-J
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 LETTER < , JC £~ & 
 
 / 
 
 EARL FITZWILLIAM, 
 
 UPON THE POWER OF 
 
 COMPELLING THE ASSESSMENT 
 
 OF A 
 
 BY PROCEEDINGS IN COURTS OF LAW. 
 
 BY 
 
 JAMES MANNING, 
 
 n \ 
 of Lincoln's inn, Esy. barrister at law. 
 
 Cflirtr ©fcitton, enlarged, 
 WITH A POSTSCRIPT ON ECCLESIASTICAL CENSURES. 
 
 LONDON: 
 JAMES RIDGWAY & SONS, PICCADILLY. 
 
 1837.
 
 
 IS 37 
 
 A D V E It T I S £ M E N T 
 
 Ml 
 
 THIRD EDITION. 
 
 Additional matter has been introduced into the 
 Letter in this Edition, and a Postscript has been 
 written, for the purpose of shewing more fully the 
 incompetency of the Spiritual Court to compel the 
 making of a Church Rate by ecclesiastical censures. 
 
 LONDON : 
 
 <:. ROWOKTH AND SONS, PRINTERS, 1JELL HAV.il, 
 TEMPLE IIAI).
 
 ADVERTISEMENT 
 
 TO 
 
 SECOND EDITION. 
 
 In order that this Letter might be published before 
 the late Discussion in the House of Commons, the 
 materials were hastily collected and put together. 
 Several omissions are now supplied; and it will be 
 seen that the writer has availed himself of the op- 
 portunity now afforded him of adverting to a Pam- 
 phlet from the pen of Dr. Nicholl, the Member for 
 Cardiff. 
 
 A Table of Cases and Authorities is subjoined. 
 Those printed in italics have been already cited or 
 noticed by the advocates for the perpetuity of 
 Church Rates. 
 
 Andrews v. Hutton 25 
 
 Anonymous (Popham's Reports) 24 
 
 {Comberbach's Reports) 29 
 
 ( Ventris's Reports) 26 
 
 Ashby v. White 17 
 
 Ball v. Cross 29 
 
 Binsted v. Collins 10 
 
 Blackstones Commentaries 16 
 
 Blank v. Newcomb 13 
 
 Bracton de Legibus 19 
 
 Br it ton 19 
 
 Chamberlain of London's case 20 
 
 Churchwardens of Claydon v. Duncomb 26 
 
 Churchwardens of Stratford v. Loddington 38 
 
 Cockburn i>. Henry 34 
 
 Copley's case 18 
 
 Dawson v. Wilkinson 30 
 
 Farmer r. Brown 11 
 
 Fitzherbert's Natura Brevium 10, 21 
 
 Fountains Abbey case 18 
 
 Gaudern v. Sell))/ 11 
 
 Greenwood v. Spedding 84 
 
 Holland v. Kirton 23 
 
 Jeffrey s case 21 
 
 Lanchester v. Thompson 30 
 
 Lee's case 22 
 
 A 2
 
 ( 2 ) 
 
 J.ijn d nood's Provinciate (a) 9 
 
 Marshall v. Ashley .38 
 
 Methold v. W inne 22 
 
 N'orris v. Staps 20 
 
 Northwaite v. Bennett 32 
 
 ( )reways v. Archdeacon of Taunton 37 
 
 Parker v. Clerfce 15 
 
 Peckius (Peter Peck) de Ecclesiis reparandis 40, 41 
 
 Penneland v. Toye 41 
 
 Phillips r. Davies 18 
 
 Pierce v. Prowse 29 
 
 Queen v. Patey 17 
 
 Rt gistrum Breeium 10, 21 
 
 Rex v. Archbishop of Canterbury 30 
 
 r. Churchwardens of Croydon 33, 44 
 
 i. Churchwardens of Dursley 34 
 
 . v. Chapelwardens of I laworth 30 
 
 v . ( 'hurchu ardt ns and Overseers, eyr. of St. James, Clerkenwell 33 
 
 v. Churchwardens of St. Margarets? St.. John, Westminster.. 34 
 
 v. Churchwardens of St. Mary, Lambeth 34 
 
 v. ( 'oleridge 30, 45 
 
 v. Eyre 44 
 
 v. Inhabitants of Wix 33 
 
 v. Lords of the Treasury, ex parte Smyth 34 
 
 v. Lords of tbe Treasury, ex parte Hand 35 
 
 v. Justicee of Monmouthshire 32 
 
 v. .S, /< et I 't St hi of Preston 32 
 
 v. St. Peters, Thetford 30 
 
 v. Wardens, &c. ot St. Saviour's, Soutliwark 35 
 
 C.Wilson 32 
 
 1 { oberts's case * 24 
 
 Rn^i is v. Darenant 12 
 
 St. Saviour's, Southwark case 22 
 
 Stair's Institutions 39 
 
 Starkey c. Barton . . . ■. 11, 23 
 
 Statute I .! Edw. 1. (( leeumspeete agatis) 10, 11 
 
 :•>■', Edw. I. 19 
 
 23 Hen. VIII. c. 19 36 
 
 1 Ann, cap. 1 1. (Churclibuilding Act) 35 
 
 'i'httr.'/it Id v. Jones 26 
 
 Wat kins r. Seaman 28 
 
 Weeks v. Oxendon 41 
 
 Wheler v. Lambert 27 
 
 Willcins, Concilia 7, 8 
 
 Ijeges Anglo-Saxoniac C, 7, 8 
 
 Wilhnon 's case 23 
 
 Woodward 's ease 28 
 
 Worcester Proliibition case 2 *• 
 
 Year Book, 44 Edw. III. fo. 18 20 
 
 11 Henry IV. fo. 12 12 
 
 9 Henry VI. fo. 32 18 
 
 (a ) That tliis work floes not deserve the obloquy to which it has been subjected, 
 see Uetvcs's History of the Law, vol. iv. page 117.
 
 LETTER 
 
 TO 
 
 EARL FITZ WILLI A M. 
 
 Temple, 22 May, 1837. 
 
 My Lord, 
 
 I have long entertained the opinion (singular and 
 erroneous as it may at present appear) that those venerable 
 fabrics which the piety of our ancestors raised for the worship 
 of the one living and true God, are to be considered, in right, 
 either as appropriated to that single mode of worship which 
 the founders, whether Catholic or Protestant, deemed to be 
 alone acceptable to that Being to whose honour they were 
 erected, or as dedicated to the general service of religion ac- 
 cording to every form of devotion which may from time to time 
 be adopted in the districts for the spiritual benefit of the suc- 
 cessive inhabitants of which these structures were erected. 
 The bill now before the House of Commons adopts neither of 
 these views; but appears to recognize an exclusive title to 
 those sacred edifices, and a peculiar interest in the sublime and 
 solemn feelings which they inspire, as the especial privilege of 
 one class of His Majesty's subjects, who, however intelligent, 
 numerous, and opulent, neither represent the religious senti- 
 ments of the whole community, nor can advance claims to any 
 considerable extent on the ground of foundership. Not being 
 able to perceive the justice of refusing to the whole religion (a) 
 
 (a) This is not the place for considering the difficulties which may be supposed 
 to attend the use of the same building by different classes of religionists, or the 
 mode in which these difficulties have in other countries been overcome. In Ger- 
 many and in Switzerland the alternate use of the same chinch has been long known. 
 In Paris, a temple erected for the Peres de l'Oratoire has on the same day witnessed 
 the devotions of English Episcopalians, Swiss Reformts (Presbyterians) and 
 American Congregationalists (Independents). But the regulation of 1712, (Pre- 
 mier Traite d'Arau) by which the parties, whether Catholic or Protestant, who had 
 the first occupation, were to leave the Church in the summer by eight in the 
 morning, and in the winter by nine, would, perhaps, as little fall in with our social 
 arrangements as it would accord with the ardour of our religious animosities.
 
 ( 4 ) 
 
 of the people the use of public religious edifices, erected by 
 the munificence of their ancestors, and upheld by contribu- 
 tions levied upon themselves, or the propriety of forbidding tin 
 performance of those very rites for the more imposing exercise 
 of which that munificence was especially called forth, I have 
 felt little interest in the proceedings which have; taken place 
 in and out of parliament with reference to the measure which 
 is now before the legislature. 
 
 Lately, however, the epiestion has assumed a legal form. On 
 the 31st March a Letter appeared from His .Majesty's Attor- 
 ney-General to Lord Stanley. This letter has produced an- 
 swers in pamphlets, newspapers, and magazines, abounding in 
 sarcasm, misrepresentation and gratuitous assertion, but, for 
 the most part, equally deficient in accurate reasoning and in 
 patient research (a). 
 
 I believe it is generally admitted, that, provided the autho- 
 rities are both fully and fairly cited in the letter to Lord 
 Stanley, that publication has shewn — 
 
 First, That the repairs of the church were originally a bur- 
 then upon the tithes, (or rather that the tithes were granted 
 to the rector in consideration, inter alia, of his keeping the 
 church in repair,) and that matters continued upon this foot- 
 ing in England, until the liability was transferred to the 
 parishioners, upon whom in a certain sense, it now rests, — 
 the rector being relieved from the principal part of the bur- 
 then, though retaining the whole consideration. 
 
 Secondly, That the mode of enforcing this extraordinary 
 liability was by a proceeding in rem, — interdict or suspension 
 of celebration of divine service in the neglected church; ami 
 that it is at least questionable, whether the terrors spiritual 
 and temporal of an excommunication, could be legitimately 
 employed for this purpose. 
 
 («) In this controversy the suaviter in modo and the fortiter in re have suffered 
 under the influence of a double elective attraction, tlie mildness clinging totheargu- 
 
 itive substance, the vigour laying hold of the objurgatory mode. The latter 
 conjunction cannot, I think, be too much regretted at a period when the organs of a 
 party, which boasts that it embodies the wealth and chivalry of England, appear to 
 
 lei it to be to the advantage of their employers to adopt a tone once so success- 
 ful in sharpening the pike of the sans-culolte and the axe of a revolutionary tribunal.
 
 ( 5 ) 
 
 Thirdly, That the assessing of a church-rate cannot be com- 
 pelled by any court of common law. 
 
 But it is said that the advantage gained by the Attorney- 
 General is only apparent, — that he has negligently or inten- 
 tionally passed over in silence authorities which would have 
 disturbed his conclusions, — and that the cases brought forward 
 by him would have produced a different effect if they had been 
 more fully presented. How far these charges are well-founded, 
 or in what degree they are to be ascribed to the natural unwil- 
 lingness of an antagonist to admit an unfavourable result, — 
 whether the argument of the Attorney-General has been fairly 
 torn to pieces, or whether, after sustaining some rather fierce 
 assaults, he remains — fortis, et in seipso totus teres atque 
 rotundus — are questions upon which, if your lordship has time 
 and patience to go through the following observations, you 
 may, perhaps, find little difficulty in coming to a satisfactory 
 conclusion. 
 
 The first of these points may rather be considered to fall 
 within the province of the antiquary, and to be interesting 
 to the historian and to the general reader, merely as affording 
 examples of the encroaching spirit of the clergy, or to speak, 
 perhaps, more correctly, of men having strong corporate in- 
 terests, with peculiar opportunities of advancing them. 
 
 I propose to notice shortly the authorities which have been 
 adduced upon this head, and then to examine more fully the 
 other points in dispute. 
 
 I. The position that the repairs of churches were originally 
 a charge upon the tithes, does not appear to depend upon the 
 character of the religious establishments of the Britons. The 
 southern parts of the island, with the exception of some 
 mountainous districts extending to the west of the Exe and the 
 Severn, after they had been laid waste by fire and sword, 
 were possessed for 200 years by semi-barbarous pagans ; and 
 any discussion respecting the institutions which accompanied 
 the antecedent profession of Christianity by the expelled or 
 murdered inhabitants, would appear to be little less irrelevant, 
 than an inquiry directed to a period also disconnected, but 
 still more remote, when that portion of the earth's sur-
 
 ( G ) 
 
 face which Great Britain now occupies, produced the vege- 
 tables and supported the animals of the torrid zone. 
 
 I must here express the surprise which I felt when my at- 
 tention was first drawn to the controversy, in reading upon the 
 title, page of a pamphlet "The Principle of Church Rates from 
 the earliest Evidence of their existence, comprising a period of 
 nearly Twelve Hundred Years," I was at a loss to conceive by 
 what ingenuity church rates could be carried back some cen- 
 turies beyond the period at which it is generally understood 
 the clergy succeeded in convincing the laity that it would be 
 meritorious to pay the rector for repairing the church, and 
 then to do the work themselves. My admiration was lessened 
 when I discovered that this startling proposition was founded 
 upon a play upon the double meaning of a word used in 
 translating into Latin an Anglo-Saxon term corresponding 
 with the Latin word in only one of the significations of the 
 latter. Wilkins (a) gives an ordinance of King Ina respect- 
 ing the annual money payment or contribution made in 
 November for the support of the clergy. The term 
 cyrtic-j- cea-e, church-scot, (b) by which this contribution 
 is described in the supposed law, is rendered by Wilkins, 
 correctly enough, by census ecclesiae (church revenues), 
 "census" being treated by Wilkins in his glossary as equiva- 
 lent to " vectigal." But Mr. Swan, the author of the pamphlet 
 to which this high-sounding title-page is prefixed, adds this 
 note, " Agere censum is, according to Ainsworth, to take an 
 
 (a) Leges Anglo-Saxonica?, 15. 
 
 (6) Dr. Burn, in liis Ecclesiastical Law, title " Church-Scot," says, " The 
 church-scot, cypic-ycear was an ohlation for the first fruits of corn payahle at 
 Martinmas," for which he cites Bishop Stillingfleet's Ecclesiastical Cases, vol. i. 
 176. But Professor Whelock, in his preface to Wilkins, LL. A.S. shews the term 
 to be applicable to all pecuniary payments. So in Lye's Saxon and Gothic Dic- 
 tionary by Manning. 
 
 Scaer is used in these collections in the primary sense of contribution or payment, 
 from the Anglo Saxon r"C3e"can (in Dutch and German, scheiden), to divide; and 
 also in the secondary sense, of money generally, or of a particular coin of the 
 value of the twentieth part of a shilling. The penalty for seducing the btpel 
 (cup-bearer) of a ceopl, was six shillings ; a slave of the second class, 50 scxtta; 
 a slave of the third class, 30 scsclta. Leges /Ethelbirthi, Wilk. p. 3, No. 16. 
 And by No. 59, a black wound ("cyrrc) was to be compensated by 30 scaittas. The 
 same value is fixed by No. 71, p. 6, upon the nail of the great toe (mycel Taan 
 nrejl), while all the other nails are valued at no higher than 10 sca-ttas. So
 
 ( 7 ) 
 
 account of the people and their estates — to make a rate; 
 census ecclesiee must, therefore, be a church rate." {a) 1 he 
 
 piomej-caet (Romescot) or Romefeoh, is the payment directed by Ina to be made 
 to the Roman church at the feast of St. Peter ad vincula ; hence called Peter's pence. 
 OCiez is also used in the sense of the German " Schatz," treasure. 
 
