THE
Right of the state
The surplus
*
TO ARISE FROM THE ALTERATION
present tenure of ºburto wroperts
CONSIDERED.
BY A BARRISTER,
LON DON :
WILDY AND DAVIS,
4, New Square, Lincoln's Inn; and S.,
12, Baownlow STREET, Holsonn. -
1837.
(,
I, O N D O N :
R ) w ORT II A N I) So N S, DE I, I Y A R n,
T E M I* Llº. J} , \ }{ .
THE SURPLUS
OF
C II U R C II P R O PERTY
CONSIDEREI).
It is contended that the footing on which Church
lands are held and let, “is the worst species of
“ tenure for all concerned, that ever was in-
“ vented,”—(Sir John Campbell's Letter to Lord
Stanley, p. 37,) and that by the enfranchisement of
Church lands, after reserving “to every dignitary
“ and his successor the full amount of his present
“income, upon security that can never fail,”—
(ibid.) a Surplus Fund may be created.
Does this Surplus Fund belong to the state 2
The reader will remember, that the same ques-
tion was proposed by Lord Stanley in the House
of Commons in his speech on the ministerial reso-
lutions with reference to Church rates.
“He (Lord Stanley) should perhaps be told
“ that those funds, which it was now proposed to
“ provide as a substitute for Church rates, be-
“longed to the state. Would such an assertion
“ be ventured on or not ? (Hear, hear, and a cry
( 4 )
“ of go on.) He should like to have an answer
“to his question. (Cheers, and cries of go on.)
“The House had been told by Government last
“year, that they held it to be the duty of the
“Legislature of a Christian country to provide
“ for the fabric of the Established Church at the
“expense and out of the funds of the state; and
“ when he was called on to vote for the resolution
“ before the Committee, was it too much to ask
“ the Government, whether they meant to argue,
“ that the plan they now proposed was a fulfil-
“ment of that engagement, and that the funds
“with which they intended to defray the cost of
“ the repairs of the fabric of the Church were
“funds belonging to the state 2 (Hear, hear.) If
“ he could not get an answer to that question he
“must argue the case without it.” The Noble
Lord received no answer. Since the debate, how-
ever, His Majesty's Attorney General, in the
letter already referred to, has favoured the public
with a “ dictum,” fortified by his own opinion,
that this “new created fund belongs to the state.”
Thus the matter stands for the present, and it is
hoped that the interest which its importance can-
not fail to excite, will enable the reader to give
his attention to the following pages, albeit they
consist for the most part of extracts from law
books.
The question, “does this surplus fund belong
“to the State 7” is in the plain and common-sense

( 5 )
meaning of the words, a question of property.
By an artificial construction, however, it may be
contended that the fund belongs to the State, be-
cause the State, by the exercise of its “absolute
despotic power,” may apply it to any purposes
whatever. It will be desirable to relieve the real
point in debate from the difficulty to which the
confusion of the terms, “absolute power of the
“State,” and “property,” might give rise.
The power of the State is thus described in
Blackstone's Commentaries, vol. i. p. 160. [Here it
may be observed, that the extracts from law au-
thorities in these pages are made, perhaps, some-
what more fully than may be necessary for the
determination of the points in discussion; the ob-
ject being to remove any doubt which might arise
from the absence of the context.]
“The power and jurisdiction of Parliament,”
says Sir Edward Coke, “is so transcendant and
“absolute, that it cannot be confined, either for
“causes or persons, within any bounds. And of
‘ this high Court, he adds, it may be truly said,
“‘si antiquitatem spectes, est vetustissima; si
‘‘ dignitatem, est honoratissima; si jurisdicti-
“‘ onem, est capacissima.’ It hath sovereign and
“uncontrollable authority in the making, confirm-
‘ing, enlarging, restraining, abrogating, repeal-
“ing, reviving, and expounding of laws, con-
“cerning matters of all possible denominations,
“ecclesiastical or temporal, civil, military, mari-
&
&
( 6 )
“ time, or criminal: this being the place where
“ that absolute despotic power, which must in all
“ governments reside somewhere, is intrusted by
“ the constitution of these kingdoms. All mis-
“ chiefs and grievances, operations and remedies,
“ that transcend the ordinary course of the laws,
“are within the reach of this extraordinary tri-
“bunal. It can regulate or new model the suc-
“ cession to the crown ; as was done in the reign
“ of Henry VIII. and William III. It can alter
“the established religion of the land; as was
“ done in a variety of instances, in the reigns of
“King Henry VIII. and his three children. It
“can change and create afresh even the con-
“stitution of the kingdom and of Parliament
“ themselves; as was done by the Act of Union,
“ and the several statutes for triennial and sep-
“tennial elections. It can, in short, do every
“ thing that is not naturally impossible; and, there-
“fore, some have not scrupled to call its power,
“by a figure rather too bold, the omnipotence of
“ Parliament.”
From the perusal of this passage, the reader
must be convinced, that all property, whether
lay or ecclesiastical, is subject to the “absolute
“ despotic power” of the State, and consequently,
that the suggestion, that this particular “surplus
“fund” belongs to the State, on the ground that
the State may apply it to any purpose whatever,
in exercise of that “absolute and despotic power,”
!

