apprehend, he would find it extremely difficult to prove. If the courts of common law, after prohibiting the spiritual courts from going on, had claimed for themselves and exercised a right of compelling refractory parishioners to repair their churches and churchyards, there must have remained some evidence of the fact, some traces of the law. Cases, we presume, there are none; as Dr Nicholl has not referred to any. Law authorities there are none. In Bracton we find nothing on the subject. In Britton, we are told that the repair of churches and churchyards are pleas of which Holy Church alone has cognizance. But if there is neither precedent nor authority for the supposition, that, after a prohibition which stopped proceedings in the spiritual court, the defendant was still liable to prosecution in the courts of common law, what ground is there for objecting to the statement of the Attorney-General, that the courts of common law ⚫ interposed for the protection of refractory parishioners ?' Did they not interpose by prohibition, and was not that prohibition an effectual protection to the defendant? If it had been otherwise-if the effect of the prohibition had been merely to transfer, the cause from the spiritual to the temporal courts, it is not easy to conceive why the divites et maligni, who refused to pay rates, persevered for so many years in applying for prohibitions that were of no use to them; and, if the payments demanded could be obtained at common law, it is equally difficult to understand how the bishops could have ventured to say of these prohibitions, that they impeded the service and detracted from the honour of the Church.

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This contest between the common law and ecclesiastical courts was not brought to a close till the reign of Edward I. By his writ of circumspecte agatis, which has been long held to be one of the statutes of the realm, that prince defined the limits of temporal and spiritual jurisdiction, the unsettled boundaries of which had, in that very year, been the subject of remonstrance from his clergy. By that writ, the judges are forbid to punish bishops for holding pleas of things merely spiritual; among which are included pleas for leaving churchyards unenclosed, or for leaving churches unroofed or insufficiently decked. It imposes no additional burdens on the subject, and confers no coercive powers on the spiritual courts which they had not before. It does not recognise, as Mr Hale seems to imagine, the obligation of laymen to uphold churches; but, by divesting refractory parishioners of their former remedy, when called upon by the ordinary to perform that service, by depriving them of the protection they formerly received from the courts of common law,-it left them exposed, without resource, to the severity of ecclesiastical censures,

if, in matters pertaining to the spiritual courts, they were disobedient to ecclesiastical authority. Fortified by this writ, which took from the courts of common law all right of interference with the pleas reserved for their exclusive jurisdiction, the clergy found no farther obstacle to their pretensions, nor means of resistance to their demands. Assessments for the reparation of churches, and other parochial burdens, continued to be in form voluntary grants of the parishioners; but, if the proposed assessment was rejected by the vestry, or if any individual refused to contribute his quota, spiritual censures, with all the consequences which then attended them, were ready at hand to enforce a prompt and entire subinission. Since the Reformation the case is altered. The censures of the church, like the thunders of the Vatican, have lost their efficacy. Whether they can be revived and again made formidable, is a doubtful question. Dr Nicholl seems disposed to try it.

In his Letter to Lord Stanley,' the Attorney-General has entered into a full examination of the measures which have been proposed for enforcing, by proceedings in the courts of law, the assessment and exaction of a Church Rate, where it had been rejected and refused by a vestry regularly summoned to take it into consideration; and, after discussing the various projects that have been suggested, he arrives at the important conclusion, that a legal Church Rate can only be made by a majority of the parishioners in vestry assembled; and that if they meet and refuse to make a rate, there are no means by which a rate 'can be raised.' The same doctrine is held by Mr Perceval. Rates, up to this hour,' says that reverend gentleman, are a voluntary contribution on the part of the parish, to which, if they refuse, there is no earthly power to compel them.' Dr Nicholl, on the other hand, attemps to prove that, from time immemorial, the parishioners have been under a legal obligation 'to provide the means for sustaining the fabric of the church, and for the decent celebration of divine worship therein;' and having established, as he thinks, that liability, he contends there must be a legal remedy' to enforce it. It is enough for my 'purpose,' says the learned civilian, 'if I can show that the re'pair of the chuch is, by the common law of England, per consuetudinem Angliæ, thrown upon the parishioners, and that that repair was effected, from time immemorial, by a rate levied on the parishioners.'

To this statement, which contains the essence of Dr Nicholl's argument, we reply, that the common law of England is unquestionably founded on custom, but not on such custom as in the spiri

tual courts would be held sufficient.* It is on good and lawful custom that the common law of England is founded, and not on bad custom; which, according to an established maxim of law, ' ought to be abolished and no longer used.' The custom, which Dr Nicholl attempts to foist into the common law of England, we maintain to be a bad custom, for the reasons that follow:

1. To make any custom at common law good, ‘it must have been used so long that the memory of man runneth not to the contrary, so that if any one can show the beginning of it, it is 'not a good custom.' But we have shown that, since the accession of Richard I., which is the beginning of legal memory, churches were repaired and the expenses of worship defrayed, not by the parishioners, but out of ecclesiastical funds dedicated to these purposes, which are still enjoyed by the clergy, or by lay improprietors.

.

2. A custom to be good at common law, 'must have been 'peaceable and acquiesced in, not subject to contention and dis'pute.' But we have shown that, till the writ of circumspecte agatis, the reparation of churches by parish rates was frequently contested by parishioners; and, with the aid of prohibitions from the common law courts, successfully resisted.

