"It is not without hesitation that we enter on this controverted ground: not from apprehension of the arguments that may be urged against us, but from disgust at the violent, virulent, and acrimonious tone that has been lately adopted on all subjects affecting the church. Temper and moderation are virtues inculcated by churchmen; but where the supposed rights and interests of their order are concerned, it is inconceivable to what extent they can divest themselves of these qualities.... We must protest against THEIR ASSUMPTION, that every one who differs from them must be deficient in knowledge or candour, and may therefore be lawfully assailed with weapons which in no other literary discussion are allowable."-(pp. 301, 302.)

And he has great pleasure in excepting from this GENERAL censure ONE churchman," viz., Mr. Perceval; that "one churchman" who has asserted that church rate is only a voluntary offering on the part of the people, and who, therefore, is honoured with the observation, that he has cited the ancient laws on church rates with fairness," and "shewn a candour to be desired, but not always to be found, in controversy." Most impartial and candid reviewer! It need but be added, to shew his love of "temper and moderation," his "fairness" and "candour," that these remarks are made by him when commenting on Mr. Hale's calm and temperate reply to as virulent and intemperate a pamphlet as ever issued from the press, a pamphlet which scruples not to use such language as the following:

"The fact is, there are a great number of very unwise, and some very unchristian persons, who would punish every body that does not worship God in the same way as themselves. In the time when church rates were first invented, these people used to burn or hang those who disagreed with them. But now that no one can be put to death for his religion, the same sort of people try everything else they can to punish those whom they call dissenters, for differing from them."-Hist. Rem. p. 22.

Such is the tract for which this lover of temper, moderation, fairness, and, of course, truth, has nothing but laudatory remarks.

So much, then, for the spirit with which this review was written. Let us now proceed to notice its arguments.

On the general observations with which the review commences, on the nature of tithes in the primitive church, it is unnecessary to make any remark, except to remind the reader that they prove nothing in the matter in hand; for the sole question at issue between us, in the matter of church rates, as discussed in the review, is, whether it has or has not been the custom in this country, from time immemorial, (i. e., from a period preceding the year 1189, the first of Richard I.) for the parishioners to assist in keeping the churches in repair, and provided with necessaries for the performance of divine service.* Nay, the reference he proceeds to give to the provisions of the common canon law in this matter, (pp. 297, 298,) and which (by a mistake that a very little knowledge of the subject would have prevented) he speaks of as if they shewed what the law was in this country, is not to the point. The common canon law itself tells us that there were local customs in some countries contrary to its general regulations, and

* I would here observe that, having already published a collection of testimonies on this subject, in the "History of Church Rates," second edition, (where the proofs and authorities here referred to, together with many others, are given at length,) my chief object in the above article has been to point out the incorrectness of the statements and conclusions of the review.

requires those local customs to be observed.* matter of church rates Lord Coke tells us—

And on this very

"By the canon law, parish churches are to be repaired by the parsons of the parish; but the custom of this realm being that the parish churches are to be repaired by the parishioners, or inhabitants of the parishes, this canon BOUND NOT the clergy."+

Nay, so little was the direction in the common canon law here alluded to observed, that, so early as 1180, Pope Alexander III., in a decretal epistle to the Bishop of Lisieux, (Lexoviensi) or, as other MSS. read, of Exeter, (Exonensi,) inserted in the second part of the canon law, returned this answer to an inquiry on the subject:—

"Respecting those who have parish churches, we reply, that they ought to be compelled to contribute to the reparation and building of churches, when necessary, out of the possessions which belong to the church itself, if they have any surplus, that others may be encouraged by their example."‡

This was in 1180. Before we proceed, let us mark the loose and partial mode of quotation adopted by the reviewer, in his reference to the common canon law, and which pervades the whole article:

"Before the end of the fifth century," says the reviewer, "we find the famous quadripartite division established at Rome. By this disposition the whole income of EVERY church . . . . was divided into four parts . . . . It is probable, as Paul Sarpi has conjectured, that these divisions were not arithmetically equal, but variable, according to times and circumstances.”—(p. 297.)

