annum. The Defendant Booth was the owner of all the lands in the parish, except about sixteen acres. Under these circumstances, the Plaintiff filed his Bill against the Defendants, claiming the tithes of corn, grain, and hay of the whole parish, and relied upon his common-law right as Rector. The Court held that the Plaintiff's title, as Rector, was satisfactorily established, and that he was entitled to all such tithes as did not formerly belong to the monastery; but the great difficulty was, to ascertain what those tithes were, and how those which formerly belonged to the monastery, and now to the Defendant, as Portionist, were to be separated and distinguished from those which belong to the Rector. Το ascertain this point, a reference was made to the Master, but his Report gave no further information. And now, upon the rehearing, the Court said, that it was impossible for them to make any decree in favour of the Rector, unless he could first shew in respect of what tithes an account was to be taken; and, therefore, that they would detain the Plaintiff's Bill for some time longer, in order to give him an opportunity, in the interim, of electing to take proceedings at common law, for the purpose of establishing his title; otherwise his Bill must be dismissed; but without costs. Note. No subsequent proceedings in this cause have been reported. COURT OF EXCHEQUER, EASTER TERM, 1824. 1 Mc'Cleland's Report, p. 143. (Of a Modus for Clover.) THIS was a Vicar's suit for tithes; and upon a trial at law, directed by the Court of Exchequer, for the purpose of trying the existence of two Moduses pleaded by the Defendants, in answer to the Plaintiff's claim viz.-1st. Yearly for every day's math (acre) of hay, and so in proportion, &c., in lieu of the tithe in kind of hay yearly arising, &c.; and 2d, A cover (two-thirds of an acre) for every cover of clover, and so in proportion, &c., in lieu of tithe in kind of clover. The Jury found a verdict affirming both Moduses; in consequence of which, application was now made to the Court of Exchequer not to confirm the finding of the Jury as to the second Modus, as being contrary to law. On the part of the Vicar, it was insisted that clover, separate and apart from the other grasses, could not be the subject of a Modus ; because, a Modus, to be good, must have existed immemorially, and red clover (which, it was said, must be taken to be the species in question) had uniformly been considered as one of the grasses of modern introduction;-an objection which was made in former cases, referred to *. It was also urged that clover was not indigenous; as • Franklin v. Spilling, 3 Anst. 760. Wood v. Harrison, 3 Gwyl. 970, 'that when the union of Scotland and England was proposed, that part of the plan, which was to introduce sixteen representative peers of Scotland to take their seats in the English House of Lords, was warmly opposed on similar reasoning. But experience has shewn the absurdity of the apprehensions then indulged. In general prophecies of the description to which he alluded had been unaccomplished. Dean Swift had predicted that Ireland would become Presbyterian, and alarmists had foretold that if the Catholics of Canada were admitted to civil rights, we should first lose that country, and then the whole of the United States, through the machinations of the Pope. The United States were gone from us, but Canada remained faithful. His Lordship concluded with the remark, that he did not imagine the Bill would of itself form a panacea for all the evils of Ireland, but he thought it would lead to those future measures, towards which alone she could look for improvement or lasting tranquillity. The Earl of Liverpool met the Question as one of expediency, and in an animated speech, as uncompromising as that in which he delivered his opinion in 1821, he showed that he could look fairly at the advantages which were expected from the measure, and at the evils to which it might give rise. He began by protesting against the situation in which the Lords had been placed by the conduct of the other House. The Commons had sent them a Bill which they knew not how to act by, having purchased a majority for that Bill by the introduction of other measures. At least they ought to know what they had to decide upon, whether it was the measure admitted to them alone, or that measure as joined and connected with two others. The plain proposition which ought to have been admitted to them, distinct from others, was, whether the Catholics of this country and Ireland ought and were entitled to enjoy equal rights and immunities at all points with their Protestant brethren. He himself met it with a decided negative. He said, that the Catholics were not entitled to equal rights in a Protestant country, and that opinion he would maintain. Upon some points he had been favourable to the Catholics; he did not know but there were others upon which he might still be so; but upon that broad principle-that they were entitled to equal rights-he and their friends were at direct issue. He admitted-no man could dream of denying it—that all subjects in a free state were entitled to equal rights, upon equal conditions; but then the qualification of that principle in the case of the Catholics was clear-the Catholics who demanded these equal rights, did not afford equal conditions. The difference was this-it was stated in a moment-the Protestant gave an entire allegiance to his Sovereign; the Catholic a divided one. The service of the first was complete; that of the last only qualified; and unless it could be proved that a half was equal to the whole, he should not be convinced of the truth of the Catholic proposition. Thus, therefore, he took his stand upon the broad principle of