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lains.

CHAPTER XVII.

CHAPLAINS.

SECT. 1.- Chaplains of Privileged Persons-of Parliament-of the Queen.

2.- Chaplains in the Army and Navy.

3.-Chaplains to Gaols, Workhouses, Lunatic Asyla and Cemeteries.

Kinds of chap- IN this division of the subject the law as to the ecclesiastical persons designated as chaplains is treated of. They are, as it will be seen, of various kinds (a).

Subject of

section.

Chaplains by 21 H. 8, c. 13.

SECT. 1.-Chaplains of Privileged Persons and of the
Queen.

In this section the former law as to chaplains to certain privileged persons is considered, and also the present status and legal position of her Majesty's chaplains.

By the statute of 21 Hen. 8, c. 13, ss. 13-21, it was enacted "that all spiritual men being of the king's council, may purchase licence or dispensation to take, receive and keep three parsonages or benefices with cure of souls; and all other being the king's chaplains, and not sworn of his council, the chaplains of the queen, prince or princess, or any of the king's children, brethren, sisters, uncles or aunts, may semblably purchase licence or dispensation, and receive and keep two parsonages and benefices with cure of souls; every archbishop and duke may have six chaplains; every marquis and earl five; viscount, and other bishop, four; chancellor of England for the time being, baron and knight of the garter, three; every duchess, marchioness, countess and baroness, being widows, two; treasurer, comptroller of the king's house, the king's secretary, and dean of his chapel, the king's amner, and master of the rolls, two; chief-justice of the King's Bench, one; warden of the five ports, one; whereof every one may purchase licence or dispensation, and receive, have and keep two parsonages or benefices with cure of souls. And the brethren and sons of all temporal lords which are born in wedlock may every of them purchase licence or dispensation to receive, have and keep as many parsonages

(a) Chaplains to Consuls will be treated of hereafter.

or benefices with cure as the chaplains of a duke or archbishop. And the brethren and sons born in wedlock of every knight may every of them purchase licence or dispensation, and receive, take and keep two parsonages or benefices with cure of souls."

Every Duke, Marquis, Earl, &c.]—And although such duke, marquis, earl, or the like, be minors, and under age, yet they might retain chaplains within this act; as was adjudged in the case of The Queen v. The Bishop of Salisbury, even though the lord admiral, in whose custody the minor was, might retain chaplains in his own right (a). But if the son and heir apparent of a baron, or such like, retained a chaplain, and his father died, and the chaplain purchased dispensation, such retainer would not avail, because it was not available at the beginning (b).

And if the person who retained died, or was removed, or was attainted, before any effect of the retainer, it was gone, and should have no effect afterwards; but if it had taken effect before, it continued good, notwithstanding death, or attainder, or removal (c).

Brethren and Sons born in Wedlock of every Knight.]— But not brethren or sons of baronets, which dignity has been created since the making of this act (d). That is, if such baronets are not also knights.

Sect. 22. "Provided, that the said chaplains so purchasing, taking, receiving and keeping benefices with cure of souls, as is aforesaid, shall be bound to have and exhibit, where need shall be, letters under the sign and seal of the king or other their lord and master, testifying whose chaplains they be; and else not to enjoy any such plurality of benefices by being such chaplain, anything in this act notwithstanding."

Letters under the Sign and Seal.]—Which might be in this form (e):

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"Know all men by these presents, that I, the Right Honourable A. Lord Baron of have admitted, constituted and appointed the reverend B. C., clerk, my domestic chaplain, to have, hold and enjoy all and singular the benefits, privileges, liberties and advantages, due and of right granted to the chaplains of noblemen by the laws and statutes of this realm. Given under my hand and seal, the day of, in the year," &c.

And the same being under hand and seal, it seems

(a) Acton's case, 4 Co. 119;

Gibs. 908.

(b) Drury's case, 4 Co. 90.

(c) Gibs. 908.

(d) Ibid.

(e) Whetstone v. Hickford, Godb. 41; Anon., Sav. 153.

Chaplains by 21 H. 8, c. 13.

that if there should have been lawful cause to discharge him, such discharge must have been also under hand and seal which might be to this effect:

:

"Whereas I, the Right Honourable A., Lord Baron of -, by writing under my hand and seal, bearing date the day of did admit, constitute and appoint B. C., clerk, my domestic chaplain; to hold and enjoy all benefits, privileges and advantages belonging to the same: Now by these presents, I, the said A., Lord

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, do for divers good and lawful causes and considerations, dismiss and discharge the said B. C. from my service as domestic chaplain, and from all privileges and advantages to him granted as aforesaid. Given under my hand and seal, the day of in the year," &c. Sect. 24. "Provided that every archbishop, because he must occupy eight chaplains at consecration of bishops; and every bishop, because he must occupy six chaplains at giving of orders and consecration of churches, may every of them have two chaplains over and above the number above limited unto them; whereof every one may purchase licence or dispensation, and take, receive and keep as many parsonages and benefices with cure of souls, as is before assigned to such chaplains."

