unwarrantable and presumptuous and not improbably in the event dangerous. Yet, when the departure had occurred, I cannot, with some, undertake to say, that, in such circumstances, the transmission of the apostolical succession was an ecclesiastical impossibility. I would rather, until better informed, express myself as in the text. A transmission of the apostolical succession, by the simple imposition of the hands of the presbytery, they themselves having previously received the imposition of hands, and so backward to the very beginning, is rather to be deemed less regular than roundly to be pronounced invalid.”—p. 562.

As to his authorities, I am quite ready to examine them if required. But what I ask is, can it be necessary to inform Mr. Faber that the passage of St. Jerome, on which he has mainly relied, has been, ever since the question was first started among protestants, the very passage by which the presbyterians have endeavoured to justify themselves and to weaken the church, and that it has been again and again examined by almost every writer who has undertaken to defend our church, (for instance, Hooker, Bingham, Potter, &c.,) and demonstrated to make nothing for our adversaries? Are we to understand, that sooner than give up "the two churches of history," Mr. Faber is willing to join the presbyterians? It may serve a temporary object to say that presbyterian ordination "is rather to be deemed less regular than roundly to be pronounced invalid;" but I should be glad to be informed if the church of England has not already distinctly pronounced it invalid in the Book of Common Prayer-a document to which some of us, who are clergymen, have, more than once, declared our unfeigned assent and consent?

I am, dear Sir, faithfully yours, JOHN CLARKE CROSTHWAITE.

MR. GOODE IN REPLY TO MR. PERCEVAL.

SIR,-I am glad to find that the discussion of this subject has produced from Mr. Perceval a modification, to say the least, of his original position, 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," (Origin of Church-rates, p.31,) "an obligation which can only be enforced by those appeals to conscience, with which only the spiritual courts as such have to do." (British Magazine for June.) "My meaning was (he says of the former passage) that they could not be wrung from them by earthly violence; that no distress could issue against their goods;" which he still maintains, but now thinks "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." Now I must say, that there appears to me to be as much "earthly violence" in getting an offender imprisoned by a writ de contumace capiendo, as in taking his goods by a warrant of distress; and I do not quite understand how that can be called "a voluntary contribution," for the nonpayment of which a man may be imprisoned, and suffer divers other temporal inconveniences. At least, I hope that all those who may be inclined to take encouragement from this statement of Mr. Perceval to resist

the payment of church-rates, will clearly understand what sort of a voluntary contribution church-rate is. The attorney-general, at any rate, must give up his reference to Mr. Perceval, as having "stated that the agreement to make a rate is a spiritual duty, and to which men are no otherwise bound than by those motives of conscience and religion to which alone the spiritual courts appeal." — (Letter to Lord Stanley, pp. 31, 32.)

Mr. Perceval adds, " 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.

. . This I think Mr. Goode must admit to be an appeal to conscience, and not an exercise of earthly power." Certainly I do, and for that very reason believe that it would be utterly ineffectual to produce the payment of church-rates. On the contrary, I should say, judging from the present spirit of the dissenters, that the very prospect of such a consummation as the parish church being shut up, would greatly promote opposition to church-rates; and I trust, on many accounts, that no such remedy may even be threatened.

But though Mr. Perceval has made the above (may I not call it important) admission, as to the power of the ecclesiastical courts in this matter, he still maintains his ground in denying that church-rate is a "common-law liability in the strict sense of the terms," or "one that can be enforced by the common-law courts;" nay, thinks that he has proved that it is not so. I will now, therefore, proceed to consider his statements upon this point.

My position, as quoted by Mr. Perceval, is as follows:

"The obligation in question-viz., that parishioners should keep in repair a certain part of their parish church-is maintained to be, in the strict sense of the terms, a common-law obligation; and that on two grounds, first, on the ground of immemorial custom, and secondly, because it has been repeatedly said to be so by the common-law judges, and therefore, of course, one that can be enforced by the common-law courts; i. e., one that comes within the authority and power of those courts, if they consider their interference necessary."

"The last clause (says Mr. Perceval) strikes me as very remarkable;" and he thinks it strange that it should be "competent for the judge of the temporal court to refuse a man redress because he does not think his interference necessary." Mr. Perceval's doubts upon this point at least, may, I think, be easily set at rest.