justice; he was content to argue the question at present as one of expediency; but he still maintained that his opposition to the spirit of it was founded in principles of justice and of common sense. It was said by the noble Lords on the other side, that the practical effect and conduct of Catholicism should be looked at; and that the actual result and operation of that faith was very different from what its tenets, some of them, in theory, seemed to point to. Practically it was, that he wished to examine the question, and in no other way. Seeing where the appointment of the heads of the Roman Catholic Church in Ireland lay, namely, unrestrictedly with the Pope, who might nominate a foreigner to a Catholic Bishopric if he pleased, and who had actually appointed Irish Prelates at the nomination of the last Princes of the exiled House of Stuart; it was impossible not to apprehend danger from the temporal and practical power exercised throughout the country by the Priesthood. Immediate danger he apprehended none, but it was not always in the brightest and calmest weather, that the storm was most distant. When could the Established Church appear more secure than at the restoration of Charles II., and yet within 20 years it was threatened with total destruction by the machinations of a Popish Prince. Differences between the Established Church and Dissenters did not prevent their amalgamating, but while the Popish Priests hold their influence, there can neither be intermarriage, nor common education, nor any other similar bond between Roman Catholics and Protestants-there must be collision, and dangerous collision. It was the duty, the religion, the oath, the every thing with the Papists to destroy the Established Protestant Church, and the Bill could not possibly have the effect of obliterating all recollection of the bone of contention. It was argued, as if the Catholics were deprived of all civil rights and privileges; whereas they enjoyed more rights and privileges than the subjects of any other Christian Prince. It has been said that the Bill would be a great boon to them. How that could be was not quite so clear, when it went to give places to about forty individnals, on the condition of disfranchising five hundred thousand electors. This was a Protestant constitution-not like that of the United States, where you might pay any Priest you like best, or no Priest at all. Such was not the constitution that he wished for Great Britain. He wanted that constitution which was compacted from the union of Church and State. The noble Earl's concluding remarks pledged him to stand immoveably upon the present state of the law, and exhorted the House as they had the advantage of experience, and were bound by policy, reason and justice, to persevere in their course. Lords Harrowby and Fitzwilliam said a few words in favour of the Bill. The Lord Chancellor opposed it by powerful legal arguments in which he exposed the delusiveness of the securities. His Lordship observed that the preamble of the present Bill was similar to the other Bills presented for Catholic relief. They all declared a solemn acknowledgment of the necessity of securing the Protestant establishment, as previously secured by legislative enactment. There were five acts to guarantee that establishment; but the whole of these were abrogated by the present Bill. That was, the whole substance of these Bills that guaranteed the security were got rid of; and then he would desire to know, where existed the security the preamble acknowledged (hear, hear.) That preamble sets forth. moreover, that it was to knit together the hearts and affections of all his Majesty's subjects. Yet, strange to tell, that the very question which was to be accompanied with all these effects of conciliation and union, their lordships had before refused; and the introduction of which had set the very persons to be benefited by the ears. But the present Bill contained a provision which went to regulate the intercourse with the See of Rome; and who were to be the instruments in superintending the intercourse? Three Roman Catholic commissioners, who refused to give a pledge on their own parts of the Supremacy of the Crown (hear.) He had taken a positive oath, by which he had bound himself to deny the Spiritual or Temporal Jurisdiction of any foreign Prince, Potentate, or prelate within these realms, which, so help him God, he should not violate. It was true that somewhere an interpretation had, he understood, been put on that spiritual jurisdiction by two eminent lawyers, one English, the other Irish, which he undoubtedly did not understand. As a Privy Counsellor he had also taken an oath to defend and maintain entire and inviolate the supremacy and prerogative of his Sovereign. He had also taken the oath of allegiance. He knew that it might be said his mind was fettered by the trammels of a lawyer, but he had the authority of Lord Hales to state, that the oath of allegiance was erected to dissipate the different constructions that were put on the oath of abjuration, which, though not created, was restored by that enactment. Under the sense of these obligations he was prepared to give his opposition to any measure which derogated from the supremacy of his Sovereign. It was out of his mind to understand what a jurisdiction merely spiritual meant. If, by a spiritual jurisdiction, the marriage of a Protestant with a Catholic was set aside, though the Courts of Civil Law of this country compelled the parties to continue in wedlock, he would ask was that a spiritual or temporal jurisdiction (hear, hear, hear)? They had heard much of the Constitution of the States of America. He trusted that the experiment that had been made in that country of a Goverment