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that such portion heretofore belonged the 15th of April the rule was made to, and was from time immemorial (as absolute. he believed) in the possession of, On the third session of Trinity the dissolved religious house of St. Term (12th of June), 1832, the regisJohn the Baptist at Stoke, near Clare; trar of the Arches alleged that the that it became vested in the Crown, writ of prohibition had been amended and was granted by 42 Eliz, to the see by limiting the prohibition to the trial of Ely. Or Ly.legali ei loones, mis
of the custom. An allegation on behalf of the On the first session of Michaelmas Bishop of Ely was afterwards ad- Term, 1832, the Court, upon the apmitted, which-after setting forth, plication of the proctor for the churchthat neither the Bishops of Ely norwardens, directed the hearing of the their lessees had ever exercised any cause to be suspended until the quesright in, or enjoyed any advantage tion of the custom had been tried. from, the chancel, either in respect of On the 8th of January, 1833, the pews, burials, or monuments; and trial came on before Lord Chief Justhat the benefits therefrom had always tice Tindal and a special jury, when a been enjoyed by the vicar and church verdict was given that in the parish wardens of the parish-pleaded, that of Clare there is and hath been from « from time im nemorial the chancel time immemorial, a certain ancient had always been repaired by the and laudable custom for the pachurch wardens out of certain rents, or risliioners to repair the chancele Judge by means of rates equally levied on ment was signed on the Soth of the parishioners for the repairs of the January: and the church wardens church including the chancel, to which were condemned in the costs attendrates the lessees of the portion of ing the application for the writ of tithes, appertaining to the see of Ely prohibition. within Clare parish, were assessed, On the fourth session of Hilary and bad paid, in respect of such tithes, Term, an office-copy of the judgment in common with the other pa- was brought into the registry of the rishioners; and that in no instance, Court of Arches; and on the by-day except the present, had any proprietor the cause stood for hearing. or his lessee of such portion of tithes After the pleadings had been been called upon to repair the
opened, the Court said there is in chancel.”
this case a decision of law that, from The answers of the church wardens. time immemorial, the parish of Clare to this allegation were objected to; has repaired the chancel of its own and being pronounced sufficient, that parish church. decree was, on appeal, reversed by the Phillimore and Lushington for the Court of Arches, and the cause re church wardens. tained. Further answers were given The jury have decided on the fact, in, and evidence was taken on both not on the law; and the question now sides, and the cause was set down for is, whether their finding can exonerate hearing.
the impropriator of the great tithes or 9 On the second session of Hilary his lessee from the repair of the chanTerm (28th of January) 1831, the cel, which is imposed upon them by registrar of the Court of Arches the general law. The question of the alleged, that he had been served with legality of such a custom is most iman order from the Court of Common portant, and belongs to this Court. , , Pleas, setting forth that a rule nisi had PER CURIAM. A custom, which is been granted to show cause why a found by a jury to be immemorial, will, prohibition should not issue to pro here be considered valid: a compos hibit the further proceedings in the sition or agreement will be presumed. Court of Arches, and enjoining it to Argument resumed.-The mere ex stay proceedings in the mean time. istevce of the fact, that there is a par
This rule for a prohibition nisi, ticular custom, is not sufficient to generally, was obtained at the in establish the validity of the custom. stance of the churchwardens. On Many customs, or rather usages---for
the word custom implies the 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 Clare; 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 possession 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 that the person, who is de facto liable to repair the chancel, has ever been called upon to repair it, that will not exonerate him; bis liability to make the repairs when they are required will still remain.
PER CURIAM.—The finding of the jury is, that the parishioners have repaired the chancel from time immemorial : whereas the argument 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 of 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: but in London the custom arose from the land in the different parisbes 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 the chancel; but that will not bind them when better informed. 1 Burn Ecc. Law, tit. Church, s. 6. (Repairs). Prideuur, p.74. Gibson, vol. i. p. 199. Lyndro.
p. 53, Williams v. Bond, Pense v. Prowse, Hawkins' case.
Per CURIAM.-The general impresa sion in Hawkins' case seems that the parishioners may be bound to repair. Is there any case where it has been beld 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 are exempted from a portion of liability in the repairs of the chancel.
The King's Advocate and Adilams for the Bishop of Ely.
