might be made the subject of a proper judicial proceeding before a competent tribunal; but simply that, in our view of the case, the Houe of Convocation is not such a tribunal, and that the notion that it can degrade by virtue of some general or legislative power, appears to us to be erroneous.
“Should the resolution pass, Mr. Ward may have another remedy, namely, an appeal to the crown as visitor of the university; and this may be resorted to even if the Court of Queen's Bench should, on an application for a mandamus, decline to interfere.
“With respect to the second statute, which in effect proposes to annex a new sense to subscription, we are of opinion that it is contrary to law. The law requires the clerical subscriber to take the articles in their literal and grammatical sense, but the proposed statute requires him to take them in that sense in which he believes them to have been originally framed and promulgated, and also in the sense in which he believes them to be now accepted and taken by that body which at the time of the subscription constitutes the university. Thus the belief or conjecture of the subscriber upon these two difficult subjects of inquiry is substituted for the legal interpretation. Should this
statute pass, protesting members of convocation might perhaps appeal to the Queen in her capacity of visitor of the university; but a shorter remedy will be to apply for a prohibition, in case the vice-chancellor shall proceed to require any member to subscribe the articles with the proposed declaration.
John Dodson. * Doctors' Commons, Jan. 17th, 1845.
THE IRISH CHARITABLE BEQUEST ACT. QUERIES ON THE CONSTRUCTION OF THE 7 AND 8 VICT., c. 97, (CHARITABLE
BEQUESTS BILL, IRELAND, FOR THE OPINION OF THE RIGHT HON. THE ATTORNEY AND THE SOLICITOR GENERAL.
First,-Whether the provisions of the 10 Geo. IV., cap. 7, which are referred to in the 15th section of the Charitable Donations and Bequest Act, render any donation or bequest to any member or members of any religious order or community in the said provisions mentioned unlawful ?
Secondly,—Whether the Charitable Donations and Bequests Act is calculated to prejudice or raise any doubt, by implication or otherwise, as to the pre-existing rights of any member or members of such religious order or community as aforesaid; and if it be, what alterations would be desirable to have made in the act for the purpose of preventing such implication or doubt?
Thirdly,-If a devise, donation, or bequest for charitable purposes be invalid, as being contrary to the policy of the law, would it be the duty of the commissioners to sue for the recovery of the same, and apply it to other charitable purposes, or how should it be recovered or disposed of?
OPINION. First,—There is no provision in the Roman-catholic Relief Act making devises, donations, or bequests to, or in trust for, religious orders, communities, or societies of men of the church of Rome, bound by monastic or religious vows, unlawful. But a court of equity would not enforce a trust in favour of such religious community, as it would be against the policy of 10 Geo. IV., cap. 7.
We are, however, of opinion that the 10 Geo. IV., cap. 7, does not, either expressly or by implication, render a devise, donation, or bequest to a member or members of such religious order unlawful. A devise, donation, or bequest to a member of such religious order, for his own use, or upon any trust not contrary to law, would, in our opinion, be valid.
" Secondly,-We are of opinion that the 7 and 8 Vict., cap. 97, has not in this respect, made any alteration in the law, and that it is not calculated to prejudice or raise any doubt, by implication or otherwise, as to the pre-existing rights of any member or members of such religious order or community.
The 22nd section provides that “nothing herein contained shall be taken to avoid or render unlawful any donation, devise, or bequest, which but for this act would be lawful, except as to the time within which the deed, will, or instrument containing such donation, devise, or bequest for pious or charitable uses is herein-before required to be executed or registered.
This latter part of the section, as to the time within which the instrument is to be executed, refers to the 16th clause of the act, which clause applies to members of the established church, to Roman catholics, and to all Dissenters.
Notwithstanding the enactment in the 22nd section, above mentioned, it has been suggested that the proviso at the end of the 15th section contains an express legislative declaration that a devise, donation, or bequest to a member of a religious order, is illegal. We do not concur in this opinion.
The 15th section of the act was intended to facilitate the endowment of the Roman-catholic secular clergy-and we are of opinion that the proviso in that section was added to prevent any question being raised that it authorized a donation, devise, or bequest to the commissioners and their successors for the benefit of any but secular clergy.
The proviso does not, in our opinion, either expressly or by. implication, render illegal any donation, devise, or bequest which, but for the passing of the act, would have been lawful. The 22nd section of the act renders this construction of the proviso quite clear. The statute confers no benefit on the regular clergy-but it creates no disability either expressly or by implication.
Thirdly,- If a charitable donation, devise, or bequest be invalid, as being contrary to the policy of the law, it belongs to the Crown to dispose of it by the sign manual for such legal charitable purposes as to the Crown may seem proper. And when it belongs to the Crown, by sign manual, to dispose of property given or devised for charitable purposes, the proceedings should be an information filed by the Attorney-General, and not a suit by, or in the name of, the commissioners of charitable donations and bequests. “Attorneyv. Matthews, 2 Levins, 167 ; Clifford v. Francis, Freeman's Equity Reports (Ed. 1823,) p. 130; Attorney-General v. Syderfin, 1 Vernon 224 ; Moggeridge v. Thackwell, 7 Vesey, p. 74.