without a religious establishment, might, for the peace of its people, succeed; but it was not because such an experiment was on trial, that he would agree to surrender the rights and security of that Church Establishment in this country, which had contributed so essentially to its glory, prosperity and happiness. He felt that, in the few observations he made, he had not, at that advanced hour of the morning, expressed himself as clearly as he wished, but he should conclude with assuring their lordships, that after twentyfive years' deep consideration of the subject, he could not, conscientiously with his sense of duty, and the station which he held under the Crown, give his support to the present Bill. The House divided at a quarter before five o'clock, when the numbers were For the Bill present, 84 Against the Bill, present, 113 The majority was nearly one fourth greater than that which rejected Mr. Plunkett's Bill in 1821. was proved by the fact of the erop exhausting itself in two or three years; and that clover, when cut and reared, was hay, and would be covered by a Modus for hay; wherefore, as a day's math, and a cover, are different quantities, the two Moduses were inconsistent one with the other, although for one and the same thing. The Defendants contended that the Modus for clover was good; because clover existed, and was known in this country before the time of legal memory, for which they cited two former decisions*, in the first of which the late Lord Chief Baron Thomson expressly said that clover was indigenous. The Lord Chief Baron Alexander, in delivering the Judgment of the Court, observed, that from all the enquiries which he had been able to make among agriculturists, his undoubted opinion was, that clover is indigenous to this country, and that there was no solid ground for the objection taken. And, with respect to the alleged inconsistency of the two Moduses, his Lordship held, that although clover grass might be covered by a Modus for hay; yet it did not, therefore, follow, that if there was such a production in this country as clover from beyond time of legal memory, there might not be a distinct Modus in respect of it. The Jury had so found it, and their Verdict was an answer to all the objections against the custom. The Verdict of the Jury was accordingly confirmed. WORCESTER ASSIZES, 11TH JULY, 1823. HULME (Clerk) v. Pardoe. 1 Carrington's Reports, p. 93. (Tithe Composition.) THE Defendant, Mrs. Pardoe, was the occupier of a farm, for which she had agreed to pay a Tithe-Composition of £25 per annum, from Michaelmas to Michaelmas. At Lady-day, 1822, she quitted the farm, having, however, after that time, divers titheable articles on the farm, and what is termed the off-going crop. The Plaintiff claimed a year's composition up to Michaelmas, 1822. The Defendant proposed to pay half a year's composition, up to Ladyday, 1822, and the tithe in kind of the off-going crop, but denied her obligation to pay the whole year's composition.: Mr. Baron Hallock ruled, that as the composition was at one fixed sum, from Michaelmas to Michaelmas, and the tithe-year was begun, the defendant having also titheable articles on this farm after the Lady-day, when it was contended the composition expired by her going away, she was bound to pay the whole year's composition, up to Michaelmas, 1822. However, he gave the defendant leave to enter a Nonsuit, if the Court above should think his judgment wrong. Verdict for the Plaintiff. *Bertie v. Beaumont, 2 Price, 303. Stokes v. Morgan, Wood's Decr. 499. HISTORY OF THE DIOCESE OF CANTERBURY. (Continued from No. III. page 231.) DUNSTAN, it seems, in despite of all his miracles, had left his great work very imperfect, since, even within the walls of his own Cathedral, a married Clergy remained to be expelled by his successors. Æthelgar, Siric, Ælfric, each in his turn, is commended for the support he gave to this favourite policy of Rome; but the commendation proves no less the pertinacity of the Anglo-Saxon Clergy in resisting it; and, in fact, it remained for the Sword of the Norman to establish its preponderance. Neither, indeed, did the hierarchy favor all the growing errors of the Romish Church. The latter of the above Primates, (Elfric, consecrated 996) had the character of the most judicious and learned man of his time in the kingdom. Roman Catholic writers are consequently pleased to enrol his name among the great patrons of the Benedictine order, and ascribe to his influence with Ethelred, monastic foundations of which there remain no traces. The works of Elfric, however, which do remain to us are sufficient to vindicate the above eulogy. It has indeed been called in question, how far all the works of Elfric are to be ascribed to the Primate, rather than to another of the same name who sat, twenty years after, in the See of York; but the controversy by no means affects his theological writings, of which the homily that was read in England on Easter-day, is, perhaps, the most curious Saxon relic extant. It may reasonably be ascribed to this homily, set forth by the Primate, and annually delivered to the people, that the growth of the extravagant superstition of the real presence in the Eucharist, which had been gaining ground in the Church for the last century, was arrested among the AngloSaxon Clergy. Our national Church, at this day, cannot more distinctly maintain that the body and blood of Christ are only spiritually partaken, than is asserted in the homily of Elfric, and, in fact, the succeeding generation was reared in that belief, and was regarded in a light little short of schismatics, when the authoritative voice of the Council of Vercelli declared what was thenceforth to be held as the doctrine of the Church. |