( 7 )
is the merest juggle of words. It is a downright
attempt at deception, for it amounts to a sug-
gestion, that the “surplus fund” is, in this re-
spect, an exception to all other property. The
artificial construction of the “question " may, it is
hoped, be now considered as disposed of. Before,
however, proceeding with the main point, it may
be advisable (although it must be admitted to be
a digression) to lay before the reader, the mode
in which the State, with a very few exceptions,
exercises its “absolute and despotic power” over
property.
“The public good is in nothing more essen-
“tially interested, than in the protection of every
“individual's private rights, as modelled by the
“ municipal law. In this and similar cases the
“Legislature alone can, and indeed frequently
“does, interpose, and compel the individual to
“ acquiesce. But how does it interpose and
“ compel ? Not by absolutely stripping the
“subject of his property in an arbitrary manner,
“but by giving him a full indemnification and
“equivalent for the injury thereby sustained.
“The public is now considered as an individual
“ treating with an individual for an exchange.
“All that the Legislature does, is to oblige the
“owner to alienate his possessions for a reason-
“able price; and even this is an exertion of
“ power which the Legislature indulges with
“caution.” — Blackstone's Commentaries, Vol. i.
p. 139.
( 8 ).
In order to determine the question of property,
it will be necessary, in the first place, to ascer-
tain the extent of the interest which the Church
had in its possessions at the common law.
For this purpose, the following authorities will
suffice :— :
“When Littleton wrote, bishops with the con-
“firmation of the dean and chapter, master and
“fellows of any college, deans and chapters,
“master or guardian of any hospital and his
“brethren, parson or vicar, with the consent of
“ the patron and ordinary, archdeacon, prebend,
“ or any other body politic, spiritual and eccle-
“siastical (concurrentibus his quae in jure re-
“quiruntur), might have made leases for lives
“ or years without limitation or stint. And so
“might they have made gifts in tail or estates
“ in fee at their will and pleasure, whereupon
“not only great decay of divine service, but
“dilapidations and other inconveniences ensued,
“ and, therefore, they were disabled and re-
“strained by the Acts of 1 Eliz., 13 Eliz., and
“3 Jac. Regis, to make any estate or conveyance
“ to the King at all, or to the subject; but there
“ is excepted out of the restraint or disability,
“ leases for three lives, or one and twenty years,
“ with such reservation of rent, and with such
“other provisions and limitations as hereafter
“shall appear.”—Coke upon Littleton, 44, a.
Again,
“As to leases made by ecclesiastical persons,
( 9 )
“ by the common law, we shall but briefly ob-
“serve, that all ecclesiastical persons had, in
“former times, as full power and authority to
“lease, grant, or alien their possessions, as tem-
“ poral persons had, that is, if the grant, &c.,
“made by a sole corporation was with the con-
“sent of others, whose confirmation was in such
“case necessary; for though deans and chapters,
“masters and fellows of colleges, masters and
“brethren of hospitals, and such like corpora-
“tions aggregate, might of themselves alone,
“ without the consent or confirmation of any,
“ have made long leases for lives or years, or
“gifts in tail or fee, at pleasure; yet bishops,
“deans, &c., seised in right of their bishoprics,
“deaneries, &c., so archdeacons, prebendaries,
“ parsons, vicars, if they aliened or leased, must
“ have had the consent and confirmation of others,
“who had the power of confirming in that behalf,
“ and then their grants, &c., were as good as
“ those made by aggregate corporations.”—Ba-
con's Abridgement. Leases (E).
Again,
“Whatever restriction, by the severity of the
“feodal law, might, in times of very high an-
“ tiquity, be observed with regard to leases; yet
“ by the common law, as it has stood for many
“centuries, all persons seised of any estate might
“let leases to endure so long as their own in-
“terests" lasted, but no longer. Therefore,
ſº