 In the Leges Eadmundi, in the tenth century, we find, Wilk. p. 72, No. 2. 
 " concerning tithes and church-scots," "Tithes we command to each Christian 
 man by his Christianity and church-scot and alms. If any one will not do this 
 let him be excommunicated." P. 73, No. 5, " Concerning church repairs :" " Also 
 we say, that each bishop repair God's bouse of his own ; also let the king admonish 
 him that all God's churches be well provided (Whopene) as to us is much neces- 
 sary." So by the Council of London (a.d. 944), the bishop is to restore " Do- 
 mum Dei de suo proprio" on hi J* ajnan, 1 Wilk. Cone. 2 1 5. Thus, notwith- 
 standing church-scot, the church is to be repaired by the bishop from his own 
 private means. 
 
 In the next century, among the constitutions of Ethelred II., we find the follow- 
 ing law (Wilk. L. A. 113), " And concerning tithes, the king and his wise men have 
 chosen and said, as it is right, that the third part of those tithes that to church 
 belong go to church repairs {h), a second part to God's servants, a third to God's 
 necessitous (c) and to poor slaves (d) ;" yet the same constitutions contain provisions 
 for the payment of the tithes of the increase of cattle at Whitsuntide, and of 
 the fruits of the eaith at the Equinox, or at Allh.illnwn-tide, of Peter's pence on 
 St. Peter's day, and of church-scot (e) at Martinmas; shewing that the church- 
 scot was paid at a period when the repairs of the church continued to be a charge 
 upon the tithes. 
 
 The laws of Canute, also in the eleventh century, as given in Wilkins, direct that 
 church-scot be paid at Martinmas (p. 130, No. 10), and intimate (No. 63) " that 
 properly (mid rihte) all the people ought to contribute to the repairs of churches." 
 
 This suggestion, put into the mouth of the royal convert, may have been the first 
 step, in an imperceptible progress, towards the modern practice; and it is remark- 
 able that, in the hereditary dominions of this Danish prince, it became a maxim, 
 that churches were to be built by their kings, " Konungar skal Kioerckio byggia." 
 Wilk. Legg. Anglo-Sax. 73. The encroachment upon the laity is distinctly-traced 
 in a pamphlet entitled, " A few Historical Remarks on the supposed Antiquity 
 of Church Rates, and the threefold division of tithes, by a lay Member of the Church 
 of England." 
 
 (u) It would have afforded some consolation to Papirius and Sempronius, whom 
 "censui agendo populus suffragiis pra-fecit" when considered as not sufficiently sub- 
 stantial to support the consular' dignity (quorum de consulatu dubitabatui ut parum 
 solidum consulatum explerent), could they have known that they were the ante- 
 types and prefigured the dignity of churchwardens elected by the major part ol the 
 parishioners in vestry assembled. No glimmering, however, of this future glory 
 
 (/>) Eyjiicbot (church-bote), stistentatio vel refectio ecclesiarum, 
 Lye. Thus " housebote'' means those supplies of timber &c. which 
 are necessary for the reparation of houses. 
 
 (c) beartpum, corresponding precisely with the German durftigen. 
 
 (<7) b^oprhn^a, setvuli, Lye. (c) Eypic j-cear.
 
 ( 8 > 
 
 author thus confounds the original census, or public inscription 
 of persons and property, (made with a view, not to taxa- 
 tion, in tlic nmdem sense of that word, but to numeration and 
 classification (a),) with the secondary signification of the term 
 as drin iting revenue, ascertained and recorded by the census. (Z») 
 
 Unfortunately, however, if the word census in "census 
 ccclcsi-.c" is, for the sake of this pun, to be understood in the 
 same sense as in " censum agere," the census ecclesise would 
 be not a rate made upon other property in relation to the 
 church, but an assessment of the church itself in respect of 
 the possessions of the church, (c) 
 
 The subsequent reference in this pamphlet to the census 
 ecclesiasticus, mentioned in the laws of Edgar, (rf) carries the 
 case do further. The word in the original is cynic-j-ceac. 
 
 From the admitted fact that, by the common usage of Eng- 
 land, the burthen of repairing the nave of the church falls 
 upon the parishioners, it seems to have been inferred that 
 this liability must have been coeval with the erection of 
 chinches. This is a view of the subject for which it is not 
 very difficult to account. The common law consists of such 
 regulations relating to temporal rights, as pervade the 
 whole realm and are not founded upon any statute now 
 extant. This negative description applies to all regula- 
 tions which are received as common law ; yet one of these 
 regulations may have been brought into this island in the 
 fifth century from the shores of the Eider, the Elbe, or 
 
 appeais to have reached the eyes of the historian, who, writing 400 years later, 
 merely adds, " M> re censores appellati sunt." — T, Liv. IV. 8. After this important 
 discoverv of the connexion between census and church-rates, which has been pro- 
 claimed triumphantly from the Thames to the Tweed, can it be right to refuse the 
 appropriate designation of censuulists to those who have annihilated time and space, 
 tn make churchwardens happy ! — ;il> re censuales appellati. 
 
 \Troy^a<pig-9ai, Luc. i. 1. 'Airc/sa^h, LuC.i. 2. 
 (/<) \\ In ii Justinian says " sine censu it r liquii fundum comparari non posse," 
 must he not, according to the censualists, mean that the purchaser is to pay " to 
 king, church and poor V 
 
 (c) This would be such a census ecclesise as was made by the parliamentary 
 commissioners in 1649, with a view to the alienation of church lauds for the pur- 
 poses of the state. 
 
 (d) The refeience is to Wilk. Concilia, 245 ; but the law, or rather exhortation 
 is given more fully in Wilk. Leges Anglo-Saxonicaj, p. 186.
 
 ( 9 ) 
 
 the Weser ; a second may have arisen out of a law of Alfred, 
 or a constitution of Henry the Second ; and a third may have 
 crept in during the present century, under the shadow of an 
 usage continuing for twenty or thirty years. As the law takes 
 no notice of the origin of these particular regulations, they 
 are, for all practical legal purposes, taken to be of equal 
 antiquity. But it would be scarcely more reasonable to draw 
 an historical inference from this legal fiction, than to say that, 
 because the law recognises no priority between events which 
 occurred before the time of legal memory (7 July 1189), it 
 must be taken as an historical fact, that Ina, Alfred, William 
 the Conqueror, and Henry II., all lived and reigned to- 
 gether. 
 
 II. The position that where parishioners neglect to repair 
 their church pursuant to the new obligation imposed on them, 
 a parochial interdict or suspension of the celebration of divine 
 service within the parish might be inflicted (a), does not ap- 
 pear to be doubted. 
 
 In considering whether the reparation of the parish church 
 could be enforced by process of excommunication, it is neces- 
 sary to bear in mind the distinction between the obligation to 
 make a rate, and the liability to pay the amount after it has 
 been duly assessed. The power of excommunicating for re- 
 fusing to pay a rate duly made has not, I believe, been of late 
 controverted. This being undisputed, cases in which it has 
 been acted upon are employed to supply the deficiency of 
 authority in support of the power of compelling parishioners 
 to make a rate. From the ecclesiastical law as stated by 
 Lyndwood (/>), it would rather appear that in the former 
 case no sentence of excommunication can be pronounced. 
 He says that the penalty of excommunication cannot be 
 inflicted upon parishioners collectively (in universos) ; but 
 it may be inflicted upon parishioners individually (in sin- 
 gulars personas singulariter) who are (personally) guilty. 
 I am also, says he, of the same opinion as to suspension, 
 which punishment cannot be inflicted upon parishioners 
 as a whole ; but if the default be excessive, the archdeacon 
 
 in) Lyndw. Provinciate, page '28a, edition of 1505 ; p. 53, ed. 1679. 
 (/;) Ibid. ; and see ante, page 2, note (a).
 
 ( 10 ) 
 
 may impose a penalty, that after the expiration of a certain 
 term, no divine service shall be celebrated in the church 
 until the necessary repairs have been done, and thus the 
 parishioners may be punished by the suspension and interdict 
 of the place. If, however, there he any who are bound (a) to 
 contribute to the repairs, who, though able, are remiss, such 
 persons the archdeacon may, after monition, compel to such 
 contribution by the penalty of excommunication. But whether 
 churchwardens, who are persons chosen for such repairs and 
 for otherwise administering the goods of the church, may, by 
 excommunication, suspension, or other remedy, be compelled 
 to repair, I think, that if they can have sufficient for the 
 repairs, and are negligent in this respect, they may be com- 
 pelled by censures ; and, that on the other hand, if the fault 
 be not with them (si per eos non steterit) they ought not to be 
 proceeded against. But by prescriptive u-age, the archdea- 
 con sometimes imposes pecuniary penalties, particularly in 
 cases of church repairs." He then goes on to inquire into the 
 application of the penalties when incurred. 
 
 In the statute of Circumspecte agatis, 13 Ed. I. it 
 1284. is said that if prelates impose a penalty for an unin- 
 closed cemetery, for an uncovered (b) or not decently 
 adorned church, in which cases no other than a pecuniary 
 penalty can be inflicted, and for certain other articles, the 
 ecclesiastic-.il judge has cognizance. It is, however, observa- 
 ble, that in the entry of the royal assent, this article of ceme- 
 teries and churches is omitted, and it is expressly stated in that 
 assent that a prohibition lies when a pecuniary penalty is 
 sought to be recovered before the ecclesiastical judge. 
 
 Dr. Nicholl(c) finds fault with the Attorney-General for 
 
 (a) Tenentur. This term would include liability under a rate, liability by 
 possession of the whole parish, and liability ratione tenure or occupationis. Thus 
 the Kcclesiastical Court has authority to proceed against the tenant of a house for 
 nonpayment of wax, where, by an (undisputed) immemorial parochial custom, each 
 house within the parish is bound to furnish one pound of wax annually, to support 
 a taper to be burnt before the crucifix in the parish church. Registrum Brevium 
 Originalium 51 ; Fitzherberl's Xatura lirevium 52 C. In such a case, the custom 
 not only creates the obligaiion, but fixes and assesses the rate. 
 
 (/<) So as to hinder the performance of divine service. Binsted V. Collins, Bun- 
 bury's Reports, 231. 
 
 (r) 1'nge 17.
 
 ( 11 ) 
 
 citing earlier parts of this statute as an authority for class- 
 ing the repairs of churches amongst mere spiritualia, which he 
 attributes to an omission by the Attorney-General, in his own 
 favour, of some intervening words, which, though in themselves 
 irrelevant, would, it is alleged, by disconnecting the passages 
 cited, have shewn that the statute gave no colour to the position 
 in support of which it was vouched. Yet in 1608 and again in 
 1G~9(«) the Court of K. B. adopted the very construction which 
 is imputed to the Attorney-General as a crime. Having obtained 
 this supposed victory the learned civilian goes on to say, " the 
 [non]-repair of churches is a distinct and separate head or class 
 of offences, of which the conusance is, bythisact, allowed to the 
 spiritual court, though previously belonging to the temporal 
 courts, inasmuch as the obligation was per consuetudinem 
 notoriam et approbatam." This is a tremendous leap. Be- 
 cause a custom, pervading the whole realm with relation to 
 a temporal matter, is part of the common law, therefore a 
 custom relating to a spiritual matter, as contradistinguished 
 from the commune jus, or canon- law of Christendom, must 
 be part of the common law(Z>). But, it will be observed, this 
 totally unfounded position,— that previously to the statute of 
 Circumspecteagatis, the cognizance of the repairs of churches 
 belonged to the temporal courts, — is not stated as matter of 
 inference or of opinion; it is assumed as that which does not 
 require even to be distinctly asserted. I incline to think, in- 
 deed, that a reader who was ignorant of the provisions of the 
 statute, and still more if he were unacquainted with the lan- 
 guage in which the statute is cited, would be led by the state- 
 ment of the learned civilian to infer that the clause in italics 
 was a part of this statute, which the Attorney-General had 
 omitted to cite, by a " mistake in favour of his own argument." 
 The error into which the learned civilian has fallen is not 
 only sufficiently evident upon the face of his own pamphlet, 
 but would have absolutely stared him in the face, if he had 
 
 (u) Slarkey v. U.irton, post, 23 ; and in Farmer r. Browne, Freeman's Reports, 
 300, the Court said that a suit for the reparation of churches is a spiritual cause 
 and is particularized in the statute of Circumspect? agatis amongst the mere spiritualia. 
 
 (b) According to this mode of reasoning, a custom relating to a temporal matter 
 is part of the common law because it is general, but a custom relating to a spiritual 
 matter is part of the common law, because it is not general ; for if it were general, the 
 canonists would call it not consuctudo but commune jus.
 
 ( 12 ) 
 
 looked at the passage in Britton to which Mr. Swan refers. 
 Britton, writing eight years before the statute of Circum- 
 
 -pcctc abatis, speak> of amendments of cemeteries and defects 
 of churches, as matters of which the holy church ought to 
 have cognizance, in order that her franchises might be un- 
 blemished, — thereby implying that, even in 1277, no new juris- 
 diction was given to the ecclesiastical courts of matters which 
 had previously fallen within the cognizance of the courts of 
 common law, but that the king merely intended to acknow- 
 ledge and confirm an ancient right. 
 
 This is an unfortunate instance of inaccuracy in a party 
 w ho is objecting, in no very friendly terms, to a mistake which 
 if committed would be such an oversight as not unfre- 
 quently occurs to person- havingthe misfortune to draw or 
 settle pleadings, who are sometimes very unpleasantly reminded 
 of their inadvertence in striking out irrelevant matter and 
 thereby making the context less coherent. The Attomey- 
 ( reneral, if disposed, like Duncan, to bear his faculties meekly, 
 will not perhaps exclaim — 
 
 '£lc cnroXoiTQ xcti aAAoj otjj toicvjtu y= g=£oj* 
 
 But even if the construction of the statute which the Court 
 of K. B. in 1608 and in 1679, as well as himself, in 1837, 
 have adopted, were wrong, he might fairly say — 
 O major tandem parcas, incaute, minori. 
 In M. 1 1 II. 4, fo. 12, pi. 25, is a case which appears 
 1409. to have escaped the diligence of the censualists. Hull, J. 
 ofC. P., speaking of bells which had been annexed to 
 the church. Bays, " Upon the visitation of the ordinary, if the 
 bells are not supported (sustents) the parish shall be pu- 
 Dished and coerced (aretes) to support them." (a) The mode 
 of punishment or coercion, — whether by interdict or whether, 
 like Cicero's slaves, they were to be " vinclis ac custodia 
 arcti," (Cic. Tusc. Qusest. II. 21.) we are not informed. 
 
