« EelmineJätka »
to compel parishioners to make a rate. making, a sufficient rate for the repair of The ecclesiastical courts cannot make a the church of the parish. The articles rate, nor appoint commissioners to make were admitted by Sir Herbert Jenner
An obiter dictum of Chief Justice Fust, the judge of the Court of Arches ; Tindal in delivering the judgment of the but on application to the Court of Queen's Court of Exchequer Chamber in error in Bench the proceedings were stayed by the Braintree case, has lately suggested prohibition. Church-rates depend, therethe possibility of proceeding criminally fore, entirely on the will of a majority against parishioners for voting against a of the parishioners assembled: and this a rate, or absenting themselves from a is obviously a state of things which, where meeting called to consider of a rate, dissenters from the established religion where repairs are needed. In Braintree abound, may lead to parish churches parish, after the parishioners on meeting being left to go to ruin. had refused to make any rate, the church The existing poor-rate of the parish is wardens had levied a rate of their own generally taken as the criterion for the authority, and proceeded against a pa- imposition of the church-rate ; but derishioner for refusing to pay his por- cisions as to poor-rates are not binding tion. The Court of Exchequer Chamber, in cases of church-rates, and the proper to which the church wardens appealed test for church-rates is a valuation by against a prohibition issued by the Court competent judges, grounded on the rent of Queen's Bench, confirmed the prohi. the tenant would be willing to pay for bition, and declared the church wardens' | the premises. All property in the parate to be illegal. But in delivering the rish is liable except the glebe-land of judgment of the court, Chief Justice that parish, and the possessions of the Tindal made the following remark :-“ It crown when in the actual occupation of is obvious that the effect of our judgment the crown, and places of public worship. in this case is no more than to declare Stock in trade is not generally rated for the opinion of the court, that the church- church repairs, but a custom may exist wardens have in this instance pursued a rendering it rateable in a particular parish. course not authorized by law, and conse The ecclesiastical courts have the exquently all the power with which the clusive authority of deciding on the vaspiritual court is invested by law to com- lidity of a rate, and the liability of a pel the reparation of the church is left party to pay it; but a ratepayer cannot untouched. If that court is empowered by an original proceeding in those courts (as is stated by Lyıdwode, page 53, voce raise objections to a rate for the purpose sub репа,
other ec esiastical writers) of quashing it altogether. If he wishes to compel the churchwardens to repair to dispute it, he ought to attend at the the church by spiritual censures ; to call vestry, and there state his objections; if upon them to assemble the parishioners they are not removed, he may enter a together, by due notice, to make a suffi caveat against the confirmation of the cient rate; to punish such of the pa- rate, or refuse to pay his assessment. In rishioners as refuse to perform their duty the latter case, if proceeded against in the in joining in the rate by excommunica- ecclesiastical court, he may in his defence tion, that is, since the statute of 53 Geo. show either that the rate is generally III. c. 127, by imprisonment, and under invalid, or that he is unfairly assessed. the same penalty to compel each pa- The consequence of entering a caveat is rishioner to pay his proportion of the an appeal to the ecclesiastical judge, who church-rate ; the same power will still will see that right is done. remain with them, notwithstanding the A retrospective church-rate, or rate decision of this case.” In December, 1842, for expenses previously incurred, is bad. some parishioners of St. George's, Cole- This has been often decided in the courts gate, Norwich, were articled in the of common law and equity, and in the Court of Arches for having wilfully and ecclesiastical courts
. The reason is stated contumaciously obstructed, or at least by Lord Ellenborough in the judgment refused to make, or join and concur in of the court in Rex 0. Haworth (12 East,
556):—“The regular way is for the and chapels (including the chancel), and churchwardens to raise the money before to be disbursed by commissioners after hand by a rate made in the regular form certificate from the quarter-sessions of the for the repairs of the church, in order county in which the parish might lie, that the money may be paid by the ex- founded on a report by the county suristing inhabitants at the time, on whom veyor,—to place on the rector or lay imthe burden ought to fall.” It has lately propriator, relieved of the duty of repairbeen decided by the Judicial Committee, ing the chancel, the burden of providing in the case Chesterton v. Hutchins, re- necessaries for the performance of divine versing the decision of the Court of service, – to leave the preservation of Arches, and confirming the previous de- pews to the owners or occupiers, and to cision of the Consistory Court, that a rate | leave the provision and repair of bells, not retrospective on the face of it, but ad- organs, and ornaments to voluntary conmitted to be partly retrospective, was bad. tributions. This bill fell to the ground,
