We tion which the former do not possess, or that there are objections of one sort or other to the former from which the latter are free. repeat, that we are well aware that, in the way in which they thus plead their cause, all is insincere and hollow; and that, in their view, there is no distinction between Church-rates and tithes, except that in objecting to the one, they make a less violent, and therefore perhaps, to some minds, a less alarming attack on the Establishment than if they were to strike at once at the other. We have no manner of doubt that, in this Churchrate question, their contest is merely for the vantage-ground from which they are to proclaim the gross injustice of tithes or, in other words, of a National Religion; but we take their argument as they themselves present it to us, and are willing to meet it in that form. Assuming, therefore-as ex concessis of our opponents we are entitled to assume the unquestionable propriety of a Church Establishment, and the consequent propriety of tithes, we would beg to enquire what are the grounds on which they would distinguish between tithes and Church-rates, so as to authorize their demand for the abolition of the latter? There are only two imaginable grounds on which any such distinction can be pleaded; it must either be maintained that while the Church has a legal right to tithes, it has no such right to Church-rates; or that there is some hardship in the payment of Church-rates, which is unknown in the payment of tithes, and which, therefore, renders the former a proper subject for the interposition of the legislature. On one or other of these positions must the case of the abolitionists of necessity be founded; the wit of man cannot devise any third reason which has the slightest bearing on this argument. Let us, then, with all possible brevity, examine these positions, and try whether they will submit to any test which can reasonably be applied to them. With regard to the first, it seems to us that it will hardly bear to be even stated; for it is manifest that the law of the land is the foundation both of Church-rates and tithes, and that neither of them can be said to rest on any other foundation whatever. The one is the national provision for the maintenance of the clergyman; the other is, in like manner, the national provi sion for the maintenance of the edifice wherein his ministrations are performed. Both of these are objects essentially necessary to the existence of a national religion, and both are thus secured by means, of which it is enough to say at present, that in either case they are unquestionably legal. We are not aware of any circumstance either in the nature of these rights or their history, which, in the present question, forms the slightest ground for a distinction between them. We are satisfied that no such distinction is involved in describing tithes as a right of property in the Church, and Churchrates as a tax for the support of it; for it seems to us that the more nearly this subject is examined, the more plainly will it appear that any such difference is merely verbal, and that either of the terms thus used may be applied in both instances, according to the views which may be entertained of the grounds on which a Church Establishment rests. The distinction which is here pointed at, if it has any meaning at all, must go to this, that the Church-rates are a branch of ecclesiastical revenue, which the legislature may deal with at pleasure; while, with regard to tithes, although there may be, and confessedly is, a power of regulation in the legislature, there is no absolute power of appropriation or disposal. We humbly think that little advantage can result to any party in this discussion, from an enquiry as to the power of Parliament with regard to either of these rights. If, with a view to any argument which may be urged against us on this point, we were called on to maintain that they are held by the same or by an equal tenure, it would, we think, be easy to do so, and to show that any difference between them, as being the one more fixed and certain, and the other more variable and contingent, is not, in either case, a difference affecting the right itself, but an extrinsic quality, arising from the purpose for which it was originally conferred. But in the present controversy, it is enough to say that whatever, in strictness of forensic language, may be the tenure of them, they are both admitted to be legal rights; for it must not be forgotten, that the question at issue is not a question as to the authority of the legislature to abolish one of them, as contra-distinguished from the other, but as to the claim of certain parties to demand the abolition of it.* There may, however, undoubtedly, be rights possessed by one class of the community, which, though strictly legal, yet impose such a degree of hardship on another class, as to call for the interposition of the legislature for the abrogation of them: and this brings us to our second enquiry whether the Church-rates are of that description? On this point, likewise, must our opponents consent-as in deed they have virtually consented that the question should be considered with reference to the tithe-law, and in connexion with that subject. They find it convenient in the present state of the Church question, to admit that there is no hardship in the payment of tithes to the English Church; or at any rate, they do not yet venture to announce this as a grievance. A grievance! Is there any one who is not aware that in paying his tithe the proprietor pays nothing more than he undertook to pay in acquiring his property? There surely can be nothing more evident than this, that if we shall estimate the tithe at a fifth part of the rent of an estate, the purchaser of that estate has paid for no more than four-fifths of it: and why he should