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S1B, As it seems agreed, on all hands, that the new and expensive machinery of the registration bill is an absolute failure, daily becoming more and more a dead letter, it is time to bestir ourselves about the best means of perfecting the old registers, to which, it is far from in. probable, we may return, and towards which object I beg to contribute the few following hints.
I would premise, that I am confining myself to the consideration of church-registers; which, however perfect, need not, and ought not to, interfere with the establishment (which is very easy) of, an authentic registration for dissenters; though the latter, in common justice, are bound to bear exclusively the expenses of such registration..
All we want is an act to amend 52 Geo. III., which shall provide ; schedules in the following amended forms:-Schedule A. (baptisms), should contain two additional columns, one for the day of birth, ata tested by father or mother's signature; the other for the signatı res of sponsors, as witnesses, who might at any time be called upon to prove identity, &c. Schedule C. (deaths) should contain one additional colump for the day of death, attested by the signature of the undertaker. Clause 7 of the aforesaid act, ordering annual copies of register books, verified by the officiating minister, to be transmitted by churchwardens to registrar of diocese within two months after the end of each year, ought to be made penal. The importance of such duplicates, as a provision against any such casualties as fire &c., is too obvious to require comment, and yet it has been notoriously overlooked. - Clause 8 provides “in the event of any failure of the transmission of the copies of the register as herein required, by the churchwardens of any parish or chapelry in England, the registrar shall state the default of the parish or chapelry in his report to the bishop. Are these reports made by the registrars? If so, how are we to account for the fact-of my own personal knowledge I can affirm it in several dioceses to be the fact--that in scores of parishes there is no return made for twenty years together? Have the bishops no authority to interfere ? If not, I would give it them, by affixing a penalty of ten pounds, recoverable before two county magistrates. The returns ought also to be made quarterly, instead of yearly. Had this act, even in its present imperfect state, been feithfully adhered to, there would have been no pretence for taking the registration out of the hands of the clergy; the above-mentioned modifications of the schedules would have made the registers much more coniplete and authentic than the new bill has made them, and without any of its collateral evils; and this, with an authentic and separate registration for dissenters, to be paid for by those only who chose to avail themselves of it, would have been the only change necessary.
These few hasty suggestions may suffice to recall the attention of your more experienced correspondents to the subject, and may in the mean time be made available as the substratum of petitions to both houses of parliament, which ought to be sent at once from every parish in VOL. XIII.-- June, 1838.
England, in order that this obnoxious and degrading act may be speedily expunged from the statute-book. The clergy have not attempted to throw any difficulty in its way; but though we, as in duty bound, submit to an unfriendly law, there is no reason why we should not attempt its repeal, which is the more easy, in the present instance, since the public service, as well as our personal feelings, peremptorily demands it.
The registrar-general has lately sent circulars to the district registrars throughout England, requiring their views upon the working of the bill; their partial reports will, perhaps, be made the groundwork of some new enactment upon the subject; surely the friends of the church will shake off their apathy, for once, and not suffer, in assenting silence, a perpetuation of the ungracious spirit manifested towards the clergy in this bill. Your faithful servant, WILLIAM PALIN.
REPLY TO MR. PERCEVAL'S LETTER ON CHURCH RATES. Sir,--In reply to Mr. Perceval's letter on Church Rates inserted in your last number, I beg to say that it was not willingly that I introduced his name into my answer to the article on that question in the “ Edinburgh Review," as I have no doubt that it must be painful to him to see his name ranged on the side on which it stands in this matter.
I would remark, however, that it was rather the reviewer's mode of noticing his statements that was animadverted upon than the fact of such views having been advanced by him; and I beg further to assure Mr. Perceval, in reply to the expression he has given of his hope that his present position will not be supposed to be the result of any wavering or hesitation in behalf of the church, that, as far as concerns myself, no such suspicion has been entertained, though I cannot but view that position with regret.
I proceed, with your permission, to make a few observations upon the additional arguments Mr. Perceval has brought in defence of his views :
“ My position is, she says] that the obligation of the people to contribute to the repairs of the parish churches up to the year 1813 was altogether-what, except in the cases specified by that act, I believe it to continue still—a religious and not a civil obligation; an obligation which can only be enforced by those appeals to conscience with which only the spiritual courts as such have to do; that the idea of church rates forming part of church property in the sense in which that term is used, to imply something recoverable by an action at common law, cannot be maintained; and that, if there was at the first (as some learned men have asserted) an endowment to that effect on the part of the original lords of manors, who built on their estates our present parish churches, such endowment was so soon and so wholly lost sight of, that no claim can be rested upon it."