It is to be observed, that, by the former Charitable Bequests Act, (40 Geo. III. c. 75, Irish,) in case it should be inexpedient, unlawful, or impracticable to apply a charitable donation, devise, or bequest, strictly according to the directions and intentions of the donor or donors, the commissioners were authorized to apply the same to such charitable and pious purposes as they should judge to be nearest and most comformable to the directions and intentions of the donor or donors. This enactment is omitted from the act of last session.
T. B. C. SMITH.
THE OFFERTORY MONEY AT TRINITY CHURCH, MARYLEBONE.
CASE FOR THE OPINION OF DR. ROBERT PHILLIMORE. On the 14th of July, 1844, the 6th Sunday after Trinity, a sermon was preached at the Church of the Holy Trinity, for the girls' school of the parish of St. Marylebone, and at the offertory after the sermon the sum of 251. was placed in the plate, enclosed in an envelope, on which was written in ink the word " tithe," and in pencil writing the words "general purposes.” After the administration of the Holy Communion and the close of the service, the money collected was counted in the presence of the treasurer of the school, who opened the envelope containing the 251., and on the rector's church warden observing the direction, he claimed the money for the rector of the district, and it was accordingly delivered up by the treasurer, and was sent by the churchwarden to the rector, who was not present at the time. The churchwarden appointed by the parish was not present, nor did the rector's churchwarden mention the circumstance to him, the former considering that the word " tithe" could only be intended to apply to an offering for the benefit of the rector alone, and that the words in pencil (as if written in church at the time to exempt that sum from the general collection) confirmed that view of the case. In further confirmation of this intention of exemption, it should be stated, that the donor was not at Trinity Church on the previous Sunday, when the notice for the sermon was given, and it is believed that he was not aware when he went to church on the Sunday in question that a collection was to be made for the school. The trustees of the school, however, applied to the rector to refund the money to them, which he declined to do, and the circumstance having been made public in the parish, the vestry of St. Marylebone discussed it at several of their meetings. The parish church warden, on being called upon by the vestry, held on the 11th of January, 1845, to declare whether he approved of the aforesaid appropriation of the money, stated that he did not approve of it, upon which the following resolution was passed by the board.
No application has been made to the church wardens by the authorities of the school for the said sum of 251., and the only intimation they have had of such a claim was to the rector's warden by the rector himself, to whom the authorities of the school had applied, and who in consequence had ascertained from the donor himself his intentions, which were that no portion of it was intended by him to be given to the school, but that he placed the whole unconditionally at the disposal of the rector. It should be added that on one, if not on two occasions, donations have been made in a similar manner by the same individual.
Your opinion is therefore requested upon the following points:
1. Whether under local acts of St. Marylebone, or any other law, the vestry hare the right of calling their own or the rector's churchwarden, or both, to account to the vestry for the appropriation of alms collected at the offertory?
2. Whether the word " tithe" does not necessarily mean in ecclesiastical language an offering for the benefit of the clergy alone?
3. Whether, inasmuch as the local acts of St. Marylebone limit the right of receiving tithes to the rector of the parish of St. Marylebone, and do not allow the district rectors to receive them, a voluntary offer of tithes, such as that in question, may be correctly appropriated to a district rector, and whether the requirements of the acts do not apply exclusively to the act of demanding tithes as in any country parish ?
4. Whether the rector's churchwarden was bound to consult his colleague who was present during the offertory, but left the church before the administration of the Holy Communion, and therefore was not present, as it is contended his duty obliged him to be, at the time that the amount of the collection was ascertained, and the 251. in question was demanded of the treasurer of the school, in the open vestry of the church, for the rector by the former?
5. Whether the present is a case in which the bishop's decision can legally be given, inasmuch as the difference in question is not between the rector and the two churchwardens, but between the rector together with his churchwarden and the churchwarden appointed by the parish?
6. Supposing the church wardens and the rector conjointly have the absolute disposal of the alms, and that they are not legally bound to attend to any special directions of a donor in their distribution, are they not morally and reasonably, if not legally, bound to attend to them, provided they are agreed together, and provided such directions, if attended to, are within the meaning of the words of the rubric, “ pious and charitable uses ?"
OPINION. 1. I can find no provision in the local acts of St. Marylebone which alters or affects the general ecclesiastical law upon this point. By the rubric which closes the service of the Holy Communion, the disposal of the alms and oblations collected at the offertory, appears to be left to the discretion of the minister and churchwardens, unfettered, if they agree together, by any limitation, except the necessity of applying such alms and oblations to pious and charitable uses, such-the words are very broad-as they shall think fit. Undoubtedly the church wardens are amenable to the jurisdiction of their ordinary for any misconduct in the performance of this or any other part of their duty, but the words which I have quoted from the rubric (part, it is to be remembered, of an act of Parliament) seem expressly to exempt them from any liability to the vestry.
2. I think it does. Certainly the circumstances mentioned in the case leave no doubt that the offerer of the bank notes used the term in this sense,