become the unburdened proprietor of the remaining fifth, is a question to which we have never yet been so fortunate as to meet with an answer. But what is the distinction with reference to this point, between tithes and Church-rates? Is there any one, who has bought a property liable to the payment of Church-rates, who has not in like manner bought it in the full knowledge of its being subject to this burden, and who has not computed this and all its other burdens as a deduction from the price? And if so, what possible right can he have to possess the property at that increased value (however small) which would of course arise from the extinction of this tax on it? In what respect does this case differ from that of a proprietor who should complain of a ground-rent payable for his house, in the knowledge of which it was purchased or built by him? We say "built by him," because in these words will be found a complete answer to the argument, that while tithe is levied on the produce of the ground, which must always have had its value, Church-rates are payable from property which may be of recent creation. If any farther answer on this point were needed, it would be found in the circumstance that tithe may likewise, in the progress of improvement, be "of recent creation," and paid out of produce the immediate sources of which were never acquired by the proprietor: but it is too evident to require farther remark, that in no circumstance of this description is there any solid ground for distinction between these two cases. It seems clear, therefore, that the alleged difference between Church-rates and tithes, on which the whole of this question is thus made to depend, is a It is no part of our present purpose to consider the nature of the right to Churchrates vested in the English Church Establishment; and it is only incidentally, and as subordinate to our main object, that we thus refer to this subject. In this view, it is enough for us to assert their legality, as a point which admits of no difference of opinion. Every lawyer, of every shade of political sentiment, from Sir W. Follet to Dr Lushington, seems to agree on this part of the question: and it appears that, very recently, a professional opinion was given by the last-mentioned jurisconsult and Mr Cutlar Fergusson, recommending that the payment of Church-rates should be enforced by the same means with that of poor-rates. It would indeed be strange, considering the sharp-sightedness of money-lenders in such matters, if there were any doubt as to the legality of Church-rates, when we find that a debt of near a million (for which, according to the Ministerial plan, they are to continue liable), is at this moment owing on the security of them. In truth, we look in vain, even in the speech of His Majesty's Attorney-General (of his Pamphlet we shall speak presently), for any argument as to their illegality, except that which, according to the fashion of the day, is founded on the circumstance, that in some of the larger towns there has lately been a resistance to them. We are fully aware, however, that in thus resting our argument on the mere legality of the Church-rates, we are greatly under-stating it; for it is evident, from all competent testimonies, that there is no revenue whatever, public or private, ecclesiastical or lay, which stands on a higher title. mere pretext, in order to mask the real views of those with whom this measure has originated; and it follows as the necessary inference, that these views can be no other than the ultimate abolition of tithes, or in other words, the destruction of the Church Establishment. It is manifest that this is just the narrow end of the wedge, the political properties of which have been so profoundly studied of late, and so amply illustrated. Whether the Government, or any section of it, are the dupes of this artifice, or whether they are the willing instruments in the hands of the enemies of the Church, matters little; the alternative of folly or knavery is entirely at their service. It is difficult to imagine, however, that any set of men who are not willing to be blinded, should not perceive, in the whole aspect of this measure the quarter from which it has originated the character of its most zealous supporters the tone and temper of their language and the inconsistencies which ever attend deceit and falsehood-that it is but a means towards that purpose which is so anxiously disclaimed by its authors. To our minds, this is proved by nothing more conclusively than by the unimportance of the immediate interest involved in the present question. No one pretends that the payment of Church-rates is a heavy tax: on the contrary, its amount in any individual case is so small that we scarcely ever hear it mentioned. This, indeed, is the boast of the abolitionists-theirs (they tell us) is a contest of principle. And of what principle? The principle, of course, that no man should pay for the support of another man's religion. In this avowal of the motives from which the question is agitated, is there not the surest proof of the true objects of the agitators? Can dulness itself imagine that if this principle were once recognised in this instance, there would be no attempt to extend it farther; or that such an attempt would not be aided by the "concession"-that is to say, the abandonment of duty which is now sought to be wrung from us? These, we think (however briefly and inadequately expressed), are the views which must have occurred to every one in contemplating this omnious measure. We have said that they have already been made so apparent by the learning and ability which have recently been engaged in defence of VOL. XLI. NO. CCLIX. our national religion, that it is not our purpose to dwell on them, but that it has appeared to us that a useful commentary on them might be furnished