We are surprised to find the case argued, the hearing of the cause baving 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 inay be a 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. Hawkins' case has been remarked upon by the Court: the other cases do not affect the question,
JUDGMENT.-Sir John NICHOLL. - 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 Bishop in defence pleaded, that he never had repaired the chancel, that be bad no enjoyment of it, nor emolument from it, either as to seats, or burials, or monuments; but that the rights in respect thereof bad always been exercised by the vicar and church wardens of the parish, and that from time immemorial the parishioners had by custom repaired the chancel. To try this latter defence, the church wardens moved for a probibition, which accordingly issued to this Court; the question of custom has been tried in the Court of Common Pleas, and a verdict given that the parish is bound to repair the chancel: this verdict is accompanied with costs. In trying the question of custom at common law, n was open to the church wardens, 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 yested in the churchwardens for such a purpose. However that inay have been, the finding of the jury is in general terms, and in favour of the defendant, the Bishop of Ely. - This seems to me quite decisive of the question. It is not open to this Court now to investigate the custom, whether it be legal or not. The find ing of the jury in this case sets the inatter 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 the 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 the repairs of a chancel, still they are liable to be controlled by special costom: and I can see no reason wby 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 custoin may also exist in country parishies. It turns out then that these proceedings have been an attempt of the parishioners of Clare to throw a burden from themselves upon the inti propriator; and they prove to have been unfounded.. Under these circumstances, I am of opinion that the impropriator is entitled to be dismissed with his, costs both in this Court and in the Episcopal Court of Norwich.
vetrin. · POLITICAL RETROSPECT.
DOMESTIC. — The first Reformed Parliament, after a tivo years' career of mischievous misrule, bas 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, Mister Faithful, &c. &c. will be mystified but not missed!!, - These Volscians were fluttered at St. Stepheo'sa ruins on the 30th of December, 1834.5 Cretá notandus dies." 3111 God save the King.", " to We have to congratulate the country on the reaction which has universally taken place. The Destructives are
destroyed—the Whigs forever denuded
-and once more “The King'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, objeet 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 only a model of ebaste composition, but as adinirable in sentiment as it is remarkable for frankness, and thie purest spirit of patriotism. The fiat of approbation has already been awarded
to it by the country, and even the premjer's political opponents have been compelled to hear unwilling testimony to its merits.
GENTLEMEN,- On the 26th of November last, being then at Rome, I received from His Majesty a summons, wholly unforeseen and unexpected by mne, to return to England without delay, for the purpose of assisting His Majesty in the formation of a new government. I instantly obeyed the command for my return; and on my arrival I did not hesitate, after an anxious review of the position of pab. lic affairs, to place at the disposal of thy Sovereign any services which I might be thought capable of rendering.
y acceptance of the first office in the government terminates for the present my political connexion with you. In seeking the renewal of it, whenever you shall be called upon to perform the duty of electing a representative in Parliament, I feel it incumbent upon me to enter into a declaration of any views of public policy as full aud unreserved as I 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 exposi. tion of general principles and views which appears to be anxiously ex. pected, and which it ought not to be tbe 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 | regard the power and distinction they confer as any suficient compensation for the heavy sacrifices they involve are matters of mere personal concern, on which I will not waste a word. The
King, in a crisis of great dificulty, required my services. The question i 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 å sort of moral disqualification, which must precludei me and all who think with me, both now and for ever, from entering into the official service of the crown? Would it, I ask, be becoming in anv public man to act upon such a principle? Was it fit that I should assume that either the object or the effect of the Reforin Bill has been to preclude all hope of a successful appeal to the good sense and calm judgment of the people ; and so to fetter ihe 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, of public men.
I 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 ain about to act, and whose sentiments are in entire concurrence with my own, to establish such a claim upon public con. fidence, as shall enable us to conduct with vigour and success the govern. ment of this country.
I 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 time, may influenee 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.
C ! Y Now I say at once that I will not ac cept 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. I 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 revisabof 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 appli. cation of a remedy.
But the Reform Bill, it is said, con. stitutes 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, I 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
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 House 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
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 Reform 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; but in order to be more explicit, I will endeavour to apply them practically to some of those questions which have of late attracted the greatest share of public interest and attention.
i take, first, the Inquiry into Municipal Corporations.
respect to the ceremony of marriage. I give no opinion now on the particular measures themselves. They were pro. posed 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. lopposed, 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 moditication, with the view of placing all the King's subjects, whatever their religious