3. Customs to be good, 'must be compulsory, and not left to 'the option of every man, whether he will use them or not.'‡ But, ever since rates have existed, it has been left to the parishioners assembled in vestry to determine what rate they will impose, and subject to the liability of ecclesiastical censure, whether they will impose any rate at all.

The custom alleged by Dr Nicholl wants, therefore, the essentials of a good custom at common law, and, if it cannot be fenforced by spiritual censures, the courts of common law are not bound to enforce it. Not being a good custom, there is no legal liability in the parishioners. They are bound by law to meet and consider whether they will grant a rate, and to what amount. Having met, they may grant what they please, or refuse to

* The reason,' says Lord Holt, for which the spiritual court ought not to try customs is, because they have different notions of customs, as to the time which creates them, from those that the common law hath. For in some cases the usage of ten years, in some twenty, in some thirty years, made a custom in the spiritual court; whereas by the common law it must be for time immemorial. And, therefore, since there is so much difference between the laws, the common law will not permit that court to adjudge upon customs, by which, in many cases, the inheritance of persons may be bound.-BURN's Ecclesiastical Lan-Prohibitions, § 6.

† Blackstone, i. 76.

+ lb. i. 78.

make any grant at all. As the House of Commons may be compelled to meet by the King's proclamation, so the vestry may be made to assemble by summons from the churchwardens. When met, whether the attendance at the vestry be numerous or scanty--whether the House of Commons be well or ill attended, provided there is a sufficient number of members to form a House -they are competent to transact business, and may grant or refuse supplies at their discretion. If a majority of the parishioners, who have been legally convened, and who have met in vestry, agree to impose a Church Rate on the parish, their assent is binding on the whole body of the parishioners. But, if they dissent, and refuse to tax themselves, there is no tribunal that has power to coerce them.

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*

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pa

That, in the darkness of the thirteenth century, the ignorant laity should have been partly cajoled and partly terrified into an acquiescence in these clerical usurpations, is not surprising. But, when it is considered that, at the dawning of the Reformation, the old canons and laws of the Universal Church still lived in the remembrance of many, it is extraordinary that the abuse was not corrected. Not to speak of a petition of the Commons in the reign of Henry VI., which recites, as oold custome was, that thyrd parte of the goodes of Holy Chirche should be spendyd 'within the same paroche upon the pore and the nedy of the roche; so late as 1509, we find Edmund Dudley, the noted minister of Henry VII., a lawyer of no small eminence, calling on the clergy to employ the profytts and revenues of thir benefyts as thei by thir owne laws are bound to do, that is, one part thereof for thir owne lyving in good household hospitalitie. The second, in deedes of charitie and almes to the poore folkes, and specially within thir dioces and cures where thei have thir living, and the third part thereof for the reparying and building of thir churches and mansyons.' Dr Nicholl asks, with great simplicity, why, if these laws were binding on the clergy, they were not compelled by due course of law' to fulfil them. He forgets that, by the writ of circumspecte agatis, the common law courts could not interfere in these matters; that the courts Christian were in the hands of the clergy; and that Dudley's exhortation was merely an argumentum ad verecundiam, which made no impression on the clergy so long as there was no pecuniary penalty to enforce it.

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The negligence of the Reformers in not calling on the clergy to

* Rolls of Parliament, iv. 290.

discharge the ancient obligations, to which, as Dudley observes, they were still liable by their own laws, is one of the many proofs, that the persons who at that time directed the affairs of State were more solicitous to partake in the spoils of the Roman Catholic Church than to relieve their poorer countrymen from the burdens she had imposed. Having taken from the church what they could turn to their own profit, and conceded as little as possible to the religious zeal of the sincere reformers, they retained as much of her ceremonies and hierarchy as the impoverished state to which they had reduced her would admit, and left the bulk of the people subject to all the impositions she had introduced.

There is still one point of this controversy which we have not touched upon. In a very intemperate and malignant publication, addressed to the ignorant and uneducated classes of the community, some anonymous defender of Church Rates, amidst many other unfounded allegations, asserted, that the Church-Scot of the Saxons was the same as our present Church Rate. The author of the Historical Remarks' has shown how utterly groundless was this assertion; and Mr Hale not only admits that, on this point, he has made out his case, but expresses his own regret that the advocates for Church Rates had rested any part of their argument on so baseless a foundation. Still, however, he appears to cling with a longing and affectionate regard to the doctrine he is compelled to abandon; and, after attempting to vindicate, as was most necessary, the moral character of its anonymous propagators, he seems incliued to the opinion, that Church-Scot, though not the same, was something akin to Church Rate: that it was a contribution, if we understand him rightly, for the fabric of the church, and not for the sustenance of the clergy. All we can do is to refer him to an ordinance of Athelstan, in which he will find Church-Scot, Soul-Scot, and Plough-alms classed together, and ordered to be rendered to the holy places where they are due, and to be there enjoyed by those who are willing to serve their churches; that is, by the resident clergy.

Since the preceding observations were written, there has been an attempt to exact a Church Rate in the parish of Braintree, in Essex, imposed by the sole authority of the churchwardens, after the rate had been rejected by the parishioners duly summoned and assembled in vestry to consider of it. Application has been made for a prohibition from the Court of