The Sun.
London, England, 1842-05-05 00:00:00

But he thought that none of these precedents came up
to the circumstances of the present case. A precedent
applicable to the • resent case weuhl be me here
a rate was in .'e by the Ciaurchwarders and a minority :if
Vestry, and afterwards enfot cell by the Ecclesiastical Court , and
where the proceedings were had against individual parish-
ioners. That was indispensably necessary. ( Hero the Judge
entered into a classification of the various questions in cases
somewhat similar to the present, in none of which, he said, he
could discover a case of a rate made by the Church-
wardens being allowed, much less of its being enforced.
Remembering the deep interest which this question of Church-
rates had excited, and the laborious and painful investigation
which had been made by the most learned persons respecting
it ; also, that the questions were nicely divided, and that the
present point, and those intimately connected with it, were
adjudicated upon by no less than twelve Judges of the land,
and that no ecclesiastical authority had been produced upon
it, he might venture to say that there was no such case in
existence; and as it would be but a mere waste of time, and
a false parade of authorities, to go through the
other cases, he would abstain from citing them.
A similar observation applied to any investigation he had been
able to make respecting the authorities of common law. If
there had been any authority applying to the case of a rate
made by the Churchwardens and the minority of the Vestry,
could any one doubt but that it would he produced.
En Ventris' reports, there was a solitary case, but there was
nothing in it, save conjectures unsupported by facts, and it
could not by possitility be made to apply to the present case.
All the authorities cited against the validity of the form of
a rate, had a strong application to the present case,
inasmuch as they spoke of the majority in the Vestries. It
would unnecessarily occupy time it he were to advert to those
precedents and the Reports which had been published
in former cases. This, then, was his opinion, that
in the total absence of any authority, of either
ecclesiastical or common law, to support the validity of
this rate, it was clear that, upon such grounds, it could
be supported. If he were, then, to enforce such a
rate, he would be making a law, and net declaring
one ; and that, too, in a matter where every Court hail been
most cautious, namely, the inaeositi ,n of taxes. Those preli-
minary considerations having been disposed of, he would now
address himself to the last question, namely, whether, there
tieing no authority, as already states in support of this rate,
it was notwithstanding to be sustained by analogy to the law aps
pi ieable to particular corporations and to Parliamentary elections.
In applying himself to that part of the question he felt the
utmost distrust. When he approached the subject of manda-
muses and quo warranto's, he mistrusted himself. An analogy
had been attempted to be drawn between the case of members
of a Corporation, assembled together to proceed to the election of
a member of that Corporation. The majority refuse to elect ;
the minority, proceed to the election, and the election of
the minority is held to be a validone, and the majority who re-
fused to proceed to the election, are held to have thrown away
their votes. It was contended that the case of Church-rates
was analogue to this, and that those refusing this rate had
thrown their votes away. In order to come to this conclusion,
it was necessary, first to understand the principle on which the
case had been decided at common-law, and secondly',
to compare the facts of the two cases, in order to
ascertain what was the analogy subsisting between them.
It was said the cases were analogous. He would endeavour to
ascertain if this were the case. In order to du this it was ne-
cessary to consider the legal origin and usages of Church-rates
themselves. That the parish was bound to repair the Church
was established by all the ecclesiastical authorities, and by all
those of common-law likewise, but with regard to the nature
of the remedy to be applied in case of refusal, and with
regard also to the means of enforcing that remedy, there
Was great difference of opinion. The Statute de circum-
spectu Reclesice established the fact, first, that before the pass-
ing of that Statute the parishioners were accustomed to keep in
repair the nave of the church ; and, secondly, that the Spiritual
Courts of those days punished persons refusing to du so. The
Statute further directed that, in all such cases, the Spiritual
Judge alone was to judge, and that the Common Law
Courts were not to issue any protection against
him. That proved that the Temporal Courts had
in some cases interfered by prohibition, and that, by that
statute, they were restrained from doing so ; and, consequently,
that the obligation to repair was to be enforced in the Spiritual
Courts only. As it was a natural obligation, nothing was said
about it in the Statute, but all the authorities went to show
that it was a natural obligation. At that time the whole na-
tion professed one religion—to profess a different religion
from that professed by the nation, was in those days heresy,
and a capital crime—to support that religion, was a
duty binding on all, and therefore every one was equally
accountable for the upholding of the sacred edifice. The
religious nature, therefore, of the obligation itself gave juris-
diction to those Courts for enf ircing it, which were established
to maintain the established religion of the land. The Lunde-
tMn of the whole proceeding was, and still continued to be,
that the enforcement of this obligation was pro salute
anima, and therefore the Spiritual Court had exclusive
jurisdiction. The obligation was therefore clearly a personal
one, and independent of property, although it might he measured
by property. The ability to bear was the standard by which
the extent of the obligation wee to be measured, and, therefore,
the ability of every species of property to bear the tax, was to
be considered—none was exempt. In those days, land and stock
were the only property yielding a profit, and for that reason, as
in the case of the poor-rates, land and stock were the only
propesty generally assessed, but no property was exempt.