e ( 10 )
“tenant in fee simple might let leases of any
“duration ; for he hath the whole interest, but
“tenant in tail, or tenant for life, could make no
“ leases which should bind the issue in tail or
“reversioner: nor could a husband, seised jure
‘ uxoris, make a firm or valid lease for any longer
“ term than the joint lives of himself and his
“wife, for then his interest expired. Yet some
“tenants for life, where the fee simple was in
“ abeyance, might (with the concurrence of such
“ as have the guardianship of the fee) make
“leases of equal duration with those granted by
“tenants in fee simple, such as parsons and
“ vicars, with consent of the patron and ordinary.
“So also bishops and deans, and such other sole
“ecclesiastical corporations as are seised of the
“fee simple of lands in their corporate right,
“might, with the concurrence and confirmation
“ of such persons as the law requires, have made
“leases for years, or for life, estates in tail, or in
“fee, without any limitation or control. And
“corporations aggregate might have made what
“estates they pleased, without the confirmation
“ of any person whatsoever.”—Blackstone's Com-
mentaries, Vol. ii. p. 318.
From these extracts it is clear that, at the
common law, the Church had within itself the
fee simple absolute of its possessions, to all
intents and purposes, and as there cow'd be no
greater estate (Littleton, sec. 11.), it föflows as
º

( l l )
an irresistible consequence, that at the common
law, the State could have no property whatever in
the possessions of the Church.
It will, perhaps, be contended, that the pro-
perty of the State, in the possessions of the
Church, is derived under the statutes restraining
the alienation of Church lands. These statutes
must, therefore, be considered. The first is
1 Eliz. c. 19, (passed A. D. 1558.) The only
part of it which affects the present question is
the 5th section.
Sect. 5. “And be it further enacted, by the
“authority aforesaid, that all gifts, grants, feoff-
“ments, fines, or other conveyances, or estates,
“ from the first day of this present Parliament, to
“ be had, made, done, or suffered by any arch-
“bishop or bishop, of any honours, castles, manors,
“lands, tenements, or other hereditaments, being
“ parcel of the possessions of his archbishoprick or
‘ bishoprick, or united, appertaining, or belong-
ing to any the same archbishopricks or bishop-
ricks, to any person or persons, bodies politic
or corporate, other than to the Queen's High-
“ness, her heirs or successors, whereby any
“estate or estates should or may pass from the
same archbishops or bishops, or any of them,
other than for the term of twenty-one years or
three lives from such time as any such lease,
“grant, or assurance, shall begin, and whereupon
“ the old accustomeed yearly rent or more, shall
&
& &
&
G
6 &
& 4
6
6
& 6

