ing those which he has already given us. That for which he contends is not merely that the common law of England permits the spiritual officers of the church to enforce by spiritual punishments, if necessary, the spiritual duty of decently repairing the house of God; but that such duty is, " in the strict sense of the term, a common-law obligation," and "one that can be enforced by the common-law judges" "if they think their interference necessary."

In support of this position, he refers

1. To "the case of Boothby v. Bailey, (Hobart's Rep. p. 69,) in which it is said, The use of the body of the church, and the repair and maintenance of it, is common to all the parishioners.""

2. To the case of the parish of Aston v. Castle Birmidge Chapel, which is thus reported. 'It was apparent to the court that (the inhabitants of Castle Birmidge) were to all purposes part of the parish of Aston, and therefore, de communi jure, were liable to reparation with the rest.”

3. To the case of Peeter v. Rose Edmonds, where the chief justice said, that it is contrary to common law that they who have a chapel of ease in a hamlet should be discharged of the repair of the mother church."

4. To "the case of Holland and Kirton, in which it was said by Haughton, Justice, and not contradicted, that' a custom in prejudice to the reparations of a church is void, for by common law the house and all lands are chargeable with the reparation.""

5. To "the case of Newson v. Bawldry, where it is distinctly affirmed, that the parishioners are compellable to put things in decent order."

Now there is nothing in all this which necessarily establishes more than I am willing freely to admit; namely, that the common law of England recognises the repairs of the parish church as one of those spiritual duties which the spiritual courts have authority to compel by spiritual censures. There is not a word that goes the length of asserting that it is a common-law obligation, in the strict sense of the terms, so that it can be enforced by the common-law courts if they think their interference necessary. Therefore all these passages fall short of that which Mr. Goode's position requires.

But in the August number he cited an authority which, according to his citation and acceptation of it, seemed precisely what he wanted. It is a "decision of Chief Justice North in the case of Rogers v. Davenant:"

"It [i. e., the parish church,] is like to a bridge or highway; a distringas shall issue against the inhabitants to make them repair IT."

When I first read this in his letter, I thought the case clearly decided against me, and was prepared accordingly to give it up; but when I turned to the report of the case in Dr. Nicholl's pamphlet, a totally different light shone upon it. These are the words of Chief Justice North, 1 Mod. Rep. 194:—

["The spiritual court may compel parishioners to repair their parish church if it be out of repair, and may excommunicate every one of them till it be repaired; and those that are willing to contribute must be absolved, till the greater part of them agree to assess a tax; but the court cannot assess them towards it.] It is like to a bridge or a highway; a distringas shall issue against the inhabitants to make them repair rr, [but neither the king's court, nor the justices of the peace, can impose a tax for it."]

The parts in brackets were omitted by Mr. Goode. By that which follows his extract, it is clear that the IT with which his extract con

cludes is not the parish church, but the bridge or highway, and that Chief Justice North only spake of the distringas in reference to one or other of these, by way of analogy, and not to the parish church. By that which precedes his extract, it is clear that the only court which Chief Justice North considered as empowered to compel the repairs was the spiritual court, and that by spiritual censures. But to place the matter beyond doubt, let us cite the same case from the reports in the second volume, which (as Dr. Nicholl observes, p. 31 of his pamphlet,) "are generally supposed to be of higher authority than those contained in the first volume:"

"It was agreed, that the spiritual court has power to compel the parish to repair the church by their ecclesiastical censures, but they cannot appoint what sums are to be paid for that purpose; because the churchwardens, by the consent of the parish, are to settle that, As if a bridge be out of repair, the justices of peace cannot set rates upon the persons that are to repair it, but they must consent to it themselves. These parishioners here who contribute to the charge of repairing the church may be spared; but as for those who are obstinate and refuse to do it, the spiritual court may proceed to excommunicate them."-2 Mod. Rep. 8.

I submit, therefore, that while all the cases to which Mr. Goode has appealed fail to support the position he fancies he can ground upon them, this last, on which he seems most to rely, is directly against him. Now let us see whether Chief Justice North is alone in his opinion that the proper court for "the enforcement of the obligation lying upon the parishioners to make a rate" is the spiritual court, and that therefore, "in the strict sense of the terms," it is not "a common-law obligation." I will cite four more authorities to that effect::

"The

2. Holt, Chief Justice, cited by Dr. Nicholl, page 52 of his pamphlet. right course is, for the spiritual court to give sufficient notice to the parish to meet and make a rate for the reparation of the church; and for neglect &c. they may be excommunicated."

3. Lord Kenyon, cited also by Dr. Nicholl, p. 21. "WE (the courts of common law) CANNOT INTERFERE by granting a mandamus, this being a subject purely of ecclesiastical jurisdiction."

