within the Parish is on the Parish Books. He is there as a responsible man. Being there, he comes under obligations to contribute to all local rates and other burthens. Being there, he is a Parishioner, and has a Common Right to a voice at every meeting of Parishioners. If he have not fulfilled his obligations in one respect, he cannot rightly claim his prerogatives in the other: but no option of enrolment is left with himself, nor is ratepaying made a test of his citizenship. His occupancy is the sole test. Ratepaying is simply one co-relative consequence of his occupancy ;--of which taking part in, and voting at, all Parish meetings is another but co-relative consequence.*

*

No term of residence is now necessary to give the full rights of a parishioner. Good taste, and the smallest sense of propriety, will lead every man to watch the course of procedure, and learn the local conditions, in modest silence for a time, before himself taking a prominent part in the affairs of a new neighbourhood; but, in point of law, the moment a man enters a new Parish, as a Parishioner, he becomes clothed with most of the functions, as well as liable to all the burthens, of a full Parishioner. It has been seen that the Common Law adopted a sounder rule. Some late Acts have wisely recurred to this.t

Having thus touched on the true and full Parish Meeting, commonly called the "open Vestry," it should be added that, in some Parishes, there exists the practice of what is called a

* See before, p. 52, and after, Chap. VII. Sec. 11, on Enrolment. It is proper to notice here another circumstance (besides non-fulfilment of the obliga tions above alluded to) which will deprive a man of his right to take part and vote at a Parish Meeting; namely, the becoming an Outlaw. The Law has always been most jealous of any one incurring danger of being put under the ban of Outlawry without full notice, and opportunity given to him to avoid it. By 6 Hen. VIII. c. 4 proclamation of the threatened outlawry is to be made three times, in the County Court and at the Sessions. By 31 Eliz. c. 3 proclamation is to be made, in addition to those at County Court and Sessions, at the door of the church or chapel of the town or parish where he who is threatened with Outlawry shall be dwelling. And see 4 & 5 W. & M. c. 22. This still remains the Law, with the exception that, by 7 Wm. IV. and 1 Vict. c. 45, the proclamation must be in writing affixed to the door, and not made orally as before. As to the "Law-worth man" and the "Outlaw," see my 'Government by Commissions,' p. 329, etc. The point is an import

ant one.

+ 3 & 4 Wm. IV. c. 90, s. 14; 4 & 5 Wm. IV. c. 76, s. 40; 18 & 19 Vict. c. 120, s. 16; etc.

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WHAT MEETING CONSTITUTES A VESTRY."

65

"select Vestry." On the nature of this, and the Acts which affect it, I shall treat in considering Parish Committees.*

It must be remembered that all that has been thus said of the Parish Vestry, applies equally to the Vestry of any Township, Hamlet, Tything, or otherwise, where a Vestry, separate from that of the original Parish, has been held by custom, or under any Local Act, or by virtue of any other lawful sanction.† An apparent difficulty has sometimes arisen as to what constitutes the "Vestry" in some particular Parish or Hamlet,owing to the loose language often used in both Local and General Acts of Parliament. This difficulty has particularly arisen where there exists an elected or representative Body, to transact some of the ordinary functions of the Vestry, while the old Common Law Body of the whole Parishioners still meets once a year to choose Churchwardens and Overseers. Every case must, of course, depend on its own states of fact. I have seen no such case in which, on a full consideration of all the facts, and comparison of these with the principles of the Common. Law, it has not been possible clearly to reconcile the apparent difficulty. It is sufficient now to say, that it does not follow that, because the members of an elected Body are called "Vestrymen," therefore that Body is "the Vestry." Nor, on the other hand, because another Body is merely described as a "Meeting of Parishioners," is it any the less "the Vestry." It is the being a lawfully summoned meeting of "the Parishioners" that constitutes it a Vestry.‡

* Chapter IV.

