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that such portion heretofore belonged to, and was from time immemorial (as he believed) in the possession of, the dissolved religious house of St. John the Baptist at Stoke, near Clare; that it became vested in the Crown, and was granted by i2 Eliz. to the see of Ely.
An allegation on behalf of the Bishop of Ely was afterwards admitted, which—after setting forth, that neither the Bishops of 1'ly nor their lessees had ever exercised any right in, or enjoyed any advantage froirt, the chancel, cither in respect of pews, burials, or monuments; and that the benefits therefrom had always been enjoyed by the vicar and churchwardens of the parish—pleaded, that "from time immemorial the chancel had always been repaired by the churchwardens-out of certain rents, or by means of rates equally levied on the parishioners for the repairs of the church including the chancel, to which rates the lessees of the portion of tithes, appertaining to the see of Ely within Clare parish, were assessed, and had paid, in respect of such tithes, in common with the other parishioners; and that in no instance, except the present, had auy proprietor or his lessee of such portion of tithes been called upon to repair the chancel."
The answers of the churchwardens to this allegation were objected to; and being pronounced sufficient, that decree was, on appeal, reversed by the Court of Arches, and the cause retained. Further answers were given in, and evidence was taken on both sides, and the cause was set down for hearing.
On the second session of Hilary Term (28lh of January) 1831, the registrar of the Court of Arches alleged, that he had been served with an order from the Court of Common Pleas, setting forth that a rule nisi had been granted to show cause whv a prohibition should not issue to prohibit the further proceedings in the Court of Arches, and enjoining it to stay proceedings in the mean time.
This rule for a prohibition n'ui, generally, was obtained at the instance of the churchwardens. On
the 15th of April the rule was absolute.
On the third session of Trinity Term (12th of June;, 1H32, the registrar of the Arches alleged that the writ of prohibition had been amended by limiting the prohibition to the trial of the custom.
On the first session of Michaelmas Term, 1832, the Court, upon the application of the proctor for the churchwardens, directed the hearing of the cause to be suspended until the question of the custom had been tried.
On the 8th of January, 1833, the trial came on before Lord Chief Justice Tiudal and a special jury, when a verdict was given—that in the parish of Clare there is and hath been from time immemorial, a certain ancient and laudable custom for the parishioners to repair the chancel. Judgment was signed on the 30th of January: and the churchwardens were condemned in the costs attending the application for the writ of prohibition.
On the fourth session of Hilary Term, an office-copy of the judgment was brought into the registry of the Court of Arches; and on the by-day the cause stood for hearing.
Alter the pleadings had been opened, the Court said :—there is in this case a decision of law that, from time immemorial, the parish of Clare has repaired the chancel of its own parish church.
Phillimore and Lushington for the churchwardens.
The jury have decided on the fact, not on the law; and the question now is, whether their finding can exonerate the impropriator of the great tithes or his lessee from the repair of the chancel, which is imposed upon them by the general law. The question of the legality of such a custom is most important, and belongs, to this Court.
Per Curiam.—rA custom, which is found by a jury to be immemorial, will here be considered valid: a composition or agreement will be presumed. Argument returned.—The mere existence of the fact, that there is a particular custom, is not sufficient to establish the validity of the custom. Many customs, or rather usages—for the word custom implies (he notion Of legal validity—may prevail which are not legal: e. g. that tithes shall be assessed to the church-rate, instances of which seem to have occurred in this parish of Clnre; but, however ancient such an usage may be, we apprehend that it cannot be sustained,— whether the parsonage and tithes be in lay or spiritual hands. The whole of the parsonage, be the pojsession in whomsoever it may, is subject to the repairs of the chancel: all persons who are in the perception of the rectorial tithes are liable in this respect: their relative proportions may be settled among the parties. If the fabric of the chancel be very solid, it may not require repair within the memory of man: but though there is an absence of proof thnt the person, who is de facte liable to repair the chancel, has ever been called upon to repair it, that will not exonerate him; ins liability to make the repairs when they are required will still remain.
Per Curiam.—The finding of the jury is, that the parishioners nave repaired the chancel from time immemorial: whereas the nrgument goes on the assumption that no repairs have been done. If that had- been the case, the jury could not have found that the parishioners repaired: and the general law would take place.
