H. L. (E.) 1876 GREEN v. Mr. Prideaux, Q.C., and Mr. McIntyre, Q.C., for the Appellant: The object of the Act was to raise the hamlet of March to the THE QUEEN. dignity of a parish; but it was clear that that parish was to be formed on the model of Doddington. The rector of March was to be what the rector of Doddington had been. Whatever customs might have existed in March while March was a mere hamlet in the parish of Doddington were to be put an end to, and those of the parish of Doddington, long established there, were to be substituted for them. The words of the 5th section were express upon this point. The church wardens of the parish of March, the new parish created by the Act, were to be chosen at the same time and in the same manner as the churchwardens of Doddington had always been chosen in the parish of Doddington. Now what that time was, and what that manner was, were things perfectly well known, and the same clause in the Act gave to the rector of the new parish of March the same rights and powers as had been possessed by the rector of the old parish of Doddington. That was repeated in the 22nd clause of the Act. The customary "We assenting do grant aud nation of St. Wendred the Virgin," truly penitent for and confessed of their sins, who shall on any day visit the same chapel and devoutly say or recite the Lord's Prayer, with the Ave Maria, for the good estate of Anthony Hansarte, Esq., and Alice his wife, while they are alive, and after their death for the salvation of their souls and all the faithful dead. So often as they shall do this we do mercifully release in the Lord one hundred days of indulgences from the penances enjoined them, and hold them to be released by these presents, confirmed by the affixing of our seal, to be inviolably to be kept for ever in all times to come. Given at our house near Westminster, the 3rd day of the month of November in the year of our Lord 1526." (Signed) " William Clanburgh, Datarius of the Most Reverend Clement the Pope." 1876 GREEN บ. THE QUEEN. practice of the township was nowhere recognised as established in H. L. (V.) the new parish. The 6th section really did not affect the question, for its object merely was to continue in office and in the performance of official duties, the existing churchwardens until the time should arrive for the election of the new officials under the Act. In no way whatever did that section touch the rights of the officers, or their duties, or their mode of appointment. The fact that by other clauses certain privileges of the new parishioners of March were continued to them as if they were still parishioners of Doddington did not in the least degree affect the question of what were their rights and duties as mere parishioners of March. Those who were called churchwardens of March while March was still a district of Doddington, were not in reality churchwardens, but were chapelwardens of the district. The distinction between the two was great. It was described by Lord Denman in Rex v. Marsh (1), and recognised in Bremner v. Hull (2), in both of which cases it was shewn that churchwardens, so called, might be elected for each district in a parish; might, de facto, so act for each district, and yet would not be churchwardens of the parish. The rectory of Doddington was in the 5th clause of the Act made the model for what was to be done in the new rectories, what was to be done was to be on the model of Doddington, and in Doddington the right of appointing one of the churchwardens was in the rector, while the inhabitants elected the other. The word" churchwarden" in the Act of Parliament is used in a technical sense, and cannot be applied to the chapelwardens of a mere district within a parish, nor does Stead v. Heaton (3) establish any such rule as that their merely getting that name is to confer on them the rights which ordinarily belong to it. The chapelwardens of the township of Bradford had been always called churchwardens of Bradford, which was the name of the whole parish, and payment to them under that name was allowed, though in fact that name did not properly belong to them; but that did not prove that chapelwardens and churchwardens were in law identical officers. Here March had merely had a chapel of ease, and before that time, as there was then only the mother church of Dodding(1) 5 Ad. & El. 468, at p. (2) Law Rep. 1 C. P. 748. 485. 1876 GREEN V. THE QUEEN. H. L. (E.) ton, persons there doing the duties of ordinary churchwardens might of course be called churchwardens of Doddington, that is of the parish, without however having the least power or authority, or doing any official acts in Doddington itself. In that way in Craven v. Sanderson (1) the chapel wardens of Horbury were spoken of as churchwardens, the chapelry having been coeval in date with the church of Wakefield, and for that reason, though only a chapelry, it was held not bound to contribute to the repairs of the parish church. There again the distinction was recognised between persons who in chapelries performed the duties of ordinary churchwardens, but who were not churchwardens. That was in accordance with the judgment of Chief Justice Holt in Ball v. Cross (2), where it was said that a chapelry might be exempt from repairing the mother church" where it buries and christens within itself, and has never contributed to the mother church, for in that case it shall be intended coeval;" which, however, was held not to be so, in fact, there. Nor was it so here; for here it was found that the inhabitants of March did sometimes marry and bury in Doddington. They must have done so frequently, since in this private Act it had been found necessary to provide for the loss of the fees which the clerk and sexton of Doddington