CHAPTER II. MODE OF DISCHARGING THE FUNCTIONS OF THE PARISH: BYE-LAWS: THE VESTRY: NOTICE AND SUMMONS: DELEGATED AUTHORITY. THE secular origin and character of the Parish have been shown. It has been shown that its objects and purposes are secular; and that, whatever ecclesiastical arrangements have become connected with it, these are merely superadded, and can in no way alter the character, obligations, or powers of the Parish as a secular Institution. Attention has already been called to the distinction, a most important one, between the constitutional arrangements for criminal and civil Inquiry and Adjudication in every place, (the Sheriff's Tourns and Leets, the Shire and Hundred Courts), whose business is, to see that all needing doing is done, and that all wrong-doing is punished,*-and the Legislative and Executive functions of the Parish. The Parish is responsible for the maintenance of the public peace. It is penally responsible, as an integral part of the Hundred, for riots and robberies committed within it ;- -a responsibility which used to be every day strictly enforced, and the actual enforcement of which can be the only certain guarantee for the due maintenance of the public peace. It is responsible for the proper keeping of all highways, watercourses, and other like things which affect the public convenience. It is responsible for the subsistence of those among its number who are unable to support themselves. It has, moreover, the general obligation and power to do all that the common good of the inhabitants requires. * See further hereon, Chap. VII. Sec. 2. OBLIGATION, AND ITS FULFILMENT. 45 The important practical question arises :-how are the obligations and powers thus inherent in the Parish to be fulfilled? The attempt to confound the Parish with ecclesiastical institutions and jurisdictions, has introduced into this, as into other parts of the subject, much mischievous confusion. The following quotations contain illustrations of the two distinct modes in which the obligations of the Parish may be, and have always been, fulfilled. They practically illustrate, first, action by the Body of the Parishioners themselves; second, by some of themselves to whom, upon their own choice, special duties have been given in charge, for the sake of greater executive convenience. Both quotations illustrate, at the same time, the thoroughly secular character of the Parish. In the first case, in reference to some great outrages, the Sheriffs and other Wardens of the peace in each shire, are required to cause to come before them the four men and the provost* of every Parish; and to cause these to summon all the men themselves of the Parish, when any wrong is done or threatened in any Parish: "and the said men of the Parishes are required, if need be, to raise the hue and cry, and follow the offenders from Parish to Parish, and from hundred to hundred, and from shire to shire, and arrest, keep, and safely guard them."+ The other example declares that no man and horse in the king's service shall, even in the course of any official progress or sojourn in the fulfilment of duty, be anywhere entitled to provision, i. e. be billeted, without a note in writing from the Marshal having been first delivered to the Constable of the Parish. The necessary provision shall then be found by the constable of the Parish; and he shall cause what has been taken to be valued by sworn men of the Parish; and payment shall be made daily according to the price thus fixed. To which it may be added, as showing that the responsibility is on the place, not on the officers as persons, that, in another very similar record, it is declared that, if any one shall offend," he shall im * See before, p. 17. +Rolls of Parliament, 6 Edw. III. No. 5. See the Statute of Winchester (13 Edw. I.), 28 Edw. III. cap. 11, etc., hereafter noticed, Chap. III. Sec. 3. Rolls of Parliament, 21 Edw. III. No. 22. mediately be arrested by the Parish where the wrong is done, and committed to the nearest gaol." The Parish, then, as a body, is the moving and responsible power, in every case. It will be well to consider, first, when and how it acts in its original capacity. The consideration of powers executed by representative delegation will properly follow. It is very necessary that the clear distinction should be understood at the outset, between the requirement that an obligation shall be fulfilled, and the means to the actual fulfilment of that obligation. In the keeping this distinction always clear, lies the most essential element of good government and of the healthy administration of all affairs. The entire losing sight of this distinction by those who, in our day, rush with hasty and ill-considered legislation to tamper with our Institutions, has led to much confusion and to very great mischiefs. In former times the distinction was well preserved. It will always be so by the true Statesman,-by him who has at heart the public good, and not the mere increase of patronage and functionarism. It is the business of the State to take care that Institutions exist, active and efficient, by which it shall be ensured that every individual and every place fulfils the obligations that are owing by each to all others. What it has to do is, simply, thus to secure the fact of this fulfilment ;-the non-violation of what the common good and the rights of other individuals require. It has nothing to do with the mode of fulfilment. That is a matter which only those concerned can, in their recognized and responsible Institutions, and with that full knowledge of Local conditions which only they can possess, properly deal with; and the casting on these Institutions the responsibility of fulfilling the obligations, is the best stimulus to those efforts, and to that moral and intellectual tone and spirit, which can alone produce the best results. Incidentally, this has the surest tendency to develope the highest moral and intellectual capacities of man. The State may sometimes use fully suggest on such matters: it can never, without mischief, dictate.