EVILS AND UNLAWFULNESS OF PRETENSIONS. 329 It has been necessary to treat thus at length on the subject of the position of the Minister in respect to the Parish, on account of the unspeakably mischievous effects which have followed from the modern attempt to set up ecclesiastical domination in the secular affairs transacted by Parish Vestries. Universal experience witnesses to these mischiefs. The most common sense of decency recognizes the impropriety of the practice. The best and worthiest ministers of the Church are fully alive to the evils of the assumption; to its inconsistency with their profession, and with what ought to be their practice; and to its necessary tendency to bring contempt upon the Church. But many of them have let their good feeling and judgment be overruled by the suggestion, that they are called on to vindicate what are represented as the rights and privileges of the Church and of their own successors. It has been now shown that there can, on this point, be no greater mistake. The practice has been here proved to be as antagonistic to the Law of the Church, as it is to the Common and Statute Law of the Land. It has no warrant of authority, of reason, or of principle. It is directly in the teeth of all these. Beyond this, it places the ministers of the Church in a false position, and exposes the ministry itself of religion to just and necessary contempt. It causes men to look at the holding and teaching of a certain form of faith, as identical with a spirit and practice of domination in secular affairs; a spirit and practice which are felt to be repugnant alike to common honesty, and to the most ordinary sense of independence and of self-respect. For those who, to save themselves the trouble of research into a matter of so much importance, have been content to copy from one another the ex parte opinion given in such a case as Wilson v. McMath, there can be no excuse. The weakness and unsustainability of that case are apparent on its face. The Law of England reaps no honour, when those who assume the place of guides and expounders, leave unheeded all reference to Principle or to real authority, and blindly copy from one another the mere note of a case that violates both,* in matters that affect the practice and the welfare of every part of the country, and the whole moral tone and temper of men in their local communities. Such has been done in this instance. But, however much the culpable negligence of those who *See before, p. 195. have written upon Parish Law, may, of late years, have resulted in dissuading men from contesting this important question, and may have induced Parish Vestries to submit to so wholly unwarranted, unlawful, and indecent an usurpation, rather than involve themselves in litigation,-and so certainly has disgusted many of the best men from going near such meetings, or made the latter be regarded as no other than ecclesiastical affairs; to the great injury, in either case, of the Public Interests and the Common Welfare,-it has now been demonstrated, that the attempt to set up any pretensions in the minister of a Parish to the claim of precedence in the Parish, or to the right to engross the chair at meetings of the Parishioners held at any time, for any purpose, or in any place, is altogether unsustainable, illegal, and a direct violation both of the law of the Church and of the Land. Such an attempt, by whomsoever, and how insidiously soever, sought to be engrafted on our system of parochial management, is but a part of the great ecclesiastical conspiracy, which has grown up chiefly since the Reformation, to raise the legal condition of the established Church, from that of a Body subordinate and truly ministrant to the State-according to the conditions of its endowment-into a legal position of independent, co-ordinate, and even dominant authority. CHAPTER VII. SUBJECT MATTERS OF PARISH ACTION. THE general characteristics of the Parish, as an integral part of the State, and the Institution whose complete well-working is the most vital thing to the internal welfare of the State, have been shown. The Officers and Committees usually appointed to carry out the business of the Parish, together with the chief characteristics of each, have been passed in review; and such particulars and authorities have been given as will enable the practical man to follow up any point of detail, either in practice or question, as the case for it may arise. In the present chapter, I propose to lay before those who, whether officers or other parishioners, are alive to the responsibility of their position as citizens, and are desirous of fulfilling their duties to their neighbours, a general view of the ordinary matters of Parish action; together with such suggestions as may enable the purpose of such action to be in each case best reached, and the dangers that threaten the attainment of that purpose to be understood, and so warded off. What are included within this Chapter must not be understood as defining the absolute limits of Parish action. It has already been shown that it is the invaluable characteristic of the Common Law of England that it consists in Principles, which are adaptable to circumstances as they arise. It does not know finality or procrusteanism. These are the offspring only of the pedant and the doctrinaire; who have sought indeed to engraft them on our Statute Law, and have succeeded too well in that mischievous object; but who have not yet succeeded in rooting out all the landmarks of the Common Law; though their attempts in this direction make the thorough understanding of those Landmarks, and of the Principles which are identified with them, the more necessary. What are here included, are the more usual forms in which Parish action takes place; while the numerous authentic, and hitherto (with very few exceptions) unpublished, practical illustrations that will be given of the forms of action that have been actually taken, at different times and in different places, as circumstances have arisen, will give so complete a view of the working and adaptability of the Institution of the Parish, as to leave no person of ordinary intelligence without a clear notion of the course which, under whatever circumstances may arise, may and ought to be taken, in accordance with those Principles which are embodied in and sustained by the Common Law of England. SECTION I. ROADS, PATHS, DRAINAGE, AND NUISANCES. THERE is no duty which surpasses in importance, among the business of the Parish, the maintaining its Highways in such condition that they shall be fit for the passage of all men; and the taking care that nothing is let be done, on or near them, which shall make the passing over them dangerous, offensive, or inconvenient. It is not only to the repair of the roads themselves, but to everything that affects the safety, wholesomeness, and comfort of the passage along them, that attention is bound to be given. This was enforced centuries ago, in the habitual practice under the Common Law. It was recognized by Statutes which did but re-declare the Common Law duty of taking care that there should be neither dyke, tree, nor bush, whereby any man might lurk to do hurt to passengers, within two hundred feet of either side of any way;* and that, "where common nuisances are in highways, or where ditches or watercourses adjoining unto highways are not scoured and dressed, the surveyors shall see the same reformed, and the offenders punished, according to law."t The Law of England as regards Highways and the responsibility for them, does not, it must be well remembered, rest on any Statutes, old or new, but on the Common Law. It has been well observed that "the Common Law relating to Highways is nowhere repealed. It exists in its full extent, and forms a most important groundwork for the provisions of the Legislature. Without a knowledge of the former, an acquaintance with the latter will infallibly lead to error; for, in point of fact, the most material parts of the Law upon this subject (I might say all its principles) are derived from the lex non scripta [the Common Law]. The Acts of Parliament, both Highway and * 13 Edw. I., St. 2 of Winchester. 13 & 14 Car. II. c. 6, s. 3. Attention is recalled to what has been already said on the real value of Statutes in such cases, pp. 10, 134, 228, 258, etc. |