Now, in the first place, the canon of Gelasius, authorizing this division, (the only canon on the subject, in the code of the Roman church, as published under authority by Dionysius Exiguus in 540, and therefore the only well authenticated canon on this subject previous to that period §) has a very important qualification, of which not the slightest notice is here taken-viz., that this division was to be made prout cujuslibet ecclesiæ facultas admittit, which gives a discretionary power materially affecting the character of the decree; and from a passage in the Decree of Gratian it appears that the rule was, that the wants of the clergy should be "first" supplied, and "IF there was any surplus," that it should be laid out for the general purposes of the church. And further, the very passage of Paul Sarpi to which the reviewer has here referred intimates that every church did not receive this ordinance; for it says, "every church which agreed to this division into four parts, settled it in a different proportion, as cir

Extra. de Simo. c. Ad Apostolicam; De observ. jeju. c. Consilium §. Sanctorum et §. Item de illis, et c. fi.

† 2 Inst. 652.

De his qui parochiales ecclesias habent duximus respondendum, quod ad reparationem et institutionem ecclesiarum cogi debent, cum opus fuerit, de bonis quæ sunt ipsius ecclesiæ, si eis supersint, conferre, ut eorum exemplo cæteri invitentur. Decret. Gregor. lib. 3, tit. 48, c. 4.

There is a canon extant on the subject, attributed to Pope Sylvester I., but it is generally allowed to be spurious, and is not to be found in the Decree of Gratian. There is also one attributed to Pope Simplicius, and which (as I had not observed when I wrote the note in page 21 of the "History of Church Rates") is inserted in the Decree of Gratian; but it has not the superior witness of the Code of Dionysius Exiguus in its favour, and is of very doubtful authority.

Decr. Grat. P. 2, xii. 1, c. 27. See Hist. of Church Rates, pp. 21, 22.

cumstances required;" evidently implying that there were some churches that did not receive it.

The first authority quoted, relating to the English church, is, as usual, "Pope Gregory's Letter to Augustine." In this letter, the pope, having mentioned the quadripartite division as "the custom of the apostolical see," directs Augustine, as a monk, instead of adopting this division, to live in common with his clergy; and then adds, "All that remains is to be dedicated to pious and religious uses; for the Lord and Master of all says, 'Give that in alms which you have over and above." From this the reviewer adroitly draws the two following conclusions: first, that this exception from the general rule of a quadripartite division was "not to relax the rule, but to make it stricter than usual'a conclusion which could only have been authorized by a direction, that after a quadripartite division they should apply all that they could spare out of their own portion to religious uses; and secondly, that the "whole income of the infant church was to be devoted to pious and religious uses, after providing for THE EXPENSE OF WORSHIP, and the necessary subsistence of the clergy;" of which I shall only say, that it is painful to have to deal with such statements. The reader will at once perceive that the words "the expense of worship," relating to the question at issue, are actually slipped into this conclusion without one word in the original to authorize their being so introduced.

The reviewer proceeds with an attempt to prove that "the division of tithes in England was tripartite." How far a proof of this would aid him in the question at issue shall be considered hereafter. But I will first notice his remarks on this point.

The first authority quoted is the canon in the "Excerptions of Egbert," which requires a tripartite division of the tithes, and one portion to be set apart for the repair of the church. Now, not to repeat all the arguments by which it may be shewn that these Excerptions afford no proof of what the law was in England, I shall content myself here with stating this one fact, that the seventh canon of that Collection runs thus-"That all priests pray for the life and empire of our lord the Emperor." Was this canon binding upon English priests or not? If not, why the other more than this? The fact is, that it is not put forth as anything more than a collection of extracts from various quarters, made, no doubt, for the information of the clergy, as to the nature of the customs that were in force in various parts of the church, as a general guide to them in their own churches; and accordingly, the canons are mostly given merely as foreign canons- "an African canon," "a canon of Orleans," &c. So Egbert, in his Pœnitential, informs them of various customs which were in use in the Greek and Roman churches, and among "the Christians over the sea;" but without laying them down as rules which they were bound to follow.*

"The second testimony," says the reviewer, "is from a pastoral

* Wilk. i. pp. 122, 123, and 127.

charge written by the monk Elfric for a bishop of the name of Wulfsine." And he adds respecting this passage-" Is it conceivable that an injunction to divide tithes into three parts, one for the repair of the church, one for the poor, and one for the servants of the altar, should have been composed for a bishop as part of an episcopal charge to be delivered to his clergy, if no such practice had been then in existence?" Now, in the first place, such an injunction is not here given, for the charge merely states that "the holy fathers" had decreed such a division, which might well be mentioned, to shew the clergy the duty of giving some portion for the purposes there mentioned, as to this day they are expected to do; and secondly, no one denies that it was the custom, that a portion of the tithes should be given to the repair of the church, and a portion to the poor.

