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and chapels exceed 11,000, with 13,000 schools and 900,000 scholars, a number much greater than that of the whole body of Congregational Dissenters. Yet he not only gives a return from 203 selected towns and villages, which makes the number of dissenting places of worship and hearers treble that of Methodism, and double that of the Church, but declares that complete returns would be still more favourable to the Nonconformist cause,—an assertion entirely disproved by his own former table.

His present explanations, however, satisfy us, that the number of dissenting meeting-houses which he gives for 203 towns and villages, 598, exclusive of papists, is probably correct; for it appears that they include sixteen denominations! Thus, the tendency to indefinite division, which constitutes the greatest weakness of dissent, and stamps it most decidedly with the character of schism, is put forward ostentatiously as evidence of its strength. If to split a dissenting body into a dozen parts, all animated by the strongest spirit of rivalry, and hating one another even more than they hate the Church, is to increase dissent, we can only say that we shall never envy it such prosperity.

We would not willingly give to Dr. S. the smallest ground for just complaint; and we therefore express our regret for having omitted to state that his Appendix was in reply to a published Letter of Dr. Lee. The omission arose from our sending the first MS. to the printer, instead of taking a revised copy, as we had at first intended. But we cannot feel that he has been treated unfairly in the other points of which he complains. He affirms that ungodliness is the rule, and godliness the exception, among the Clergy—that four-fifths of them are unfaithful to their trust—and that this state of things is produced with all the certainty of effect that can belong to moral causes, by the very constitution and most cherished arrangements of the Church. These, and similar assertions, we called " calumnies;" and again we can only call them most flagrant calumnies. Again, he speaks of persons who hold indefinite views of the essential doctrines of Christianity, and regard Trinitarianism with horror; and he states in another place, that the Presbyterian congregations to which these persons chiefly belonged, have mostly become Socinian. Yet, in claiming the charity of his hearers for these persons, he gives no caution against their errors; and while he speaks with contemptuous sarcasm of churchmen who believe in the succession of an apostolical ministry, in dealing with these dissenting heretics, he goes softly backward, and drops over their shame a covering of beautiful morality.

In assuming our present position towards Dr. S., we feel as if we were parted from a friend. He is little aware to what extent esteem for himself has hitherto moderated the disgust which the general conduct of dissenters has provoked. We have received communications from very many quarters, expressing sentiments upon this point entirely in unison with our own. Convinced as we are, that the interests of religion, no less than the welfare of the country, demand, that the conduct of dissent should be exposed, and all connexion with it disclaimed, we ought not, perhaps, to regret that Dr. S. has contributed so powerfully to this consummation. Yet, we must confess, that we would much prefer to have gained the object by other means.

ORGANO-HISTORICA;
Or the History of Cathedral and Parochial Organs.

NO. XXII. THE ORGAN AT ST. MARGARET'S, WESTMINSTER.

Amongst the numerous organs built by the celebrated Avery, it is a rare thing to find one in excellent preservation. We have, in some of our former numbers, referred our readers to several fine instruments of the above-named artist's make; but, whether from ignorance, or wilful neglect in those who take upon themselves the care of parish property, very few of Avery's organs are at this time in hearable condition. The one at Croydon Church, described in our November Number for last year, appears to be in better order than any other of bis in the neighbourhood of London.

The organ at St. Margaret's, Westminster, was erected by Avery, in 1804. The contract for building it was 800 guineas, and the old organ (valued at 200Z.), built by Father Schmidt.

The new organ contains the following stops :—

[blocks in formation]

The compass of the great and choir organs is from G G to F in alt, 58 notes; that of the swell from fiddle G to F in alt, 35 notes. It has an octave of short pedals for the feet, and an octave of unison pedal pipes.

The quality of tone in this instrument was, originally, very fine; but it has of late years degenerated exceedingly. The voicing of this instrument was equal to any other of Avery's building. The reedwork in particular was extremely good: also the open and stop diapasons. The chorus is still very brilliant and sprightly; and to those who are acquainted with Avery's voicing, his handy work may be discovered upon putting down the first chord.

It was in contemplation, about two years ago, to repair and modernize this instrument, had not the reforming mania put a stop to it. But we still live in hopes of seeing this repair executed some day, and the instrument put on a level with the best organs in London, amongst which it ought to rank.

VOL. XVII. NO. III. A A

LAW REPORT.

No. XXXII.—ON THE RIGHTOF MAKING VAULTS OR AFFIXING

TABLETS IN THE CHANCEL.

Trinity Term, 1827.

Rich V. Bushnell, Clerk.*

The present case came before the Court by letters of request, from the Chancellor of Sarum, under which a decree with intimation issued, " calling upon the vicar, churchwardens, parishioners, and inhabitants of the parish of Beenham, in the county of Berks, to show cause why a faculty should not be granted to Sir Charles Rich, Baronet, lay rector of Beenham, and sole owner and proprietor of the chancel of the parish church thereof, to make a vault, for burials, in the chancel, for himself and his family, and to erect tablets against the wall, to the memory of himself and of his family."

