have provided, that all such parishes or extra-parochial places, as shall be required by the commissioners, shall furnish lands for enlarging existing, or for making additional churchyards or burial grounds, as the commissioners shall deem necessary: and the commissioners shall give notice to the churchwardens, to be left at their abodes, of the intention to enlarge the existing, or to set out new burial grounds; and of the extent of ground required for such purpose, and for a proper approach thereto, and of the place in which the same is required to be provided; and the churchwardens shall, within fourteen days, call a meeting of the vestry, or persons possessing the powers of vestry, for taking all necessary measures for providing the same; and in case the parish or place cannot provide the same, without purchase, the vestry, or persons possessing the powers of vestry, are required forthwith to proceed to treat for ground, according to such notice, but shall not conclude any bargain without the commissioners' approbation. The commissioners may accept, from persons willing to give, any lands not exceeding in quantity what may be sufficient for building a church or chapel, and providing a churchyard.a chase of lands All the powers and provisions of these acts which relate Powers for to the grant, sale, conveyance, purchase, and resale of grant or purlands, to or by the commissioners, for the purpose of for such purbuilding any additional churches or chapels, or the ad- pose. vancing, raising, or taking up at interest, money for any such purpose, shall extend to grants, &c. of lands or hereditaments necessary for enlarging or making any churchyard or burial ground, and approaches thereto, and for issuing money required for those purposes, repaying by instalments or otherwise. Lands thus added to any existing churchyard or burial ground, or appropriated for a new burial ground, shall, as soon as convenient, be consecrated for the burial of the dead; and shall for ever be used as an additional burying ground; and the freehold of the land so consecrated, shall thereupon vest in the person or persons in whom the freehold of the ancient burial ground of such parish or chapelry shall from time to time be vested.c The commissioners may, if they think fit, alter, repair, Power to alter pull down, and rebuild, or order or direct to be altered, boundaries, &c. &c. the walls or fences of any existing churchyard or burial of churchyard. ground of any parish or chapelry, and fence off any additional or new burial ground, to be provided under the 58 Geo. 3, c. 45, s. 33. 159 Geo. 3, c. 134, s. 36. © Sect. 38. Power for en yards. above powers; and also stop up and discontinue, or alter, or order to be stopped up, &c. any entrance to any churchyard or burial ground, and the footways and passages over the same, as they shall think fit; provided the same be done with the consent of two justices of the peace, and on notice being given.d The commissioners may authorise any parish, chapelry, larging church township, or extra-parochial place desirous of procuring or adding to any burial ground, to purchase any lands the commissioners may think sufficient, and properly situate for that purpose, and to make rates for the purchase thereof, or for repaying with interest any money borrowed for making such purchase; and the churchwardens, or persons authorised to make rates, shall exercise all powers for making such purchases, and making and raising such rates; and when any lands so purchased shall be situate out of the parish or place for which it was intended, the same shall, after consecration, be deemed part of such parish or place. In cases of the churchyards to churches built under the provisions of 1 & 2 Will. IV. c. 38, it is directed, that when five years have elapsed after the land has been conveyed for that purpose, it shall vest absolutely in the persons to whom it has been so conveyed; provided that if it should be recovered in ejectment, the value found by the jury, and the costs, shall be tendered within two months after the judgment.f d Sect. 39. And as to the notice, see 55 Geo. 3, c. 68. BOOK IV. OF THE PROVISION MADE BY LAW FOR CHAPTER I. CHURCH RATES. b By the authority of all writers on the general canon law, Origin of the the repairs of the whole of the parish church, both of the rate. body and the chancel, fall upon the rectors or owners of the tithes; except that, by custom in some countries, part falls upon the parishioners. But by the common custom of this country, the repairs of the nave of the church, in which the lay parishioners sit, fall upon the parishioners themselves; the repair of the chancel only falling upon the rector; or, as Lyndwood expresses it, by custom, the burthen of reparation, at least of the nave of the church, is transferred upon the parishioners. At what period the transferring of this burthen from the tithes to the parishioners may have taken place, cannot now be ascertained. As early as the time of Canute, the obligation is Its antiquity. thus declared: "Ad refectionem ecclesiæ, debet omnis populus, secundum rectum, subvenire." And in those parts of the rest of Europe where the custom in this respect is similar to that of England, such custom appears also to have been very ancient, though the authorities which are referred to in support of that belief, are not sufficiently clear to be quite satisfactory; and a case, found in the ⚫ Van Espen, Jus Eccles. Univers. part 2, sect. 2, tit. 1. De reparandis Ecclesiis, Lyndw. p. 53, note; Tindal, C. J., in Veley v. Burder, 12 Ad. & Ell. 301. • Thorpe's Ancient Laws and Institutes of England. vol. i. p. 410; vol.ii. p. 540. d See Lindenbrogius, Cod. Leg. Ant. 688; Baluzzii Capit. Reg. Fran. vol. i. 530; Canciani Barb. Leg. Ant. i. 219. Objects of the rate. At common law. objects of the Year-Book, 44 Edw. III. f. 18, whilst it establishes the fact, that the burthen of repairing the nave of the church had been transferred from the tithe, and that church rates were made by the parishioners so early as the year 1370, does at the same time, by a plea therein contained, of "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. The same is laid down by Holt, C. J., who says, by the civil and the canon law, the parson is obliged to repair the whole church, and is so in all Christian kingdoms but in England; for it is by the peculiar law of this nation, that the parishioners are charged with the repairs of the body of the church.g The exact origin of church rates, therefore, like that of a great portion of our common law, is lost in the obscurity of antiquity. But probably there are very few of our institutions more ancient. There is no question but that the assessment of them is of far higher antiquity than that of those other kinds of rates which are now commonly imposed for various secular purposes; and that the custom for parishioners to make a rate upon themselves, for the reparation of their parish church, existing beyond the time of legal memory, and extending over the whole realm, is no other than the common law of England.h The purposes for which a church rate may be levied, are in most instances determined by custom or common law; but there are other purposes to which they are made applicable by statute. By common law, the purpose may be twofold: 1st, the necessary and essential repairing of the fabric of the church; and, 2nd, the repairing of the ornaments of the church, and of the things appertaining thereto, and the providing all things essential to the performance of divine service therein. Former distinc- And formerly, there was a much greater distinction between tion between the these two purposes, which may be called necessary and unnecessary repairs, than at present, the subject of the rate in either case being different; for whereas, in the latter case, the rate was to be limited to inhabitants only, in the former case non-inhabitants also were to be charged. Thus it has been said formerly, that if a person, who is not an inhabitant within the parish, but has land there, is f Sed quære. rate at common law. e See argument of Sir W. Follett, in Veley v. Burder. 8 Hawkins v. Rous, Carth. 360. h Tindal, C. J., in Veley v. Burder, 12 Ad. & Ell. 302. rated there for the ornaments of the church, according to his land, a prohibition lieth, for the inhabitants ought to be rated for them; and Yelverton said that this had been divers times so resolved.i And Gibson says, "a rate for the reparation of the fabric of the church is real, charging the land, and not the person; but a rate for ornaments is personal, upon the goods, and not upon the land. Thus it was defined and agreed in the Court of King's Bench, where the tax was for the reparation of the church, for church ornaments, and for sexton's wages; and because the person rated, though an occupier of land in the parish, dwelt out of it, he was declared to be unduly rated in the two last articles; and it was further agreed that, if a tax be made for the reparation of seats in a church, a foreigner shall not be taxed for that, because he hath no benefit by them in particular. The same distinction as to ornaments was again declared to be good. And long after these, in Woodward's case, in the 4 Jac. II. where the matter was a tax for the bells of the church, a prohibition was granted, upon this suggestion, that the party who prayed it was not an inhabitant of the parish; and the court gave for reason, because it is a personal charge, to which the inhabitants alone are liable, and not those who only occupy in that parish, and live in another. And there can be no doubt but that formerly this distinction was very clearly established and constantly acted upon. At present it is principally important in the bearing which it may have upon the question which will be afterwards discussed, whether the churchwardens alone, or they with a minority of the rate-payers, can make a rate which has been refused by the majority; for it was urged in argument by Sir W. Follett,' in the discussion of that question, that there might and did exist a power in such persons to make a rate for necessary repairs, although it might not exist to make a rate for ornaments, &c. To all practical No such dispurposes, however, no such distinction any longer exists. A tax upon inhabitants as distinct from occupiers would raise a number of doubtful questions on the proper subject of the rate, as well as on the object to which it could properly be applied; and the question of Holt, C. J., appears unanswerable, when he asks, in a case before him, "If a man be an inhabitant as to the church, how can he not be an inhabitant as to the ornaments of the church ?"m See 1 Burn's E. L. "Church Rates;" and Sir W. Follett's arguments in Veley v. Burder. m 1 Salk. 164. See 1 Burn's E. L., ante. 1 Veley v. Burder, ante. tinction now exists. |