"If (says Dr. Nicholl, supported by authorities he adduces in the passage from which I quote, and to Dr. N.'s authority Mr. Perceval himself refers,) no other legal remedy can be found, the court of King's Bench will always, in aid of justice, interfere by mandamus, to compel the discharge of that liability......On the other hand, the court of King's Bench will not, save under very special circumstances, grant a mandamus where a specific legal remedy does exist. Thus, in the King v. the Bishop of Chester (1 T. R. p. 404,) Buller J. says-' During the time Lord Mansfield has presided here he has taken great pains to state particularly the ground on which this court will either grant or refuse writs of mandamus. He has always said, this court will not interpose by granting a mandamus, unless the party making the application has no other specific legal remedy. It must be a legal and specific remedy.'"-(Church-rates, pp. 18, 19.)

Hence it is asserted, that the Court of Queen's Bench will grant a mandamus if it considers its interference necessary.

VOL. XIV.-Oct. 1838.

3 G

It will be recollected that the ground which the attorney-general and others have taken is, that though the ecclesiastical courts can enforce the payment of a rate properly made, yet that they cannot oblige the parishioners to make a rate. "A valid rate (says the attorney-general) they can enforce, but without a valid rate they are powerless." (Letter to Lord Stanley, p. 14.) It is replied then, If this is true, and the ecclesiastical courts are thus powerless, and there is "no other specific legal remedy," in case of a refusal of a churchrate, the Court of Queen's Bench will grant a mandamus, seeing that church-rate is a common-law liability. I have not denied, but on the contrary maintained, that the ecclesiastical court retains the power to oblige the parishioners to make a rate, and that it is a matter properly belonging to their jurisdiction; but I maintain also that, church-rate being a common-law liability, it is "one that can be enforced by the common-law courts if they consider their interference necessary," and it is necessary if the ecclesiastical courts are powerless. "The legal liability being established, the attorney-general [and I may add Mr. Perceval] is in this dilemma If no specific legal remedy exists, the Court of King's Bench will grant a mandamus; if a specific legal remedy does exist, cadit quæstio." (Dr. Nicholl on Church Rates, p. 20.)

Mr. Perceval may hence see the reality and importance of the distinction, to which he has objected, 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." It is allowed on all hands, that a valid rate can be enforced by the ecclesiastical courts, and consequently, as church-rate is a matter of which the ecclesiastical court is allowed to have the cognizance, "previous to the act of 1813 the ecclesiastical court was the only proper place in which to sue a recusant for the payment of church-rates, and still remains so for sums above ten pounds;" but this is no proof that if the ecclesiastical court is unable to compel parishioners to make a rate, the commonlaw courts cannot interfere by mandamus to oblige them to do so. No such conclusions follow from this distinction as those which Mr. Perceval has deduced from it. He says, "As I had not contemplated that any one would maintain that a court can have power to compel a tax to be made, the payment of which, when made, it has no power to enforce," &c. I need hardly say that nothing like this has fallen from me. Again:-"While therefore he admits, if I understand him aright, that the obligation to pay a rate, when made, is not, strictly speaking, a common-law obligation, seeing that previous to 1813 it could only be sued in the ecclesiastical courts, he stoutly maintains that the obligation to make a rate is a common-law obligation, and can be enforced if necessary in the temporal courts." I have nowhere maintained that the obligation to pay a rate is not a common-law obligation, but directly the contrary. It does not in the least follow, that because "the ecclesiastical court is the only proper place in which to sue a recusant for the payment of church-rates," that it is not a commonlaw liability, nor that it is "an obligation which can only be enforced in the ecclesiastical courts." Mr. Perceval seems to forget the relative

position of the ecclesiastical court and the Court of Queen's Bench. In all matters of common-law liability the former is an inferior court, completely under the superintendence and control of the latter, so that its judges are subject to a mandamus obliging them to the due execution of the law (see Blackstone, iii. 110); so that if in any such matter the ecclesiastical court is unable to enforce it, it can, of course, be enforced by the superior court; nay, the superior court is bound to see that it is enforced, either by itself, or by that court to which its cognizance has been entrusted.

But let us proceed to observe how Mr. Perceval meets the proofs I have adduced that church-rate is a common-law liability.