Previously to 53 Geo. III. c. 127, thc principally owing to the opposition of only mode of recovering church-rates dissenters, who viewed the substitution from parties refusing to pay was by suit for church-rates of a charge on the public in the ecclesiastical court for subtraction taxes as a mere shifting of the burden of rate. By that statute, where the sum upon themselves, and objected altogether to be recovered is under 101. and there is to being called upon to contribute to a no question as to the validity of the rate, church to which they did not belong. In or the liability of the party assessed, any 1837 Lord Melbourne's government made justice of the county where the church is a second attempt to settle the question ; situated may, on complaint of the church- and a bill was brought in by Mr. Spring warden, inquire into the merits of the Rice, chancellor of the exchequer, to case, and order the payment. Against abolish church-rates, and provide for the his decision there is an appeal to the objects of them by a surplus created by a quarter - sessions. By several statutes, better management of the church lands principally the 58 Geo. III. c. 45, and held by the archbishops, bishops, and 59 Geo. III. c. 134, acts passed for the deans and chapters; these lands to be promotion of building churches, the com- managed by commissioners, and 250,000). mon-law powers of churchwardens have a year to be the first charge on the sur. been varied, and extended so as to enable plus. The opposition of the church and them to raise money on the security of of church lessees frustrated this measure, church-rates, and to apply them for the en- and no measure has since been brought largement, improvement, &c. of churches, forward by any government. and for the building of new ones, &c. Lord Althorp stated, in introducing his
The levying of church-rates on dissent measure, that the amount of church-rates ers, who are so numerous in this country, annually levied was from 500,000l. to has caused so much irritation, and the 600,0001.; and about 249,000l. was anfrequently successful opposition of dis- nually expended on the fabrics of churches. senters at vestry-meetings called to im. Mr. Spring Rice calculated that in 5000 pose rates has rendered church-rates so parishes in England no church-rates are precarious a resource, that various at- ! levied. There are endowments in many tempts have been made of late years to | parishes for the repair of the church, abolish them, and to substitute some which render church-rates unnecessary; more certain and less obnoxious provi- and in many parishes arrangements have sion for the repair of churches and the been made for voluntary subscriptions, to due celebration of divine worship. Lord avoid squabblings between churchmen Althorp, as chancellor of the exchequer and dissenters, and the scandal of such in Lord Grey's government, brought in a disputes. bill for the abolition of church-rates in The Parliamentary Returns respecting 1834, which proposed to charge the Con- local taxation issued in 1839 (No. 562) solidated Fund with 250,0001. a year, to give the following particulars respecting be devoted to the repair of parish churches church-rates in England and Wales for
the year ending Easter, 1839 : - Total | among the parishioners, under the control amount of rates and monies received by of the ordinary ; to maintain order and church wardens, 506,512l., of which decorum in the church during the time of 363,103. was derived from the church- divine service; and to provide the furnirates, and 143,7091. from other sources. ture for the church, the bread and wine for The total sum expended was 480,6621., and the sacrament, and the books directed by of this sum 215,301l. was expended in the law to be used by the minister in conducia repairs of churches. The debt secured on ing public worship. In addition to these church-rates amounted to 535,236l. There ordinary duties, the church wardens are is a more complete return for the year end by virtue of their office overseers of the ing Easter, 1832, which shows some of the poor, under the statutes for the relief of principal of the “ other sources” alluded the poor; they summon vestries; they to in the return of 1839. In 1831-2 the are also required to present to the bishop total amount which the churchwardens all things presentable by the ecclesiastical received was 663,8141., derived from laws, which relate to the church, minister, the following sources x Church-rates, or parishioners. They act as seques446,247l. ; estates, &c., 51,9191. ; mor trators of a living. They are also retuary or burial fees, 18,2161. ; poor-rates, quired to perambulate the bounds of the 41,489l. ; pews and sittings, 39,3821. ; parish. In large parishes there are someother sources not stated, 66,559l. The times officers called sidesmen (synodsmen) payments by the church wardens in the or questmen, whose business it is to same year amounted to 645,883l., and assist the church wardens in inquiring included 46,3371. for books, wine, &c.; into offences and making presentments. salaries to clerks, sextons, &c., 126,185l.; Church wardens and sidesmen were fororgans, bells, &c., 41,710l.; and repairs | merly required to take an oath of office of churches, 248,125l.