Sect. 25. "Provided also, that no person to whom any number of chaplains or any chaplain, by any of the provisions aforesaid is limited, shall in anywise, by colour of any of the same provisions, advance any spiritual person or persons, above the number of them appointed, to receive or keep any more benefices with cure of souls than is above limited by this act, any thing specified in the said provisions notwithstanding; and if they do, then every such spiritual person or persons, so advanced above the said number, to incur the penalty contained in this act."

Above the Number.]-Although a chaplain retained above the number, be promoted before those who were duly retained according to the statute, such retainer (above the number) should neither avail him, nor divest those who were duly retained of the right of purchasing dispensation; nor should he ever have benefit by his retainer (even though the rest were dead) unless it were renewed upon the death of one of those who made up the statutable number: inasmuch as the retainer was null ab initio ; and a chaplain once legally qualified cannot be discharged at pleasure, to make way for others (ƒ).

So if a baron (who could have but three chaplains) did

(f) Gibs. 909.

qualify three accordingly, and they being advanced to pluralities, he upon displeasure or for other cause did dismiss them from their attendance, yet they were his chaplains at large, and might hold their pluralities for their lives; and though he might entertain as many others as he will, yet he could not qualify any of them to hold a plurality, whilst the first three were living. And so of others. But as any of the three first died, he might qualify others, if so be he retained them anew after the death of the first (g).

If a baron, who might retain three chaplains as aforesaid, were made warden of the cinque ports (who might have a chaplain in respect of his office), yet should he have but three; and if a baron had three, and were made an earl, yet he should have but five in all; and so of the rest: because the statute was to be taken strictly against pluralities (h).

Sect. 29. "Provided, that it shall be lawful to every spiritual person, being chaplain to the king, to whom it shall please the king to give any benefices or promotions spiritual, to what number soever it be, to accept and take the same without incurring the penalty and forfeiture of this statute.'

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Being Chaplain to the King.]-It has been resolved in the Court of King's Bench, that a chaplain extraordinary was not a chaplain within this statute, but only the chaplains in ordinary; that is, not one who has only an entry of his name made in the book of chaplains, but one who has also a waiting time (i).

Sect. 33. "Provided also, that every duchess, marquiss, countess, baroness, widows, which have taken or that hereafter shall take any husbands under the degree of a baron, may take such number of chaplains as is above limited to them being widows, and that every such chaplain may purchase licence to have and take such number of benefices with cure of souls, in manner and form as they might have done if their said ladies and mistresses had kept themselves widows."

Being Widows.]—And though they married, the retainer before marriage stood good, and should have its effect after marriage. If they married under the degree of a baron, they were specially provided for in this clause; and if they married a baron, or above that degree, my Lord Coke has laid down the law in the following words: "If a woman baroness retaineth two chaplains according

(g) Wats c. 3. (h) Gibs. 909.

(i) Gibs. 909; 1 Salk. 162, Brown v. Mugg; S. C., 2 Ld. Raym. 791.

57 Geo.3, c. 99, s. 10.

Uncertain status under present law.

Royal chaplains.

to the statute, and afterwards taketh one of the nobility to husband, the retainer of these two chaplains remaineth, and they without new retainer may take two benefices, for their retainer was not ended by the marriage "(k).

This act of Henry the Eighth, as well as certain other acts, was in great measure repealed by 57 Geo. 3, c. 99; but sect. 10 of that act enacted, that "No chaplain of the king or queen's most excellent majesty or of any of the king's or queen's children, brethren or sisters, during so long as he shall actually attend in the discharge of his duty as such chaplain in the household to which he shall belong; and no chaplain of any archbishop or bishop, or of any temporal lord of parliament, or of any other person or persons authorized by law to appoint any chaplain or chaplains, during so long as such chaplain or chaplains shall abide and dwell and daily attend in the actual performance of his duty as such chaplain in the household to which he shall so belong; and no spiritual person actually serving as a chaplain of the House of Commons or as clerk of his majesty's closet, or as a deputy clerk thereof, or a clerk of the closet of the heir apparent, or as a deputy clerk thereof, or as a chaplain-general of his majesty's forces by sea or land, or chaplain of his majesty's dockyards, while such spiritual person shall be actually attending and performing the duties of such office respectively; or as a chaplain in the household of any British ambassador residing abroad, during the time of his performing the duties of such his office . . shall be liable to any of the pains, penalties or forfeitures in this act contained, for or on account of any non-residence."

But 1 & 2 Vict. c. 106 repeals this statute altogether, and the question as to the chaplains of privileged persons would now seem to depend upon the common law alone; and it is, to say the least, uncertain whether the peculiar status of such chaplains is in any way recognized by the existing law.

With respect to the chaplains of her Majesty

:

The royal chaplains used to be forty-eight in number, and waited in rotation at St. James', four at a time throughout the months of the year. A table was provided for them in the palace.

In the year 1805, it was arranged that they should receive 301. per annum in lieu of their board, and either then or subsequently their waits were changed from four to one at a time, double waits, i. e., two consecutive Sun

(k) 4 Co. 119; Gibs. 909.

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