churchwardens as parish officers; to summon the vestry in which the assistants of the incumbent are two church-wardens, immemorially elected by the parishioners as "of common right,” and for that reason recognized by the courts as officers of the parish and not of the patron.2 To the parishioners belongs the right to remove the church-wardens,3 and to appoint others in their stead; and to the church-wardens and not to the incumtheir right bent belongs the right to summon the vestry meeting, over which the parson presides by courtesy due to his ecclesiastical meeting, headship. In such meetings, according to the ancient custom preserved in the courts-leet and in the parliamentary elections, all questions are decided by vote, which each person present every sent has an equal right to cast, and which is taken either by a show of hands or, in case of doubt, by a division. The decision of the majority has the binding force of law expressed in the form of by-laws, the right to make which passed from the tunmoot to the parish vestry as well as to the manorial courtleet. By the making of by-laws the parish vestry, according to Lord Coke, provides for the discharge of its legal duties, whether "for the reparation of the church, or a highway, or of any such thing which is for the general good of the public.' levy taxes Thus the parish vestry regulated the imposition of the church begins with the imposi- rate, through which was collected the sum necessary for mainchurch rate; taining and beautifying the church building after the third per son present has an equal right to vote; origin of the right to make by-laws; right of the parish to tion of the gral part of the parish, has no voice in 1 "If the incumbent chooses one in 2 Strange's Reports, p. 715. 5 1 Mod. Rep. 236. "The parson 6 Smith, The Parish, pp. 60-62, 483485. Note the objections of the author to polling. 7 After due summons "the major part of them that appear may bind the parish."- 1 Mod. Rep. 236. 8 It has often been declared by all the judges that "those in a Leet can make bye-laws, and their own assent shall bind them. And a Parish can make bye-laws, and these shall bind them." Toulmin Smith has collated all the authorities upon this all-impor tant point. See pp. 47-51, 134, 238, note, 584–586, 608.~ Dr. Gneist (Const. Hist., p. 529, note 4) contends that Toulmin Smith errs in "the overestimation of the parochial autonomy. The right of making their own bylaws and the right of self-taxation only existing in England for objects and purposes, which were entailed upon the parish by law as a common obligation." It may be safely said that the great German jurist errs in the opposite direction. 9 "And in such case the greater part shall bind the whole, without any custom." — 5 Rep. 63 a. voluntary part of the tithes originally set apart for that object had been diverted to other purposes. Originally, the church rate was a originally a voluntary contribution,1 which finally became enforceable by contrithe church courts through the imposition of spiritual penalties bution; with which the temporal tribunals were forbidden to interfere.2 To obviate difficulties of that character, it became the custom as a com mon bur consul taxation taxation; for the church-wardens to impose the church rate as a com- afterwards imposed by mon burden upon the parish after the consent of the parish- the wardens ioners had been obtained through consultation. Thus it was that while the commons were establishing the right to grant den, after taxes to the state after deliberation in parliament, the parish- tation; ioners were establishing a similar right to grant contributions parochial and parliato the church after deliberation in their parish assemblies. mentary From the beginning the church rate was a personal one, as- compared; sessed upon the Christian household according to the extent the basis of of its visible profitable property in the parish of whatever char- parochial acter, a burden which was also extended to those living outside of the parish, according to the extent of their landed property within it. Upon this liability to contribute to the parish upon the taxes as evidenced by the parish registers rested the status of liability to the parishioner and his right to vote in the parish assembly.5 as eviSuch was the general character of the parochial constitution the parish at the time the Tudor monarchy laid hands upon it, as the natural instrument to be employed, when, by the dissolution of the monasteries, the care of the poor so long maintained by the church was suddenly cast upon the state. 1 It was not a common law obligation, nor a charge on land. Smith, The Parish, pp. 582, 586. 2 Gneist, Const. Hist., p. 518, supported by Watson (Clergyman's Law, 1725, p. 642), who says "the cognizance of Rates made for reparation of churches and church yards belongs to the spiritual courts; and protestations have often been denied." Smith, however, denies the jurisdiction, pp. 317, 318, 595, note. 3 "A church rate is good, not because it is a church rate, but because it is made under a bye-law passed in due form, by an institution of local self-government."— Ibid., p. 586. The first mention of what was afterwards known as the church rate occurs in the Year-Books of 44 Edw. III., where it is referred to as a custom in a single Jeffery's case, 5 Coke's Reports, 5 "It is the business of the proper officers to take care that every man occupying within the parish is on the parish books. He is there as a responsible man. Being there, he comes under obligations to contribute to all local rates and other burdens. Being there he is a parishioner, and has a common right to a voice at every meeting of parishioners.” — Smith, The Parish, pp. 63, 64. ⚫contribute, denced by register, rested the status of the parishioner. Middle Ages the During the As heretofore pointed out, the church during the Middle Ages derived the means that it devoted to the maintenance of church pro- the helpless from tithes which were applied, according to anthe poor by cient usage, one third to the maintenance of the church build vided for means of tithes; the state undertook only to punish begging and vagrancy; care of the poor became the special business of the monas teries; their dissolution finally cast the duty upon the state; ing, one third to the clergy, and one third to the poor.1 While the church thus assumed the positive obligation of providing for the indigent, the state assumed only the negative duty of preventing begging and vagrancy, a duty which was discharged through a series of cruel statutes, already enumerated,2 which extend from the reign of Edward III. to that of George IV. The general obligation which in early times devolved upon the church as a whole became at a later day the special business of the monasteries, not only by reason of the duty of hospitality and almsgiving,3 one of the