convicted, upon very satisfactory evidence, of the crime of which he stood charged, that of stealing the property named, belonging to Sir J. Watson. It was evident there were various other charges, which the learned counsel for the prosecution had declined to proceed with upon the property being given up. There had been an omission in the case, inasmuch as the name of the parish in which the offence had been committed had not been proved, and he would have the benefit of it; but he could assure him that had it been proved, the Court would have felt it its duty to pass upon him the full punishment allowed by law for such an offence. As it was he could only receive the punishment for a common larceny. It was evident that he had been for a considerable time getting his living by plundering club-houses, where he had the privilege of entering. The sentence of the Court therefore was, that he be transported beyond the seas for the term of seven years.

ARCHES COURT,
March 25.

VELEY AND JOSLIN AGAINST GOS-
LING. THE BRAINTREE CASE.

Sir H. Jenner Fust gave sentence in this case, which was an appeal from the Consistory Court of London, in a suit of subtraction of church-rate, promoted by the churchwardens of the parish of Braintree, Essex, against Mr. John Gosling, a parishioner and inhabitant. The Court below rejected the libel, on the ground that the rate, which had been

made by the churchwardens and the minority of the parishioners assembled at a vestry meeting, summoned in obedience to a monition to make a rate for the repair of the church, the majority refusing to make any rate, was illegal and invalid.

The learned Dean of the Arches commenced by observing, that the parish of Braintree had obtained a considerable degree of notoriety from the determined opposition given by a great majority of its inhabitants to churchrates. In 1837, a question as to the validity of a rate in that parish gave rise to proceedings which commenced in the Consistory Court of London, and went to the Courts of Common Law, being finally adjudicated in the Court of Exchequer Chamber. In that case the majority of the parishioners in vestry having refused a rate, the churchwardens, not at the same vestry meeting, but several days after, and without any further notice to the parishioners, made a rate by themselves. The Judge of the Consistory Court, contrary to his own opinion, admitted the libel in a suit against Mr. Burder, a parishioner, for the recovery of his quota of this rate, conceiving himself bound by the authority of a case in this court, that of "Gaudern v. Selby," in 1796. A prohibition having issued from the Court of King's Bench, the plaintiff on prohibition declared, the defendant demurred, and the judgment of the Court was against the validity of that rate. The case then went by writ of error to the Court of Exchequer Chamber, which affirmed the judgment of the Court of King's Bench. In delivering the decision of the

judges (eight in number) in the Exchequer Chamber, Lord Chief Justice Tindal stated, that the questions to be determined were— first, whether the churchwardens, after a rate for the necessary repairs of the church had been proposed to the parishioners in vestry, and refused by a majority, could of their own sole authority, at a subsequent time, by themselves, and not at any parish meeting, impose a valid rate on the parishioners-secondly, whether a Court of Common Law could issue a writ of prohibition to the Spiritual Court, to stay proceedings to enforce payment of such

The Court of Exchequer Chamber was of opinion, that such a rate was invalid, and that the writ of prohibition was properly issued; but the Lord Chief Justice expressed that opinion in a guarded manner, and accompanied it with this observation"It is obvious that there is a wide and substantial difference between the churchwardens alone, or the churchwardens and the minority together, making a rate at the meeting of the parishioners, when the refusal takes place, and the churchwardens possessing the power of rating the parish by themselves at any future time, however distant. It is unnecessary, however, to discuss that point, as the facts of this case do not bring it before us; it is sufficient to say, whilst we give no opinion upon it, that we desire to be understood as reserving to ourselves the liberty of forming an opinion whenever the case shall occur." These expressions were very remarkable. The Lord Chief Justice of the Court of King's Bench had expressed his opinion, that no rate could be VOL. LXXXV.

valid unless made with the consent of the majority of the parishioners; but the Court of Exchequer Chamber did not affirm so general a proposition; they guarded themselves against being supposed to do so; they recognized a wide and substantial difference" between a rate made by churchwardens and the minority at the same vestry, where a rate had been refused, and a rate made by the churchwardens alone at a subsequent time, which was the case in the former Braintree suit. The prohibition in that case put a stop to the proceedings, but still the church continued in a state of great dilapidation, and the necessity of repairs being very pressing, the churchwardens adopted the suggestion thrown out by Lord Chief Justice Tindal. In order that the proceedings should be perfectly regular, a decree under the seal of the Consistory Court of London, issued at the instance of the vicar, called upon the churchwardens and parishioners to appear and show cause why they should not meet in vestry to make a rate for the necessary repairs of the church. The churchwardens appeared, and professed a readiness to obey the directions of the Court. No appearance was given on the part of the parishioners; and as no objection was therefore made on their part, a monition issued, requiring them to meet in vestry on a certain day, and to make a rate for the necessary repairs of the church. In obedience to this monition the churchwardens convened a vestry, at which they submitted the surveys and estimates, and proposed a rate of 2s. in the pound. in the pound. An amendment was, however, moved, to the