In this position three points are included. First, that liability to church rate, generally, is and always has been "an obligation which can only be enforced by those appeals to conscience with which only the spiritual courts as such have to do;" secondly, that such liability is
not a common-law liability; and thirdly, that church rate cannot be demanded on the ground of a supposed ancient endowment.
To the last of these I most fully assent, such a notion as is here objected to having never been entertained by me for a moment.
The second I must as totally dissent from, and until Mr. Perceval has combated the arguments and authorities I have adduced in favour of the contrary position, and shewn that the judgment of the Court of Queen's Bench which I have quoted was an erroneous judgment, I must be allowed to think that we have very good evidence in favour of that position.
The first I must confess myself unable to comprehend. I can understand an obligation being enforced from the pulpit by “ appeals to conscience;" but my notion of the office of the spiritual courts is, that it comes in when those “appeals to conscience” have been ineffectual, and that their office is not to persuade by such appeals to the performance of a duty, but to enforce the performance of it by threatening or inflicting punishment upon the disobedient. Tru punishment inflicted by the spiritual courts is not a corporal punishment, but still it is one which, at least when it amounts to excomnication, brings corporal punishment with it upon an obstinate offender. A writ de excommunicato capiendo is something more than an“ appeal to the conscience;" and such a writ the spiritual courts, though they cannot issue, can procure.
Mr. Perceval, however, has added what he considers proofs of the truth of his position. The first is the “Homily for repairing, and keeping clean, and comely adorning churches,” and he remarks :
“ The mere fact of there being a homily at all upon the subject seems corroborative of my view, for if it were a civil right, a lien upon estates according to the law of the land, it should seem a superfluous and roundabout way to enforce it in a set homily. But if we read the homily itself, the view is still further confirmed, for there is no allusion whatever in the homily to any such claim. It is throughout an appeal to conscience," &c.
Now this does appear to me the strangest mode of arguing I ever met with. Does Mr. Perceval esteem it “à superfluous and roundabout way” to enforce honesty or obedience to constituted authorities by “ a set homily”? And if he does not, would he not be surprised at his hearers supposing that because he had not threatened them in his homily with actions at law if they did not do as he told them, that therefore they could not be legally punished if disobedient? Nay, whatever Mr. Perceval's opinion on this matter may be, there is “a set homily' of our church, in six parts, against “ wilful rebellion," in which there is “no allusion whatever” to the civil punishment that attends it. Mr. P. says, “ It is throughout an appeal to conscience.” Of course it is, for what else could it be in a homily ? Surely the pulpit is not the place in which to speak of courts of law and civil penalties.
His second testimony is* The Eighty-fifth of the Canons of 1603-4, which makes especial reference to this homily, and may therefore, I suppose, be construed as concurring in the position apparently maintained in it. . Churches to be kept in sufficient reparation. The
church wardens or quest-men shall take care and provide that the churches be well and sufficiently repaired, &c., as best becometh the house of God, and is prescribed in an homily to that effect."
Now I would ask, what "position" is maintained in the homily, but that it is a moral and religious duty incumbent upon parishioners to repair and keep clean their church ? And here we have a cànon enjoining that churchwardens &c. " shall take care and provide" that this daty be performed. And yet this canon is quoted as a proof that the parishioners were not obliged to do it.
The third is “A metropolitical letter of Archbishop Abbott (1619), in which this passage occurs,
And because I do receive complaint almost out of all countries [? counties) that the churches are neither repaired nor seemly adorned, as is fit for the bouse of God, I pray your lordsbip that, together with this other charge, your subordinate officers may stir up your clergy in solemn sort in their sermons to call upon the people for reforming this so irreligious an abuse.'—(Wilk. iv. 460.) Is this the course which a man would take to vindicate a right of property?"
I reply, Certainly not; but it is precisely the course which a clergyman would take to prevent his being obliged to vindicate the rights of the church by law suits. What could be more proper than that under such circumstances clergymen should make an appeal to the consciences of their hearers from the pulpit against allowing the house of God to go to ruin ? It will be long, I trust, before the clergy are in haste to go to law with their parishioners, however clear the law may be in their favour.
