153 CORRESPONDENCE. The Editor begs to remind his readers that he is not responsible for the opinions MR. GOODE'S REPLY TO MR. PERCEVAL'S ANSWER ON SIR,-1 am glad to find, from Mr. Perceval's answer, that he thinks there is no difference between us as to the facts in the case of church-rates;" for if he concedes the fact, that it has been from time immemorial the custom of the land that a certain portion of the church should be repaired by the parishioners, (to say nothing, now, of those recognitions of its being a common-law liability, by the common-law judges, by which the decisions of a court of common law would be guided,) he concedes it to be a common-law liability, for every such custom is the common law of the land; and I will venture to promise him, that he will no longer have to complain of being in an "unenviable position," as a recipient of praise in this matter from the Edinburgh Reviewer, whose article on this subject clearly shews the consciousness that the admission of such a fact would be fatal to the anti-church-rate cause, as beyond doubt it is, and is evidently felt to be, by the attorney-general, in his Letter to Lord Stanley. Mr. Perceval adds, that the only difference appears to him to be a "misapprehension, on one side or the other, of certain terms, such as 'civil obligation,' and 'common law.'" Such misapprehension I believe there is; but I doubt of its being the only one. The very next sentence shews that his observations are founded, not upon the real state of the case, as it respects the actual position and proceedings of the civil and ecclesiastical courts, as manifested in their decisions and acts, but upon a theoretical distinction between the duties of the two existing only in his own mind-viz., that while a civil obligation can only be enforced in the temporal courts, a religious obligation can only be enforced in the ecclesiastical courts; and in accordance with this notion he very coolly maintains, that the learned common-law judges whose decisions were quoted in my last letter— when they spoke of the obligation of parishioners to contribute to the repairs of the parish churches as the common law of the realm, in so doing "confounded the laws of church and state." * "When I stated," says Mr. Perceval," that the obligation to contribute to the repairs of the parish churches-except so far as affected by the statute of 1813—is a religious, and not a civil obligation, and not liable to be enforced by an action at common law, it was my intention to distinguish between the laws of the state, or civil body, and the laws of the church, or religious body; the want of which distinction has been, I believe, the occasion of all the dispute which has arisen upon this subject." Now it appears to me that it is the notion of this distinction—i. e., the keeping up in his own mind the idea of a distinction which does not exist in practice, and assuming that no religious obligation can be a civil obligation-that has been one main cause of Mr. Perceval's mistake in this matter. A religious obligation may be such as is liable. to be enforced by an action in the temporal courts, as is obvious in the case of tithes; and thus may be, in the strict sense of the terms, a civil, as well as a religious obligation. Such is not the case, indeed, with respect to an obligation of a purely and exclusively spiritual nature; but the obligation in question is palpably not of such a character. He may certainly think that the civil courts are travelling out of their province in interfering in such matters; and such is evidently his opinion; but if the civil courts have abundantly shewn that they do not think so, his theory is practically useless, and calculated only to mislead both himself and others. Mr. Perceval goes on to say "So far as the church and state may be regarded as one, and every member of the state may be considered as a member of the church, and under the power of her laws, which the civil government is willing to aid her officers to enforce .... so far any common law of the Church in England, permitted and aided by the civil government throughout the length and breadth of the land, may not inaptly be called common law of England. In this sense, and in this sense only, do I believe the obligation to contribute to the repairs of the parish churches to have been affirmed to be common law of the realm' by the authorities which Mr. Goode has cited; and, in this sense, I have no hesitation in assenting to the affirmation. But then I conceive that this can only be maintained by confounding the laws of church and state.” Such is his reply to the authorities I have cited; those authorities being decisions of the Court of King's Bench, affirming, that parishioners are bound by "common law" to keep their churches in repair. These judges, says Mr. P., when they used the term common law, meant not that which was common law in their own courts, but only that which might "not inaptly be called common law of England;" namely, the "common law of the church in England;" though he thinks that in so speaking they confounded the laws of church and state. And so should I too, if I could suppose that such was their meaning; for I cannot conceive a worse specimen of confusion than in the common-law judges of the state using in their decisions the term "common law," to mean