In the Poole case, which had been heard about
!es euty years since, it was decided that ships and stock
in trade were Labia to be rated. It mattered not if the
owner or occupier resided out of the parish. He was still liable
to the Church-rate. 'I his Poole case was to be found in the
2d vol. of Dr. Adams's Reports, page 33. In that case it had
been held that, as it had been the custom to rate stock in trade,
the omission of stoic in trade was fatal to the rate. The
origin of Church-rates was unknown, nor was there any mode
of fixing the exact date when they were first levied. The
earliest case was to be found in the year-books in the time of
Edward 111. This igno ante of the origin of Church-rates
could be easily accounted for. The extent of the obligation to
repair depending on the ability of the individual, the Vestry
would naturally be led to adopt measures to escertain the ex-
tent of that ability, and the rate would be a consequence
incidental to the obligation. Then eith regard to the remedy
in cases of refusal or neglect, it was manifest that
that the remedy must be in strict keeping with the obligation,
and as the obligation was a religious one, the remedy was to
be sought in the Spiritual Courts alone. The obligation was
not a common-law obligation. Before the statute de cireum-
spectu Ecclesice, Spiritual Courts had punished persons, not for
not paying rates, but because the repairs necessary to be
done had been left undone. Those punishments consisted of
excommunication and the infliction of fines, arid of inter-
dicts. These remedies were all-powerful in those days.
Then came the Reformation, but no toletation.
one was suffered to entertain a religious opinion different
from the religious opinion of the Establishment, and in the
Ist of Elizabeth the Court of High Commission was estab-
lished, and no one who knew what were the powers
of that Court could doubt its efficiency for the
purpose of enforcing the fulfilment of these obligations.
when its powers were wielded by such men as Laud and his
coadjutors. That Court was abolished in the time of Charles
the First, and the Ecclesiastical Courts were left to their
own powers. Those powers, in regard to enforcing
Church-rates, hail always beta exercised in a criminal,
and not in a civil form, anti that such powers had up
to a late period been effective no person could doubt.
Those powers which had been given them by the Statute de
eircumspectu Ecclesice, were still in existence. That law
was not an obsolete law; it had still a legal existence; but
the Court had never before been applied to to enforce
their payment, or to punish for the non-payment of such
a rate as the present. He was unwilling to speak on the
subject of mandamuses. It had beers said that a mandamus
might be issued calling upon the Churchwardens to make a
Church-rate. Now, the question of Church-rates it appeared
to him was a matter purely of ecclesiastical cognizance.