4. Abbot, Chief Justice, cited also by Dr. Nicholl, p. 25. "I need not say that, in matters purely of ecclesiastical cognizance, this court (of common law) does not interfere; as, for instance, in the case cited from 5 T. R. (that of Lord Kenyon's), the court WILL NOT GRANT A MANDAMUS TO MAKE A CHURCH RATE."

5. Dr. Nicholl himself, p. 14. "The repair of the church is, and has been, shewn to be a common-law liability, but it is not of temporal jurisdiction, and therefore CANNOT BE ENFORCED BY THE ORDINARY TEMPORAL REMEDY; that is, an indictment will not lie for neglect; but it is of ecclesiastical jurisdiction, and therefore may be enforced by the ordinary ecclesiastical remedy; that is, articles may be given against the parishioners for neglect; an ecclesiastical remedy very analogous to the temporal remedy of indictment.

In this sense, I repeat, I willingly admit the term "common-law liability"-namely, "that the common law of the land allows the spiritual officers to enforce this, among other spiritual and religious duties, by spiritual censures." But in the sense in which Mr. Goode has maintained it—namely, "in the strict sense of the terms," "one that can be enforced by the common-law courts," it is utterly and distinctly DENIED, not only by the opinions of common-law judges, but BY

THE PRACTICE OF THE COMMON-LAW COURTS.

And now I think I have succeeded in shewing-first, that the distinction set up by Mr. Goode between "the enforcement of the payment of a rate actually made, and the enforcement of the obligation lying upon the parishioners to make a rate;" so that while the former is merely of spiritual cognizance, the latter should be one of temporal, has no foundation save in his own imagination, and is utterly contradicted by the chief judges of the common-law courts: secondly, that the distinction which I drew "between the laws of the state or civil body and the laws of the church or religious body," which he affirms "does not exist in practice," is actually referred to, and alleged as the ground of the practice of the common-law courts, by those very common-law judges to whose opinions Mr. Goode has professed himself so willing to pay attention. Thus far for the main part of his letter. There is one point remaining which I cannot do otherwise than notice. He says that I have made "an undeniable mistake" in saying that "the statute of Edward I. classes the repairs of the house of God among the things meer spiritual;" for, says he, "the statute does not class it among the things meer spiritual, but distinguishes it from them." I find Dr. Nicholl of the same opinion. I can only say I am at a loss to conceive how any man can so interpret the statute. I have not the Latin to refer to, and must content myself with giving the English translation in Gibson, p. 1024, but I will give it entire :

"The king to his judges sendeth greeting. Use yourselves circumspectly in all matters concerning the Bishop of Norwich and his clergy; not punishing them, if they hold plea in court Christian of such things as be meer spiritual, that is to wit:"(1) Of penance enjoined by prelates for deadly sin, as fornication, adultery, and such like; for the which sometimes corporal penance and sometimes pecuniary is enjoined, specially if a freemen be convict of such things.

(2) Also if prelates do punish for leaving the churchyard unclosed, or for that the church is uncovered, or not conveniently decked, in which cases none other penance can be enjoined but pecuniary.

"(3) Item. If a parson demand of his parishioners oblations, or tithes due and accustomed, or if any parson do sue against another parson for tithes greater and smaller, so that the fourth part of the value of the benefice be not demanded.

"(4) Item. If a parson demand mortuaries in places where a mortuary hath been used to be given.

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'(5) [Item. If a prelate of a church, or a patron demand of a parson a pension due to him, all such demands are to be made in a spiritual court; and for laying violent hands on a clerk, and in cause of defamation, it hath been granted already, that it shall be tried in a spiritual court, when money is not demanded, but a thing done for punishment of sin, and likewise for breaking an oath. In all cases afore rehearsed, the spiritual judge shall have power to take knowledge, notwithstanding the king's prohibition."]

That in brackets was omitted by Mr. Goode. Now it is possible certainly that the "also" and the "items" may be meant by way of distinction; but it seems to me more natural to take them in the way of conjunction, and as connecting all the things meer spiritual, (i. e., of religious and ecclesiastical obligation,) which might be pleaded "in the court Christian;" and that the videlicet, or that is to wit, must be carried on to every clause, as illustrative of the meaning of the "things meer spiritual," and cannot in fair construction be confined merely to the first.

If Mr. Goode shall exclaim, "What! after stating before that tithes

were of a mixed character, do you now contend that in this statute they are spoken of as 'meer spiritual' ?" My answer is, that at the time of this statute they were wholly so regarded, and no remedy in the temporal courts could be had respecting them. It was not till 1548 that the temporal courts received authority by statute 2, 3, Edward VI., c. 13, which they had not at common law, (see 32 Henry VIII., c. 7, in the preamble,) to interfere in the matter; and then only by imposing a heavy fine by way of punishment for not setting them out, not by proceeding to recover the tithes themselves. To this hour, tithes themselves cannot be recovered in the temporal courts; that being, as Gibson observes, p. 697, "out of the jurisdiction of those courts, and wholly in the spiritual court;" or, to use Blackstone's words, III. 89, "one may sue for and recover in the ecclesiastical courts the tithes themselves, or a recompence for them, by the ancient law. . . . . But no suit [lies] in the temporal courts for the subtraction of tithes themselves."