from our own country of Scotland. It can scarcely have escaped the attention of our readers that a considerable number of the petitions for the abolition of the English Church-rates have proceeded from this part of the island: and as our countrymen have never been accused of inattention to their own interests, it is surely not unreasonable to suppose that our petitioners have in view the application of the principle involved in this measure to our own Church Establishment: indeed, there is no conceivable reason why, if adopted in England, it should not be applied here. It may, therefore, not be unimportant to enquire, in the first place, what would be the effect of its application in this country? And, in the second place, what is the precise nature of the interest possessed by our Scotch petitioners in such an application of it? To the first of these enquiries the answer must be, that any such measure would not merely tend to the destruction of the Scotch Church, but at once accomplish it. It is, perhaps, not universally known in England that we have in this country a provision for the maintenance of our parish churches of precisely the same nature with the Church-rates, and quite as distinct from tithes. Without encumbering these pages with any historical detail on this subject, or any reference to the statutes, acts of Council, or judicial determinations, on which the law with regard to it is founded, we may merely observe that it is a fixed and settled rule with us that the proprietors of every parish, in addition to the payment of the clergyman's stipend (which is viewed as a burden on the tithes of the parish), are bound to contribute to the maintenance of the place of worship; and, moreover, of the residence of the clergyman. The contribution for these purposes is imposed by the proprietors themselves, by way of assessment made for each occasion on which such a contribution may be needed,-in some instances according to the real rent, but in most cases according to a certain fixed standard which is termed "the valued rent" of their estates. Here, then, it will be observed, there is a most striking simi 2 x larity between this legal provision and the Church-rates of England. It has been argued with regard to the latter, that they are not, like the tithes, a property of the Church, but merely a tax imposed by the rate-payers themselves for the purposes of the Church; if, however, there is any ground for such a distinction, it is one which exists equally in both these cases. But it is manifest that there is no ground for such a distinction; the obligation in both cases is inherent in the property; and although our Scotch assessment, having once been imposed and become due, is a burden not on the property, but only on the proprietor and his representatives, and therefore does not pass with the property, it is known to every lawyer that this is the case with tithe likewise. This assessment is further made, as in England, by the votes of the contributors; and it may be noticed, as a striking circumstance of coincidence between the two systems, that the majority is determined, not by reference to the amount of property (which might afford some countenance to the argument that the two imposts are founded on different principles), but solely by reference to numbers. We are sometimes told that in England the tax in question is voluntary a singular enough kind of tax surely; and a most comfortable and convenient one. It turns out, however, on examination, that, like other taxes, it is voluntary only until the payment of it is refused. For it seems to be agreed by all Eng lish lawyers, that if the rate-payers should refuse a rate, it may be fixed and authorized otherwise, and levied by legal execution; nor is it denied that cases of this description have occurred in practice. And just so it is with our Scotch assessment. If the proprietors of a parish shall voluntarily assess themselves for the purpose for which a contribution may be required, the law will not interpose in the matter; but if they shall fail to do so, then the presbytery, either ex proprio motu, or on the application of any one interested, may call on them to do so, and on their refusal, our Supreme Court will compel the requisite contribution. In truth, the more closely we approach this subject, the more we shall be convinced that the two cases run parallel with each other throughout nearly their whole course. It would appear, no doubt, that in England it is sometimes sought to evade the rate, either by voting an inadequate or elusory contribution, or by an adjournment of the vestry when convened for the purpose of assessment. This, however, is plainly nothing else than a fraud on the law; and we believe it is the prevalent opinion that, as such, it is not beyond the reach of the courts competent to such questions. But, at all events, it is not beyond the reach of the Legislature; and it really seems monstrous to say, that because a tax may be fraudulently evaded, it is therefore, in any legislative discussion of the subject, to be spoken of as illegal.