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

the present rate, which was not again put to the Vestry. In !
the present case then, the question he had to decide was,
whether the rate so trade, was legal and valid, If it were a
legal and valid rate, the libel must he aannttett ; if not, it inu t
be rejected ; but it should be borne in mind, that all the ob-
servations he was about to make he intended to apply
to nothing hut the validity or invalidity of the rate ;
this was the sole question he had to determine,
and to that his observations would be confined. He was
anxious to state his opinion and the grounds of it, and he would
consider, first, the case of Gaurdan v. Selby, in its bearing on
this present rate; second, the effect of the judgment of the
Court of Queen's Bench on the former Braintree case ; thirdly,
the judgment of the Court of Exchequer in the same case ;
fourthly, he should endeavour to examine the Ecclesiastical
and Common Law, and their authority in respect to the vali-
dity of the rate in question ; and, fifthly and lastly, he
should apply himself to the doctrine of the election
of corporate officers and Members of Parliament,
which doctrine, it was contended, ought to govern the present
case, an uphold the validity of the rate. With regard to the
case of Gaurdan v. Selby, it appeared to him, that not only
had the doctrine laid down in that case been repudiated in the
Court of Queen's Bench and the Court of Exchequer Cham-
ber, but the Court of Queen's Bench impugned its authority,
and that in very strong terms. He then quoted the
decision 'of the Court of Queen's Bench, which im-
pugned the decision as laid down in the case referred to.
Discarding, therefore, the notion that the case of Gaurdan v.
Selby was any longer a precedent to govern and bind down his
own judgment, he would now consider whether, though no
longer lending as a precedent for the position attempted to be
established in the former case, yet it ought to be considered as
an authority not to govern him, but to which he ought to pay
consideration in the present ease. He had carefully examined
all the proceedings in that case—he had done so before—and
he was not disposed to retract any one observation he had for-
merly made upon that case. He would not occupy time by
referring to all the particulars of the case, but some might
be slightly touched on, in order that the grounds of h.e
opinion might be clearly manifest, and might not rest on ge-
neral declaration. He disclaimed having at any time laid any
stress on the decision of that case. There were some f acts
and circumstances connected with that case which, after ail the
consideration he could bestow upon them, and having read all
that was written in explanation of that case, still appeared to
him to be utterly inconsistent with all regularity of proceeding
in those Courts beyond what had ever happened. One of the
circumstances which struck his attention on the present
occasion was (aid the able Counsel who argued the case
had, he was surprised to find, taken no not ice of
it), the irregularity in the proceedings. In this case
of Gaurdan v. Selby, the same individual was Surrogate
in the Archdeacon's Court, the Vicar-General's Court,
and the Consistory Court. That would account for the
Court sitting in the same place—for the individual pro-
ceeded against being summoned to the same place; but it could
never account for what appeared in those proceedings the utter
confusion between the two Courts, so that no man could ven-
ture to say, after he had examined the original proceedings, in
which Court the suit was commenced and carried on. He
would not go through all the proceedings in that case from the
commencemeut, but would only point out one or two
facts or circumstances sufficient for his present purpose.