Mr. Goode says, in reference to this statute," that it is evidently a misnomer to call it [i. e., the duty of making religious offerings to the house of God for the maintenance of religious worship,] a thing merely spiritual." I can only say, I am surprised to hear him say so. He says also, "if it were a thing purely and exclusively spiritual, no doubt the common-law courts would not interfere to enforce it." We have seen already the common-law courts under Lord Kenyon and Chief Justice Abbott peremptorily refuse to interfere to enforce the making a rate, on the distinct ground alleged, that it is a "subject purely of ecclesiastical jurisdiction." I must add one word in explanation of an expression in my pamphlet on Church Rates which Mr. Goode has misunderstood. When I said that, "Rates up to this hour are a voluntary contribution on the part of the parish, to which if they refuse there is no earthly power to compel them;"* (the italics are in the original ;) my meaning was, that they could not be wrung from them by earthly violence, that no distress could issue against their goods, as in the case of any common-law obligation strictly so called; and I have yet to learn that any such power of distraint exists, except in the cases provided for by the act of 1813. I wrote that sentence under an impression that the saving clause in § 7 of the act of 1813, 53 Geo. III. c. 127, which in other cases reserved to persons demanding the rates power to "proceed to the recovery of their demand according to due course of law, AS HERETOFORE USED AND ACCUSTOMED, had preserved to the bishops the power of excommunication in this case, which the beginning of the act apparently had denied them. I gather from Dr. Nicholls' pamphlet, p. 49, that such is not the case, and that only sentence of contumacy can issue, which, though exercised indeed by a spiritual court, I admit can hardly be termed an appeal to conscience. But besides this, I believe, and still believe, that the most simple and summary mode for the bishops to adopt is by interdict of religious offices in the place,-a remedy which, if it were generally known that

Origin of Church Rates, p. 31.

the bishops could exercise it, and were prepared to do so in case of necessity, would, I believe, operate so strongly and effectually by way of prevention as to obviate the necessity of its ever actually being had recourse to. The attorney-general is pleased to call this "impossible;" but as he cites no authority for such an assertion, and as, first, it is not denied that the bishops had this power before the Reformation,-nor, secondly, that the statute of 25 Hen. VIII. c. 19, has secured to them the authority they then had, which is not contrariant to the laws of the realm and the prerogative of the crown,— and as, thirdly, it is not pretended that any subsequent act has abrogated it,-nor, lastly, does it appear how the spiritual punishment of a purely spiritual offence be construed as against the prerogative of the crown, I believe it to be perfectly in the power of the bishops, if they think fit to exercise it. This I think Mr. Goode must admit to be an appeal to conscience, and not an exercise of earthly power. With much respect to him, I am, Sir, yours very faithfully, ARTHUR PERCEVAL.

East Horsley, Aug. 5, 1838.

RATING OF TITHES.

SIR,-In Mr. Shaw Lefevre's Bill for the Rating of Tithes, there appears to me a principle which has not been observed.

If we take the clergyman in the light of a farmer, then when the farmer is rated upon the amount of rent, it is the same thing as if he were rated on the amount of profit, for they are, on rough calculations, counted equal. Now the rent does not go into his own pocket, but only the profit; he is therefore, in fact, rated upon his whole income, in the same way as the clergyman would be were he rated according to the actual value of his tithe. So far well; but then there is another class of men living upon the produce of the farm-viz., the landowners, who do not seem to be taken into the account. These, upon this principle, pay no rates at all, but receive the net profit clear into their pocket. Now, were the farms of a fixed annual value, this tax would press heavily on the one class and not at all on the other; but because there is not a fixed annual value there is a mutual accommodation, and the rent is proportionably reduced, so that, in point of fact, each pays his proportion of the rate, or is rated upon half his profit. Now, were a landlord to demand a rent so high that no farmer could pay it, and manage to live upon the farm, it is perfectly clear that no farmer would take it, and the landlord would be reduced to the necessity of cultivating it himself; and he would then take into his own pocket both the rent and the farmer's profit, and he would be rated upon one of these-i. e., upon half his whole income; one half of the net produce would be the remuneration for his labour as farmer, the other half his remuneration as landlord.

Now, when a clergyman took his tithes in kind, he was then in the place both of landlord and farmer, because he had a right to the