Church rates were incident to the obligation to repair,
and that obligation was a matter of spiritual, and
not of lay cognizance, and could not alone be enforced by
the Ecclesiastical Courts. Having thus stated his notice of
the nature of the obligation, he would now consider the means
of enforcing it. It was said the case of a municipal corpora-
tion refusing to proceed to the election of an officer was a ease
strictly analogous to the present—and the case of Olding and
Weeks, 2d. Burroughs, had been quoted as establishing a
doctrine strictly analogous to the one sought to be
established in the present case. Now what were the facts of
that case? It appeared that an election was to take place of a
Town-elerk fur the town of Nottingham ; that when the elec-
tors met one portion of the constituency, the minority consi-
dered the office to be filled by the Mayor having. nominated a
person to that office. Tee minority, however, consisting ot nine,
proceeded to hold the election, and chose Mr. Segrave to fill
the office. The majority, consisting of 11, protested against
the election, but no other candidate being nominated no divi-
sion took place. The Court of Queen's Bench decided that
the Mayor had no right to nominate that person to fill rte
office, and that the election of Mr. Segrave was a good
election. With regard to the circumstances, it was im-
possible not to see that two cases could not be more
widely different than that case mid the present. But it
might be argued that in the decision of that case ssoate
principle had been laid down, which might be a guide in
coming to a judgment on the present. The grounds of that de-
cision, as expressly stated by Lord Mansfield, were that as the
electors present did not vote at all they must he h,•141 to have
virtually acquiesced in the election by those who did, There
wasanother principle laid down also, which was, that the elector
elm voted forests unqualified person, haying had previous notice
given him of such di-qualitleation, had thrown his vote
assay. Now, how could those principles lee applied ti the present
case? A Vestry had been held pursuant to a monition from the
Court. The Churchwardens had proposed a rate; an amend-
ment refusing the rate had been proposed and carried by the ma
jt rity of the parishioners in Vestry assembled, and the Church-
wardens had then proceeded to make a rate of 2s. in the pound.
That rate had been signed by themselves, and by the Vicar, anti
by some of the parishioners ; but it had not been prop sed to
the Vestry, or, the part of the Churchwardens, for it appeared
that after the show of hands had been taken there there hat
been no voting. 'fhe facts were totally different, and the
p inciple on which the cases alluded to had been decided
were inapplicable us the present cases How could the Court,
by declaring the rate a valid one, take upon itself to decide that
because a rate was proposed it must be ye ed in a moment;
that the Vestry had not a right to consider what re-
pairs were necessary, how they were to be performed, and how
they were to b e paid for, whether by one rate or by several, or in
what proportion theinhabitants were to be assessed ? In the
Nottingham case the election was held to be good, because the
voters protesting against it did not vote at all ; those were the
very words of Lord Mansfield; but that had not hap-
pened in the present instance. The majority hr ,d
voted in favour of the amends cut refusing the r at;
'I here was no analogy between the cases. The question to het,
decided was, net whether it was a natural obligation e.von the
parishioners to keep the parish church in repair—snot whe-
ther the Court could proceed to the enforcing nrs that obli-
gation, but whether a rate made, as the present one had
been, by' a minority of the parishioners, was a valid one
whether the votes were not thrown away, and the act
which was directed to be done by the parish, was not done
by the parish, but by a few individuals. But how could he
understand that this was what the law, as received in theta
Courts, required it to he a rate made by the majority of the
parish,? Then, again—with every diffidence in his own abil'oy to
understand, or perspicuity to explain—he was compelled to say,
that he did not perceive the analegieswhieh were alleged to exist
between this case and that of a corporation, to which a manda-
mus had been issued. But if a mandamus were issued from the
Court of Queen's Bench to compel a corporation to do an act
which the majority were bound by law to do, would it. be a suf-
ficient answer to that writ to say that a part of the corporation
bed obeyed that law. Having gravely considered all the
alleged analogies of the common law, and carefully examined
the cases relied oftfor their support, the impression on
his mind was that none of those principles ur autho-
rities were applicable to the present ease. Even if
he could see similarity where he saw nothing but dis-
similarity, he should still hesitate before, upon his own judg-
ment, presiding as he. did over. an inferior tribunal he should
introduce here doctrines hitherto unheard of in, these (the
Ecclesiastical, Courts. It seemed to him incredible, tha if
the law were as laid down in the Exchequer Chamber, in the
course of so many centuries during which these Courts had
existed, and during which so many great minds had beers ap-
plied to ascertain what the law of these Courts was, it should I
have been first discovered in the year 1841. He would be I
still more astonished if such were the fact, as this law would j
be a ready remedy for mans- evils, and would do away with:
many harsh proceedings. Still, until the year 1841, there
was a perfect silence an the subject of this mode of ob- I