+ See before, pp. 33-43. Also 58 Geo. III. c. 69, s. 7, which is, however, merely declaratory of the Common Law.

See before, p. 52. The Burials Act of 15 & 16 Vict. c. 85, and Baths and Washhouses Act of 9 & 10 Vict. c. 74, make their interpretation of "Vestry" to be, "the inhabitants of the Parish lawfully assembled in Vestry, or for any of the purposes for which Vestries are holden." The Baths and Washhouses Act of 10 & 11 Vict. c. 61 varies this interpretation-and it is strange that the later Burials Act did not follow this, instead of the last quoted and less comprehensive interpretation. The language of 10 & 11 Vict. c. 61 is "Any Body of persons, by whatever name distinguished, acting, by virtue of any Act of Parliament, Prescription, custom, or otherwise, as or instead of a Vestry or Select Vestry."-This is a good definition of what is here meant by "the Vestry." See also 18 & 19 Vict. c. 70, s. 3. Though this work does not treat of ecclesiastical matters, and therefore, as already stated, the "Ecclesiastical Districts" and "New Parishes" which have been or may be formed under the Church Building Acts and 'New Parishes Act, 1856,' do not come within its scope, it is of much practical

Many matters of practical detail can be dealt with, executively, far better by small bodies, specially appointed for the purpose, than by large ones. Hence the system of appointing Committees has grown up, wherever free government exists. It prevails throughout all parts of our constitutional system, from the Parish Vestry to the House of Commons. The Cabinet itself (though the fact is often lost sight of) is but a Committee of the Privy Council. The Jury is a Committee of the Shire or Borough for which it serves. This system has long prevailed in the management of Parish affairs; and will therefore properly form a special topic, to be hereafter dealt with.

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importance, in order to prevent confusion, to point out the position in which the nominal Vestry of any such ecclesiastical District or New Parish stands. It should first be remarked that while, under the Church Building Acts of 59 Geo. III. c. 134, 3 Geo. IV. c. 72, and 3 & 4 Vict. c. 60, these Vestries were "Select," the Act of 14 & 15 Vict. c. 97 abolished this "Select Vestry." The Vestries of all district churches and "New Parishes" are now open-that is, they consist of all pew-occupiers. But these Vestries have nothing whatever to do with anything except "the care and management of the concerns of the church or chapel, or the repairs thereof, and other matters and things relating thereto." They are not a Vestry' in the sense of any of the Acts quoted at the beginning of this Note, nor in that of sec. 44 of the Charitable Trusts Act, 1855 (by which accounts of Charities are to be laid before the Vestry), nor in that of any other Act of a similar nature (see before, p. 51, note). Without a clear understanding of this point, confusion is certain to arise, as already pointed out before, p. 40, note, especially since the New Parishes Act, 1856. All such Districts and New Parishes are constituted for, and limited to, "ecclesiastical purposes only," and are "not to be deemed districts for any other purpose whatsoever" (see 59 Geo. III. c. 134, s. 6; 1 & 2 Wm. IV. c. 38, s. 10; 1 & 2 Vict. c. 106, s. 26; 19 & 20 Vict. c. 104, preamble, and secs. 14 & 25; and all the other Church Building Acts). "No divisions of any Parish or extra-parochial place, whether it be divided into separate parishes with the consent of the patron and Bishop of the diocese, or into district parishes, shall in any manner apply to any poor or other parochial rates which may be raised in the parish or extraparochial place so divided, or in any such separated parish or district parish; or to any powers relating to any such rates; or to holding Vestries, or appointment or powers of Parish officers; or to any Act or Acts of Parliament, or law or custom relating thereto, save and except as to church rates in so far as the same are regulated by the provisions of this Act [see 58 Geo. III, c. 45, s. 71, and after, Chap. VIII. Sec. 5]: but the original Parish shall, to all such purposes, remain and continue in law a Parish to all intents as if no such division thereof into separate parishes or district parishes had been made;" 58 Geo. III. c. 45, s. 31. See, upon the construction of this Act, the remarkable case of Cockburn v. Harvey, 2 B. and Ad. 797, in which it was rightly held that, notwithstanding the above words, the select Vestry could not make a Church Rate-none but the Parishioners in open Vestry being able to do so.

