ing Act, Gilbert's Poor Law Act, Hobhouse's Act, the Baths and Wash-houses Act, the Burial Acts, and many others,* as well as even of the simplest rules of Law as to Churchwardens. Either this, or he deliberately misled the House of Commons. There is no third alternative. All the facts contained in the present chapter stand, in either case, as a complete answer to the untrue pretences thus set up. He fain attempted, moreover, to represent that a committee appointed to do a specific work only, subject to rules to be laid down by Vestry, and which Committee cannot raise or spend a penny without the express consent of the Vestry, has arbitrary powers! Let any Body of irresponsible Functionaries arbitrarily order, intermeddle, or tax :-the Government official does but burn with zeal to enlarge their powers. But for any parish to think of doing anything for itself, and of itself paying for it as it thinks right-this, indeed, is not to be endured!

It is by shallow misrepresentation, puerile sophism, and an unconstitutional tone and spirit such as this, accompanied by the offensive pertness of officialism and the impertinent flippancy of red-tapism, that attempts to promote the public welfare are met in our time, and that the debasing system of Centralization seeks to extend its influence,--and succeeds in the attempt.

The Common Law of England looks at and deals with all men as actuated by motives, and as best educatable by calling those motives into action-by throwing upon the men of every neighbourhood the unevadible responsibility of that action. It therefore continually appeals to motives, and calls them into play. This is the fundamental principle of free government. Its atmosphere and constant rule are, confidence in the people, and in the well working of the Institutions of the Country by means of the people themselves. The modern system of Legislation goes upon an entirely different principle. Its whole principle is oligarchic. Mistrust of the people, and contempt for the spirit and practice of our most fundamental Institutions, are the guiding rules. These now pervade every measure in

It is worthy of notice that even a corporate name is not always necessary to give a corporate character; still less is the having a seal (as sometimes supposed). If a Body has,-like, for instance, a Highway Board,— power to hold land in succession, it is, practically and in the eye of the Law, a Corporation. See Tone Conservators v. Ash, 10 B. and C. 349.

RETROGRESSIVE LEGISLATION.

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troduced, colour every argument, and mark every suggestion. Everything of a different tendency, everything that is practical and sound, has to be fought for; and it is only to be won with a hard struggle, and after encountering every hostile manoeuvre that the insolence of officialism and the eager self-seeking of unprincipled functionarism can bring to bear against it. Our liberal governments and legislators would have us believe how much they love the people; but then, they must do and permit, and order and "inspect," everything. There was a time when it was declared in Parliament that the opinion of several was more to be trusted than that of one man; and when it was the invariable rule, that the truth of every matter must be inquired of by men of the neighbourhood, "by whom the truth will be the better known." We live in more enlightened times;when any idea of the people being trusted to manage or discuss any of their own affairs for themselves, is worthy only of a sneer of incredulous contempt. Enterprise, effort, opportunity, and motive, are to be forbidden. All must be done blindly, according to the rule of bureaucratic dictation. It was, then, certain that such a Bill as the preceding, which simply redeclares the Common Law principles and practice, would be opposed with nervous dread. Such a Bill, resting on the Common Law, and on long tried practice, would ensure, at the same time, thorough responsibility and the only efficient means of local improvement.

Every lover of sound government, and of the tried free Institutions of his country, will, therefore, rejoice that the introduction of this Bill stands recorded on the Journals of the House; remembering the remark made by a great patriot and lawyer, more than two hundred years ago, that—" It is an observation proved by a great number of precedents, that never any good Bill was preferred, or good motion made in Parliament, whereof any memorial was made in the Journal Book, or otherwise, though sometimes it succeeded not at the first, yet hath it never died, but, at one time or other, hath taken effect: which may be a great encouragement to worthy and industrious. attempts."*

* Coke, 4th Inst. p. 32.

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CHAPTER V.

PARISH CHARITIES; AND TRUSTEES OF PARISH PROPERTY. THE need there is that every question which affects any right, obligation, or function of the citizens of a free State, should be dealt with on grounds of principle, instead of on those of narrow technicality or groping literalness, can never be too often repeated. The inattention to this has led to numerous and wide-spread evils. Nowhere has this been more strikingly illustrated than in regard to the management of Parish Charities. A decision of the Courts of Law, more than three hundred and fifty years ago, which went, then, upon a mere technical ground (and which, even if applicable then, has become wholly inapplicable since), has been the direct source of all those mischiefs and mal-administrations which have led to so much complaint as to the misappropriation, waste, and even loss, of parochial charitable funds.