 I do not consider this dictum as of much importance, but I 
 insert it because it appeared to form a link in the history of 
 the law of church rates. 
 
 In Rogers v. Davenant the question was, whether 
 1674. a bishop may empower commissioners to tax and rate 
 
 (a) He objects, however, to bells being ranked with things necessary for the sup- 
 pori of the church, because on the contrary bells make the church tremble.
 
 ( 13 ) 
 
 parishioners for rebuilding a church. The unanimous 
 decision of the court that he could not, was referred to by the 
 Attorney-General. He is charged with disingenuousness in 
 not also slating an obiter dictum, or rather a gratuitous lecture 
 to churchwardens, (possibly from the reporter,) upon a point 
 not before the court, and upon a subject in respect of which 
 the courts of Common law are presumed to be ignorant, (a) 
 and of which statements totally differing from each other are 
 given not only in Freeman, 286, where the case is reported as 
 anonymous, but also in the same book of reports, viz. 1 Mo- 
 dern Reports, 194, 236, and 2 Mod. 8 ; the last of which is 
 relied upon by the advocates of church rates, in which it is 
 stated to have been " agreed that the Spiritual Court has 
 power to compel the parish to repair the church by their 
 ecclesiastical censures ; but that they cannot appoint what 
 sums are to be paid for that purpose, because the church- 
 wardens by the consent of the parish are to settle that. As if 
 a bridge be out of repair, the justices of peace cannot set 
 rates upon the persons that are to repair it, but they must 
 consent to it themselves. These parishioners here who con- 
 tribute to the charge of repairing the church may be spared; 
 but as for those who are obstinate, and refuse to do it, the 
 Spiritual Court may proceed to excommunication against 
 them ; but there may be a libel to pay the rates set by the 
 churchwardens." It is not clear that the passage, as it 
 stands in 2 Mod. 8, means anything more than this, that for 
 the nonpayment of a rate the obstinate parishioners may either 
 be excommunicated for their contempt, or libelled against in 
 the Ecclesiastical Court. But the dictum, as differently given 
 in Freeman, does not appear to be open to that construction. 
 
 As the ease of Blank v. Newcomb has been cited, I will 
 shortly advert to it, though it is reported only in 1 2 Mod. 1699. 
 Rep. and in a publication containing cases which being 
 alleged to have been decided by Lord Holt, are commonly 
 called Holt's Reports. Of 12 Mod. Mr. J. Buller says, (b) 
 " that it is not a book of any authority ;" of Holt's Reports, (c) 
 Lee, C. J. says, " that it is a book of no authority" thus 
 slightly varying the form of the panegyric. This case, 
 
 («) Vide post, 18. (/>) 1 Dough 83. (<•) 1 \\ils. 51.
 
 ( H ) 
 
 which appears the same, totidem verbis, in 12 Mod. 327, 
 and Holt, 594, was referred to as showing that the Ecclesias- 
 tical Court cannot make a rate or appoint commissioners to do 
 it. It would, perhaps, have been more correct to pass over such 
 a case in silence. The complaint, however, is, not that the At- 
 torney-General has cited a book of no authority, but that he has 
 omitted the following passage in the judgment of Holt C.J. which 
 is Mated to be most important: — "The right course is for the 
 Spiritual Court to give sufficient notice to the parish to meet and 
 make a rate for the reparation of the church ; which if they do 
 not do, they may be excommunicated." As this passage, 
 which contains an obiter dictum, stated, if not invented, by an 
 incorrect reporter, was irrelevant to the question supposed 
 to be decided, namely, whether a church rate, not made by 
 the majority of the parishioners, was binding, there seems to 
 be no great reason to complain of the omission. It may also 
 be observed, that this supposed dictum is open to the objec- 
 tion that the course would be for the Spiritual Court to give 
 notice, not to the parish, but to the churchwardens, and that it 
 does not distinctly appear who are to be excommunicated. 
 
 The case of Gaudern v. Selby, represented, it is to 
 1799. be hoped incorrectly, as decided before Sir William 
 Wynne, appears to be so entirely vicious throughout 
 as to be entitled to no weight. According to the statement, 
 the decision was — that one churchwarden, without showing 
 that he was sole churchwarden, or giving any account of his 
 companion, — may of his own authority, and contrary to the 
 determination of the parishioners, — impose a retrospective (a) 
 rate for the purpose of paying himself a sum which he chooses 
 to claim as expended for the parish, — but which he never 
 ought to have expended, and which it does not distinctly 
 appear he ever did expend ; and that he may enforce the pay- 
 ment of a rate so imposed by a libel in which it is falsely 
 alleged that the rate was made by the greater part of the 
 inhabitants. It would, perhaps, be difficult to find another 
 decision in which such a variety of objectionable matter was 
 crowded into so small a space. 
 
 Dr. Nicholl(6) considers Gaudern v. Selby to be supported 
 
 (n) Post, 30. (b) Page 44.
 
 ( is ) 
 
 by Parker v. Clerke.(«) In that case money was due by cus- 
 tom to the parish clerk, and it was part of the custom that the 
 amount should be levied upon the inhabitants by the church- 
 wardens. A prohibition being moved for against a suit by 
 the parish clerk in the Ecclesiastical Court, it was said by 
 Holt, C. J., that both the office of parish clerk, and the cus- 
 tom of levying the rate by the churchwardens, were temporal 
 matters, and therefore an action would lie against the church- 
 wardens for not making a rate. The other judges differed in 
 opinion from Lord Holt; and it does not appear what became 
 of the case, (b) 
 
 It is perhaps to be regretted that those who feel interested 
 in the reputation of Sir William Wynne, did not show that the 
 learned Dean of the Arches was charged upon insufficient 
 grounds, with having pronounced the judgment in question ; 
 or, if that could not be done, and the case was not altogether 
 supposititious, that they did not exert their influence to with- 
 draw from observation those maculae — 
 
 quasaut incuria fudit, 
 
 Aut humana parum cavit natura. 
 
 It must, however, be admitted that this is an unpleasant part 
 of the subject. The ecclesiastical laws were considered under 
 Henry VIII. as of too oppressive a character for the times, 
 and they were continued merely provisionally, though the in- 
 tended revision has not yet taken place. That the system 
 was armed with sufficient power may be inferred from the cir- 
 cumstance that it enabled that active official-principal, the 
 Duke of Alva, to dispose of 16,000 contumacious Flemings, &c. 
 in less than five years without the aid of the inquisition ; (c) 
 
 (<;) 3 Salk. 87, more fully reported 6 Mod. 252. The apocryphal authority of 
 Modern Reports (to borrow an expression from the learned editor of Freeman's Re- 
 ports, Mr. Smirke.) is well known ; and of 3 Salkeld Lord llaidwieke says, (2 At- 
 kyns, 70,) that it is a book of no authority. 
 
 (I>) Dr. Nicholl says, " but no doubt was entertained that the churchwardens 
 might make a rate ; and if a special custom would give the power, why not the Com- 
 mon Law V This question might, perhaps, silence any person who should maintain 
 that the idea of churchwardens making a rate pioprio vigore involves a physical or 
 moral impossibility ; but until such gainsayers shall arise, the observation appears 
 to be one of little value. It cannot affect those who merely maintain that no such 
 power is given by the Common Law. 
 
 (c) In a despatch dated in August, 1566, from Philip II. to the Duchess of Parma, 
 who preceded the Duke of Alva in the government of the Netherlands, the King 
 
 Jl
 
 ( te ) 
 
 ft would therefore not be surprising, if, up to the passing of 
 5;> (ico. III. c. 93, the ecclesiastical courts possessed the power 
 of destroying, by imprisonment, the bodies of those persons of 
 of w liose souls they had, pro posse suo, already disposed. And 
 Dr. Nicholl, in his late pamphlet, has produced some instances 
 which have passed sub silentio, in which the Ecclesiastical 
 Courts appear, notwithstanding the provisions of the statute 
 of Circumspect^ agatis to the contrary, to have proceeded per- 
 sonally against parties refusing to concur in making a rate. 
 
 Be this as it may, the supposed efficacy of ecclesiastical 
 censures in compelling the assessment of a church-rate, or 
 even in enforcing the payment of a rate formally made, ap- 
 pears to rest upon two abuses — usurpation, in some cases — 
 profanation, in all ; usurpation, where the victim is not (and, 
 perhaps, never was) the spiritual subject of the prelate, by 
 whose authority the curse is pronounced — profanation, in the 
 use of religion in obtaining money under the false pretence of 
 anxiety for the eternal welfare of the party at whose breast the 
 spiritual weapon is levelled. (See the Postscript, post, 43.) 
 
 III. The third position of the Attorney General, is, that 
 the assessing of a church rate cannot be enforced by any 
 court of common law. It has been stated («) that it is one of 
 the recognized maxims of the law of England, that there is no 
 wrong, public or private, without its proper remedy ; and 
 that Sir William Blackstonc savs, when any thing consonant 
 to right and justice appertains to a man's office and duty, and 
 there is no other specified mode of compelling the performance 
 of it, the Court of King's Bench is bound to grant a writ of 
 mandamus. For this, 3 Black. C'omm. 110 is cited ; but 
 with the assistance of this reference I have been unable to find 
 this position distinctly laid down; which is the more to be 
 regretted, because had a passage to this effect been found, the 
 reader would have been able to form an opinion as to its force by 
 the weight of the case or authority referred to (c). If it is meant 
 
 s;iys, 'After long and mature delibeiation my decision is, that the episcopal juris- 
 diction being lawfully established, I am content that the Inquisition cease. 
 
 (a) Deacon, " Another Letter to Lord Stanley." page 4. 
 
 (c) In Ilidgway's Irish Term Reports, 310, (Greeison v. Jackson,) Lord Fitz- 
 gibbon C. says, " Mr. J. lilackstone was certainly a very ingenious man, and his 
 book has great merit considered as a book of lectures delivered in an University. 
 But his Commentaries are not authority, and if any man looks into his Chapter of
 
 ( 17 ) 
 
 to be said that there is no common law right without a common 
 law remedy, the observation amounts nearly to a truism ; be- 
 cause unless the remedy exist it is not perhaps in legal strictness 
 a right; (a) but to make the position of any weight in this con- 
 troversy it must extend to this : that for every right, whether of 
 a civil or of an ecclesiastical nature, the courts of common 
 law are bound to provide a remedy by the ordinary way of 
 action, or by the extraordinary course of mandamus. In this 
 sense I have no hesitation in stating my opinion that the po- 
 sition is not and never was lavv.(Z>) 
 
 In point of charge there is a material difference between 
 tithes and church rates. Tithes are not merely a charge upon 
 the land ; they are part and parcel of the profits of the land ; 
 whereas church rates are a charge upon the person in respect 
 of ability as measured, generally, though not universally,(c) 
 by the possession of land. But in respect of remedy it will 
 hardly be contended that church rates stand upon higher 
 
 Remitter he will see it." And in 1 Schoales & Lefroy, 327, (Shannon v. Shan- 
 non,) Lord Redesdale says, " I am always sorry to hear Mr. J. Blackstone's Com- 
 mentaries cited as an authority. lie would have been sorry himself to hear the 
 book so cited. lie did not consider it as such." 
 
 The censxialists (those who have won 400 years, by their discovery of the flexible 
 quality of the term census) appear to have found in Blackstone, Modern Reports, 
 Holt, 3 Salkeld, and Comberbach, an inexhaustible treasury of bad law, suited for 
 every occasion. They do not, however, cite Barnes's Notes, in which Lord Tenterden 
 used to say an authority could be found for any thing. 
 
 (a) Dr. Nicholl (p. 18) and Mr. Swan (p. 16) cite the case of Ashby i. White, 1 
 Salk. Rep. 21, in which Lord Holt said, " If a man have a right, he must in con- 
 sequence have a remedy to vindicate that right ; for want of right and want of 
 remedy is the same thing. If a statute gives a right, the common law will give a 
 remedy to maintain that right; a fortiori, where the common law gives a right, it 
 gives a remedy to assert it" This is an unfortunate case to produce in support of 
 the general authority of the Courts of Common Law to provide a remed] in matters 
 alienifori. Ashby v. White was an action against the returning officer of the borough 
 of Aylesbury for rejecting the plaintiff's vote at an election. The defendant insisted 
 that the right to vote was matter for the decision of the I louse of ( 'ommons, and that 
 the Courts of Law could not entertain the question ; and that, therefore, no action 
 could be maintained. In the King's Bench three judges held thai the action was not 
 maintainable ; Holt, C.J., held the contrary. In The Queen v. 1 \ite_v, \\ hich arose out 
 of Ashby i/. White, the defendant had been committed by the House of Commons, and 
 was brought into King's Bench by habeas corpus ; when it was solemnly determined 
 that the Court could not enter into the merits of the commitment, and the defendant 
 was remanded. " Lord Holt differed from the eleven judges who were consulted on 
 the case, but every judge from that time has dissented from his opinion." (Report 
 of Select Committee on Publication of Printed Papers, 8th May, 1837, p. 14, 26.) 
 
 (b) Post, 3]. (0 Post, 21,21. 
 
 B2
 
 ( 18 ) 
 
 grounds than tithes ; yet I take it to be clear that no man- 
 damus ever issued or could issue requiring the party to set out 
 his tithes, (a) It is true that since the 2d and 3d Ed. 6, c. 13, 
 a statutory remedy by action of debt is given in the case of a 
 refusal to set out a particular class of tithes. But before that 
 statute no remedy was, I believe, ever sought in any other 
 than an ecclesiastical court, either for the nonpayment or 
 for the not setting out of tithes, except in the case of tithes 
 alleged to be due to the King or to his presentees, farmers, 
 or accountants, which, as being directly or indirectly parcel of 
 the royal revenue, have by prerogative, from a remote anticpuity, 
 been recoverable in the Exchequer. Here, then, is a case of 
 an undisputed duty claimed against a specific individual; yet 
 it appears never to have occurred to the most strenuous as- 
 serter of ecclesiastical rights to invoke the assistance of the 
 secular arm in the shape of a mandamus to set out tithes. 
 