Re it remembered also, that at this very time it was laid down by the highest legal authority (Lord oke), with respect to the inclosure of the churchyard, and the repairs of the body of the church, “ This the parishioners ought to do per consuetudinem notoriam et approbatam," (2 Inst. 489,) and that “ the custom of this realm,” (which is, in other words, the common law of this realm,) is, “that the parish churches are to be repaired by the parishioners, or inhabitants of the parishes." (2 Inst. 652.)
The fourth testimony is as follows :“ A petition from the inferior clergy-viz., of the reetors, vicars, and curates, of this nation, (1664) in which this passage occurs :-'that you would compel such obstinate persons as refuse to pay their due rates and assessments, to the repair of their respective churches, and other charges relating to the worship of God, to be responsible for such stubborn refusal to the civil magistrate, seeing they undervalue and despise all ecclesiastical authority' (Wilk. iv. 580.) I ask again, if there were endowment and right of property, or if there had been at this time common law of the land in the matter, is this the course that would have been taken? or how could such a petition have been necessary?".
This question, as it appears to me, arises from a total misapprehension of the object of the petition here quoted. That object seems to be precisely the same as that which was contemplated in an Act passed in 1813, which is thus noticed by Mr. Tyrwhitt in his edition of Prideaux's Directions to Churchwardens:
“ Considerable delay and expense being unavoidably incurred in the recovery of church and chapel rates by suits at law, it was enacted in 1813, that if any person duly rated to a church or chapel rate (the validity of which has not been questioned in any ecclesiastical court) shall refuse to pay the same, any justice of the county, city, or lown, where the church or chapel is situate, on complaint of the churchwardens, who ought to receive the same, may convene by warrant such person before two or more justices, and examine, on oath administered by them, into the merits of the complaint, and by order under their hands and seals may order payment of any sum so due not exceeding 101.” &c. But “nothing in the act shall alter the jurisdiction of the ecclesiastical courts,” (pp. 93, 94.)
By this act, then, such obstinate persons as refused to pay their due rates, and were regardless of spiritual censures, were made responsible for such refusal to the civil magistrate, who was authorized to enforce the payment by a summary process. This appears to be precisely what the clergy petitioned for in the document Mr. P. has quoted, in the third article of which we meet with a somewhat similar request in another matter-" That you would relieve the clergy in the gaining of their smaller tithes, not exceeding the value of forty shillings, by a less chargeable way than costly law suits, which to them. is a remedy much more grievous than the disease." (Wilk. iv. 580.) This document, then, proves nothing in the question at issue.
Mr. Perceval's fifth and last testimony is from Bishop Ken's “ Articles of Visitation and Inquiry,” in which the bishop says
“ You, the churchwardens and sidesmen, are to maintain the church in sufficient repair, which is to be done by a tax, made by the churchwardens and parishioners, after public notice given of the time and place where they meet; and those that refuse are to be sued in the ecclesiastical court only. And for the better direction of persons concerned, here followeth the particular consultation of the learned civilians about church-rates, ' 1. Every inhabitant dwelling within the parish is to be charged according to his ability, whether in land or living, within the same parish, or for his goods there, that is to say, for the best of them, but not for both,'” &c.
I do not quote the remaining articles, because the only remark which Mr. P. makes upon them is, that they seem to make the rate a charge on persons rather than on property. Now, no doubt the rate is a charge upon persons, but then it is a charge upon persons in respect of the lands or possessions they hold, which is equivalent to a charge upon those lands or possessions.
But the article which seems to have struck Mr. P. more particularly is the one which we have quoted; and upon it he most extraordinarily grounds the following remark :-" The first, which leaves it at the option of the vestry to rate lands or goods, seems to witness so strongly against any lien upon the land that I shall be curious to see how those who will come to the consideration of these extracts with different views from those which I have been led to entertain, will think it possible to set it aside.”
Now, far from wishing to set it aside," I feel most curious to know how it is that a direction which authorizes a vestry to rate the lands or the goods of the parishioners, which they please, can possibly prove that the land is not chargeable to the rate. Mr. P.
prove from hence that instances may have occurred in which, the goods being charged, the land was not in that particular instance charged. Be it so. What then? Does that prove that the land is not chargeable, when the vestry is at the same time said to have full liberty to charge it for the rate whenever they make one? Nay; this very document is quoted by Bishop Gibson in his Codex J. E. A., as an