anything else than that common law of the state which they are bound to administer and enforce. His mistake (he will excuse my calling it so) arises again from the supposition that no religious obligation forms any part of the common law of the state. There are, no doubt, some religious obligations which do not; but there are also obligations which are civil as well as religious, and of which the temporal laws can, and do, take cognizance, as well as the ecclesiastical. Mr. Perceval, still proceeding with this notion of distinguishing civil and religious obligations from each other, as if there were none of a mixed character, goes on to say, that to ascertain to which class any law belongs, we must inquire in what courts the law can be enforced; and that "an obligation which can only be enforced in the temporal courts, cannot be called an ecclesiastical obligation; nor, on the other hand, an obligation which can only be enforced in the eccle siastical courts, be called a civil or common law obligation." This is very true, but not to the point. Granting that an obligation which can only be enforced in the ecclesiastical courts, cannot be properly called a civil or common law obligation, (which, by the way, is something like saying, that that which can only be enforced in the ecclesiastical, cannot be a thing that may be enforced in the temporal courts,) how does that affect the present question? 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. "My own inquiry," proceeds Mr. Perceval, "respecting the obligation to contribute to the repairs of the parish churches, has led me to the conclusion that, except so far as affected by the act of 1813, the obligation can only be enforced in the ecclesiastical courts. Mr. Goode's inquiry has led him to precisely the same. His words are, 'previous to the act of 1813, already alluded to, the ecclesiastical court was, of course, the only proper place in which to sue a recusant for the payment of churchrates, and still remains so for sums above ten pounds.' He has thus aided me in shewing, that according to what, under his favour, I must consider the legitimate meaning of the terms, the obligation to contribute to the repairs of the parish churches is a religious, or ecclesiastical, and not a civil, or common-law obligation, seeing that it can only be enforced in the ecclesiastical or religious courts, and not in the common-law or civil courts." This is perfectly startling. After all that I have cited, to shew that the obligation of parishioners to repair their parish churches is, in the strict sense of the terms, a common-law obligation, I am actually quoted as having come to "precisely the same" conclusion with Mr. Perceval-viz., that this obligation can only be enforced in the ecclesiastical courts! A moment's consideration must have convinced him that he had made some mistake; and the fact is, he has confounded together two things which are totally and plainly distinct-viz., the enforcement of the payment of a rate actually made, and the enforcement of the obligation lying upon the parishioners to make a rate. The act of 1813 refers only to the payment of a rate actually made; and the sentence which he has quoted from my last letter is, on the face of it, applicable only to such a case, and had reference to the extract from Bishop Ken, in which Mr. P. had printed the words "to be sued in the ecclesiastical courts only" in Italics, as if they tended to prove his position, when, in fact, they are wholly irrelevant to the matter in dispute, referring not to the making of a rate, but to the payment of a rate actually made. Mr. Perceval adds "The statute of Edward I., which is the first law of the state which treats distinctly of the subject, classes it among the things meer spiritual,' and therefore leaves it as a proper subject for plea in the court Christian.' Here, again, is an undeniable mistake. The statute of Edward I. does not class it among the "things meer spiritual," but distinguishes it from them. It is remarkable that the attorney-general has made the same mistake, by leaving out a portion of the statute in his quotation, and thus connecting together words not connected in the original, (Letter to Lord Stanley, p. 4;) a mistake worthy of notice, because if it were a thing purely and exclusively spiritual, no doubt the common-law courts would not interfere to enforce it. But it is evidently a misnomer to call it a thing merely spiritual, and one which has no authority in its behalf in the statute quoted, which runs thus (the brackets shewing the part omitted by the attorney-general):"Circumspecte agatis de negotiis tangentibus Episcopum Norwicensem et ejus clerum, non puniendo eos, Si placitum tenuerint in curia Christianitatis de his quæ mere sunt spiritualia, videlicet, [De correctionibus quas Prælati faciunt pro mortali peccato, videlicet, Pro fornicatione, adulterio et hujusmodi, pro quibus aliquando infligitur pœna corporalis, aliquando pecuniaria; maxime si convictus fuerit de hujusmodi liber homo. ITEM,] Si, Prælatus puniat pro cemeterio non clauso, ecclesia discooperta vel non decenter ornata, in quibus casibus alia pœna non potest infligi quam pecuniaria. ITEM, Si rector petat versus parochianos oblationes et decimas debitas vel consuetas," &c. When, therefore, Mr. Perceval says, "Mr. Goode will perhaps