 If, upon a review of the authorities, it shall be found that 
 matters of a nature purely ecclesiastical cannot be brought 
 directly within the cognizance of the courts of common law, 
 and that the assessing of a church rate is a matter of a nature 
 purely ecclesiastical, it will necessarily follow that the as- 
 sessing of a church rate cannot be compelled by a court of 
 common law. 
 
 To the first position, the authorities which are applicable 
 appear to lie Bracton,(/>) Britton,(c) Fitzherbert,(<;Z) Jeffrey's 
 case,(e) Sir Robert Lee's case, (f) Holland v. Kirton,(^) 
 Starkey v. Barton, (A) Churchwardens of Claydon v. Dun- 
 comb,(i) Rex r. Archbishop of Canterbury, (k) and Lionel 
 Copley's case. (/) Some of these authorities also bear upon 
 the second position. The other authorities shew the power 
 vested in the majority of the parishioners to bind the residue. 
 
 The courts of common law have always admitted their want 
 of power and even of knowledge in matters of ecclesiastical ju- 
 risdiction. This has been carried to an extent almost 
 1430. ludicrous. Thus, in the Fountains Abbey case,(w) 
 
 (a) See Phillips v. l>avies, 8 East, 178. (b) Post, 19. 
 
 (c) Post, 19. (<•/) Post, 21. (e) Port, 21. 
 
 (f) Post, 22. (g) Post, 23. (ft) Post, 23. 
 
 (i) Post, 26. (ft) Post, 30. (/) Hardies, 406. 
 
 (m) Year Hook of Mich. Term, 9 Hen. VI. fo.32. pi. 34.
 
 ( 19 ) 
 
 Paston, J. says " if a man marry his mother, this is a lawful 
 marriage with us till it be defeated; for when the banns and 
 espousals are made in facie ecclesice, that is sufficient for us, 
 and it does not belong to us to inquire whether this be a law- 
 ful marriage or not." 
 
 Bracton has nothing specifically about repairs of 
 churches or cemeteries ; but he says, (a) " it is to be 1269 
 known that prohibition in the Ecclesiastical Court is 
 not to be granted (locum non habebit,) concerning anything 
 spiritual or annexed to spirituality, whether the suit be be- 
 tween clerks, or between a clerk and a layman, or where the 
 suit arises out of testament or matrimony, or concerning any- 
 thing for which penance is to be enjoined for sin. Also pro- 
 hibition is not to be granted if there be a suit in the Eccle- 
 siastical Court concerning a tenement which is sacred, and 
 consecrated by the prelates to God, as an abbey, priory, 
 or monastery and their cemeteries ; also things which are 
 ' quasi sacra,' because annexed to spirituality, as are lands 
 given to churches at the time of their dedication, with the 
 buildings thereon and the appurtenances." 
 
 Britton,(6) speaking in the name of the King (Edw. I.), 
 says — "We will that Holy Church have her franchises 1277. 
 unblemished, so that she have cognizance to judge of 
 pure spirituality, of testament, of matrimony, of bigamy, and 
 of felony of her clerks, and in correction of sins ; provided, 
 (sauve) that the ordinaries take no money or its worth from 
 the laity, nor cause judgment to be given for the gift (c) of any 
 one, but only of testament, matrimony, and pure spirituality, 
 and of amendment of cemeteries and defects of churches, and 
 of mortuaries and tithes (c) without our prejudice." 
 
 The 35 Edw. I. stat. 2, sect 2, after reciting that 
 trees are often planted to prevent the force of the wind 1307. 
 from hurting the Church, prohibits the rector from 
 felling them down promiscuously (indistinct^), but when the 
 chancel wants necessary reparations ; and directs that they 
 shall not be converted to any other use, except the body of 
 the Church need like repair. " In which case the rectors of 
 poor parishes of their charity shall do well to relieve the pa- 
 
 («) Lib. v. cap. 10, fo. 407. (I>) Lib. i. cap. 4. (c) Corrections of '2d < J.
 
 ( 20 ) 
 
 rishioners with bestowing upon them the same trees, which 
 we will not command to be done, but we will commend it when 
 it is done." 
 
 This enactment has been cited to show the antiquity of the 
 obligation on the part of the parishioners to repair the Church. 
 But none of the opponents of Church-rates appear to have as- 
 signed a more recent date to the supposed obligation. The 
 statute therefore proves what has not been called in question. 
 In a case reported in the Year Book of Edw. III. (a) 
 1370. the defendant avowed the taking of a distress on 
 the ground that at a meeting of the parishioners for 
 repairing their church, a sum of 10/. was taxed for the 
 repairs, which sum they assessed by assent amongst them- 
 selves by certain rates, according to the quantity of land 
 and the number of cows and sheep held by each parishioner, 
 and that the plaintiff had lands, sheep, and cows ; so that 
 the sum paid in respect of them amounted to 9s., that col- 
 lectors were appointed, of whom the defendant was one, 
 and that it was assented that if the parties taxed would not .pay 
 the collectors might distrain ; that the plaintiff would not pay, 
 whereupon the distress was taken, and that such custom had 
 existed in the parish before time of memory. It was objected 
 on the part of the plaintiff, that, the taxation being in an eccle- 
 siastical matter, the amount ought to have been levied by com- 
 pulsion of the ordinary, — and that the assent, to be binding, 
 ought to be under seal. The Court held that the custom was 
 good, and that the plaintiff was bound to take issue upon the 
 assent, i. e. that such assent was binding if it existed in fact. 
 
 This case shows not only that in 1370 church rates were 
 made by the assent of the parishioners, but also that such 
 usage had been of very long standing; as otherwise no 
 immemorial custom (which to be valid must then have ex- 
 isted nearly 200 years) could have attached to such usage. 
 
 The same practice is recognized in Ilobart, 212 ;{b) and 
 also in 5 Co. Rep. 63, (c) where it is said that the majority 
 of the parishioners shall bind the remainder, without any spe- 
 cial custom for that purpose. 
 
 (a) T. 44 !•;. 3, fo. 18, pi. 13. (b) Noma v. Staps. 
 
 (r) Chamberlain of London's case.
 
 ( 21 ) 
 
 Fitzherbert(a) says, " If the Bishop cite any of the 
 parishioners to be contributory to the repairs of the 1535. 
 parish church, and the party who sues a prohibition to 
 the Bishop surmises that he is impleaded in the Spiritual Court 
 of his lay fee, a consultation (b) shall go." It does not appear 
 from Fitzherbert, or from the Registrum Brevium Originalium, 
 upon which F. N. B. is a commentary, whether the defaulter 
 had or had not been rated to the repairs of the church. The 
 issuing of a consultation under the circumstances stated in 
 Fitzherbert and in the Register (c) merely shows that the 
 repairs were not to be considered as a burden upon the lay 
 fee, (in other words, upon the real estate,) so as to entitle the 
 party sued, — whether it was for nonpayment of a rate, or for 
 not concurring in making a rate, — to the interposition of the 
 temporal courts; and that the jurisdiction of the Spiritual 
 Court was founded upon this distinction. 
 
 In Jeffrey's case, Sir Christopher Wray, C. J.(d) is 
 stated to have said, " That forasmuch as the conusance 1589- 
 of the reparations of churches doth belong to the Spi- 
 ritual Court, it was necessary to hear the opinion of those who 
 profess the ecclesiastic law as to this point ; and so it was 
 done. And thereupon divers of them under their hands in 
 writing did certify their opinions, that Jeffrey (who resided 
 in another parish, but occupied land in Haylesham) by their 
 law was a parishioner of Haylesham as to this purpose, 
 and chargeable to the reparations of the church of Hayles- 
 ham : and that the churchwardens and greater part of the 
 parishioners (on such general warning) met together, might 
 make such a tax by their law — and that it does not charge the 
 land, but the person in respect of the land for equality and 
 indifferency."(e) So Peckius de Eccl. Rep. 39, ed. 1620. 
 
 This, as well as the Fountains' Abbey (/) case, shows that 
 dicta of judges sitting in courts of common law, and speaking, 
 ultra crepidam, upon the course of proceeding in the ecclesias- 
 tical courts, are of little weight ; that the right of imposing 
 the rate is in the parishioners; and that the charge is not 
 upon the land, but upon the person, in respect of his ability 
 
 (a) Fitz. Natura Brevium, 50 N. 
 
 (b) A writ permitting the ecclesiastical judge to proceed. (c) Folio 44. 
 (d) 5 Coke's Rep. 67, b. (e) Ante, 20; post, 23, 28. (/) Ante, 18.
 
 ( 22 ) 
 
 evidenced by his possession of land. This distinction is im- 
 portant. It is not, us it is now convenient to represent it, a 
 miserable modern quibble, but was set up by the ecclesiastical 
 courts themselves as the very foundation of their claim for ex- 
 emption from the control or interference of the king's temporal 
 courts. Upon the landholder insisting that the ecclesiastical 
 courts were seeking to impose a burthen upon his lay fee, the 
 answer was " No, we only proceed in personam, looking at 
 the land you occupy, with the cattle you possess, as a fair cri- 
 terion of your ability to contribute." 
 
 In Methold v. Whine (b) it was adjudged that the 
 1595. churchwardens, by the assent and agreement of the 
 parishioners, may take the stones belonging to the 
 church, and with part thereof repair a ruinous window of the 
 church, and retain the rest to themselves in satisfaction of 
 their expenses employed in the repairs of the said window. 
 
 In the case of St. Saviour's Southwark (a), the 
 1G06. Court of Exchequer held, that when an election is to 
 be by the greater number of the parishioners, and the 
 election is by a small number, but there is no evidence that 
 others of the parish, to a great number, did withstand or 
 gainsay the election, which was made at a day usual and 
 place certain, and therefore all the parishioners by intend- 
 ment were knowing of it, or might by intendment of law been 
 present at the election ; it being in an open place to which 
 every parishioner might make resort : it was held that the 
 election was as good as if all the parishioners had met and 
 elected ; for it were harsh in law, if the election by those that 
 were present should not be good when the residue are wilfully 
 absent." Both these cases recognize the general authority of 
 the majority of the parishioners. 
 
 In Sir Robert Lee's Case (c) it was held, that if 
 
 1607. a citizen of London erect a house in the parish of 
 
 A. to dwell there in the time of sickness in London, 
 
 and has no land in the parish, and is assessed 20s. for the 
 
 reparation of the church, whilst others who have 100 acres of 
 
 (a) Lane's Reports, 21. 
 
 (6) 1 Roll. Abr. 393, translated 4 Yin. Abr. 526, pi. 4. 
 
 (<•) 2 Roll. Abr. 289, translated 17 Yin. 575, pi. 6.
 
 ( 23 ) 
 
 land pay but 6<1., still no prohibition shall be granted upon a 
 suit for the 20s. in the Court Christian, because they have 
 jurisdiction of the matter; and therefore they may order this 
 according to their law. 
 
 In Staikey v. Barton (d) the Court granted a con- 
 sultation upon a prohibition to a suit arising out of a 1608. 
 church rate, because the temporal court hath nothing 
 to do with the principal matter, viz. a tax laid for repairs, 
 for that is merely spiritual and to be determined in the Court 
 Christian. 
 
 In Willmore's case (a) it was held, that a man who 
 had ceased to be a parishioner, was liable to be as- 1622. 
 sessed to a Church-rate if he had ever belonged to the 
 parish (sil unques fuit del parish), though not for ornaments. 
 
 And in the same Court and term, in the Church- 
 wardens of case (J), is stated an obiter dictum 1622. 
 
 of Lane, C. J., assented to by Chamberlain, (who had 
 decided Willmore's case,) that for the reparation of the fabric 
 of the Church (qu. the obligation) is real, and charges the 
 land and not the person ; but if it be for ornaments of the 
 Church, then he said it is personal, and that if a man is not 
 commorant within the parish, he is not chargeable in respect 
 of the land, for such tax charges the goods only ; and to 
 this Chamberlain, J., agreed, and no one denied it. Neither 
 of these two cases would now be considered as law ; no such 
 distinction between ornaments and repairs exists. The charge 
 is real in the sense in which Lyndwood calls it real, when in 
 the same sentence he says that it is measured by the quantity 
 of land and animals — real as measured by things. In the 
 feudal sense of the word in which it is now affected to be 
 received, the charge is not real (c). 
 
 So it was held in Holland v. Kirton (e) that the 
 Court had no jurisdiction to grant a prohibition when 1 162 I 
 lands of the annual value of 60/. were rated at 100/. 
 
 (a) 2 Rolle's Reports, 262. 
 
 (b) Ibid. 270. 
 
 (c) Ante, 21, 22. 
 
 (<0 Velvet-ton's Reports, 172. The case and point are referred to in Motam v. 
 Motam, 1 Roll. Rep. 426. S. C. not S. P. 2 Brownlow's Rep. 215 ; C'ro.'jac. 234. 
 
 (e) 2 Roll. Rep. 463. In this case it was doubted whether a custom to rate, 
 according to value of sheep-walks, omitting houses and farms, was good, post, 25.
 
 ( 24 ) 
 
 In Popham's Reports, 197, a prohibition to the 
 1627. Ecclesiastical Court of Worcester was moved for, on 
 
 the ground that the suit was for money assessed by 
 the assent of the greater part of the parishioners of D. upon 
 the. plaintiff for the reparations of the church, to wit, for the 
 recasting of their bells ; the truth being that the charge was 
 for the making of new bells, when there were four before. 
 Another ground was, that the plaintiff had alleged a custom 
 that he and all those, &c, have used to pay lis. for any re- 
 paration of the church. But the prohibition was denied ; 
 and by Dodcridge, J., in the book of 44 Edward 3, (a) there 
 was a bye-law to distrain, which is a thing merely temporal. 
 Et per Curiam. — In this case, the assessment by the major 
 part of the parishioners binds the party, albeit he assented 
 not to it ; and the Court seemed to be of opinion, that the 
 custom was not reasonable, because it laid a burden upon the 
 rest of the parish. Littleton, of counsel of the other side, 
 said, "suppose the church falls, shall he pay but lis. ? 
 Whitlock, J. If the church falls the parishioners are not 
 bound to build it up again ; which was not denied by 
 Jones, J." This case recognizes the power of the majority of 
 the parishioners to assess a church rate ; and also shows that 
 the power of recovering church rates by proceedings at law, 
 must depend upon some collateral common law right — in 
 this case the existence of a bye-law. 
 
 In a case (b) in which Roberts and others, in East 
 1G27. Greenwich, were cited by the Spiritual Court to pay 
 
 money which the churchwardens had expended in re- 
 paration of the church ; the inhabitants alleged that the tax 
 was made by the churchwardens themselves, without calling 
 the freeholders ; and also, that the moneys were expended in 
 the re-edifying of seats belonging to their several houses, and 
 that they never assented to their being pulled down. This 
 allegation being rejected, the Court granted a prohibition upon 
 the ground that the tax cannot be made by the churchwar- 
 dens, but by the greater number of the inhabitants. In this 
 case, the prohibition was granted upon the want of authority 
 
 (a) Ante, page 20. (6) Sir Thomas Hetley's Reports, 63.
 