An appearance was given for the Reverend John Bushnell, the vicar, and an act on petition entered into, wherein it was alleged, on his behalf, that he was patron and incumbent of Beenham, possessed the glebe land, and tithes of beans, hay, &c.; that he had a pew in the chancel, which he repaired; that no one can be buried, or affix a tablet in the church without his leave, and for which he is entitled to a fee.

The act on petition is more fully stated in the judgment: and the question raised in this case was discussed upon the law applicable to the facts laid in the act on petition. There was no affidavit, nor exhibit on either side.

Arnold and Addams, for the Vicar.

No one can properly be buried in any part of the church without the leaveof the incumbent. (Gibson,453.) "Which right of giving leave (says Gibson) will appear to belong to the

fiarson, not as having the freehold, at east not in that respect alone, but in his general capacity of incumbent,

and as the person whom the Ecclesiastical laws appointed to judge of the fitness or unfitness of this or that person, to have the favour of being buried in the church." On these grounds it is contended that the leave of the incumbent is necessary, and that the right to consent, when the rector is a lay impropriator, resides in the vicar; for the common-law notion, that the right must belong to him in whom is the freehold, is incorrect, and would prove too much; since, as the freehold of the churchyard is in the rector, his right would apply also to burials in the churchyard, whereas the right of the parishioners to burial in the churchyard is notorious. The right, then, of consent depends not on the freehold, but belongs to the incumbent, be he rector or vicar, in his character and capacity of incumbent; the person who has the general superintendence of all divine offices, and the judge of the fitness and propriety of what is done both in church and chancel. The rector's property in the chancel is much qualified, is subject to the use of the vicar and parishioners, and to the discretion of the ordinary as to the offices to be performed therein; the vicar has a pew, which he repairs, possibly in right of the tithes (ordinarily rectorial) with which he is endowed. But the question of property does not affect the matter; we rest the vicar's case on the principle that he is the judge of the fitness of interments. If his consent be necessary to a single interment, ctfortlori to tliis faculty which provides for numerous interments.

As to the tablets, it is clear that the ordinary's leave is necessary, and we contend that the consent of the incumbent is a preliminary requisite: he is the best judge of what would occasion deformity or injury to the fabric, or hindrance to himself or the parishioners in the performance of divine offices; and further, the faculty should not be a general permission to erect such tablets for all persons buried in the vault, but should be limited to a particular tablet; as to which the vicar and ordinary might exercise a sound discretion in granting or refusing their consent and sanction, on a statement setting forth the situation and dimensions of each.

• The lay rector is not entitled as of right to make a vault or affix tablets in the chancel without leave of the Ordinary, nor is he entitled to a faculty for such purposes without laying before the Ordinary such particulars as will afford the vicar and parishioners an opportunity of judging of it, and satisfy the Ordinary that such vaults or tablets will not interrupt the parishioners in the use and enjoyment of the chancel: nor lias the vicar an absolute veto, though he may shew cause against the grant of a faculty. Seinblt, that the consent of the lay rector must precede the leava of the Ordinary for the construction of a vault or the erection of tablets in the chance 1.

Per Curiam.—The application is for tablets, not monuments.

Argument resumed.—The vicar is entitled to a fee for his consent, and may stand on his own price. (Dean and Chapter of Exeter's case. Maidman v. Malpas.) The vicar, then, is entitled to a reasonable fee.

Per Curiam.—Who is to be the judge of the reasonableness of the fee, for here it is not claimed as a custom? Argument returned.—The ordinary is guided by the usage in neighbouring parishes.

Jenner and Lushington for the Impropriator.

Is the vicar such an incumbent as is intended by Gibson? A vicar is only entitled to what the endowment may give; he has a qualified species of freehold in the body of the church and in the churchyard, but the perpetual curate has not; and the vicar stands in the same relation to the chancel that the perpetual curate does to the body of the church or churchyard. There are no direct or satisfactory authorities as to whe'ther the consent of the lay rector, or of the spiritual person having the cure of souls, is required for such erections in a chancel. The present question is not whether the lay rector can give consent to other parishioners and take a fee, but whether he is entitled to a faculty for himself and family. It has been contended that the consent of the vicar,as incumbent, is necessary; but he does not contribute to the repair of the chancel; as possessor of a pew, if his rights are interfered with, he is entitled to object, but here his general rights only are

said to be infringed. The real ground of opposition is the non-payment of the fees: he must show a fee is due. Maidman v. Malpas went on that principle. In Littlewood v. Williams it was held, that no fees were due to churchwardens unless upon immemorial custom, a case which it is almost impossible to meet with or to prove. It the fee is not established by custom, the vicar cannot sue for it here; and even if it were, it is doubtful whether he could.