Argument resumed.—Where it is shewn that the chancel has been repaired by the parishioners at large out ot'a church-rate, they may have taken a burthen upon themselves which seems to admit a liability, but it is different, where the repairs have been paid for out of a church estate. We know of no authority, nor of any instance where the parishioners are bound to repair the chancel, except in London: bet in London the customarose from the land in the different parishes being covered with houses, whence also grew that other custom prevailing in this city, that of the appointment of both churchwardens by the parishioners. Ignorance may often lead parishioners to repair ihe chancel; but that will not bind them when better informed. 1 Burn Etc. Law, tit. Churc/i, s. 6. (Repairs). Pridcavt, p■ 74. Gibton, vol. i. p. 199. Lyndw.
p. S3. Wlttiams v. Bond, Pense v. Protege, Hawkins' case.
Per Curiam.—The general impression in Hawkins' case seems that the fnrishioners may be bound to repair, s there any case where it has been held that a custom for the parishioners to repair the chancel is illegal?
Dr. Lushington.—None that I am aware of. Hawkins' case must be taken with reference to all its circumstances. We submit that there is no authority by which it can be held that great tithes arc exempted from a portion of liability in the repairs ot the chancel.
The King's Advocate and AdJarnt for the Bishop of Ely.
We are surprised to find the case argued, the hearing of the cause having been suspended by a prohibition on the other side. The fact, that there is " a good and laudable custom'' for the parishioners of Clare to repair the chancel, is now established by a verdict. How can this Court take the question into consideration? We admit that, generally, the lessee of the great tithes is bound to keep the chancel in repair; but there may be u special exemption: and when a custom exists for the parishioners to sustain the chancel, they may be compelled so to do. It is, however, said that a custom may have existed, and yet be invalid; and this, perhaps, may be so, in a case of very gross manifest invalidity. Haakins' case has been remarked upon by the Court; the other cases do not affect the question.
Judcment.—Sir John N|cnpu,j —This was originally a suit by the churchwardens of Clare, in the diocese of Norwich, against the Bishop of Ely, as impropriator of a portion of the great tithes, to compel him to repair the chancel. The Bisliop ip defence pleaded, that he never haq* repaired the chancel, that he had n,p enjoyment of it, nor emolument from it, either as to seats,or burials, or monuments; but that the rights in respect thereof had always been exercised by the vicar and churchwardens of the parish, and that from time unmeniorial the parishioners had by custom repaired the chancel. To try this latter defence, the churchwardens moved for a prohibition, which accordingly issued to this Court; the question of custom has been tried in the Court of Common Pleas, and a verdict given that die parish is bound U> repair die chancel: diis verdict is accompanied with costs. In trying the question of custom at common law, h was open to the churchwardens, I apprehend, to show that there was no such custom, but that the expense of the repairs, as they were wanted, had been defrayed out of the rents of estates vested in the churchwardens for such a purpose. However that may huve been, the finding of the jury is in general terms, and in favour of the defendant, the Uishop of Ely.
This seems to me quite decisive of the qoestion. It is not open to this Court now to investigate the custom, whether it be legal or not. The finding of the jury in this case sets the matter at rest; and so I think it must have been considered, because on the part of the parish the proceedings here have stood over from time to time until die result at common law should
be ascertained: and upon the verdict being given, it certainly was the expectation of this Court that the churchwardens would have proceeded no further in the suit. Whatever then may be the general law and prima facie presumption in regard to ttie repairs of a chancel, still they ure liable to be controlled by special cos* torn: and I can see no reason why such a custom, as has been found, should not exist in Clare parish: in London such a custom exists generally: that indeed may be on peculiar grounds; but the inference from the authorities upon the point is, that such a custom may also exist in country parishes. It turns out then that these proceedings have been an attempt of the parishioners of Clare to throw s burden from themselves upon the impropriator; and they prove to have been unfounded. Under tli2se circumstances, I am of opinion that the impropriator is entitled to be dismissed with his costs both iu this Court and iu the Episcopal Court of Norwich. i • i
Domestic. — The ftnt Reformed Parliament, after a two years' career of mischievous misrule, has been dismissed—to give an account of its Misconduct. It has long been evident that many of them were missent thither— we hope there will be no mistake this time. The Conservatives, however, will do well to prevent defeat through miscalculation. They have only to act with energy, and Mister Roebuck, Afister Faithful, &c. Sec. will be mystified but not missed!!