before entering upon their respective CHURCHWARDENS are parish of duties ; but by a recent statute, 5 & 6 ficers, who by law have a limited charge Will. IV. c. 62, § 9, it is enacted that, in of the fabric of the parish church, of the lieu of such oath, they shall make and direction and supervision of its repairs, subscribe a declaration before the ordiand of the arrangement of the pews and nary (the bishop of the diocese, or the seats. Certain other duties are imposed archdeacon, official, or surrogate) that upon them
on particular occasions. they will faithfully and diligently perThere are usually two churchwardens in form the duties of their offices. This is each parish, but by custom there may be done at the archdeacon's visitation. It only one. It is said by some authorities, is said by various old writers that the that by the common law the right of church warden might act before he was choosing churchwardens is in the parson sworn; but 5 & 6 Will. IV. c. 62, reand the parishioners. This is however quires that the declaration should be taken by no means universally the case, as a first. The old church wardens usually custom prevails in many parishes for the act until the archdeacon's visitation, about parishioners to choose both, and in some the month of June, though their sucboth are elected by a select vestry. The cessors are appointed at Easter. eighty-ninth canon of 1603 directs that If churchwardens are guilty of any "churchwardens shall be chosen yearly in wilful malversation, or if they refuse to Easter week by the joint consent of the account to the parishioners at the termiminister and parishioners, if it may be; nation of their period of service, they may but if they cannot agree, the minister be proceeded against summarily before shall choose one and the parishioners an- the bishop by any parishioner who is inother.” It has however been questioned terested, or the new church wardens may how far these canons are binding upon maintain an action of account against the laity, even in matters ecclesiastical.
them at common law; in which action The usual duties of churchwardens are, the parishioners, other than such as reto take care that the churches are suffi-ceive alms, are admissible as witnesses. ciently repaired; to distribute seats 1 (3 Will. III. c. 11,
$ 12.) On the
other hand, in all actions brought against members were abolished; but the society, them for any thing done by virtue of in all other respects, was preserved. Aetheir office, if a verdict be given for cording to Mr. Jefferson, General Washithem, or if the plaintiff be nonsuited or ington used his influence at the meeting discontinue, they are entitled to double in Philadelphia for its suppression, and costs by 7 Jas. I. c. 5, and 21 Jas. I. the society would probably have been c. 12.
dissolved but for the return of the envoy Under the 59th Geo. III. c. 12, $ 17, whom they had despatched to France for church wardens and overseers are em the purpose of providing badges for the powered to take and hold lands in trust rder, and of inviting the French officers for the parish as a corporate body; and to become members. As they could not by a decision under this act, they can also well retract, it was determined that the take and hold any other lands and here- society should retain its existence, its ditaments belonging to the parish, the meetings, and its charitable funds. The profits of which are applied in aid of order was to be no longer hereditary; it the church-rate. (Burn's Justice and was to be communicated to no new memBurn's Ecclesiastical Law, tit. Church-bers; the general meeting, instead of war lens.")
being annual, was to be triennial only. CINCINNA’TI, ORDER OP, an as- The badges were never publicly worn in sociation established at the termination Anierica, but it was wished that the of the revolutionary war by the officers Frenchmen who were enrolled in the of the American army. which, in refer- order should wear them in their own ence to the transition made by most of country. In some of the States the so them from the occupation of husbandry to ciety perhaps still exists, and the memthat of arms, took its name from the Ro- bers hold, or until lately held, triennial man Cincinnatus. The society was called meetings. In others it has been allowed an “order,” and an external badge was silently to expire. That of Virginia met provided of a character similar to those in 1822, and transferred its funds worn by the knights and other privileged (15,000 dollars) to Washington College. orders of Europe. It was moreover pro- (Tucker's Life of Jefferson, vol. i. PPvided that the eldest son of every deceased 184-188.) member should also be a member, and CINQUE PORTS. It is stated by that the privilege should be transmitted Jeake (Charters of the Cinque Ports'), by descent for ever. This principle of that in one of the records of the town of perpetuating a distinction soon became | Rye is a memorandum that “the five the object of attack. Judge Burke, of ports were enfranchised in the time of South Carolina, end avoured, in a pam- King Edward the Confessor;" the five phlet, to show that it contained the germ ports here intended, the original C'ingre of a future privileged aristocracy, and Ports of the Normans, being the towns of that it should not be allowed to develop Sandwich, Dover, Hythe, and Romney, itself. The society was publicly censured on the coast of Kent, and Hastings on that by the