 ( 25 ) 
 
 in the churchwardens to make a rate, and not in respect of 
 the application of the money — which would be matter of 
 objection to the churchwardens' accounts, rather than a ground 
 for refusing to pay the rate. 
 
 In Andrews v. Hutton(a) a party applied for a 
 prohibition to a suit for a church-rate on two grounds ; 1628. 
 first, that the libel was upon a custom that the lands 
 should be charged for reparations, and that customs ought to 
 be tried at the common law ; secondly, that by a custom in 
 the parish, houses and arable land should alone be taxed for 
 the reparations of the church, and that meadow and pasture 
 should be charged with other taxes. But the Court held, that 
 although the libel is by a custom, yet the other lands shall 
 be dischargeable (qu. chargeable) at the common law; but the 
 usage is to allege a custom. Secondly, that houses are charge- 
 able to the reparation of the church as well as land. And 
 thirdly, that a custom to discharge some lands (b) is not good. 
 Wherefore, says the Report, a prohibition was granted, (c) 
 In this case the libel appears to have been in the usual 
 form, stating the liability to be by custom ; but that custom 
 not being laid as existing within a particular district, would 
 import a general liability, extending over the whole realm ; 
 and therefore not in the nature (as the objection supposes) of 
 a special custom, the existence of which it is competent to the 
 adverse party to deny, and which, if put in issue, ought to be 
 tried in a Court of Common Law. The allegation of a custom 
 in the libel may, perhaps, be considered as an indication of 
 the imperceptible process by which the obligation was trans- 
 ferred from the rector to the parishioners, though it is true the 
 insertion of such an allegation may be attributed to an anxiety 
 to distinguish between the local usage of England and the or- 
 dinary disposition of the burden, according to the rules of the 
 canon law. 
 
 The decision in this case, that a custom, discharging some 
 lands from the obligation to contribute to chinch rates, is not 
 good, appears to be founded upon the principle, that church 
 rates are imposed upon the person with reference to ability, 
 and are not a charge upon the land ; since if it were a charge 
 
 (a) Hetlcy, 130. (ft) Ante, 23. (r) Probably a misprint for "denied."
 
 ( 26 ) 
 
 upon the land, there seems to be no reason why particular 
 landowners might not take upon themselves, by agreement, 
 the whole liability ; and if such an agreement would have 
 been binding, the custom would be evidence of its existence, 
 as in the case of repairs of bridges. 
 
 In the Churchwardens of Claydon v. Duncombe(a) 
 1638. it was held, that where churchwardens sue J. S., sur- 
 mising in their libel that he and all those whose es- 
 tate he hath in certain land adjoining the churchyard have 
 used to repair so much of the fences of the churchyard as ad- 
 join the land, a prohibition lies, for this ought to be tried at 
 the common law, because this is to charge a temporal inheri- 
 tance. This decision proceeds upon the distinction between 
 the spiritual right to the assistance of parishioners for re- 
 pairs, and the rights of property, as existing in the church as 
 a landowner, against adjoining landholders. 
 
 In Thursfield r. Jones (b) one of the London Com- 
 1671. panies was assessed in respect of its hall to the repairs 
 of the parish church, and a citation being issued from 
 the Consistory Court against the officers of the Company, the 
 Court of King's Bench refused a prohibition, on the ground 
 that the Spiritual Court had cognizance of the matter, and 
 had no other mode of proceeding against a corporation. 
 
 In a collection of cases, called Ventris's Reports, 
 1673. published after the death, and therefore without* the 
 corrections of the collector or reporter, is the following- 
 case, printed at first as Anonymous, (c) but for which some 
 subsequent editor, (probably considering that a case without 
 a name was a sort of nullius filius, devoid of legitimate autho- 
 rity,) appears to have borrowed the name of Thursfield v. Jones 
 from the preceding case, which had come before the Court two 
 years before. A motion for a prohibition to a suit in the Ec- 
 clesiastical Court, for a churchwardens 1 rate, suggested that 
 they had pleaded that it was not made with the consent of 
 
 (a) 2 Rolle's Abridgement. 287, pi. 52, translated 17 Yin. Abr. 567. 
 
 (/>) Sir Thomas Jones's Reports, 187. 
 
 (c) 1 Vent. 367 For citing this case as Anonymous, the King's Attorney- 
 General is, by one of his assailants, "allowed to take his choice between wilful 
 mis-statement and culpable inaccuracy." 17 Law Mag. p. 389.
 
 ( 27 ; 
 
 the parishioners, and that the plea was refused. The Court 
 said that the churchwardens (if the parish were summoned, and 
 refused to meet or make a rate,) might make one alone for the 
 repairs of the church, (if needful,) because that if the repairs 
 were neglected, the churchwardens were to be cited, and not 
 the parishioners ; and a day was given to show cause why there 
 should not go a prohibition." This appears to be a loose 
 note of an obiter dictum, the language of which is obscure and 
 ambiguous. " A refusal to meet or make a rate" may be by 
 parties asserting that they will do neither; in which case 
 it would be clearly competent to the churchwardens, as pa- 
 rishioners, to make a rate by themselves; or the expression may 
 have been used to denote separate refusals to do each of these 
 things. In the former sense the dictum is consonant to pre- 
 ceding and subsequent authorities; in the latter, it appears to 
 stand alone, without possessing those marks of deliberation, 
 or even of authenticity, which would entitle it to much weight. 
 
 I shall take no notice of the transfusion of this case into 
 Bacon and Viner, because every lawyer knows, that whilst 
 the abridgments of Statham, Fitzherbert, Brooke, Rolle, and 
 Comyns, when they directly or indirectly state their own 
 opinions, are authorities per se, Bacon (except in his title 
 Lease, and the few others which he obtained from Chief 
 Baron Gilbert) and Viner are of authority so far only as they 
 are found to have abridged faithfully that which was worth 
 abridging, and in respect of a small number of original cases. 
 
 In Wheler v. Lambert (a) a prohibition was granted 
 nisi to the Ecclesiastical Court, in a case where J. S. 1675. 
 suing as churchwarden of St. Peter's, in Colchester, 
 was stated to be not duly elected according to a custom, 
 and a piea to this effect had been rejected in the Spiritual 
 Court ; but it appearing that J. S. was churchwarden de facto, 
 and that he, with the inhabitants and another churchwarden, 
 had made the tax, the rule for a prohibition was discharged ; for, 
 per Cur. where the question is only, who is churchwarden, 
 if such custom is alleged, a prohibition shall be granted ; but 
 the matter here is for a tax for the repair of the church, and it 
 is not material now whether he was duly elected or not. Be- 
 
 (a) 3 Keble's ^Reports, 533, but moie fully reported from a MS. note, 1 Bac. 
 Abr. 602, (6th edit)
 
 ( 28 ) 
 
 sides, this tax is not rated by the churchwardens, for they 
 have no such power ; but it is a common charge imposed by 
 the major part of the parishioners, and the churchwardens do 
 no more in assessing it than the other parishioners, and the 
 tax will be well assessed by the major part of the inhabitants, 
 though the churchwardens are against it : their chief business 
 is in collecting it ; and the matter is a matter of ecclesiastical 
 cognizance ; for the spiritual judge may inquire touching the 
 want of reparations of the church. And upon the rule for 
 discharging the prohibition all this matter was ordered to be 
 entered, for fear it should be afterwards thought that a pro- 
 hibition was denied where a custom was in question. 
 
 In Watkins v. Seaman (a) the Court refused to grant 
 1685. a prohibition to a suit in the Ecclesiastical Court, 
 upon certain objections taken in respect of a payment 
 to poor prisoners, and for chimes in the church. I refer to it 
 merely as showing the form of the libel, which states that 
 after due notice the churchwardens, and the greater or a com- 
 petent number of the parishioners of the said parish, assem- 
 bled at the appointed day and in the usual place, and then 
 and there with deliberation and indifferency made an equal 
 rate, and imposed upon each parishioner according to the full 
 value of the lands, tenements, and rents, which each parish- 
 ioner had held or possessed in the same parish. Lyndwood, 
 however, states the liability to be according to the quantity of 
 land which the party possesses within the parish, and accord- 
 ing to the number of his cattle, (b) 
 
 In Woodward's case(c) a prohibition was granted 
 1688. upon a citation of a non-resident occupier, " for non- 
 payment of a rate for the bells of the church, to which the 
 inhabitants only are liable, and not those who only occupy in 
 that parish, and live in another ; but the repairing of a church 
 is a real charge upon the land, let the owner live where he 
 will" This case is cited by the ccnsualists for the last sen- 
 tence, which, contrary to all the authorities, (c?) asserts that 
 church rates are a real charge. In a report of the same case 
 in 1 Salk. 164, (e) the prohibition is stated to have been denied, 
 
 ta) 2 Lutwyche's Rep. 1019. (b) Page 53,255, ed. 1679 ; ante, 20, 21, 23. 
 (<■) 3 Modern Reports, 21 1. (a) Lyndwood ubi supra, ante, 20, 21. 
 (e) By the name of Woodward v. Mak> peace.
 
 ( 29 ) 
 
 and the obiter dictum as to the repairing of the church being 
 a real charge upon the land is omitted. A report of the same 
 case in Comberbach, 132, (a) agrees with that in Salkeld in 
 both these respects. 
 
 Ball v. Cross (b) has been cited by the censualists 
 for a dictum of Holt, C. J., " that by the common law 1689. 
 parishioners 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." I have already shewn, that the circumstance of 
 this liability being, in a certain sense, a common law liability, 
 is no proof of its untraceable antiquity. 
 
 They also rely upon Comberbach, 344, where a pro- 
 hibition was granted to stay a suit in the Ecclesiastical 1695. 
 Court, the libel setting forth that a rate was made for a 
 repair of a church and chancel in Exeter ; the rate being en- 
 tire, and the parish not ratable for the repair of the church. 
 The case goes on to state, that Holt was of opinion, that 
 " if there be public notice given to the parishioners, and 
 they will not come, the churchwardens may make a rate 
 without them." The name of the case is not given in Com- 
 berbach, but in 1 Salk. 105, it is reported by the name 
 of Pierce v. Prouse ; and in 1 Ld. Raym. 59, oy the name of 
 Pense v. Prouse ; in Carthew, 360, by the name of Hawkins 
 v. Rous ; in Cases tempore Holt, 13, by the name of Hawkins 
 v. Rouse ; and in 5 Modern Reports, 390, by the name of 
 Hawkins' case. In none of these contemporaneous, though 
 somewhat dissonant reports, does this obiter dictum appear ; 
 and, considering the character of Comberbach as a reporter, (c) 
 
 (a) By the name of Woodward v. Mackpeth. 
 
 {b) 1 Salkeld's Reports, 164; Holt's Reports, 138. 
 
 (c) In the House of Lords, 26th May, 1783. Bishop of London v. Fytche.— 
 Buller, J., in delivering his opinion, in answer to the questions proposed to the 
 judges, taking notice of a case which had been cited from Comberbach, and of one 
 cited from Noy, by the counsel at the bar, observed, that they were books of no 
 authority, and, if his memory did not greatly fail him, had been forbidden by some 
 of their predecessors to be cited at the bar. Cunningham's Law of Simon} . 77. la 
 the debate of the same case. 30th May, 1783, Lord Thurlow said. Curthew and 
 Comberbach were equally bad authority. In 4 East, 540, Lord F.llcnborough says, 
 " The comparative accuracy of Comberbach as a reporter, may be judged of by in- 
 ferring to his short report of this case (Smallcomb v. Cross), under the name of 
 Smallcom v. Vic. Lond., Comb. 429, in which report the facts, the point, and 
 names of parties are all mistaken."
 
 ( 30 ) 
 
 I think it is not entitled to any consideration; though it is true 
 that taken literally the position cannot be controverted without 
 supposing a case in which the churchwardens were not them- 
 selves parishioners. The report in Salkeld is this, — Church- 
 wardens assessed a rate for repairs of the church, and 
 after libelled against a parishioner for not paying it. Et per 
 Cur. being moved for a prohibition. 1st. The parishioners 
 ought to assess the rate, and not the churchwardens. 2dly. 
 The parishioners are only bound to repair the church and not 
 the chancel, for that it is to be repaired by the parson. 
 
 In Dawson v. Wilkinson (a) the Court of King's 
 1737. Bench prohibited the Ecclesiastical Court from enforc- 
 ing a rate made to reimburse churchwardens, and 
 the Court said " the reason is, that they are not obliged to 
 lay any money out of their pockets." This reason would be 
 unsatisfactory if the churchwardens were compellable by eccle- 
 siastical censures to do repairs whether the parishioners con- 
 sented to a rate or not. And, therefore, the principle is de- 
 nied by Dr. Nicholl, though he has not noticed this case. 
 1810. The same point was decided in Rex v. Haworth, (b) 
 1820. and in Lanchester v. Thompson, (c) and recognized 
 1834. incidentally in Northwaite v. Bennett, (d) 
 
 In Rex v. Churchwardens of St. Peter's, Thetford,(e) 
 1793. the King's Bench in the most distinct terms disclaimed 
 any authority to issue a mandamus commanding the 
 churchwardens to make a church rate, although the inhabitants 
 had refused ; saying, " We cannot interpose by granting a 
 mandamus, this being a subject purely of ecclesiastical juris- 
 diction." This case appears to decide the whole question. 
 
 So, in Rex v. Archbishop of Canterbury, (f) upon an 
 1807. application for a mandamus to admit an advocate in the 
 Court of Arches, the Court said that they had no authority 
 to administer a leyal remedy except to enforce a legal right. 
 
 In Rex v. Coleridge and others, (£•) (which was a 
 1819. rule for a mandamus to the rector, curate, church- 
 wardens, and sexton of St. Andrew, Holborn, com- 
 
 (u) Cases tempore Lord Hardwicke, 381. More fully reported, Andrews, 11 ; 
 (b) 12 Last, 556. (c) 5 Maddock, 4. (d) 2Cromp.& Mees. 316; 4Tyr. 236. 
 (e) 5 Term Rep. 364. (/ ) 8 East, 213. 
 
 (S ) 2 15ain. & Alder. 808 ; more fully reported, 1 Chitty Rep. 588.
 