now see that the extracts in- my former letter were not irrelevant, as he supposed, to the point I was seeking to maintain"-which point was, that "the obligation of the people to contribute to the repairs of the parish churches" is generally "an obligation which can only be enforced by those appeals to conscience with which only the spiritual courts, as such, have to do"-I can only express my hope, that Mr. Perceval will "now see" that neither his extracts nor his additional explanations help out his cause in the least, but prove that he has been writing under a false impression with respect to several points in the matter. Mr. Perceval wonders at my objecting to his calling " ecclesiastical censures" "appeals to conscience," and thinks that they, "especially excommunication," are "the most awful appeals to conscience which it is possible for men to make." No doubt they include it, as every punishment short of capital does. Transportation for seven years is so far an appeal to conscience; but such a term would be a very insufficient and inaccurate description of the punishment. Every censure which brings with it temporal or corporal inconvenience is much more than an appeal to conscience. True, from the present state of things in this country, excommunication in itself may not be attended with that temporal inconvenience and damage which it was intended to inflict, but then it brings with it upon the contumacious offender, at the requisition of the ecclesiastical courts, the writ De excommunicato capiendo, which is another instance of the incorrectness of the position, that "the obligation can only be enforced by those appeals to conscience with which only the spiritual courts, as such, have to do." I cannot but hope that, upon reconsideration, Mr. Perceval may yet see the untenableness of his position in this matter. He has asserted, that church-rates "are a voluntary contribution on the part of the parish, to which, if they refuse, there is no earthly power to compel them." A notion more dangerous to the peace of every parish in the kingdom, in the present state of excitement on the subject, (as he must himself see, supposing it not to rest upon any firm grounds,) could not be propagated. And the grounds upon which he maintains this assertion are, that the obligation upon parishioners to keep their churches in repair, being a religious obligation, can only be enforced in the ecclesiastical courts, and there only by "appeals to conscience," which apparently he thinks (and very justly) will be ineffectual to produce their desired end. Now, in both these points he is clearly under a mistake. In the first place, he has underrated the power of the ecclesiastical courts. If the authority of these courts is supported in the way that the laws of the land require that it should be, by the due issue and execution, at their requisition, of the writ de excommunicato capiendo, there needs nothing more to enforce their decisions. Such a writ is, as I said before, something more than an appeal to conscience. I am not, therefore, at all prepared to maintain that the ecclesiastical courts have not the power to enforce the obligation. If it is replied, that those courts have long been so fettered, hampered, and harassed, by the temporal courts, that there are many practical difficulties in the way, to that I fully assent. And then comes the question, whether the obligation is not a common-law obligation, which can be enforced in the temporal courts. Mr. Perceval says that it cannot, on the ground that, being a religious obligation, it can only be enforced in the ecclesiastical courts. Now, he may think that it ought not to be enforced in the temporal courts; that it would be "confounding the laws of church and state;" and that such matters ought to be left to the ecclesiastical courts, who ought to have power to enforce such obligations; but to say that it cannot, because it is a religious obligation, is to contradict facts. The temporal courts have long ago shewn that they do not consider all such obligations to be out of their province, and that they can and will enforce them when they satisfy the conditions of a common-law obligation, and are of the mixed character of churchrate. The only feasible ground of objection to the obligation in question being a common-law obligation, is, that it is a custom of too recent a date to satisfy the conditions required to give it that character; and if Mr. Perceval grants its immemorial antiquity as the custom of the land, he grants that which entirely demolishes his position, that church-rate is now only a voluntary contribution. Even the attorneygeneral himself will tell him this; for he says, "If the repair of the church were a common-law liability, like the repair of a highway or a bridge, I have no difficulty in saying, that it might be enforced by indictment."-(Letter to Lord Stanley, p. 14.) The answer to which may best be given in the following decision of Chief Justice North, in the case of Rogers v. Davenant :-" It [i. e., 'the parish church'] is like to a bridge or a highway; a distringas shall issue against the inhabitants, to make them repair it." (1 Mod. Rep. 194.) I submit, then, on the authority of those historical documents that trace up the custom to a period beyond the time of Richard I., and VOL. XIV.-August, 1838. Y |