would sustain after the separation. The townships were distinct from, yet included in, the parish, and where a township was in all respects except that of contribution to the repairs of the church, independent of the parish, it was not to be considered a parish: Rex v. Justices of the North Riding of Yorkshire (3); Rex v. Nantwich (4). Its civil rights may be complete, but that did not affect its ecclesiastical character. In this case the civil rights were secured by the Act. The license granted by Cardinal Wolsey in 1526 shewed clearly that March could not set up to be coeval with the mother church of Doddington, for at that time March had no right of burial, which was an important right of the mother church, and all that was then granted was the license to have masses said and sacraments, and sacramentals administered, and the license contained an express saving of the "rights of the parish church, and without prejudice to the rector of the same." There was therefore no pretence to (1) 7 Ad. & El. 880. (3) 6 Ad. & El. 863. 1976 GREEN v. THE QUEEN. claim for March that it had, until this Act of Parliament, been in H. L. (E.) any way entitled to the rights of a parish; and if it now enjoyed those rights, it only did so under this Act of Parliament, and must be subject to those conditions which this Act had imposed. The right of burial was now conferred upon it, and that shewed that that right was not included in the sacramentalia, but must be distinctly conferred on the newly-created parish. The object of the Act was to create three parishes where there had been but one, and to put all three on the same footing of ecclesiastical government, the original parish being taken as the model for all. The 6th section of the Act really does not affect the question; it merely saves certain civil rights, but in no way affects the rights of the rector as rector, but still leaves him with his full powers such as had been enjoyed before the Act by the rector of the ancient parish of Doddington. Mr. Bulwer, Q.C., and Mr. F. Meadows White, for the Defendant in Error: In the first place, it is to be recollected that this is a private Act of Parliament, and was passed at the instance of the patron and rector, the people of March not being parties to it. It is not, therefore, without strong and imperative reasons, to be construed adversely to them. Nor ought any of the rights they enjoyed previous to its passing to be abrogated, except by clear and express words. The general right to choose churchwardens is in the parishioners at large, who are to be at the charge of repairing the church: Bacon's Abridgment (1). The weight of the argument on the other side has been thrown on the 5th clause of the Act. What is that 5th clause? It directs that two fit persons shall be chosen as churchwardens. That phrase points directly to a choice by the parishioners, and the churchwardens are to be chosen in the same manner and at the same time as the churchwardens of the parish of Doddington were chosen when the Act was passed. The expression there used implied an election by the inhabitants, for that was the only natural meaning of the word "chosen." That description, too, was not restricted to the mere township of Doddington, which gave the name to the whole parish, but applied (1) Churchwardens (A). VOL. I. 3 2 M 1876 GREEN v. H. L. (E.) to all the parts of which that whole parish was composed. Now March was the most important of those parts, both as regarded extent and population. And at that time the churchwardens of THE QUEEN, March were chosen and appointed by the inhabitants at large. The meaning of the Act was not that what was done in the township of Doddington was to be done everywhere else, but that the mode of proceeding which then existed in the various parts of the parish of Doddington should be continued in each of them. There was no intention to introduce a new system, and force the observance of one rule in all places. What was then done in each, was to be done in each in future. [LORD O'HAGAN:-The churchwardens of March were chosen for the hamlet of March, which was not then a parish. They were sworn in at the same time and place as the churchwardens of Doddington, but they acted ex officio as overseers for March alone. That is the statement in the 26th paragraph of the Case.] Exactly so; but what is now asked is to deprive the inhabitants of March of the power of making this election. Suppose the separation of the parishes had taken place in the lifetime of the Rev. Algernon Peyton, can it be said that he would have had the right to appoint one of the churchwardens of March? Certainly not; for that would have been to deprive the inhabitants. of March of that choice of their own officers which, up to that time, they had been accustomed to exercise. There could not have been any intention in the Legislature to produce such a result. It was found expressly in this case that the churchwardens chosen in March acted ex officio as overseers of the poor there; the churchwardens of the parish of Doddington exercised no functions within the township or chapelry of March. The Common Law is, properly, that the churchwardens shall be elected by the inhabitants, and affirmative words in an Act of Parliament do not take away the Common Law: Com. Dig. (1); Co Lit. (2). An exception to that is introduced where there is an actual disagreement between the inhabitants and the rector; but the passage already cited from Bacon's Abridgment shews that that is only by custom, and not only was there no such custom in March, but the custom there is directly stated to have been the other way. There never appears to have been such a disagreement in March, and the (1) Parliament, R, 28. (2) 115 a, and n. (8). |