 ( 31 ) 
 
 mantling them to bury M. G.) Abbott, C. J. said, " the ques- 
 tion is, whether this Court can interpose in this particular case, 
 by granting a mandamus, and I am of opinion that it cannot. 
 It may be admitted, for the purpose of the present question, 
 that sepulture in a parish churchyard is a common law 
 right ;(a) but I think that the mode of burial is a subject of 
 ecclesiastical cognizance, and ecclesiastical cognizance only- 
 If a clergyman should obstinately refuse to bury the body of 
 a parishioner brought to him for interment, / am by no means 
 prepared to say that this Court would not grant a mandamus, 
 commanding him to perform the obsequies of the dead, (b) 
 But in the cases cited, in which the court has interfered by 
 mandamus, the Court was only acting in furtherance and in 
 aid of the ecclesiastical jurisdiction. In some of the cases 
 cited, application was made to this Court to obtain the objects 
 in view with more celerity than they could be obtained by the 
 process of the ecclesiastical jurisdiction, the proceedings of 
 which were more slow in their nature than the proceedings of 
 this Court by the writ of mandamus, to compel the performance 
 of that which was required to be done. This Court would 
 
 (a) The position that a parishioner may have a comm 01 law right to interment 
 in the church-yard is put by Lord Tenterden only hypothetically. The right to 
 interment generally, or rather the right of survivors to require that the body of a 
 deceased person shall be in some way removed from places frequented by the living, 
 is a natural right resulting from the natural consequences of the decomposition of 
 animal matter, and is therefore part of the common law. But the right to in- 
 terment in a particular spot set apart for the reception of the bodies of persons 
 dying under certain conditions which are of ecclesiastical cognizance, can scarcely 
 be said to be a common law right. Vide post, 45. 
 
 (6) In this sentence, Dr. Nicholl (p. 25) discovers a clear indication, that if the 
 Ecclesiastical Court be without sufficient means of acting in matters within its 
 cognizance, the King's Bench will grant a mandamus. If so, why should not a 
 mandamus issue to executors to pay a legacy ? Because the Court will not bind 
 themselves not to interfere where what may turn out to be a common law right is 
 connected with forms which are of ecclesiastical cognizance, if public health and 
 public decency require that interference, it is inferred that they will interfere in cases 
 where there is no common law right and where no such circumstances occur. 
 This seems to be pretty much the same sort of reasoning, as if from a declaration 
 by Lord Tenterden, that he was not prepared to say that he should not take a 
 journey, it should be inferred that he was certainly going to York. Though he 
 appears for the moment to acquiesce in that part of Lord Tenterden's judgment 
 which so distinctly disclaims the power of issuing a mandamus to compel the making 
 of a church rate, yet, like a man convinced against his will, Dr. Nicholl repro- 
 duces his opinion in favour of the mandamus in every other part of his work where 
 the question arises. 
 
 C
 
 ( 32 ) 
 
 interpose to order that to be done which might lawfully be 
 done. But it would not require parties to do that which 
 would be indecorous in its nature, or might become the sub- 
 ject of indictment as a public nuisance. In the case before 
 the Court, the object is not to inter the body of the deceased 
 in the usual and ordinary mode of burial, but the contest be- 
 tween the parties is, whether the officers of the parish shall 
 bury the body in an unusual and extraordinary manner. 
 Without pronouncing what the Ecclesiastical Court may do, 
 I am of opinion that that is a question proper for the decision 
 of the Ecclesiastical Court, and not of this Court. I need 
 not observe that, in matters purely of ecclesiastical cogni- 
 zance, this Court does not interfere. In the common and 
 familiar instances of the repairs of a parish (church), it is well 
 known that this Court will not interfere by mandamus to com- 
 pel the repairs of the parish, church." 
 
 Rex v. Select Vestry of Preston, (a) supposed to 
 1797. be "directly in point," (b) was the case of a mandamus 
 
 to a select vestry, — to enforce the making of a rate ac- 
 cording to a local custom, either of which circumstances 
 would have rendered it inapplicable to the question. 
 
 In Rex v. Wilson, (c) a ride had been obtained call- 
 1825. ing upon the churchwardens to show cause why a 
 
 mandamus should not issue requiring them to make a 
 rate. It was objected, that all that churchwardens could be 
 required to do was to call a meeting of the parishioners for the 
 purpose of considering the propriety of making a rate, and that 
 the churchwardens had not power to make a rate without the 
 sanction of a vestry. The force of the objection is stated to 
 have been admitted by the counsel who had obtained the rule, 
 and the judgment of the Court is given in these words: — 
 " You cannot call upon the churchwardens to make a rate; 
 you can only call upon them to hold a vestry meeting for that 
 purpose." It has been said (//) that the ground of the refusal must 
 be taken to have been that the churchwardens could not be called 
 upon to make a rate without first holding a vestry meeting for 
 
 (a) Fully stated and observed upon by Mr. Arnold in his " Law upon Church 
 Rates," page 44. 
 
 (A) 17 Law Magazine, 384. 
 
 (c) 5 Dowling & "Uyland's Reports, 602. 
 
 (rf) Deacon's Letter to Lord Stanley, 10.
 
 ( 33 ) 
 
 that purpose. If that was the meaning of the Court, they ap- 
 pear to have adopted a most unhappy mode of expressing it. 
 
 In Hex v. Justices of Monmouthshire («) the Ses- 
 sions, being equally divided in opinion on an appeal 1825- 
 against an order of removal, quashed the order. It 
 was held that, even supposing that the sessions ought to have 
 adjourned the appeal, and that their judgment to quash the 
 order was erroneous, no mandamus lay to rehear the appeal ; 
 and that although they might be compelled by mandamus to 
 hear and decide an appeal, yet, having determined the appeal, 
 they could not be compelled to correct their judgment, sup- 
 posing it to be erroneous. This case has been put forward (a) as 
 an authority for the position, that the Court of King's Bench 
 will not only compel parishioners by mandamus, to meet for 
 the purpose of considering the propriety of imposing a church- 
 rate, but will treat a refusal to make a rate, in a case where 
 repairs are necessary, as a refusal to decide. On the contrary, 
 the refusal to make a rate appears to be analogous to the 
 quashing of an order of removal upon an insufficient ground 
 disclosed to the Court, in which case the Court of K. B. say 
 they wall not interfere with the jurisdiction of the sessions. 
 
 Rex v. Inhabitants of Wix(6) was a mandamus to 
 meet and elect churchwardens ; and as churchwardens 1831. 
 are temporal as well as spiritual officers, there could be 
 no doubt either as to the duty of the parishioners to elect, or as 
 to the authority of the Court of Common Law to require the 
 parishioners to assemble for that purpose. The difficulty was 
 to know to whom the writ should be directed in a case where 
 a legal liability to do an act of a temporal nature was ad- 
 mitted. Precedents were at last found for a mandamus to 
 parishioners, which are thus noticed by the reporters in a 
 note:— "In M. 10 Geo. 2, a mandamus was granted to 
 *.* the churchwardens and overseers of the poor of the parish 
 " of St. James, Clerkenwell, and to the principal inhabit- 
 " ants thereof, to assemble together in the parish church, 
 " and to make rates and collect the moneys for repair- 
 " ino- the church, &c. And in E. 1 Geo. 3, a mandamus was 
 " granted to the vicar, churchwardens, and parishioners of 
 " Croydon, to hold a vestry, and nominate ten persons, out of 
 
 (a) 4 Barnewall 6c Cress. Rep. 844 ; 7 Dowl. &c Ryl. 344. 
 (i) 2 Barnewall & Adolph. Rep. 157.
 
 ( 34 ) 
 
 " whom trustees were to choose collectors of a rate for the re- 
 
 " pair of the church." 
 
 The former of the two cases (a) mentioned in the 
 
 1736 above note was a mandamus to the churchwardens, 
 
 overseers of the poor, and twenty inhabitants of the 
 
 parish of St. James, Clerkenwell, and to the churchwardens, 
 
 and overseers of the poor and vestrymen, of St. John's, 
 
 Clerkenwell, under three acts of parliament. 
 
 , _„, The second of these cases (the Croydon case) was 
 1761. • . 
 
 also under a special act of parliament. 
 
 In Cockburn v. Harvey, (b) Lord Tenterden, in de- 
 
 1831. livering the written judgment of the Court, says, 
 " Rates for the repairs of churches in parishes, by the 
 
 common law, are to be made by the churchwardens and the 
 vestry, that is, by the churchwardens and inhabitants in 
 vestry assembled, if there be not a select vestry established by 
 usage or act of parliament." 
 
 1832. So in Rex v. Churchwardens of St. Mary, Lambeth, (c) 
 a mandamus was granted, because, being under a statute the 
 matter was not of ecclesiastical coynizance. 
 
 In Greenwood and Spedding, appellants, v. Greaves, 
 1832. Clay and others, respondents, (d) the right of the Ec- 
 clesiastical Court to compel the making of a rate, 
 
 ('/) See both these cases very fully staled from the original IMS. in Arnold's 
 " Law upon Church Rates," 37. 
 
 (b) 2 Barn. & Adol. 797. (c) 3 B. & Ad. 651. 
 
 (d) 4 Haggard's Ecclesiastical Reports, 77. The appellants, who were two of 
 the churchwardens of the parish of Dewsbury, had cited Greaves and Clay (the 
 other churchwardens) and other parishioners "to answer to certain articles touching 
 the health of their souls, and the lawful correction and reformation of their man- 
 ners, and particularly for their refusing to make or concur in making a rate or 
 assessment, or sufficient rate or assessment for the necessary repairs of the parish 
 church; and for the lawful and necessary expenses of the churchwardens relating 
 to the parish church, and incident to their office." The first article stated a custom 
 for rating each of the three townships to a third of the expenses of repairs, &c. 
 The second article stated, that an estimate of repairs, amounting to £111 : Is. was 
 submitted at a vestry meeting, that such repairs were necessary ; that the respond- 
 ents refused to make or concur in making a rate to the amount necessary to defray 
 the charges and expenses, but in lieu thereof agreed to make a rate amounting 
 altogether for the three townships to £50 : 17s., which is wholly inadequate to pay 
 for the necessary repairs of the parish church, &C, and that by reason thereof the 
 necessary repairs cannot be done. 
 
 The Ecclesiastical Court of York having rejected these articles, the Court of De- 
 legates affirmed the decree of rejection. 
 
 The printed report is silent as to the ground of this decision; but from the
 
 ( 35 ; 
 
 though insisted upon in the argument, was not decided by the 
 Court. 
 
 In Rex v. Churchwardens of Dursley(c) the Court 
 entertained an application for a mandamus, command- 1836. 
 ing churchwardens to make certain payments, or to raise 
 by a rate a sum sufficient for that purpose, although they 
 ultimately refused to issue the writ. But that was an appli- 
 cation under the Church Building Act (10 Ann. c. 11), by 
 which churchwardens are empowered and required to raise by 
 rate a sum sufficient, from time to time, to pay the interest of 
 money borrowed under authority of that act. 
 
 So in Rex v. Churchwardens and Overseers of St. 
 Margaret and St. John, Westminster (d), the Court 1815. 
 granted a mandamus to the churchwardens and over- 
 seers of the poor of two united parishes, requiring them to as- 
 semble a meeting, under the provisions of 10 Ann. ch. 11, for 
 the purpose of agreeing upon and ascertaining the moneys 
 and rates to be assessed within the limits of the two parishes 
 for the repair of the parish church of St. John's. 
 
 With respect to Rex v. The Lords of the Treasury, ex 
 parte Smyth, (e) relied upon by Mr. Deacon, (/) itissuf- 1835. 
 cient to observe, that although the right sought there to 
 be enforced was of civil, and not of ecclesiastical, cognizance, 
 the decision was received with surprise by the profession; that 
 applications nearly similar have been since refused ; and that in 
 Rex v. Lords of the Treasury, ex parte Hand,(<7) in which the 
 Court was pressed with the decision in Ex parte Smyth, the 
 Chief Justice in giving judgment expressed himself as follows: 
 — " All that we said in that case was, that the Lords of the 
 Treasury ought to make a return. We laid down no rule of 
 law beyond that. They might have made a return, and a fuller 
 consideration might then have been given to the subject." 
 It has been said, (h) that by one of the canons of 1603, " the 
 
 notes of the appellants' counsel it appears, that the Court was of opinion that 
 the question, whether the Spiritual Court may compel parishioners to repair, was 
 not raised by the pleadings. 
 
 (c) 6 Nev. ct M.3. 
 
 (J) 4 Maule & Selwyn, 250. 
 
 (e) 4 Adolphus & Ell. 286 ; 5 Nevile & Manning, 589. 
 
 (/) Another Letter to Lord Stanley, 5. 
 
 (g) 6 Nev.& M. 518. (>«) 17 Law Magazine, 319.
 
 ( 36 ) 
 
 churchwardens or questmen shall take care and provide that 
 
 the churches be well and sufficiently repaired," and that 
 these canons, being framed in pursuance of 25 Hen. 8, have 
 the force of law. The statute 25 Hen. 8, c. 19, contains no 
 enabling clause, it merely directs "that the clergy from thence- 
 forth shall not presume to attempt, allege, claim, or put in 
 use any constitutions or ordinances, provincial or synodal, or 
 any other canons, nor shall enact, promulge, or execute :m\ 
 such canons, constitutions, or ordinances, provincial, unless 
 the same clergy may have the king's most royal assent and 
 Licence to make, promulge, and execute such canons, consti- 
 tutions and ordinances, provincial or synodal, upon pain of 
 every one of the said clergy doing contrary to this act, and 
 Ik ing thereof convict, to sutler imprisonment, and make 
 fine at the king's will." And it has been not only doubted, 
 but denied, that these canons are binding upon the laity even 
 in matters ecclesiastical. (//.) 
 
 On the 31st of January last a mandamus was 
 1837. granted to a corporation called " The wardens, over- 
 seers ofthe poor, and inhabitants of St. Saviour's, South- 
 wark," to call a vestry and make a church rate for certain pur- 
 poses under two local acts of parliament ; (d) but it was as- 
 sumed and admitted in the course of the argument, in the 
 preceding Michaelmas Term, that at common law no man- 
 damus could have been granted. 
 
 I have now -(me through the cases which 1 have been able 
 to meet with dining the short interval which has elapsed 
 Mine m\ attention was first drawn to the subject. As far as 
 the investigation has as yet been carried, the view of the sub- 
 let taken in the Attorney General's letter appears to be fully 
 borne out ; and the whole current of authority, with the ex- 
 ception of a few dicta, possessing neither weight nor authen- 
 ticity, shows that a writ of mandamus cannot be awarded to 
 compel an unwilling majority to make a church rate, — any 
 more than they can be compelled to sow their lands on the 
 -round that the rector depends for his support on the per- 
 
 (</) See Grove v. Elliott, 2 Ventris's Reports, 41; Mill v. Good, Vaughan's 
 Reports, 302 ; Middleton v. Croft, 2 Strange 's Reports, 1056; same case, 
 Cases temp. Ilardwicke, 57, 326, 395, and 4 Viner's Abridgement, 320, pi. 4, 
 from MS.; Comyns's Digest, tit. Canons (C).
 