governor of South Carolina in his of Sussex. Only three of these five ports address to the Assembly, and hy the legis- being mentioned in the Domesday surlatures of three states, Massachusetts, vey, viz. Sandwich, Dover, and Romney, Rhode Island, and Pennsylvania. A Lord Coke thence infers that at first the correspondence en ned between General privileged ports were these three only: Washington and Mr Jefferson concerning Though some part of the municipal the institution in 1784, and Mr. Jefferson constitution of the individual ports way expressed himself altogether opposed to be anterior to the Norman invasion, yet the principle of hereditary descent. The the organization of the general bonty, as public disapprobation did not run less it has existed in later times, is ptainly strongly in the same dirction. At a tractable to the policy of the Conqueror in meeting of the society soon afterwards, in securing, hy every means, his communicaPh ladelphia, the hereditary principle tions with the Continent. These ports and and the power of adopting honorary | their members occupy exactly the tract of
sca-coast of which, after the victory of parliamentary history has usually been Hastings, he showed most eagerness to pos- considered as simply synonymous with sess himself, by sweeping along it with burgesses, did, before the several elements his army before he directed his march to- of the Commons' House coalesced into wards London ; and the surrender into one homogeneous body, imply a political his hands of the castle of Dover, which | as well as a municipal superiority. is the centre of the Cinque Ports' juris Until the time of Henry VII. the crown diction, was one of the stipulations intro- | appears to have had no permanent navy: duced into the famous oath which, in the Cinque Ports constantly furnished Edward's lifetime, the duke had extorted nearly all the shipping required for the from Harold. To enable his government purposes of the state, and their assistance to wield the resources of this maritime to the king's ships continued long after district with the greater vigour and that time. When ships were wanted, the promptitude, he severed it wholly from king issued his summons to the ports to the civil and military administrations of provide their quota. In the time of Edthe counties of Kent and Sussex, erecting ward I. the number they were bound to it into a kind of palatine jurisdiction, provide was fifty-seven, fully equipped, under a gardien, or warden, who had the at their own cost: the period of graseat of his administration at the castle of tuitous service was limited to fifteen days. Dover, and exercised over the whole Each of the five original ports returned district the combined civil, military, and two barons to parliament, as early as the naval authority ; uniting in his own hands 18th of Edward I. The peculiar nature all the various functions which, to use of the relation between the Cinque Ports the terms most intelligible to modern and the crown must have given the latter, readers, we may describe as those of a from the commencement, a very powersheriff of a county at large, a custos rotu ful influence in their internal transaclorum, a lord lieutenant, and an admiral tions; and, in later times, when the parliaof the coast.
mentary relations of the municipal towns To the five ports of the Conqueror's came to be the grand object of solicitude time were added, before the reign of to the royal prerogative, these municiHenry III., with equal privileges, what palities imbibed an ample share of the were called the ancient towns of Winchel- prevalent municipal as well as political sea and Rye, lying on the Sussex coast, corruption. In the 20th of Charles II. between Hastings and Romney. To each the first open blow was struck by the of these seven municipal towns, except crown at the liberties of the Ports in geWinchelsea, were attached one or more neral, in the provision of Charles's charsubordinate ports or towns, denominated fer of that year, by which the elections members of the principal port.
of all their recorders and common clerks The internal constitution of each port, were made subject to the royal approbaas well as the Norman denominations of tion. Subsequently, in 1685, all the genejurats and barons, which, in lien of alder- ral charters of the Ports, and most of the men and freemen, have constantly pre particular charters of each individual vailed in them all since William's time, town, were, by the king's special comconcur to show the solidity of his plan mand, delivered up to Colonel Strode, for rendering this maritime line one of then constable of Dover Castle, and were the grand outworks of the Conquest. The never afterwards recovered. earliest members of the municipal bodies Before the Revolution in 1688 the lordestablished under these foreign denomi- wardens assumed the power and the right nations, at a time when the English mu- of nominating one, and sometimes both, nicipalities in general were subjected to of the members for each of the port-towns the most rigorous enslavement, were doubt- having parliamentary representation ; but less trading settlers from William's conti- this practice was terminated by an act hental dominions; and the term barons, passed in the first year after the Revoluas applied to the Cinque Ports' representa- tion, entitled · An Act to declare the tives, which in the later periods of English | Right and Freedom of Election of Mem