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Letter to the Right Hon. Lord Stanley, M.P. for North Lancashire, on the Law of Church Rates. By Sir John Campbell, M.P. for the City of Edinburgh. London, 1837. "THERE are certain fundamental principles which nothing but necessity should expose to public examination; they are pillars, the depth of whose foundation you cannot explore without endangering their stability." Foremost amongst these fundamental principles stand the principle of property, and that to which the respect paid to long-established laws may be referred. Both of these it was the Attorney-General's duty to uphold and maintain; and both of them he has endeavoured to shake to the best of his (as a writer) very moderate ability. In the style and fashion of his attack, however, he has not even the merit of originality, for it was Mr. O'Connell who first practised the mode here adopted of shaking and eventually subverting an institution; his favourite system of tactics being to find out some verbal quibble or technical defect by which the law might be evaded or checked, and then employ the difficulty thus thrown in the way of its execution by himself, as an argument for repealing or subverting it. Just so the Attorney-General in the pamphlet before us exerts all his nisi prius acumen and special-pleading dexterity to prove to the discontented portion of the community, that there is no effective mode of enforcing a right which, by his own admission, has enjoyed a prescriptive authority for more than six hundred years; that they may consequently resist it with impunity; that, therefore, the right should be abolished, and, we presume, the establishment partially depending on it destroyed.. We shall endeavour to neutralise the baneful influence of this attempt, and, if possible, prevent a repetition of it, by exposing its real weakness and dishonesty.

The learned knight (who, by the way, drops his official robe, probably to avoid soiling it, in his title-page) begins as follows:

"As your lordship was pleased at the close of the late debate in the House of Commons, respecting church rates, very peremptorily to deny the law which I had laid down, in supporting the motion 1 Curran's Speech for Archibald Hamilton Rowan.

of the Chancellor of the Exchequer, I feel called upon to justify my opinion by a calm reference to the authorities upon the subject. Let these be accurately and candidly examined, and I think your lordship will be convinced that the language you employed was hasty, and that you were prompted by partizans who had viewed the question superficially, or with a prejudiced eye. This mode of discussing it, I conceive, will be more satisfactory than a legal controversy in the House of Commons, which would not admit of a full citation of acts of parliament, or decisions, and could consist of little more than assertion and denial. The inquiry must necessarily be dull and tedious; but I trust that no one who has ventured to dispute the opinion I gave, will refuse to enter into it fully and fairly.

"After what has happened I must anxiously take care that it be distinctly known what that opinion was. Be it remembered that I have never cast a doubt upon the legality of church rates, or disputed that if a church rate be regularly made by a majority of the parishioners, the payment of it may be lawfully enforced.”—pp. 1,2.

Amongst the partizans who backed Lord Stanley's opinion, though we are not aware that they prompted him, were Sir William Follett and Mr. Pemberton, who are not accustomed to view legal questions superficially. As to the Attorney-General's assertion that he has never cast a doubt upon the legality of Church Rates, it reminds us of the familiar dialogue between Lord Chesterfield and a lady of quality, who was anxious for the safety of her pug. "My little dog never bites, my Lord," said her Ladyship, just as the little dog was fastening on his heel; " and I never strike little dogs, my Lady," said his Lordship, as he laid the pug sprawling with his cane. If we understand the bearing of the Attorney-General's argument upon Church Rates, its direct, palpable, unequivocal tendency is to inspire doubts of their legality; for it will be exceedingly difficult to teach people to regard as legal a right the law refuses to enforce.

66 are cer

"Church Rates," continues the Attorney-General, tainly not of the remote antiquity that has been supposed by some, and there can be no doubt that, in this country, all the expenses attending divine worship were originally defrayed by the church itself, from a portion of the tithes."

He supports this proposition by the well-known passages from Blackstone1 and Lyndwood, and proceeds—

"I might cite the epistle of Pope Gregory to Augustine the

11 Com, 384.

Monk, requiring a portion of the tithes to be set apart for the repair of churches,-an act of the Witenagemot in 1014, prescribing that a third part of the tithe shall be appropriated for this purpose, and various decrees of councils in the twelfth and thirteenth centuries to the same effect. But all the books of authority, lay and ecclesiastical, agree in the position that the burthen was at first laid and long continued upon the tithes.

"Probably it was very gradually shifted to the parishioners, and their contributions to the expense were purely voluntary.

"The custom growing, it was treated as an obligation, and enforced by ecclesiastical censures.

"The courts of common law seem to have interposed for the protection of refractory parishioners, till the statute of Circumspecte agatis, 13 Edw. I., which is in the form of a letter from the king to his common law judges, desiring them to use themselves circumspectly in all matters concerning the Bishop of Norwich and his clergy, not punishing them, if they hold plea in court christian of such things as are merely spiritual, as 'si prælatus puniat pro cimeterio non clauso, ecclesiâ discoopertâ, vel non decenter ornatâ.'


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Lord Coke observes, That some have said that this was no statute, but made by the prelates themselves, yet that it is an act of parliament,' &c.

"In the printed rolls of parliament, 25 Edw. III. No. 62, it is called an ordinance; but in the statute, 2 & 3 Edw. VI. c. 13, s. 15, it is expressly stiled a statute, and it must now clearly be taken to be the act of the whole legislature.