First, "the ground of immemorial custom," to which he replies thus:"The only evidence which will avail to establish a customary or common-law power in the temporal courts to enforce the repairs of the parish church must be evidence of those courts having frequently exercised that power."

Now in the first place here is an odd mistake as to the argument to which he was replying. I have said nothing about the immemorial custom of any courts. The immemorial custom to which I referred I stated to be "the custom that a certain portion of the church should be repaired by the parishioners." So that the whole of Mr. Perceval's observations on this point are wide of the mark, and, of course, his conclusion (p. 289) that this position "fails under" me falls to the ground.

But one word respecting the reply as it stands. What is the mean. ing of "a customary or common-law power" in a court, the only evidence to establish the existence of which is to be, the court" having frequently exercised that power"? Following up the idea which seems to be involved in this statement, Mr. Perceval asks for an instance in which the temporal courts have enforced the repairs of the parish church, and adds, "If none can be adduced, then I submit that that cannot be properly termed a common-law obligation which the courts of common law have never enforced, nor that a commonlaw power which the courts of common law have never exercised."

Now, to say nothing of the evident inconclusiveness of such a mode of reasoning, I will give Mr. Perceval an instance, proving that his conclusion is quite unwarranted. I extract it from Mr. Deacon's reply to the attorney-general:

"It is not (says Mr. D.) because no previous case can be cited where the writ has been granted under the same identical circumstances, that the writ is to be refused. The question is always-First, Is the party against whom the application is made bound by law to do the act required? Secondly, Has the complainant any other means of compelling him to do so? If the first of these questions can be answered in the affirmative, and the other in the negative, the writ of mandamus is as much the right of every British subject as the writ of habeas corpus. That this is the right interpretation of the law upon the subject, is manifest from a very recent case before the Court of King's Bench, (Rex v. Lords Commissioners of Treasury, 4 Adol. and E. 286.)...... It was an application made by Mr. Carmichael Smyth for a mandamus calling on the Lords Commissioners of the Treasury to issue the proper authority to the paymaster of civil contingencies, directing him to pay to Mr. Smyth the amount of arrears of his pension, as voted to him by authority of parliament. Now such an application as this had certainly never before been heard of, and the

attorney-general, who opposed the motion, dwelt as strongly upon that circumstance as he has done in his present argument addressed to your lordship. 'No instance can be cited,' he said, of a mandamus like that moved for.' And yet the four judges of the Court of King's Bench were unanimous in directing the writ to issue.” (pp. 4. 5.)

Mr. Perceval proceeds to consider the second ground upon which I have placed the position that church-rate is a common-law liability -viz., that it "has been repeatedly said to be so by the common-law judges." He commences by observing, that "the mere dictum of a judge, however eminent, is not sufficient without practice," &c.... To these observations I will only say, that I willingly leave the reader to judge what weight attaches to such decisions as those I have given, and it is impossible for words more distinctly to affirm that for which I contend-viz., that parishioners are bound by the common law of the land to repair their parish churches. We are told, that "by common law the house and all lands are chargeable with the reparation," &c.; and yet Mr. Perceval says, "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." I reply, that there is not one word in these decisions about spiritual duties, or spiritual courts, or spiritual censures. It is affirmed in the abstract, that it is a common-law liability. It is only indeed by the common law of the land, and not by the canon law, that parishioners are bound to repair their church. When therefore Mr. Perceval adds, "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," I can only point him again to the words, which declare expressly and without reserve that it is a common-law obligation, and venture to think that the judges meant what they said to be understood "in the strict sense of the terms;" and therefore that these passages fully establish my position. Indeed Mr. Perceval admitted in his previous letter, that if they used the words in the sense he supposed, they "confounded the laws of church and state," which is to me a tolerably good proof that they did not so use them.

So much, then, for the main points of the question under discussion, and how far Mr. Perceval has in these observations shaken the grounds upon which I have maintained that church-rate is a commonlaw liability I leave to the reader to judge.

He proceeds to notice my extract from the decision of Chief Justice North in the case of Rogers v. Davenant, and having printed the word "it," with which the extract concludes, in capitals, (as if I had drawn especial attention to that particular word,) proceeds at some length to prove that it refers to "not the parish church, but the bridge or highway." No doubt it does. I never intimated that it did not. He adds, "By that which precedes his extract, it is clear that the only court which Chief Justice North considered as em