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17
The appeal by the Vestry was dismissed with costs.
The judgment of the Lords Justices, delivered by the Lord Justice
Cotton, was as follows:—
"This Case of The Queen v. The Parish of St. Matthew, Bethnal Green,
is an Appeal from a judgment of the Queen's Bench Division granting a mandamus
to the Churchwardens to make a Composition Bate for the Parish of St. Matthew,
Bethnal Green.
"Now, that Composition Rate was a Rate that was authorised and directed to
he raised by the 8th and 9th Victoria, Chapter 180, and the objects with which that
Rate was to be raised were these:- To pay the emoluments of the Vicar or the
Rector, whoever it was, and then for other purposes which I shall have to refer to
—those other purposes being Ecclesiastical—the repairs of the Church, and the
payment of the Officers of the Church. There was a direction, therefore, to raise
that Rate; but, on the other hand, the Act for the abolition of compulsory Church
Rates was relied on; and that Act directed that from and after the passing of the
Act no suit or proceeding should be taken for the purpose of enforcing the payment
of Church Rates; and then Section 2 contained this provision: 'Where in pursuance
of any General or Local Act any Rate may be made and levied which is
applicable partly to Ecclesiastical purposes, and partly to other purposes, such Rate
shall be made, levied, and applied for such last mentioned purpose only and so far as
it is applied to such purpose shall be deemed to be a separate Rate and not a Church
Rate.' So that the Act which I am now referring to, 31 and 32 Victoria, divides
this Rate into two rates, one of which is to be considered a Church Rate, and the
other of which is not to be considered a Church Rate, and to which, therefore, the
Act does not apply; and as regards the provision for the Incumbent, for the Vicar
or Rector, it was said that there was no objection, and that that was not the matter
in dispute, but the question was whether this Rate, so far as it was applicable to
Ecclesiastical purposes, could now be raised under the Act. Well, so far as I have
gone, it would be impossible to say so; but what we have to consider is the 5th
Section of the Act, and it is to this effect: 'This Act shall not affect any enactment
in any private or local Act of Parliament under the authority of which Church
Rates may be made or levied in lieu of or in consideration of the extinguishment or
of the appropriation to any other purpose of any tithes, customary payments, or other
property, or charge upon property which tithes, payments, property, or charge previously
to the passing of such Act had been appropriated by Law to Ecclesiastical
purposes as defined by this Act,' and what we have, therefore, to consider is this:
whether the authority to raise the portion of the Composition Rate, which is to be
considered a Church Rate, was given under circumstances which bring it within that
Section. Now, one must go back, therefore, a little way to see how this Composition
Rate was authorized, and what was the object and origin of it. St. Matthew's,
Bethnal Green, was not originally a separate Parish, but an Act was passed in the
16th Year of the Reign of George 2nd, which made Bethnal Green a separate
Parish; and at that time there were certain small Tithes and Garden pennies which
were leviable; and, although there is some doubt or difficulty as to the other part
of it, directions are given under this Act, Section 35, as regards the application of
the Garden pennies and small Tithes, and they are these:— 'From and after the
consecration of the said new Church' (that is to say, the Church authorized by the
Act to be erected), 'all Garden pennies, small Tithes, Easter offerings, and other
dues (except surplice fees) arising within the said Hamlet, that have been usually
paid to the said Rector, Vicar, or portionists of the said Parish Church of Stepney,
shall from thenceforth be paid to and received by the Churchwardens of the said
new intended Church, who shall have the same and the like remedy to recover the
same, and compel the payment thereof, as any former Rector, Vicar, or portionists
of the said Parish Church of Stepney have or might have had; and the same shall
be applied for the maintenance and support of the Rector of the said new intended
Church.' Of course there is no difficulty there, because the Rate there was
applicable to Church expenses, 'and such other uses as are hereby directed.'
B