* We have already said that we abstain from entering on any of the legal discussions involved in this question, as hardly suited to our pages; but we cannot omit merely to notice here the pamphlet recently published by the Attorney-General, in the form of a letter to Lord Stanley, in vindication of that unfortunate speech which, as our readers may remember, was dealt with by his Lordship "in his best manner.' With all respect for so eminent a lawyer, we must say that this performance seems to us to be one of the most unsuccessful pleadings we ever met with,-just such a pleading, we think, as the author might desire to meet with from a legal adversary. Sir John here admits the legality of Church-rates when imposed by the vestry, and the power of enforcing payment of them; and he further admits that, if the vestry shall be called on to assemble for the purpose of making a rate, and shall refuse to do so, it may be fixed by the churchwardens. But then he maintains that, if the vestry shall meet and refuse a rate, there is no remedy. He allows that (in conformity with what we have ventured to state on this point), if the refusal of a rate were incompetent, the attempt to evade it by adjournment would be regarded by the law as 66 a shallow device," to which no countenance could be given; but he asserts, that when refused by the parishioners, there are no means of obtaining it. And how does he support a position so suspiciously inconsistent with the second of the admissions to which we have just referred? Why, by stating a variety of methods, such as application to a court of law, application to a court of equity, and immediate application to the ecclesiastical courts,-which, he assures us, are not effectual in order to make a rate in such circumstances! After thus most needlessly disposing, with a great parade of learning, of the negative side of the It thus appears that the burden of building and repairing a Scotch church and parsonage, as distinguished from the payment of stipend, is, at least in its general nature and principles, in all respects similar to the burden of Church-rates as distinguished from tithe. If, therefore, the Church-rates are to be pronounced a grievance which ought to be abolished, how are we to escape the same conclusion with regard to what are virtually nothing else than the Church-rates of our own country? Surely they will not be said to be less a grievance because, as we believe, they are comparatively greater in amount, and of more extensive application in the maintenance of our National Church? If they are an evil, this of course is only an aggravation of it; and the hardship which they impose on every proprietor in Scotland should, on the principles of the abolitionists, be redressed without delay. Yet every Scotchman knows-and none know better than most of the petitioners to whom we have referred that any measure for the redress of this "grievance" would be the death-blow of the Church of Scotland: and for this simple and unanswerable reason, that there is no other fund from which, directly or indirectly, the purposes of which we have spoken could be supplied. Our parish churches, and the houses of our clergy, are at present constructed and maintained on the lowest scale which is consistent with the respectability, or perhaps the existence, of even our simple Establishment; but if the legal provision for their support were thus withdrawn, they must speedily fall into such a state of dilapidation and ruin as to reduce our national religion to a mere name; and, probably, to render it better, that our people should be abandoned at once to the irregular and perilous elements of "the voluntary system." In this observation as to the mean. ness of our parish churches and parsonages, we would not be thought to overlook the manifest improvement in this matter which, to the credit of our landed proprietors, has taken place, even within our own memory. But to what is that improvement to be ascribed? Evidently to the system whereby the maintenance of these edifices is made to depend on local contribution. It has often been observed that, even supposing we had a national fund appropriated to this purpose, its application would be in many ways more difficult, more expensive, and more unthrifty, than that of a local fund, and that in these points, therefore, there are manifest advantages in the latter. But, above all, the local support of our ecclesiastical edifices seems to us to be recom question, he comes at length, however, to the only point at issue-whether, if the Vestry thus refuse a rate, the churchwardens can make it of their own authority, and have it enforced by application to the competent courts. Sir John maintains that they cannot do this but how does he support his opinion? Not by citation of legal authorities to that effect for he admits that these are all the other way, and he expressly mentions the opinions of three legal writers of high name, and two reported cases, in which the right of the churchwardens thus to fix and enforce a rate is recognised in the most express terms. He tells us, to be sure, that these opinions and judgments are erroneous; but for this he gives us no authority but his own and as for his argument on this point, it seems to have no bearing whatever on the subject. If we understand it rightly, it amounts to this, that "the churchwardens cannot impose a rate in such circumstances, because it has been held that, not being liable for church repairs, unless in so far as they have funds in their hands for that purpose, they cannot impose a retrospective rate-that is to say, a rate for the payment of repairs which have already been made by them: than which it has never been our fortune, in speech or pamphlet, to meet with a more perfect non sequitur. We have always understood that, in legal questions, arguments or analogies, even if well-founded, were of but small value when opposed to authorities: but here there is neither argument nor analogy-nay, not even mystification. Sir John's pamphlet, therefore, seems only to afford additional evidence of the soundness of those legal opinions on this subject to which we have more than once referred in the course of these observations. We may add, that it will be found strongly to confirm the views which we have stated as to the bearings of this question on our Scotch Church Establishment: for there is not a single sentence of it as to the distinction between Church-rates and tithes, and the history of the former as compared with the latter, which does not strike at the legal provision for the maintenance of our Scotch Churches. |