The next evidence quoted by the reviewer is, the law of Ethelred; of which, however, the following will, I think, be found a more correct translation than that he has given :

"And respecting tithes, the king and his wise men have resolved and enacted, as is right, that a third part of those tithes which belong to a church must be given to [implying no more than towards] the repair of the church, and the second part to God's ministers, the third to God's poor and needy slaves."*

This passage, I freely admit, wears the aspect of a compulsory enactment, though it cannot be affirmed, except of the reviewer's translation of it, that it "makes no new enactment, and merely records and confirms the ancient common law of the land." But what does it enact ? The reviewer himself, I suppose, will not say that it meant that the tithes should be divided into three equal parts, for he has already quoted with approbation the remark of Paul Sarpi, that the parts were not to be arithmetically equal, but proportional. What it enacts is, that a portion should be given towards the repair of the church, and a portion to the poor. That this was customary is admitted, and therefore I do not see the great importance of this law, as far as regards determining the custom. The only important question as to this division is, whether the rector had only a right to one third of the tithes, and was, by law, bound to give the remaining two-thirds to the repair of the church and the poor, or whether the portions to be given to the repair of the church and the poor were left to his determination. The latter I believe to have been the case, upon the testimony of the passages given below,+ and others that might be added. What was given to the poor depended always for its amount entirely upon the will of the rector. What was given for the repair of the church was probably at first equally left to his discretion; but, as I shall hereafter endeavour to shew, in process of time, he was considered liable for the repair of a particular portion of the church, and the supply of certain ornaments. The very canon of Gelasius, in the common canon law, prescribing the quadripartite division, requires only (as we have already seen) that it should be made prout cujuslibet ecclesiæ facultas admittit ;

Wilk. Leg. Anglo-Sax. p. 113. History of Church Rates, p. 13.

+ Decr. Grat. p. 2, xii. 1, c. 27; Jo. Act. Comm. in Const. Othob. p. 127; Lyndw. Prov. lib. iii. tit. 4. See History of Church Rates, pp. 21-23.

and until the middle of the twelfth century, when the Decree of Gratian was published, this was the only canon in the common canon law on the subject. This canon might have had some influence upon the practice of the early English church, being inserted in the Code of Dionysius Exiguus, which appears to have been recommended to the attention of the English church by the pope's legate, at the council of Chalchythe, in 785.*

But now take the extreme case, and suppose (what is not the fact) that originally the rector was obliged to appropriate one third of his tithes to the repair and furnishing of the church: will that prove that he was de jure or de facto liable for all the expenses of repair and divine worship? Will it prove that the parishioners did not, and were not bound to, bear a portion of those expenses? Nay, on the contrary, we have distinct and positive testimony that in the times of the AngloSaxons they were bound to do this. The lightscot, for instance, a tax upon the land, was enforced under a penalty so early as the year 878. Moreover, by a law of Canute, published in the early part of the eleventh century, "all persons" were required to "assist in repairing the church."§ Hence the rector has never been liable for more than a portion of these expenses, and the parishioners have always been liable for the rest.

But why, it may be said, if the rector was originally bound to appropriate one third of his tithes to the repairs and ornaments of the church, is he not, by common law, bound to do so now, and only to call upon the parishioners for the surplus expense? I reply-For a very sufficient reason-viz., because the liability of the rector became, at a period beyond the time of legal memory, (as I shall prove presently,) a liability of fixed and definite extent, connected only with a certain portion of the church. The rector has, from time immemorial, had a fixed and definite portion of the burthen to sustain; and, whether it require more or less than one third of the tithes, for that portion, and that portion only, is he liable by the common law of the land. This question of the ancient tripartite division of tithes, then, is of no more use in the present inquiry than the directions of an old almanack.

So far, indeed, is the canonical division of tithes from proving what it has been brought forward to support, that it is referred to at the close of the thirteenth century by Archbishop Peckham, at a period in which confessedly the parishioners were charged by law with the repair of the body of the church, and the supply of almost all the ornaments. ́ In the injunctions issued to the diocese of St. David's by that prelate in 1284, he says, alluding to the fines which some of the clergy brought upon themselves by irregularities, that he regrets to hear that this takes place sometimes to such an extent "that they who are thus fined have not means left to provide for the fabrics nor the poor of their churches, nor to keep up hospitality, as they are bound to do,