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effect that the parishioners were bound by religious principles and social feelings not to grant a rate, which amendment was carried, being tantamount to a refusal of the rate. Thereupon the churchwardens, with the minority, at the same meeting, in obedience to the monition, and in discharging the obligation cast upon them, made a rate of 2s. in the pound, the rate in question. The real and substantial objection offered to the rate in the Court below was, that it was made by a minority of the parishioners in vestry. This being the simple question, it was unnecessary for this Court to go into a lengthened inquiry as to the nature and origin of the obligation upon the parishioners to repair their parish church, or into the antiquity of making a rate for that purpose, because the Lord Chief Justice of the Common Pleas, in delivering the judgment of the Exchequer Chamber, had distinctly laid it down, "that the obligation by which the parishioners are bound to repair the body of their parish church whenever necessary, and to provide all things essential to the performance of divine service therein, is an obligation imposed on them by the Common Law of the land" and he refers to a case in the year books, 44th Edward III., which, he observes, "whilst it establishes the fact that church rates were made by the parishioners, at so early a period as the year 1370, does, at the same time, by pleading a custom from time immemorial within the particular parish, to levy the amount of the rate on each parishioner by distress, necessarily carry back beyond the time of legal memory, the obligation of the parishioners

to make a rate upon themselves for the reparation of the parish church." This was a sufficient authority for him (the learned Judge), to hold that the burthen of repairing the church lies upon the parishioners. Such being the obligation, the next subject of inquiry was the effect of it. Here again Lord Chief Justice Tindal had laid it down, that "the repair of the fabric of the church is a duty which the parishioners are compellable to perform, not a mere voluntary act, which they may perform or decline at their own discretion; that the law is imperative upon them absolutely that they do repair the church, not binding on them in a qualified or limited manner only, that they may repair or not, as they think fit; and that where it so hap pens that the fabric of the church stands in need of repair, the only question upon which the pa rishioners, when convened toge ther to make a rate can by law deliberate and determine is, not whether they will repair the church or not (for upon that point they are concluded by the law), but how and in what manner the Common Law obligation so binding them may be best and most effectually, and at the same time most conveniently, perform. ed and carried into effect." Every word of this was most important for the consideration of this Court, and deserving of the utmost at tention, not only as coming from the very learned person from whom it emanated, and from the clear and lucid manner in which he stated what the extent of this Common Law obligation is, but because it expressed, not merely his own opinion, but the opinion of his seven learned brethren.

The next question would be, in what manner is this Common Law obligation to be enforced? He would not enter into the question whether the obligation was by the jus commune laicum, or the jus commune ecclesiasticum; if by the former, the Temporal Courts would enforce it; if the latter, the Spiritual Courts. Lord Chief Justice Tindal says" The parishioners have no more power to throw off the burthen of the repair of the church than that of the repair of bridges and highways, the compelling of the performance of the latter obligation belonging exclusively to the Temporal Courts, whilst that of the former has been exercised usually, though perhaps not necessarily exclusively, by the Spiritual Courts from time immemorial." Now, from what he had said, these principles arose :-1st. that the obligation to repair is absolute; 2nd. that the performance of the obligation may be compelled; 3rd. that the performance of the obligation may be properly enforced by the Ecclesiastical Court, subject, nevertheless, to the control of the Courts of Common Law, where the Ecclesiastical Court exceeds its jurisdiction. Now, what was Now, what was necessary to constitute a valid church-rate ? Nobody doubted (as Lord Chief Justice Tindal said,) that a rate made by the majority of the parishioners in vestry was valid, and might be enforced. There was as little doubt that, when the parishioners are duly convened and none think fit to attend, a rate made by the churchwardens alone, who then in effect constitute the majority, is valid. But the question was, what is to be done when the majority refuse a rate-whether the

church is to remain in a state of dilapidation, notwithstanding the Common Law obligation upon the parishioners, who are compellable to discharge it? The rate sued for in the former Braintree case, it was quite clear, was an invalid rate; but the present rate was under different circumstances, having been made at a vestry duly convened, in obedience to a monition to make a rate for the repairs of the church, at a time when all the parishioners who chose to attend had an opportunity of knowing the nature of the repairs which were required, the amount of the expense, and the mode of the rating. Surely it was no great stretch of authority to hold that a rate so made was widely and substantially different from the other made in a secret conclave. Here the parishioners had an opportunity of objecting to the nature of the repairs, to the amount to be levied, and to the mode of rating. Supposing this to be an invalid rate, there was no mode by which the church could be repaired, it must remain unrepair. ed, deteriorating every day, and the result might be that this church would become a heap of ruins. See the progress of its decay. In 1834, 351. was expended on the repairs of the church. In 1835 no rate was allowed. In 1836, 175l. was required, and a rate was refused. In 1837, 508. was required, and no rate; and in 1841, 7001, Nothing could show more strikingly that this church must become in a very short period entirely dilapidated. All the timbers were said to be rotten; the lead had been removed from the roof, and, in short, the parishioners would be unable to resort to the church for divine worship. How, then,