The case is a very simple one, when divested of technicality. In every parish in England there exist Churchwardens; who are annually elected by the parishioners; who are acknowledged by the law as the legal representatives, in a corporate character, of the parish; who are, in that character, the holders of parish property; who are responsible to the periodical public meetings in vestry of the parish, for their proceedings and accounts; and who can do no act, in relation to any property of the parish, without the previous cognizance, deliberation, and assent of the vestry of the parish.* Owing, however, to a purely artificial and technical rule, laid down by the above-named decision, and adhered to, under changed circumstances, merely from the blind following of precedent-without regard to the principle involved in such precedentt-it is held that the legal ownership, or, as it is called, the "legal estate"-in such of the cha* Eefore, pp. 99-101. + See before, p. 195.

UNSOUND TECHNICAL RULE.

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ritable foundations attached to Parishes as consist in land and houses, and the power of suing and being sued in respect thereof, are not to be deemed as vested in the churchwardens. Hence it is that the habit has grown up of appointing Trustees for maintaining this legal estate; who, however, when once appointed and having the legal estate vested in them, cannot be removed except by what is, and must always remain, an invidious and riskful process. Though the real position of such trustees of course is, and ought always to be felt and insisted upon as, that of bare trustees for maintaining the legal estate in the original gift or "foundation," for the benefit of the parish, they become thus enabled to obstruct and thwart the action of those public bodies to whom the property, and the direction of the administration of its proceeds, actually and of right belong; and it has often happened, and now too often happens, that, wrongfully availing themselves of this opportunity, they take upon themselves, in violation of every duty and principle, to assume an independent and practically irresponsible position. Hence have arisen almost all, if not all, the instances of perversion, waste, or non-improvement of parish charities.

The source of this cumulative and justly complained of evil as to parish endowments and charities, clearly lies in the legal rule which has been above styled "purely artificial and technical." That this rule is thus purely artificial and technical, founded upon no real principle, but in reality opposed alike to principle and common reason, is an inevitable deduction from the fact that it is expressly declared, even in the judgment in that which forms the leading case on this subject, and which was adjudged upon in the 12th year of King Henry VII.,* that "by common reason" the parishioners are a corporation to certain intents. It was then admitted, and has been admitted ever since, as well as long before, that the churchwardens may, and must, ex officio, sue and be sued, as a corporation, in respect of all other parish properties, on behalf of the parishioners.

The reason itself assigned for the rule above alluded to, is a trivial and inconsistent one; which, if sound as to any kind of property, must be sound as to all; which would, indeed, be far more applicable to goods and chattels, and other personal property, which can be readily made away with,—but in respect to * Year Books, 12 Hen. VII. fo. 28; and see ib. 13 Hen. VII. fo. 9 & 10.

which it is unquestioned, and admitted in the very case alluded to, that the churchwardens are a corporation to sue and be sued, than it can be to lands or houses, which can never be carried off. This reason is, in fact, particularly applicable, if at all, to the frequent case of failure of trustees. The reason thus assigned is, that, if the estate in lands were deemed to be vested in the churchwardens, the use would be in abeyance at the time of the election of new churchwardens. The extraordinary triviality and unsoundness of such a reason, and of the whole origin and application of the technical rule above alluded to, become strikingly obvious, and its inconsistency manifest, when it is remembered that the parson of a parish is deemed to be a corporation for holding houses and lands, (namely, the parsonage, glebe, etc.) although there is, necessarily, a frequent vacancy in the person embodying that corporation, and so, invariably on the death or change of the incumbency, an actual abeyance in the estate: while, in point of fact, no such vacancy does ever now exist in the case of Churchwardens ;* so that, if the above rule ever had any soundness, it has none now. “The law," says Lord Coke, speaking of the corporate character of the Parson, “had an excellent end therein, viz. that in his person the church might sue for and defend her right; and also be sued by any that had an elder and better right.”+ The corporate character of the Churchwardens exists for precisely a similar end in regard to the State, as represented by that integral part of it-the Parish: and it is an extraordinary inconsistency and anomaly that any doubt, still more any judicial opinion, should ever have been expressed on so simple a point. The parish never does cease: the parishioners, for whom and on whose behalf only the Churchwardens can sue and be sued on any matters, never are without continuance. Yet, although the highest authorities in fact admit that the fee-simple in an estate can be in abeyance from time to time, and specifically avow that, in the case of the glebe, etc., it actually is so,§ we are asked to take it for good Law that the churchwardens are not a corporation for holding land-as mere representatives of the Parish

*See before, p. 90.

+ Coke upon Littleton, p. 300.

It has been already remarked that, in all actions by churchwardens, the damage and injury must be stated "ad damnum parochianorum." See before, p. 101, and particularly, also, p. 78.

§ Coke upon Littleton, p. 341.