These Yolsciaus were fluttered at St. Staple's,,ruins on the,30th of 1 k-roinber, Uf;>4. "Cr*t6 nqtandvs dies-"!.'J "God save the King." 'Wefaave to congratulate die country on" thei reaction which" has universally taken place. The Destructives tire
destroyed—die Whigs forever denuded —and once more
"The Kino's name is a tower of strength, Which they upon the adverse faction want."
The important manifesto of the prime minister, however, to his constituents, is, at this crisis, the paramount, and almost exclusive, Abject of public attention; we therefore submit it to our readers, as far more worthy their perusal than any thing we can offer, for the address of the honourable baronet is not ouly a model of chaste composition, but a* admirable in sentiment as it is remarkable for frankness, and the purest spirit'of putvkrttjroj The fiat of approbation hot) tftreody been awarded
tn it by the country, and even the premier's political opponents hnve heen compelled to hear unwilling testimony to its merits.
Gentlemen,—On the 86th of November last, being then at Home, I received from His Majesty a summon*, wholly unforeseen and unexpected by nn-. t& return to England without delay, foe the purpose of assisting His Majesty in the formation of a new government. I in.«tantly obeyed the command for my return; and on my arrival I did not hesitate, after an anxious review of the position of public affairs, to place at the disposal of my Sovereign any services which I might be thought capable of rendering. My acceptance of the first office in the government terminates for the present my political connexion with you. In seeking the renewal of it, whenever yon shall be called upon to perform the duty of electing a representative in Parliament, 1 feel it incumbent upon me to enter into a declaration of my views of public policy as full and unreserved as 1 can make it, consistently with my duty as a minister of the crown.
You are entitled to this from the nature of the trust which I again solicit, from the long habits of friendly intercourse in which we have lived, and from your tried adherence to me in times of difficulty, when the demonstration of unabated confidence was of peculiar value. I gladly avail myself also of this—a legitimate opportunity of making a more public appeal—of addressing, through you, to that great and intelligent class of society of which you are a portion, and a fair and unexceptionable representative — to that class which is much less interested in the contentions of party than in the maintenance of order and the cause of good government—that frank exposition of general principles and views which appears to be anxiously expected, and which it ought not to be the inclination, and cannot be the interest. of a minister of this country to withhold. . Gentlemen, the arduous duties in which I am engaged have been imposed upon me through no act of mine. Whether they were an object of ambition coveted by me—whether I regard the power and distinction they confer as any sufficient compensation for the heavy sacrifices they involve — are matters of mere personal concern, on whkh 1 will not waste a word. The
King, in a crisis of great difficulty, required my services. The question 1 had to decide was this: shall I obey the call, or shall I shrink from the responsibility, alleging as the reason that I consider myself, in consequence of the Reform Bill, as labouring under a sort of moral disqualification, which must preclude me and all who think with me, both now and for ever, front entering into the official service of the crown? Would it, 1 ask, be becoming in any public man to act upon such a principle? Was it fit that I should assume that either the object or the effect of the Reform Bill has heen to preclude all hope of a successful appeal to the good sense and calm judgment of the people ; and so to fetter the prerogative of the crown, that the King has no free choice among his subjects, but must select his ministers from one section, and one section only, tit public men.
1 have taken another course; but I have not taken it without deep and anxious consideration as to the probability, that my opinions are so far in unison with those of the constituent body of the United Kingdom, as to enable me and those with whom I aui about to act, and whose sentiments are in entire concurrence with my own, to establish such a claim upon public confidence, as shall enable us to conduct with vigour and success the government of this country.
1 have the firmest conviction that that confidence cannot be secured by any other course than that of a frank and explicit declaration of principle; that vague and unmeaning professions of popular opinions may quiet distrust for a lime, may influence this or that election; but that such professions must ultimately and signally fail, if, being made, they are not adhered to, or if they are inconsistent with the honour and character of those who make them.