It cannot be said that this faculty would be injurious to the parishioners, for the repairs are on the impropriator: he, then, is the best judge of the fitness of burials and tablets therein, and the freehold is in him. In Francis v. Ley it was held, that the law gave the right of consent to the parson, because the freehold and soil are in him. Per Curiam.—Whether the ordinary can grant a faculty in respect of the chancel without the consent of the lay rector is one question; but whether the lay rector can make a vault in it, or put up a tablet, without the sanction of the ordinary, (and that, according to the rejoinder in the Act, seems to be the claim here,) is another question.

Argument returned.—The case of Francis v. Ley has been commented upon by Prideaux, who ascribes the power of granting leave to be in virtue of the freehold. But we do not entirely rely on that case: we admit the expression is too wide, for the rights of the owner of the soil are subject to the discretion of the ordinary, and very properly, since the lessees of the great tithes, who are often mere farmers, are in fact the rectors, and require the control of the ordinary. But it is clear that neither the ordinary nor the vicar could authorise burials in the chancel without the leave of the lay rector. If the vicar is entitled to a fee, the grant of the faculty would not preclude his demand for it.

Pkr Curiam.—And possibly if his consent to interments ina vault in the chancel were necessary, he might refuse it till his fees were paid.

Argument resinned.—The vicar is not entitled to X fee for the erection of tablets: his consent may be dispensed with. The ordinary is the first judge on such occasions, and will grant the permission if the consent is improperly withheld. 1 Burn. tit. Church, p. 372-3.

Judgment.Sir John Nicholl. —The act on petition alleges on the

f>art of Sir Charles Rich, " that he is ay rector, and as such sole owner and proprietor of the chancel, and bound to repair the same;" and he has cited the vicar and others, to show cause "why a faculty should not be granted to him to make a vault for burials, and to erect tablets in the chancel, for himself and his family." No plans, no statement of the dimensions, nor of any particulars, are exhibited: nothing to show the extent of the vaults or tablets, or the manner in which they are to be erected.

On the other hand, it is alleged on the part of the vicar, "that he is patron and incumbent of lieenham; that the benefice is a vicarage; that he possesses the glebe land, and tithes ot beans, peas, vetches, and hay; that Sir Charles Rich is not sole owner of the chancel, but that, as vicar, he (Rev. J. Bushnell) possesses a pew in the chancel which he is bound to repair; and that the chancel is small." He does not deny that Sir Charles Rich is the lay rector, and bound to repair, nor does he suggest that, as vicar, and as proprietor of part of the tithes, he contributes in any degree to these repairs. He further alleges, *' that no person can be buried in the church or in any part thereof; [it is not very clear whether he means to include the chancel] without the consent of the incumbent, and that the vault for which a faculty is prayed ought not to be made without the consent of the incumbent;" and further, "that tablets ought not to be affixed in the church [under which term, 1 presume, he means to include the chancel] without consent of the incumbent; who is to judge in each particular case whether it will occasion inconvenience or deformity, or be otherwise improper:" and he finally submits that "for his consent he is entitled to a reasonable payment." For Sir Charles Rich it is

replied, "that, being the lay-rector, he is the sole proprietor of the chancel, and entitled to the faculty."

These are the sole grounds stated on either side. One asserts that he has a right to the faculty; the other, that he has a right to refuse his consent; and if he consents, has a right to a reasonable payment for such consent. The question, then, is which, or whether either, party has the right; or whether there are not two other parties, namely, the parish and the ordinary, whose rights are concerned.

Though the freehold of the chancel may be in the rector, lay or spiritual, as by a sort of legal fiction the freehold oi the church is in the incumbent, and though the burthen of repairing the chancel may rest on such rector, yet the use of it belongs to the parishioners for the decent and convenient celebration of the holy communion, and the solemnization of marriage; and, by the rubric, that portion of the communion service, which forms a part of the regular morning service, is directed to be read from the communion table, which is appointed to stand in the body of the church, or in the chancel. If, indeed, the churchwardens and inhabitants have no right nor interest in the question, why are they cited?

In the next place, the consent of the ordinary is necessary; he is the protector of the rights not only of the existing parishioners, but of succeeding inhabitants, and is bound to take care that neither their present nor their future convenience and accommodation are unduly prejudiced. If the rector is the sole proprietor, and has this absolute right, why does he apply for a faculty at all? I am therefore of opinion that the lay rector is not entitled as a matter of right either to make a vault under, or affix tablets on the walls of, the chancel: and if the ordinary is to exercise any discretion upon the grant with a view to the protection of the convenience of the parish, that discretion cannot be soundly exercised without a plan, dimensions, and particulars, on which the Court can form a correct judgment. A vault for burying in the chancel is altogether objectionable,

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