main objects of their foundation, but also because, as impropriators of parochial benefices, they had become possessed of a large portion of the tithes. When, therefore, the church system of poor relief, which the monasteries had dispensed with perhaps a too lavish hand, was abolished by their dissolution, the state was forced to meet an obligation made the more pressing by reason of the transition then setting in from feudal to free labor, which greatly increased the distress of the laboring classes. The first posi by 27 Hen. tive assumption of the duty was embodied in 27 Hen. VIII. c. 25,6 whereby the incorporated towns, hundreds, and parishes were charged with the putting to labor of all such indigent persons as were able to work, and of receiving and supporting all such as were unable, by means to be collected for that purpose as alms on Sundays, holidays, and other festivals, or otherwise from the people. It was further provided that indiscriminate almsgiving should be forbidden, and that "valiant and sturdy beggars" refusing to work should be punished. The duty of making the collections on Sundays was cast primarily upon the church-wardens, who, with two others of the 1 See above, p. 97, and note 3. 2 See above, p. 98, note 1. 8 See the declarations upon that subject in the Statute of Carlisle, 35 Edw. I. first assumed VIII. c. 25, which provided only for contributions; duty of the church wardens; 4 After the Reformation impropriations of benefices often passed from the crown to favored laymen. Sir H. Spelman (Of Tythes, ch. xxix.) says "they are called impropriations, for they are improperly in the hands of laymen." 5 See above, p. 121. 6 As to the prior statutes of 11 Hen. VIII. c. 2; 19 Hen. VII. c. 12; and 22 Hen. VIII. c. 12, for the correction of begging and vagrancy, see Reeves' Hist. Eng. Law, vol. iii. pp. 134, 258, Finlason ed. VI. c. 2; contribu act of 39 parish, were to provide work for the capable and help for the incapable. By 5 & 6 Edw. VI. c. 2 it was provided that 5 & 6 Edw. the contributors should be called upon at a particular time to put down in writing how much they would give during the following year, and if any should be obstinate, the clergy were to exhort them. The radical defect in the system thus established was, of course, its voluntary character, to remedy which was passed 5 Eliz. c. 3, empowering justices of the compulsory peace to assess an unwilling contributor who had been ex- tions inauhorted in vain, and to coerce him if necessary by imprison- gurated by Elizabeth; ment, a power enlarged and perfected by 14 Eliz. c. 5, which led to the taxation of every parishioner. Then followed 18 Eliz. c. 3,3 and the far more comprehensive statute of 39 Eliz. c. 3, of which the great act of 43 Eliz. c. 2 is but an amplification in a permanent form. Upon the foundations laid by this last and great act of 1601 the English system of poor the great relief has rested for nearly three centuries. The three great Eliz. c. principles settled by this act were: (1) that every parish was 3, upon to be primarily responsible for the maintenance of its own poor, English and not for the poor of other parishes; persons who could not poor relief or would not work were to remain in the parish in which has since they were born, or in which they had lived for the last three years; (2) that the means for the maintenance of the poor was to be provided by a parochial tax, to be imposed upon the a parochial landed property of the parish by parish officers as a general posed as a and uniform burden; (3) the administration of the system was general and to be vested in the church-wardens, and in two, three, or four burden; substantial householders, to be appointed annually by justices of the peace as "overseers" of the poor. It was made the legal duty of the church-wardens and overseers "to raise the how necessary sums by the assessment of every inhabitant, incumbent, vicar, and others, and every owner of lands, houses, and tithes," and out of the poor rate thus collected they were applied; 1 "The persons thus alluded to were chosen by the parish, in vestry assembled, and fulfilled their charge subject to the supervision of the parish.". Smith, The Parish, p. 145. 2 Reeves' Hist. Eng. Law, vol. iii. p. 603. 8 This ordained that a stock should be provided in order to set the poor at work in every city and incorporated town. 4 "Thus arises a complete fixed tax, which was destined to become the basis of all parochial taxation.". - Gneist, Hist. of the Eng. Const., p. 524 (Ashworth trans.). "The creation of the church rate in Elizabeth's law is the fusion of the former attempts into a which the system of rested; tax im uniform assessed; how poorhouses; workhouses; the poor rate the basis of all parochial taxation. The parish and the public highways; necessitas, (1) to care for the impotent and aged, the lame, the blind, and all other poor persons unable to work, and who had neither parents nor children to maintain them; (2) and to provide work for the able-bodied poor, who were unable to procure it for themselves. In order to carry out the first purpose, they were authorized to build a separate poor-house for the impotent poor of the parish, while to facilitate the second they were to supply a sufficient amount of flax, hemp, and other stuffs in order to afford employment to those willing to work, the unwilling being subject to removal to a work-house or prison. Of the execution of their trust the church-wardens and overseers1 were required to give an account at the end of each year to two justices of the peace, after the new overseers were appointed. The vitally important feature of the system which has so long endured was the legally established poor rate, which as a burden upon real property has become the basis of all parochial taxation. While the organizing hand of the Tudor monarchy was thus fixing upon the parish the statutory duty of caring for the poor, it did not neglect to provide in the same way a more efficient system for maintaining the public highways, for which the parish was already responsible. From the earliest times, as we have heretofore pointed out, a threefold obligation, known the trinoda as the trinoda necessitas,2 was originally imposed upon all peooriginally a ple, regardless of the holding of land, which consisted, in addipersonal tion to military service for the defence of the state, of services obligation, for the building of roads, bridges, and fortresses, the peace duties of the local militia which came to be known as the posse comitatus. With the growth of feudal ideas the performance of these duties, which were at first purely personal, was imposed upon the holding of all land by freemen as a necessary burden. This obligation of keeping the roads and bridges in repair, which was for a long time enforced as the finally imposed upon the holding of all land by freemen; |