Now I say at once that I will not .iccept power on the condition of declaring myself an apostate from the principles on which I have heretofore acted. At the same time I never will admit that I have been, either before or after the Reform Bill, the defender of abuses or the enemy of judicious reforms, t appeal with confidence, in denial Of the charge, to the active part I took in the great question of the Currency—in the consolidation and amendment of the Criminal Law—in the revisaluf the whole system of Trial by. Jury ^ to the opinions I have professed and uniformly acted on with regard to other branches of the jurisprudence of the country—I appeal to this as a proof, that I have not been disposed to acquiesce in acknowledged evils, either from the mere superstitious reverence for ancient usages, or from the dread of labour or responsibility in the application of a remedy.
But the Reform Bill, it is said, constitutes a new era; and it is the duty of a minister to declare explicitly, first, whether he will maintain the Bill itself; and, secondly, whether he will act upon the spirit in which it was conceived.
With respect to the Reform Bill itself, f will repeat now the declaration which I made when I entered the House of Commons as a member of the Reformed Parliament,—that I consider the Reform Bill a final and irrevocable settlement of a great constitutional question —a settlement, which no friend to the peace and welfare of this country would attempt to disturb, either by direct or by insidious means.
Then as to the spirit of the Reform Bill, and the willingness to adopt and enforce it as a rule of government If by adopting the spirit of the Reform Bill it be meant that we are to live in a perpetual vortex of agitation—that public men can only support themselves in public estimation by adopting every popular impression of the day; by promising the instant redress of any thing which any body may call an abuse; by abandoning altogether that great aid of government, more powerful than either law or reason, the respect for ancient rights, and the deference to prescriptive authority,—if this be the spirit of the Reform Bill, I will not undertake to adopt it. But if the spirit of the Rcfotm Bill implies merely a careful review of institutions, civil and ecclesiastical, undertaken in a friendly temper, combining with the firm maintenance of established rights the correction of proved abuses and the redress of real grievances ;—in that case I can, for myself and colleagues, undertake to act in such a spirit, and with such intentions.
Such declarations of general principle are, I am aware, necessarily vague; bnt in order to be more explicit, 1 will endeavour to apply them practically to some of those questions which have of late attracted the greatest share of public interest and attention.
1 take, first, the Inquiry into Municipal Corporations.
It is not my intention to advise the crown to interrupt the progress of that inquiry, or to transfer the conduct of it from those to whom it was committed by the late government. For myself I gave, the best proof that I was not unfriendly to the principle of inquiry, by consenting to be a member of that committee of the Honse of Commons on which it was originally devolved.
No report has yet been made by the commissioners to whom the inquiry was afterwards referred, and until that report be made I cannot be expected to give on the part of the government any other pledge than that they will bestow on the suggestions it may contain, and the evidence on which they may be founded, a full and unprejudiced consideration.
I will, in the next place, address myself to the questions in which those of our fellow-countrymen who dissent from the doctrines of the Established Church take an especial interest. Instead of making new professions, I will refer to the course which I took upon those subjects when out of power. In the first place, I supported the measure brought forward by Lord Althorp, the object of which was to exempt all classes from the payment of church rates, applying in lieu thereof, out of a branch of the revenue, a certain sum for the building and repair of churches. I never expressed, nor did I entertain the slightest objection to the principle of a Bill, of which Lord John Russell was the author, intended to relieve the conscientious scruples of Dissenters in respect to the ceremony of marriage. I give no opinion now on the particular measures themselves. They were proposed by ministers in whom the Dissenters had confidence; they were intended to give relief; and it is sufficient for my present purpose to state that I supported the principle of them. I opposed, and I am bound to state that my opinions in that respect have undergone no change, the admission of Dissenters as a claim of right into the Universities; but I expressly declared, that if regulations enforced by public authorities superintending the professions of law and medicine, and the studies connected with them, had the effect of conferring advantages of the nature of civil privileges on one class of the King's subjects, from which another class was excluded, those regulations ought to undergo modification, with the view of placing all the King's snbjects.whatever their religious