The Court here refereed to the proceedings in the above-men,
tioneci case, showing that the citation in it was directed in the
name of the Archdeacon alone, and yet the person cited was t o ap-
pear in the Consistory Court. The libel was in the name both
of the Archdeacon and Vicar-General, and the monition to
answer the libel was in the name of the Archdeacon only, and
cited Gaurdan to appear in the Consistory Court. He would
not go through other circumstances in that case which
appeared equally remarkable as showing the confusion in it
from beginning to end. But there was one circum-
stance, infinitely more remarkable, to which he would
just advert, namely, that in the libel, which was dated
November 1796, it was stated that the rate was made by the
majority of the Vestry, and yet that rate was proved on evidence
nit to have been made by the majority of the Vestry. Those
were some of the circumstances which struck his mind in the
consideration of this case, but it appeared to him not to have
attracted that notice, which, under other circumstances,
such a case would necessarily have caused. The allegations
and pleadings, that that rate was not made by consent of the
majority of the Vestry, were signed by Lord Stowell, then
sir William Scott, and were never opposed in the Arches
Court. Then there was not a single authority cited one side
or the other in the arguments. But with regard to the present case,
whether he ought to receive the case of Gaurdan v. Selby
as overruling his judgment, or rather, whether he ought to
depart from the exercise of his own judgment, and bow to it
as a precedent applicable in the present case, it was clear from
the report of Dr. Robinson that Sir Wm. Wynn had not the
slightest notion that he was considering the question which the
Contrt was on the present occasion to decide, and consequently
Sir W. Wynn could not have decided it. Sir W. Wynn
thought he was deciding the question, when the Vestry had re-
fused a rate, whether it was competent to the Churchwardens
to make that rate ; but he never dreamt of the present ques-
tion, whether such a rate bring made by the Churchwardens
and the minority of the Vestry, was a valid one. Looking
therefore to these circumstances, and that the case was ex-
pressly cited as an authority, and yet that, upon at least its
original authority, it was not set up by the Court of Exchequer
Chamber, for all those reasons he thought that that cane was
not only not a precedent, but not even an authority on the pre •
sent occasion. It was more than probable that the pressure of
business when Lord Stowell had become Judge of the Admiralty
Court, and the little interest excited by the case, that less re-
search and reference to authorities were brought to bear on the
ease, than would be so under other circumstances.
Proceeding in the course which he ( Dr. Lushington ) had pro-
posed to himself on the present occasion, he would next ex-
amine the judgment of the Court of Queen's Bench in the
former Braintree case. What was the derision, and how far
was it applicable to the altered circumstances of the case now
before the Court? The decision upon that occasion was, that
the Churchwardens. after the rate had been refused by the ma-
jority of the Vestry, could nut make a. valid rate. That was
the sole question then, and it was decided with legal strictness.
But it was clear the Court of Queen's Bench never contemplated
the distinction taken by the Court of Exchequer Chamber be-
tween a rate made by the Churchwardens alone. and a rate made
by the Churchwardens and a minority of the Vestry. The opi •
',ion of the Queen's Bench was clear. That Court derided on
the principle that the rate made against the consent of the ma-
jority of the Vestry was illegal. How was he to deal with that
decision? Not as a precedent, battering and controlling the
free exercise of his own opinion in the present case, for the
Court of Exchequer Chamber had declared that
the late decision of the Court of Queen's Bench
ought not to be considered. But he apprehended
that it was his duty to consider the principles and reasoning on
which that decision was founded, and how far they were appli-
cable to the present case. The first principle was that the
law required a clear demonstration that every tax was lawfully
imposed. That doctrine was in s•rict unison with the principle
laid down by Lord Tenterden in the ease of Cotton e. Hardy,
2d Adolphus and Bingham, a select vestry case,
.in which he
decided, that with respect to the Church Building Act, he
could not give the vestry the power of imposing a church-rate,
because that power had not been specifically accorded to them
by that Act. The next principle it appeared to lam super-
fluous to notice. It was that the imposition of a tax must be
directed either by Act of Parliament, or common law, or by
custom immemorial. The third principle was to the
effect, that no usage prevailing in support of such a
tax could be received as evidence against it. Fourthly,
to impose the tax in a different way was evidence against
the power claimed. Fifthly, the absence of such power
in the books of Reports, was evidence against it ; and, sixthly,
the onus of proving the legality of the power claimed, neces-
sarily devolved on the parties who claimed it. These seemed
to him the chief general principles the Court of Queen's Bench
had applied to the case before him. But what did the Court
of Queen's Bench do when the case came before it as a Court
•,f Error ? It agreed that there was no power of making a rate
by the Churchwardens alone, against the decision of the Vestry;
but it also held that there was a wide and substantial difference
between the Churchwardens alone, and the Churchwardens
n d the minority of the Vestry together, as to making a rate.
for in case of a refusal by the parishioners to make a rate, if
the Churchwardens possessed the power of making it alone,
they might do it at a future time, however distant. This was
the opinion of the Court, openly and distinctly stated, in the
words he had quoted ; and it was to this that be must devote
his best attention. But first, it was necessary to know what
the Court of Error had declared, what it would not
do, and what it had reserved. The Court said it would no'
enter into a discussion whether the rate, as made by the Church-
wardens at the parish meeting, was a valid rate or not. lf, .
