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"Now, undoubtedly there, there is a difficulty in the Act, because one does not
find any direction in the Act as to the purposes for which so much of the Garden
pennies and small Tithes as should not be applied for the maintenance and support
of the Rector are to be applied. But when we turn to Section 25, I think there
we find what will satisfy that, because it is in these words And be it further
enacted by the authority aforesaid, that the Rector of the said Parish Church, and
the Churchwardens and Overseers of the Poor of the said new intended 1 arish
for the time being, and all other persons who shall have served or fined for the
Office of Churchwarden or Overseer of the Poor of the said Hamlet or of the said
new intended Parish,' and shall do certain things therein described : 'Shall be
Vestrymen for the time being of the said new intended Parish, and shall meet from
time to time,' and so on; 'and the said Vestrymen, or the major part of them, as
shall be assembled at such Meetings, shall and may from time to time elect and
nominate a Lecturer, as also Churchwardens, Sidesmen, Parish Clerk, and all other
Officers for the said intended Parish, and also from time to time elect and nominate,
amove, and put out the Sexton, Gravediggers, and all other Officers and Servants to
be employed in or about opening the Pews, making the graves, or otherwise, in or
about the said Church; and the Lecturer so to be chosen shall be admitted by the
Rector for the time being to have the use of the Pulpit.'
"Now, here there is a direction that the Vestry shall not only elect and nominate
a Lecturer, but also shall elect and nominate the 'Officers for the said intended
Parish,' that is to say, the Parish Clerk and all those who attend the Church, and
who are to be there for the services of the Church, Pew-openers, &c. And I am of
opinion that Section 35 does direct and authorise that the balance of these Garden
pennies and the small tithes which remain after providing for payment of the Rector,
shall be employed for the payment of those Officers whom, by Section 25, the Vestry
was annually to elect. That is not in terms a direction that the money shall be
applied for the purpose; but when the Vestry are directed to elect and appoint those
Officers, in my opinion that is a direction that that body are to apply, for the
purpose of paying them, the surplus of the Garden pennies and the small tithes.
"Then it will be remarked that the Act does not say here, that which shall have
been applied in lieu of any tithes or other customary payments which shall have
been applied by law to Ecclesiastical purposes, but only which shall have been
appropriated by law to Ecclesiastical purposes; and, although I think we must take
it here, because there has been no denial of the fact, that in fact there never was
any surplus of these small tithes and Garden pennies, yet the surplus, after providing
for the emolument and payment to the Rector, was by Law appropriated; and that
is all which the 5th Section of the Customary Church Rates Abolition Act requires,
not in fact applied, but appropriated. Considering that it gets rid of a point which
was much argued, whether one could say that the Garden pennies aud small tithes
were appropriated. I regard the Composition Rate for the purpose of seeing
whether it is a Church Rate with reference to so much of the small tithes and garden
pennies as remain after those for Ecclesiastical purposes were provided for.
"Well, but then one has to consider this: Is this Composition Rate, so far as it
is a Church Rate, a charge to be made or levied in lieu of or in consideration of
extinguishment or appropriation (it is extinguishment, it is not appropriation for
other purposes) of the customary payments or small tithes so far as they were
applicable and directed to be applied for Ecclesiastical purposes ? Now, one must
look at. the Act which gives power to levy the Composition Rate, and that is the
Act of the 8th and 9th of the Queen. If one looks at the 1st Section of that Act,
there can be no doubt that the power to levy the Composition Rate was granted in
consideration of the extinguishment of those customary payments. Because, what
is that Section of the Act? It is: 'And whereas it would be beneficial to the
inhabitants of the said Parish if the garden pennies, small tithes, Easter offerings,
and all payments in lieu of small tithes arising within the said Parish, were
extinguished, and if the mode of raising the stipend of the Rector of the said Parish
were altered; And whereas it is expedient to authorise the laying of rates on
property in the said Parish for the purpose of raising the said stipend and other
monies hereinafter mentioned, Be it enacted' (and so on) 'that from and immediately