§ EARL GREYhaving presented petitions praying for the abolition of church-rates, stated that he could not concur in their prayer, because he did not consider, now that it had been decided that the minority of a vestry could not make a valid church-rate, that there was any substantial grievance in the law. Bills had lately passed giving to town councils and vestries power to make rates for public libraries; the support of the fabrics of our churches was surely, to say the least, as important an object; and he could not see that there was any grievance in a similar power for that purpose. However it might be in large towns, certainly in most parishes its abolition would lead to great injury, and practically to deprive the poor of church accommodation. He should, therefore, 1500 deeply regret to find the law so altered as to enable a few malcontent persons to withhold a church-rate against the will of the majority, nor could there be any injustice in allowing the majority of the vestry to impose a church-rate.
THE BISHOP OF EXETERsaid, he had heard with great gratification the sentiments expressed by the noble Earl; but ventured to suggest that he was mistaken in supposing that the case in question (the Braintree church-rate case) at all had altered the law, or left it less the duty of the vestry to raise a church-rate when required for the support of the church; or that the decision of the House of Lords established that it was wholly left to the option of the vestry to grant or refuse a rate when so required. He appealed to the Lord Chancellor whether this was so. The only result of the decision was, that the minority of a vestry could not make a valid rate. But it was still the duty of the parishioners to make a rate when it was required, and almost every one of the Judges expressly said that the duty of the vestries to maintain the churches remained the same as before.
THE LORD CHANCELLORsaid, the right rev. Prelate was substantially accurate in what he had stated; no doubt, it was still the duty of the vestries to keep the churches in repair, and supply the articles necessary for Divine service. But the difficulty was as to the means of enforcing the duty. In ancient times it was excommunication, or interdict; but the very mention of these would be considered trifling, as they had been disused since the Reformation; and although it was one of the matters referred to Archbishop Cranmer, at that era, to provide a substitute for the ancient remedy of excommunication it was not done. Notwithstanding, therefore, the old regal maxim, ubi jus ibi remedium, there really was no remedium for the enforcement of the duty of the vestry to raise a rate for the repair of a church. When the question arose as to the refusal of a rate, some years ago, the late Lord Chief Justice Tindal threw out a suggestion that possibly the rate made by a minority of the vestry might be valid. The hint was acted upon in the case of the Braintree church-rate case; such a rate was made and contested; held to be valid by the Court of Exchequer Chamber, but finally, held invalid by the House of Lords. When, therefore, it was said that it was the duty of the vestry to make a rate when 1501 necessary, it must be borne in mind that practically there was no means of enforcing the performance of that obligation; still, however, it remained, and such in fact appeared to have been the state of the law from the time of the Reformation to the present day.
THE BISHOP OF EXETERsaid, there had fallen from the noble and learned Lord something which had astonished him, and as to which he could not help expressing the astonishment he felt. The noble and learned Lord said that from the period of the Reformation there had been no remedy for the refual to raise rates to repair churches when necessary. Why it was notorious that (as stated in the Report laid before Parliament in 1832) there had been constantly proceedings in the ecclesiastical courts against persons for not performing their common law duty to concur in a rate for the repair of their parish church. The noble and learned Lord said that there was no power to compel a majority to make a church-rate. It was true that no one would think of interdicts or excommunication in such a case in these days. Interdicts, indeed, were quite obsolete. No, but excommunication was not, and had continued to be pronounced in such cases up to the time he had referred to. The proceeding indeed, was not excommunication in the first instance, but monition, the ultimate sentence being excommunication. Every person who concurred in refusing a church-rate when it was necessary was liable to monition in the ecclesiastical courts. If the monition was disregarded, then, in case of contumacy, sentence of excommunication issued. And so lately as 1812 an Act of Parliament passed recognising the validity of excommunication, and providing a substitute for it in the infliction of six months' imprisonment in lieu of the old writ de contumace capiendo, which issued at common law upon sentence of excommunication in the ecclesiastical courts, added to the civil disabilities it imposed upon a writ of significavit to the courts of law. This state of the law had certainly produced an effect, for churchmen would not disregard a sentence of excommunication, and the threat of proceedings in the ecclesiastical courts had in many instances induced parties to alter their course and concur in a rate. He should regret to see the sentence of excommunication followed by imprisonment, and desired that no civil consequences should follow such a sentence, and that it should be left to its moral 1502 effect on the consciences of churchmen. But the law was so, and it had a practical effect which made it incorrect to say that the duty to raise a rate for the maintenance of the church was one which could not be enforced.
§ EARL GREYsaid, that it bad been pointed out to him that the petition applied to a Bill which was now before the other House of Parliament, and that it could not formally be received by their Lordships; and he should therefore withdraw it. He understood the law on the subject to be precisely as had been stated by the noble and learned Lord on the woolsack, that legally and technically there was such a duty, but practically it could not be enforced; and it came to an optional power of raising a rate. Nor did he see anything to regret in that state of the law on the one side or the other; on the one hand it would be improper, in his opinion, to inflict a church-rate against the will of the majority of the ratepayers; and, on the other hand, as he had already said, he should deeply regret if it should be in the power of any person to prevent a rate being levied with the consent of the majority for the repair of their parish church. He considered that it would be a matter greatly to be regretted if in this way there should be any risk that the churches might be allowed to fall out of repair; those churches in which the humbler classes had rights which it would be a national injury to deprive them of.
§ House adjourned to Thursday next.