the election of corporation officers, the majority only protest
against the election, the minority have been held to represent
the whole number. Again, in the case of a rate made by a
minority of the parishioners and the Churchwardens, the Court
would give no opinion on it, but desired to reserve to
itself the liberty of forming an opinion on it
whenever the case should occur. The present case
was unfettered by the case of Guardan v. Selby, as the ques-
tion was undecided by the Courts of Queen's Bench and the
Exchequer Chamber, but it received great consideration in the
Court of Error, both with reference to the general law of the
case, and its possible analogy to cases of frequent occurrence in
Corporations. First, then, was the present rate valid by the
ecclesiastical and common law, without resorting to the
analogy of Corporation law. There is, in the opinion of the
Court of Exchequer, a wide and substantial difference be-
tween a rate made by a churchwarden and the minority
of the vestry, and one made by the churchwardens alone in
Vestry. It was most important to weigh ants ascertain in
what that wide and substantial difference consisted, for on the
existence of that. distinction, as far as this view extended, de-
pended the applicability of the decision ; between the two
cases there was one most important and substantial difference,
videlicet the time whon the rate was made, whether it was
made at the Vestry immediately after the re•usal by the majo-
rity of the Vestry, or at a subsequent period by the Church-
wardens alone, for it was obvious if it were not valid when
made in the Vestry by the Churchwardens alone.
it was impossible to ax any time within which it
could be made. There was nothing to exclude
the time from being a month, or six months, or even ten
months, and the effect of this might be that the churchwar-
dens, by postponing the making of the rate, might, if they had
the power of doing it by themselves, not in the Vestry, snake
a rate upon consideration of subsequent. circumstancesins which
perhaps ought to hare been submitted. in the first
o_ tlaens‘ceititto.
the Vestry. It was true that this difference was.i f.
portence, if the doctrine that the Vestry wfasmere y mieisterial,
was adopted to its full extent, for the Churchwardens
were the only jedges of what was necessary, and the
Vestry were bound to raise the money for them without
any opinion either of the matter itself, or whether the rate was
made by the Vestry or by the Churchwardens afterwards, the
difference could not be of so mush importance. But on the
supposition that the Vestry had some discretion to exercise, he
agreed with the Court above, and should say that the distinction
was an important decision. He could not understand how, in
the present case, the concurrence of the minority could confer
any legality on the act, which would not attach to it if made be
the Churchwardens alone. The minority might consist of num.'.
hers from a mere minority down to a single indieidual. He could not
rely on this difference. He would now endeavour to consider
whether there was any authority at common or ecclesiastical
law as applied to the present case, so as to render this rate
valid, though the former rate was illegal. There was one par-
ticular circumstance attending the making the present rate
which must not he left out of consideration, for he believed it
was of vital importance to the case. This rate was made, not
at a Vestry summoned in the ordinary manner, but in conse-
quence of a monition issued from this Court, calling
en the Churchwardens to take the necessary steps to put
the church in repair, and to call a Vestry for the purpose of
making a rate. He had had some doubts, and expressed them'
and they were not now altogether removed, as to the propriety
of fixing the day and hour of the Vestry in the monition. Be
that as it might, the rate was made in pursuance of the direc-
tion of this Court, and till the contrary should he decided
he must consider that direction as legal, and made on
competent authority. But with regard to a rate so
made, though there were precedents with regard to
the issuing of a monition, yet with regard to a
late made by the Churchwardens and the minority of the
Vestry, he confessed he found in Ecclesiastical law no prece-
dent whatever in the single case of Rogers v. Davenant,
and it was certain that this case was not an authority, for
making the rate, in conjuction with the Vestry. Since the
last hearing, he had carefully examined the precedents col-
lected by Archdeacon Hale, but he could find in them no trace
of an authority affirming the validity of a rate made by
the Churchwardens in conjunction with the minority of the
Vestry. There was one case indeed, occurring in 1601, in
which a rate was made by the direction of the Churchwarden
alone, to reimburse the Churchwardens of a former year.