‡ * Stat. 28 Edw. I. cap. 2. + See Chap. III. Sec. 15, and Chap. VII. Secs. 2 and 13. Such suggestions being, however, never more than general and Institutional; never minute and peddling, after the manner of too many modern EVERY PARISH CAN MAKE BINDING BYE-LAWS. 47 On the modes of attaining the first of these ends, the keeping up the sense and fact of obligation, I do not now touch. They have been already glanced at,* and will again be so.† The present point is, the practical mode and means to the fulfilment of the obligations of the Parish, considered as a legislative and executive Institution. The Common Law clearly recognizes the power of every community, having fixed bounds, to make such Regulations, on any matter relating to its own internal management and affairs and common welfare, as it pleases; and upholds its full authority to carry such regulations out, even by the utmost process of the law. Lord Coke expressly says, that the "inhabitants of a town, without any custom, may make Ordinances or Byelaws for the reparation of the church, or a highway, or of any such thing which is for the general good of the public; and in such case the greater part shall bind the whole, without any custom." The word "town" is here used, as before explained, for "Parish." In the case, indeed, more particularly referred to by Lord Coke in this passage,§ the question arose on a distraint made, under a bye-law of a Parish, by collectors of a rate made and authorized only (as was also the appointment of the collectors themselves) by vote of the Parish.|| And Lord Coke himself reports the decision of the highest court in another case,--where one not present had resisted payment of a rate made, in precisely the same way and for precisely the same purpose, by a Parish,-in the following remarkable and universally practically applicable words:-" He may come, if he will, to the assemblies of the parishioners, when they meet together for such purposes. . . And the churchwardens and greater part of the parishioners, on such general warning met together, might make such a tax by their [bye-] law."¶ It has, in fact, often been declared, by all the judges of the highest courts, that "those in a Leet can make bye-laws, and their own assent shall bind them. And a Parish can make byelaws, and these shall bind them."** Acts of Parliament. Over-legislation is immeasurably worse than no legislation at all * Before, p. 22. 5 Reports, R. 63 a. + See Chap. VII. throughout. || See after, p. 49, and this case given, at length, in Chap. VIII. Sec. 5. 5 Reports, p. 67 b. ** It will be useful to illustrate this fundamentally important and prac The clear Principle on which such Bye-Laws rest is this:that, whenever there would seem likely to be any damage, danger, or inconvenience to the community but for a given bye-law,which damage, danger, or inconvenience that Bye-Law is passed tical point by an extract from a case in which the three instances of the tenants under a Manor (Copyholders), those owing service to the Leet, and the inhabitants of a Parish, are respectively named. In all three cases, the question of validity is declared to depend on the "legal commencement" of the Bye-Law; that is, the actual or implied consent of those affected. No stranger can, of course, be affected by a bye-law of any Local Institution,--either as to being bound by it, or taking advantage of it. That would be contrary to the very essence of such Institutions. They legislate on their internal, not on their external, relations. The latter, upon precisely the same principle that the assent, express or implied, of the whole local community is necessary to its Bye-Laws, need all external assents. But all within, and at any time forming part of, the Institution, will be bound, whether present and actual party to it or not, if the bye-law was made in an actual assembly properly summoned. The same means can, of course, be taken to repeal or alter any Standing Bye-Law, if found to work ill. The case alluded to is as follows. An action of Debt was brought for a penalty,-by custom as alleged,— for breaking the Pound of a Lord of a Manor. "All the Justices are of opinion, that the prescription of custom is not good to bind any stranger, because it cannot have a legal commencement. But if the custom were, that if any tenant who holds of the MANOR breaks the pound, he should pay £3. 0s. 9d., it is a good custom; because it could have a legal commencement; for the Lord may give the tenements to hold of the manor by certain services. And so, if the tenants were to grant at this day to the Lord, that, if the rent were in arrear, they should pay 208., it is good; and by their assent they would be bound. And those holding a LEET [residents of a year and a day] may make BYE-LAWS, and their assent amongst themselves will bind them. And in a Leet it can be prescribed that, for every affray or bloodshed, there shall be paid a certain sum of money; and it is good; and it can be prescribed to distrain for that, and to sell the distress: and the reason is, because it is the Court of the King, and it derives its interest from the King. [That is, it is a court of Criminal Jurisdiction.] And a PARISH can make BYE-LAWS amongst themselves; as, that any one who puts his beast on such a common, shall pay 108. ;-this is good, and will bind them."-Year Books, 11 Henry VII. fo. 14. Compare 21 Hen. VII. fo. 40. The following extract illustrates the point of the necessary interest among all parties affected by such Bye-Law. "If the inhabitants of any Parish choose to enact for a law, that whosoever holds so much land, shall yearly pay to the church of the same parish a certain sum; and, for every default, forfeit 20d. to the Lord of the said parish (that is, the Lord of the Manor within the Parish]; although that custom has existed from time immemorial, yet that custom is void; because, by the non-payment of the said sum to the church, the Lord sustains no damage; whence it follows that by this he must have no gain. But, if the said forfeit of 20d. was to be paid to the appointed Wardens of that Church, then such penal forfeit |