 ( 3? ) 
 
 ception of tithes,(«) or in respect of the interest of the public 
 in the cultivation of those lands, to which their means of 
 subsistence are restricted by the corn-laws (b). 
 
 Whether it be considered as a positive liability binding the 
 parish, or merely as a negative liability discharging others, 
 the liability has attached by custom, ;md though a custom 
 pervading the whole realm is a part of the common law, so 
 as to dispense with the necessity of allegation or proof of 
 the existence, or of the extent of such custom, yet it must be 
 taken with such incidents, and no other, as have accompanied 
 the exercise of the custom. The assistance provided by the 
 common law towards the enforcing of the liability which, 
 though thrown upon the parishioners by means which it may 
 neither be desirable nor possible to investigate, is now ad- 
 
 (a) The owner of an entire parish could not be prevented by mandamus, or by 
 any other legal course, from suffering his land to lie untilled, even though the effect 
 should be to reduce the tithe-owner, whether ecclesiastical or lay, to that state 
 which the Governor of Barataria characterizes, with a truth of description inspired 
 by his own personal apprehensions, as,— " muerte adminicula y pesima, corao es 
 la de la hambre." By a happy coincidence between the phraseology of the Eccle- 
 siastical Courts and that which Cervantes puts into the mouth of the simple squire 
 of La Mancha, the expression is capable of an almost literal translation. Even 
 learned canonists, adopting the sense in which one of their own forensic terms is 
 used by Sancho, might speak of "adminicular death by starvation." 
 
 (6) Though in the North the people are assembling in large masses to " fright the 
 land from its propriety" in hatred of a law directly tending to raise those who are 
 most dear to them from the state of lazzaroni to that of citizens, not a murmur is 
 heard when landholders, acting in their legislative capacity, secure to themselves, 
 in their individual capacity, the right of selling one loaf at the price of two. 
 Children go pale and hungry to bed, whilst the rich harvests which God has sent to 
 renew their health and to invigorate their frames rot upon the fields of Poland and 
 the Ukraine, in order that the price at which corn can be forced upon a barren 
 heath, may be obtained from those who are able to pay it. Whether a commercial 
 or an agricultural restriction is to be e^ablished, it is. in the present state of national 
 education — or rather in the absence of national education — almost hopeless to ad- 
 vocate the rights of the many against the minor but concentrated interests (real 
 or imaginary) of the few. If editors of leading journals, — instead of dwelling upon 
 outrages committed by an un-English police against the liberties of English pick- 
 pockets, or supporting men interrupted in their coarse of getting rich, like Manuel 
 Ordonez, by administering the goods of the poor, (n'ayant en vue que le bien 
 des pauvres,) had been pleased to adopt the cry of " Nothing like leather,'' crowds 
 of distressed curriers would have required the walls of the Tower to be forthwith 
 thrown down and reconstructed upon sound conservative coriaceous principles ; 
 and ball after ball would have been announced at the Mansion House, to afford to 
 the "patrons of British industry" an opportunity of dancing or attempting to dance 
 in a costume of appropriate buckskin.
 
 ( 38 ) 
 
 mitted to exist, appears to amount to this: — The common law 
 permits the Ecclesiastical Courts to apply the coercive autho- 
 rity of their laws to the extent which their own rules warrant, 
 provided no direct charge is sought to be imposed upon pro- 
 perty, and provided they abstain from determining questions, 
 the cognizance of which belong exclusively to the King's 
 Common Law Courts ; which modes of coercion in the Ec- 
 clesiastical Courts seem to be by ecclesiastical censures termi- 
 nating in excommunication, or adjudication of contumacy, to be 
 inforced by process of imprisonment issuing out of the Common 
 Law Courts in pursuance of a significavit, in cases when a lia- 
 bility to do a specific act is attached upon individuals either in 
 their personal or in an official capacity ;(a) and secondly, by in- 
 terdictor suspension of the celebration (b) of divine service when 
 the default has not assumed an individual personal character. 
 And the Common Law further permits the exercise in favour 
 of Church Rates of that species of domestic administration, 
 l>\ which the major part of parishioners may not only bind 
 the minority as to all matters of a public nature, as the re- 
 fa) Ecclesiastical censures can with propriety only be addressed to those who 
 are members of the censuring church ; and the whole system of ecclesiastical juris- 
 diction over those who are not such members, rests upon the old legal fiction 
 (perfectly reasonable at a period when the law took notice of dissent only as a 
 ; that the subjects of a prince are members of the prince'schurch, and that 
 all who obey a parliamentary k. i 1 1 «^ necessarily worship a parliamentary God. 
 
 (/)) 12 1 t. By a record of the reign of I [enrj III. it would appear that posthu- 
 mous or rather antehumoiu corporal punishment was sometimes inflicted under the 
 authority of the ecclesiastical judge. 
 
 Pleas in the county of Dorset before ll.de Thurkeleby and his fellows in the 
 28th year of the reign of King Henry, son of King John. 
 
 Master Walter, Archdeacon of Taunton, and Master Henry, his official, were at- 
 tached to answer William de Oreways of a plea wherefore they held plea in the 
 ( lourt-Christian of the lay fee of the said William in Badyanton, against, &c. And 
 thereupon lie says, that he delivered to them the prohibition of the Lord the Kin", 
 Sec. at Taunton, in the Church of St. .Mary Magdalen; yet, the said Archdeacon 
 and Master, contemning the prohibition aforesaid, caused to assemble the whole 
 parish oi Badyanton, and by a certain inquisition which they then made by certain 
 of the parishioners, made a certain perambulation in the court of the said William 
 through the middle of his capital messuage, and demanded a certain part of the 
 said messuage, \c, and caused him to be denounced as excommunicated, and all 
 communicating with him, and also his men (tenants), so that hy reason of that de- 
 nunciation lie could not have any servant, and caused one of his men (tenants) 
 who was dead to he cudgelled before Ins body could be buried — "et quemdam ex 
 hominibussuismortuum, priusquam corpus ejus posset sepeliri, fecit fustigate, &c.;"
 
 ( 39 ) 
 
 pairing of churches, highways, parochial bridges, &c. but 
 may inforce their regulations by process of distress, (c) 
 
 In consequence of the inefficacy of the remedy by interdict, 
 and the inapplicability or uncertainty of the proceeding by 
 personal ecclesiastical censures, the repairs of churches are, in 
 the present state of the law, dependent upon the caprice of 
 the parishioners; as it would be inconvenient, if not positively 
 unjust, to insist on the right to resort to the receivers of the 
 tithes, who, according to the ecclesiastical writers, are still 
 liable to the repairs of the body of the church, when the 
 
 and the archdeacon and Master Henry came and defended the force, &c, denied 
 the holding plea against the prohibition, but said nothing as to the fustigation. 
 They were dismissed upon waging their law, &c. duodecima manu, (that is, by 
 swearing that they had not held plea since the prohibition, and by producing eleven 
 persons to swear that they believed them,) and the plaintiff was, — in misericordia, 
 taken into custody, and fined one mark. Placitorum Abbreviate, 121. 
 
 This is what honest Sanclio would call " Yr por lana, y bolver trasquilado." 
 
 It may be doubted whether, in these days, the fustigation of all the corpses in 
 the parish would turn the hearts of a radical vestry. 
 
 (c) See Smelhesden v. Ashton, 1 Roll. Abr. 666, translated 9 Vin. 
 Abr. 136, pi. 1 ; Brumfield v. Tea, Freeman's Rep. 103 ; 1 Anderson's Rep. 71. 
 
 1225. The English division of nave and chancel appears to have been adopted in 
 Scotland by the clergy in the thirteenth century. The following decree was made at 
 a national council held in the reign of Alexander II. : — '* Statuimus quod ecclesiae 
 ad modum facultatum ipsorum narochianorum etper ipsos parochianos, et cancella 
 earum per ipsos rectotes, de lapidibus construantur, &c. et ad statum debitum re- 
 formentur." 1 Wilk. Cone. 608. 
 
 1553. In the struggle to prevent the introduction of the Reformation into Scot- 
 land, a synod was held, in which it was declared that churches were to be repaired 
 by the rector and the parishioners, the former obligation to be enforced by seques- 
 tration ; and an inquisition was to be made for persons who broke images or neg- 
 lected to repair the body of the church, and who were to be brought before the 
 ordinary, and punished according to the canon law. (Concil. Provinc. Cleri Scoti- 
 cani, ed. 1558, 4 Wilk. Cone. 211.) 
 
 1563. After the Reformation, it was enacted, (Pari. 1563, cap. 76,) that the 
 manner of repairing kirks should be remitted to the Council ; the Council laid the 
 burden of repairing two-thirds of the church upon the parishioners, and one-third 
 upon the parson. In ratifying the Act of Council (Pari. 1572, cap. 54) the manner 
 of repairing kirks is not repeated in the ratification, but it is only said in general, 
 that the parishioners were warranted to name persons to stint their neighbours. 
 (Stair's Institutions, Book 2, tit. 3, s. 5.) This arrangement would rather appear 
 to have been made in imitation of that which existed in England, without perhaps 
 adverting to the different position of the religious establishments of the two king- 
 doms in respect of the tithes, upon which in both countries the burthen originally 
 rested. The resemblance between the two systems would have been closer if the 
 Scottish clergy had retained, or the English had lost their tithes.
 
 r 4o ) 
 
 means derived from other sources are inadequate. (a) This 
 is ;i state of the law which ought not to continue — which 
 cannot continue. 
 
 The circumstance, that an alteration in the state of society 
 has rendered former remedies less efficacious, does not ap- 
 pear to me to authorize the admirers of church rates to call 
 for more stringent measures either by the ordinary course of 
 law, or by the extraordinary interference of the legislature. (b) 
 Those against whom the new remedies would be applied, 
 might say with justice, " although the persons to whose in- 
 terests we have succeeded and whom we represent, were in 
 their unguarded moments prevailed upon to relieve the rector 
 from the liability to repair the church, they did not consent 
 that their condition and ours should be rendered still less 
 tolerable by variations in the terms of the new engagement." 
 It would be peculiarly oppressive to aggravate the burthen at a 
 period when a large portion of the community cannot, without 
 doing violence to their convictions, derive any benefit from the 
 services rendered, — whether such services are considered as 
 rendered in respect of the tithes exacted under the original 
 contract, or in respect of the additional payments in the form 
 of church-rates to which the parties may have become contri- 
 butory under the substituted arrangement. 
 
 I cannot entirely pass over some cases, which though they 
 have no direct bearing upon the point of law, appear to me 
 not without interest with reference to the general question. 
 
 In a case between the inhabitants of the parish 
 1617 of Stratford and the inhabitants of the chapel (qu.? 
 chapelry) of ease of Loddington, it was held, that if 
 there be a parish (lunch and a chapel of ease in the same 
 parish, and the chapel of ease has, time immemorial, had 
 all spiritual rites, except burial, which has used to be done 
 in the parish church, and they who have used to go to the 
 
 (a) Peckius, 47; Lyndwood, Prov.251. But the original third of the tithes ap- 
 propriated to the clergy appears to be in no case liable to be burthened for the repairs 
 of the church. " De tertia parte decimarum nihil prcsbytero qui servit ecclesiaj, 
 auferatur.— Concil. Normann. apud Abrincam Civitatem (Avranches) temp. Ilen- 
 rici II. 1179. 4 Wilk. Concil. 790 ; 2 Spelm. Cone. 99, &c. 
 
 (b) Quod male persuades, utinam bene cogere possis, — was not written for the 
 ponsolation of a churchwarden, disappointed in obtaining a vote of credit fiom the 
 guardians of the parochial purse.
 
 ( 41 ) 
 
 chapel of ease have immemorially used to repair a part of the 
 wall of the churchyard, and in consideration thereof, and 
 because those who are of the chapel of ease have immemo- 
 rially used to repair the chapel of ease at their own costs, they 
 have been time out of mind discharged from the repair of the 
 parish church, the prescription is good (a). 
 
 And in Penneland v. Toy e (a), a prescription to have 
 all sacraments, except burials, in a chapel of ease, 1635 
 and to repair the chapel, and to pay 3s. 4d. per annum 
 for reparation of the mother Church, in discharge of then- 
 reparation of the mother Church, was held to be good. 
 
 In Weeks v. Oxendon, in C. P. (b), Weeks being- 
 sued in the Ecclesiastical Court for repairs of the 1681 
 Church, suggested, that he had built an aisle and re- 
 paired it at his own charges, and moved for a prohibition. 
 Sed per Curiam. — Unless it be suggested, that he sits in the 
 aisle, and hath no benefit of the navis Ecclesia?, there is no 
 cause for a prohibition. 
 
 It appears from the three preceding cases that the spiritual 
 consolation and temporal advantages which the parishioners 
 derived from the Church, were considered as the consideration 
 of the repairing of the Church, and that those benefits formed 
 the standard and measure of the extent of the liability, (c) 
 There seems, therefore, to be some ground for contending that 
 such liability (d) ought to be considered as at an end from the 
 
 (a) 2 Roll. Abr. 290, translated 17 Vin. Abr. 579, pi. 1. And the same point 
 is stated to have been determined in Marshall v. Ashley, in 1602. 
 
 (a) 2 Roll. Abr. 290, translated 17 Vin. Abr. 579, pi. 2. 
 
 (b) Freeman's Reports, 301. 
 
 (c) Johannes Andreas however, (called by Baldus, Juris Canonici Fons et 
 Tuba) who contrary to the present usages of the profession, bivouacked for 20 
 years in a bear's skin, (viginti annos, pelle ursina tectus, citra lecti delicias noctu 
 cubuit,) did not think that a parishioner could avoid payment by absenting himself 
 from the parish church (quod possit excusari aliquis, licet velit renunciare usui 
 ipsius ecelesiae.) Lyndwood, 255, edition of 1679. So Peck, insists " omnes 
 teneri, etiamsi commodo ecclesije renunciare velint," for, says he, "vicinus non exi- 
 mitur ab onere reficiendi putei communis, si usui ejusdem renunciare velit." Peckius 
 de Ecclesiis reparandis, ed. 1620, p. 64. Vide ib. 37, 39, 47, 49, 63, 81. 
 