"From the year 1282, therefore, the bishops were authorized, by ecclesiastical censures, to compel the parishioners to repair, and to provide ornaments for the church.”—p. 3—5.

We should think this is going back far enough to satisfy any one, but we are tempted to pause a moment on the point, essentially an immaterial one, for the purpose of showing the Attorney-General's real or assumed ignorance concerning it. He says all the books of authority, lay and ecclesiastical, agree in the position, "that the burthen was at first laid, and long continued upon the tithes." Now we beg leave to ask him whether he considers Chief Justice Holt as an authority, for in Ball v. Cross, 1 Salk. 163, Chief Justice Holt held, "That by common law the parishioners of every parish are bound to repair the church, but by the canon law the parson is obliged to do it; and so it is in foreign countries." In Hawkins v. Rowse (Holt's Rep. 139), the same

learned judge says, "It is by the peculiar law of this kingdom that the parishioners are charged with the repairs of the body of the church;" and the same deduction must be drawn from the following passage in the second Institute :

"This act of 28 Hen. VIII. extendeth not to general councells, but leave them as they were before, but all canons (as elsewhere hath been said) which are against the prerogative of the king, the common law or custome of the realme1 are of no force.

"And in some cases this maketh for the clergy. By the canon law, parish churches are to be repaired by the parsons of the parish, but the custome of this realme being that the parish churches are to be repaired by the parishioners or inhabitants of the parishes, this canon bound not the clergy.”—p. 653.

It is impossible to reconcile these authorities with the passage in Blackstone on which the Attorney-General relies, but the cause of the contradiction is clearly traced and explained by Mr. Swan, the author of an able pamphlet on the Principle of Church Rates:

"Burn, in his Ecclesiastical Law, and Blackstone in his Commentaries, have been led into the mistake of considering the repairs of the body of the church to have formerly belonged to the bishops, and afterwards to the rectors, by taking the canons of Rome for the law of England. It is from Linwood that both derive their authority, and if reference be made to the note 'reparatione,' in p. 53 of Linwood, the sentence will be found, which is the groundwork of the position thus taken up by them. Reparatione Hæc reparatio de jure communi pertinet ad eum qui recipit partem illam, quæ ab antiquo assignata est fabricæ Eccle

-12 q. 2 quatuor. Et sic de jure communi pertinet ad rectorem, qui habet ipsam quartam, non autem ad parochionos-10 q. c. unio ubi hoc et non de pæ et re c. 1 in prim. vers. fabricæ per Arch. lib. 6.' These references are to the canons of Rome, which are on this very point declared by Linwood, in a subsequent passage, never to have bound the clergy in England. A passage similar to that above quoted from Linwood, will be found in p. 458 of Ayliffe's Parergon Juris Canonici, where the canons of Rome are referred to, and the explanation of these references is given by Ayliffe, in p. 5 of the same work. If due consideration be given to both these passages, it will be seen, that they have no application to the laws or clergy of this country; but on the contrary,

1 Lord Coke and all the other high legal authorities use common law and custom of the realm as legal synonymes, which it may be as well for the reader to bear constantly in mind.

it will be found, in both authors, that, by the custom or common law of England, the parishioners are bound to repair the body of the church; and the canon law, which has thus been placed in contrast with the common law of England, has unfortunately been taken by Burn and Blackstone to have been formerly the law of this country, and has afforded a handle for supporting the position, that the bishops and clergy ought by law to repair the churches, which has otherwise not only no foundation, but is opposed to all the highest legal authorities on the subject.”—pp. 15, 16.

We need not dwell on the Attorney-General's reference to a MS. treatise "written by Edward Dudley, Privy Councillor to Henry VII., to be found in the Harleian Collection, No. 2204," (has Empson left nothing fit for the member of a liberal government to quote?) nor on his quotation from a Constitution of Archdeacon Winchelsea, in which he labours to discover traces of the original obligation: the inference is conclusively rebutted by 35 Edw. I. relating to trees growing in church-yards :

"We will that the parsons of churches do not presume to fell these trees undiscreetly, but only when the chancel of the church doth want necessary reparations, nor shall convert them to any other use by any other means unless the body of the church likewise want reparations, and the parsons do of charity think good to give any of these trees to the parishioners wanting them; which we do not command to be done, but where it is done we commend it."-The Statutes of the Realm, vol. i. 221.

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It is here (in 1306) taken for granted that the parishioners were liable to repair the body of the church.

It did not suit Sir John Campbell's purpose to allude to various other provisions of the canon and statute law by which the common-law obligation is recognized and confirmed. It shall be our care to supply this deficiency. In one of the Canons of 1603 it is enjoined “ that the churchwardens or questmen shall take care and provide that the churches be well and sufficiently repaired," &c.; and these canons being framed in pursuance of 25 Hen. VIII. have the force of law. By 4 W. & M. c. 12, it is provided that, in cases of union, the parishioners of the adjunct parish shall be rated for the repairs of the principal church in the same manner in which they were rated for their own; and in 7 & 8 W. III. c. 34, a summary process is provided for compelling Quakers to pay church rates.

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