NECESSITY FOR OFFICERS.

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It is the more necessary thus specially to treat of it because, though one of the most important modes of Parish action, the fact of such action, and its practical importance, are in general entirely overlooked in treatises on this subject.

Besides the general Body to make Bye-Laws or ordinances, and the special Bodies to consider and conduct any matters of a special character, there will always be the necessity for Officers to carry out ministerially, into practical detail, the Laws and ordinances made, and to give heed to the ordinary affairs connected with every Local District. Such Officers have, consequently, whether by the name of Provost and four, Constable, Churchwardens, Surveyors, or any other, always formed a part of the practical machinery of the Institution of the Parish. The consideration of the mode of appointment, and of the functions, of such officers, will therefore form a distinct part of this work. I will only now, in reference to the fact of this choice of Officers as bearing upon the temper and conduct of the inhabitants generally, quote the very apt remark of one who wrote a century and a half ago. "In a Parish Government, the Churchwardens and Overseers of the Poor [and other officers] are chosen by the inhabitants. And hereby it is that Parish government carries nothing in it uneasy or unpleasing to the people. For, naturally, every one is best pleased with his own choice; and hereby both Honours and Burdens are equally borne. And why should I give more trouble than needs must to a Parish Officer, when I know 'twill come to my own turn to bear office, if I have not known the trouble of that already ?”*

In order that the several branches of the subjects thus raised may be brought distinctly, and in the most usefully practical shape, before the reader, I propose to treat the matter under two distinct heads. The first of these will treat of those to whom, in a delegated capacity, the discharge of certain functions attached to the Institution of the Parish is entrusted; -in connection with which topic I shall treat, separately, of Parish Officers, Committees, Trustees of Parish Property, and the position of the Parson or minister. The second will treat of what things are thus dealt with. After considering these, it will be more convenient to treat, separately, of the rates and taxes by raising which the obligations of the Parish are or may be carried out, by any such authorities, and for any purposes.

* The Claims of the People of England Essayed,' 1701, p. 23.

CHAPTER III.

OF PARISH OFFICERS.

SECTION I.

CHURCHWARDENS.

THE accidents of time and fashion, as they change the descriptive names applied to places, so they give at one time to one officer, and at another to another, the chief conventional authority. The Parish has been known by the names, perhaps of tything, certainly of vill and town. The Officer of the Parish reckoned to fill the leading position, has at one time been called Provost, at another Constable, Tythingman, Headborough, or Borsholder.* At the present time the Churchwardens have, as the general rule, this conventional precedence. The High Constable, Headborough, or other like officer, is still indeed held, in some places, to be the chief Local Authority. These are now, however, only rare exceptions.†

It is easy to see how the Churchwardens got to be thus the conventionally foremost Parish officers. The church itself was long, and is still in most parishes, the principal building in the parish. In most churches, in Roman Catholic times, there

* The fundamental practical idea of Adaptation, as characterizing the Common Law of England, is well expressed in a Judgment of the Court of Common Pleas, in 29 Car. II. (2 Modern Rep. p. 238); where, after giving judgment that "the vill and the parish shall be understood to be the same," (see before, pp. 21, 33, et .)—it is added: "The law hath great regard to the usage and practice of the people :-the law itself being nothing else than common usage, with which it complies, and alters with the exigency of affairs. The reason of things changing, the things themselves also change." Very different, this, from the Bureaucratic and Statutory procrusteanism which has done so much mischief in modern times.

It is worth noting that, in the Statute of 27 Henry VIII. cap. 25, Churchwardens of parishes are put co-equally with "Mayors, Governors, and head officers of every city, borough, and town corporate."