 (d) Perhaps " liability to repair a parish church " ought, with reference to the 
 mode in which it devolved upon the parishioners, to be understood in the sense in 
 which the owner of a house is said to be liable to repair, when he has ceased to 
 have a tenant who is under covenant to repair. This view of the case is not in. 
 consistent with the control exercised by the Ecclesiastial Court pro salute animarum.
 
 ( 42 ) 
 
 moment when it ceased to be a legal crime to be incapacitated 
 from the reception of the spiritual consolation, and from the 
 participation in the temporal advantage. 
 
 I have the honour to be, 
 Your Lordship's most obedient humble servant, 
 JAMES MANNING. 
 
 ( pon the supposition of the duty of spiritual obedience to the spiritual court, the 
 spiritual judge would be entitled to interfere for spiritual purposes with the arrange- 
 ments of a private house. If in a private oratory St. Sebastian were exhibited 
 witli a gridiron, and St. Lawrence as pierced with arrows ; St. Catherine at the piano- 
 forte, and St. Cecilia witli the wheel — such a scandalous misrepresentation might be 
 a proper subject for ecclesiastical censures — dignus vindice nodus. 
 
 The difficulty consists, first, in the assumption of the duty of obedience to eccle- 
 siastical jurisdiction exercised by the spiritual officers of one religious community over 
 those who are not members of that community ; and secondly, in the perversion of 
 the process of excommunication to indirect and collateral purposes : even where the 
 jurisdiction properly exists, " Excommunication ought to be reserved for repressing 
 the atrocity of horrible crimes, bringing most grievous infamy upon the Church as 
 tending to the entire overthrow of religion, or to the perversion of morals." 2 Gib- 
 son's Codex, 1095. But no infamy is incurred by the crimes of strangers. Neither 
 the fierce persecutions nor the revolting immoralities of Nero, though practised at 
 Home, were ever supposed to subject him to the correctional jurisdiction of the 
 bishop of that city, or to furnish grounds for a sentence "cutting him off from the 
 unity of the Church." There can be no exsection of that which is not parcel, — 
 no cutting off of that which never adhered. It is an abuse of the process of 
 excommunication to apply it to those who are incapable of communicating, — an 
 abuse as startling as the bold antithesis of Quevedo, who in his letter of remon- 
 strance to Lewis XIII., complaining of a sacrilege committed by French hugonot 
 Boldiers in plundering a nunnery in Flanders, and throwing the consecrated wafer 
 into a manger, exclaims, " Cavallos comulgados, y descomulgados cavalleros !" 
 (Horses made communicants and excommunicated horsemen.) 
 
 " Let us take any men's horses, the laws of England are at my commandment" 
 would sound strange in the mouth of a churchman, even whilst proceeding towards 
 Kensington to do homage for the temporal barony annexed to his see, the original 
 grant of which is probably inscribed upon the lunar tables that record the dona- 
 tion of Constantine to Pope Sylvester, and are safely deposited near the spot where 
 Astolfo obtained possession of the the phial labelled " Senno d'Oilando," in which 
 were stored the wits of that paladine after they had escaped from their proper 
 earthly receptacle upon the discovery of the disloyalty of Angelica. 
 "Di varj fiori ad un gran monte passa 
 
 Ch'ebbe gia buono odore, or putia forte. 
 
 Questo era il dono (se pero dir lece) 
 
 Che Constantino al buon Silvestro fece." 
 
 Orlando Furioso, canto xxxiv. 80. 
 
 Vide 2 Wilk. Cone. 9, 417, 48, 138, 141, 278; 3 Wilk. C. 11, 175, 276; 
 4 Wilk. C. 395, 805; Concil. Trident. Sess. 21, cap. 7; 1 Wilson's Reports, 283.
 
 POSTSCRIPT. 
 
 By the 33d article of the Church of England " That person 
 which by open denunciation of the church is rightly cut off from the 
 unity of the church and excommunicated, ought to be taken by the 
 whole multitude of the faithful as a heathen and a publican, until 
 he be openly reconciled by penance and received into the church by 
 a judge that hath authority thereunto." So Lord Coke says — ■ 
 " Excommunicato est nihil aliud quam censura a canone vel judice 
 ecclesiastico prolata et inflicta, privans legitima communione sacra- 
 mentorum, et, quandoque, hominum ;" Co. Litt. 133 b. And 
 Lord Chief Baron Comyns says — " Excommunication is when a 
 man by sentence of the Ordinary is deprived of communion with 
 the church of God;" Com. Dig. title Excommengement (A 1.) 
 Again Lord Coke says — " The spiritual judge's proceedings are for 
 the correction of the spiritual inner man, and pro salute animse, to 
 enjoin penance ;" 2 Inst. 622. All this is as it should be. If we 
 had no higher authority on the subject it would be reasonable that 
 a society should exercise the power of rejecting such members as 
 refused to conform to its regulations. But upon the alliance being 
 formed between the church and the civil power the members of the 
 church were considered as the subjects (a) of their spiritual supe- 
 riors, and contumacy was treated as rebel/ion (b) ; and as the church 
 had no machinery of its own with which to punish rebellious sub- 
 jects the secular arm of the civil magistrate was called upon to lend 
 its assistance. In England this assistance was afforded by the 
 writs de excommunicato capiendo (c), and de heeretico comburen- 
 
 (a) See Lyndwood, Provinciale, 315, 316, et passim. 
 
 (6) Persons refusing to contribute to the repairs of a belfry are designated as 
 rebels in a monition by the Bishop of Lincoln to the Dean of Hoyland against the 
 parishioners of Malton, A.D. 1282, given as the common form of a monition in 
 2 Oughton, 292 ; and see ibid. 393, commission to archdeacon to compel pa- 
 rishioners to repair the belfry of Hythe church by canonical coercion ; ibid, mo- 
 nitio pro rata, by which the Dean of the Arches enjoins the rector of N. to 
 admonish and induce by all lawful means (modis omnibus quibus de jure 
 poteritis) the possessors of estates (prffidiorum) and rents in the parish, although 
 nou-resident (quamvis alibi larem foveant) to assist the resident parishioners in 
 the repairing of the belfry, on the ground of the inability of the latter. 
 
 (c) Upon the certificate or significavit from the bishop that the party excommu- 
 nicated has contemned the keys (i. e. the keys of heaven) for forty days, that period 
 being allowed for an appeal to the court of Rome (Prior of Leeds's case, P. 20,
 
 ( 4« 
 
 do (</) upon a significavit or certificate from the bishop. The clergy 
 having thus obtained a temporal weapon for the purpose of en- 
 forcing spiritual regulations, the next step was to use the spiritual 
 regulation as a means of bringing the temporal weapon within their 
 grasp. Excommunication therefore is now denounced against per- 
 sons refusing to pay church-rates, — not truly and sincerely for the 
 correction of their manners and the salvation of their souls, but for 
 the purpose of making stepping stones of these minor objects to the 
 process of imprisonment which lies beyond them. This is one of 
 the abuses pointed out above (page 16). It probably originated in 
 the sale of Indulgences. In both cases ecclesiastical censures are 
 commuted for gold. This difference is however observable, that in 
 
 H. 6, fo. 25, pi. 20), the writ de excommunicato capiendo issues without any 
 notice to the party, who is thus liable to be imprisoned, and is disabled from 
 suing even where the excommunication is wrongful, and he i9 left to his remedy 
 by action or indictment (post, 45) against the bishop or his official. These hard- 
 ships have for a long time been strongly felt, and as early as the reign of Edward 
 III. were made the subject of a petition from the Commons, which did not, 
 however, receive a very gracious answer from the throne. 
 
 Petition — "Also pray the said Commons, that a writ ad capiendum excommu- 
 catum may not be granted by signification of the bishop before a scire facias be 
 sued against the party, that he may have his answer if the cause be of lay-fee, or 
 of lay-contract, or of spiritualty." 
 
 Answer — " Inasmuch as this petition is as well against the law of the land as 
 of holy Church, it appears to the Council that it ought not to be granted." — 
 2 Rot. Pari. 230. 
 
 Petition — " Also, when letters of excommunication are put forward against a 
 party to incapacitate liira from being answered, that the party have his answer 
 whether the cause be of lay-contract or of spiritualty." 
 
 \h-\mt -" Inasmuch as this petition is not reasonable, it appears to the King 
 and to his Council that it ought not to be granted." Ibid. 
 
 Where, however, the significavit is defective upon the face of it, and the party 
 has the good fortune to obtain timely notice of the proceeding, he may apply to 
 the temporal court to quash it. 
 
 Thus in the case of Ilex v. Eyre, 2 Strange's Reports, 1067, Lord Talbot, 
 Chancellor, quashed two significavits which described no ground for the ex- 
 communication, otherwise than by saying that they were in a cause which 
 came by appeal concerning a matter merely spiritual, " for we are to lend 
 our assistance but where it appears clearly they have jurisdiction, and are not 
 to trust them to determine what is a matter merely spiritual. It is no more than 
 saying that it is within their jurisdiction, which is never endured." 
 
 (d) The writ deluereticocomburendo was taken away by 29 Car. II. c. 9. This 
 " first instalment " towards the mitigation of the ecclesiastical code has not been 
 followed by any further changes. Since the Reformation, i. e. for more than a 
 hundred years before the abolition of this process, it had rarely issued except 
 against the minor sects. Even the rash advisers of Charles I. did not venture 
 upon the experiment of burning a puritan.
 
 ( 45 ) 
 
 the case of Indulgences the ecclesiastical censures are pronounced 
 bona fide, and the commutation is a distinct matter arising after- 
 wards, whereas in the case of the writ de excommunicato capiendo, 
 spiritual and eternal interests are from the very beginning mere ma- 
 chinery, got up with a view to the ultimate pecuniary object. 
 
 The other abuse {ante, 16) without involving less profanation, 
 exhibits still greater absurdity. To cut off from the unity of the 
 church one that was never a member of that church (more especially 
 if being a Jew or other unbaptized person, he has not the proxima 
 potentia of becoming a member,) seems to be as strange a proceeding 
 as if in the exercise of a different branch of ecclesiastical jurisdiction 
 the sins of a bachelor were visited with a sentence of divorce. Fortius 
 abuse, however, the law has provided a remedy, if there be no sub- 
 stantial difference between the undue assumption of jurisdiction over 
 persons and over things. A bishop who excommunicates for a mat- 
 ter not within his jurisdiction is liable to an action on the case for 
 damages at the suit of the party aggrieved, and is punishable crimi- 
 nally by fine and imprisonment, upon an indictment for the misde- 
 meanour ; 2 Inst. 623. But as prima facie every person is the 
 spiritual subject (ante, 43) of the bishop of the diocese within which he 
 resides, no wrong would be done or misdemeanor committed by ex- 
 communicating a dissenter or a Jew, for contemning the keys (i.e. the 
 keys of heaven), unless the bishop or his official had notice that the 
 supposed rebel was a party whom the law exempted from the obli- 
 gation of believing that such keys are entrusted to the keeping of 
 either the one or the other of those functionaries. ? . 
 
 Notwithstanding the doubt raised in Rex v. Coleridge (ante,-£&), 
 I think no mandamus can be granted to a rector to bury a dead body. 
 Upon a motion to quash, as insufficient, a return to such writ, stating 
 that the party was unbaptized, excommunicated, or an apostate, or 
 a usurer, (e) the court having, as we have seen (f) no judicial 
 knowledge upon these matters, would be incapable of deciding 
 whether a peremptory mandamus ought to be awarded or not ; 
 or if an action were brought for a false return, neither the court 
 nor a jury would be competent to pronounce upon the regularity 
 of baptism or excommunication, or to say what degree of renega- 
 
 (e) By the ecclesiastical law, the receipt of interest, however moderate, con- 
 stitutes usury. I am not aware of any attempt, by mandamus or otherwise, to 
 expel the body of a deceased mortgagee latitant in consecrated ground. 
 
 (/) Ante 18, where the judicial ignorance of the Courts of common law in 
 matters of ecclesiastical cognizance is represented as being so profound, as to inca- 
 pacitate them from forming an opinion whether a son may, like CEdipus, become 
 Ta 7raT£5? opirnofo; by marrying his own mother.
 
 ( 46 ) 
 
 
 tion amounted to apostacy, or whether a party belonged to that 
 class of usurers, against the mouldering remains of whom the ec- 
 clesiastical law has closed the oates of the churchyard. 
 
 uvrovr ce t\il)f>ia Tivyji Kvvtooi, 
 
 Oiwyo'tai te ttucti . 
 
 The same difficulty would attend a mandamus requiring parish- 
 ioners to make a church-rate. If the parishioners were to return, 
 that the objects for which the church-rate had been proposed are 
 partly books and vestments, and that the church is provided with 
 such and such books and such and such vestments, which arc suffi- 
 cient, the court would be equally at a loss to determine upon the 
 sufficiency of the books and vestments, and would therefore be un- 
 able to decide whether or not a peremptory mandamus ought to go. 
 
 It may be doubted whether those, who now insist upon the inter- 
 ference of the secular arm, in the shape of writs of mandamus and 
 excommunicato capiendo, and new penal enactments, in matters 
 which they admit to be purely ecclesiastical, assume a position which 
 is perfectly safe, and whether there may not lurk some danger of 
 obtaining more interposition than may be considered altogether be- 
 neficial. Lucy Hutchinson said to her over-zealous puritan friends — 
 " Wee have spirituall weapons given us for spiritual] combats ; and 
 those who goe about to conquer subjectes for Christ with arms of 
 Steele, shal find the base metall break to shivers when it is used, and 
 hurtfully flie in their owne faces." 
 
 In England it is considered part of the duty of the civil power to 
 provide buildings for religious instruction, and funds for the support 
 of those by whose ministry that instruction is imparted ; and it 
 is also considered part of the same duty to point out the particular 
 description of religious instruction which the people are to receive ; 
 in America neither branch of this duty is is recognized; the former 
 country adopting the voluntary principle in labour, and the latter 
 in religion. It may be thought highly desirable that the duty should 
 be performed in both its branches, more especially where the civil 
 magistrate is a member of an infallible church. But however this 
 may be : the two objects appear to be, in their own nature, as dis- 
 tinct as building a hospital and swearing the physicians and surgeons 
 to a prescribed and invariable course of practice. Those who admit 
 the expediency of building and endowing the hospital are not 
 usually considered to be precluded from disputing the necessity of 
 laying down minute regulations for the medical treatment of the 
 patients. This distinction appears to have been wholly overlooked. 
 
 C. Etowortll and Son?, Printers, Hull Yard, Temple Bar.
 
 LAW LIBRARY 
 UNIVERSITY OF CALIFORNIA 
 LOS ANGELES
 
 UC SOUTHERN REGIONAL LIBRARY FACILITY 
 
 AA 000 729 757 5