( 12 )
“be reserved and payable yearly during the said
“ term of twenty-one years or three lives, shall
“ be utterly void and of none effect, to all in-
“tents, constructions, and purposes, any law,
“custom, or usage, to the contrary in any wise
“notwithstanding.”
Of this Act, Sir William Blackstone says, that
it was “made entirely for the benefit of the suc-
“cessor.”—Commentaries, Vol. ii. p. 320.
The next is 13 Eliz. c. 10, s. 3.
“And for that long and unreasonable leases
“made by colleges, deans and chapters, parsons,
“ vicars, and other having spiritual promotions,
“ be the chiefest causes of the dilapidations and
“ the decay of all spiritual livings and hospi-
“tality, and the utter impoverishing of all suc-
“cessors incumbents in the same: be it enacted,
“by the authority aforesaid, that from henceforth
“all leases, gifts, grants, feoffments, convey-
“ances, or estates, to be made, had, done, or
“suffered by any master and fellows of any
“college, dean and chapter of any cathedral or
‘ collegiate church, master or guardian of any
“hospital, parson, vicar, or any other having any
‘spiritual or ecclesiastical living, or any houses,
“lands, tithes, tenements, or other hereditaments,
“being any parcel of the possessions of any such
“college, cathedral church, chapter, hospital, par-
“sonage, vicarage, or other spiritual promotion,
“ or any ways appertaining or belonging to the
&
6

( 13 )
“ same, or any of them, to any person or persons,
“ bodies politick, or corporate, (other than for the
“ term of one and twenty years, or three lives,
“ from the time as any such lease or grant shall
“ be made or granted, whereupon the accus-
“tomed yearly rent or more shall be reserved
“ and payable yearly during the said term,) shall
“ be utterly void,” &c.
Of this statute Sir Edward Coke says, that it is
“cousin german” to 1 Eliz. c. 19.-Bishop of
Salisbury's case, 10 Reports, 60 b. The object of
the enactment, as stated in the preamble of sect.
3, is fully set forth in the case of Magdalen
College, l l Reports, 66 b.
Blackstone sums up, in the following passage,
the effect of this statute with others of the same
reign, which for the present purpose do not re-
quire a more specific notice.
“Next comes the statute 13 Eliz. c. 10, ex-
“ plained and enforced by the statutes 14 Eliz.
“ c. 11 and 14, 18 Eliz. c. 11, and 43 Eliz.
“c. 29, which extend the restrictions, laid by
“ the last-mentioned statutes on bishops, to cer-
“tain other inferior corporations, both sole and
“aggregate. From laying all which together
“we may collect, that all colleges, cathedrals,
“ and other ecclesiastical or other eleemosynary
“corporations, and all parsons and vicars, are
“restrained from making any leases of their lands,
“unless under the following regulations:–1.

( 14 )
“They must not exceed twenty-one years, or
“three lives, from the making. 2. The accus-
“tomed rent, or more, must be yearly reserved
“ thereon. 3. Houses in corporations, or market-
“towns, may be let for forty years, provided
“ they be not the mansion-houses of the lessors,
“ nor have above ten acres of ground belonging
“ to them ; and provided the lessee be bound to
“ keep them in repair; and they may also be
“aliened in fee simple for lands of equal value in
“recompense. 4. Where there is an old lease in
“being, no concurrent lease shall be made, unless
“where the old one will expire within three
“ years. 5. No lease (by the equity of the
“statute) shall be made without impeachment of
“waste. 6. All bonds and covenants tending to
“frustrate the provisions of the statutes of 13 and
“ 18 Eliz. shall be void.”—Commentaries, Vol. ii.
p. 321.
The last of the restraining statutes is I Jac.
c. 3, which, after a statement that archbishop's
and bishop's lands were originally grants from
the crown, and of the effect of the l Eliz. c. 19,
proceeds thus:—
“His Most Excellent Majesty, understanding
“that divers persons have, with great suit and
“importunity, sought to frustrate the true end
“ and intent of the said good laws and statutes
“in that behalf, of his Christian and princely
“ piety and care, minding so to patronize and
I-
( 15 )
“protect the said possessions from alienation or
| “ diminution, as that the same may, according to
“ the true intent of the founders, remain and
“ continue in succession to the archbishops and
“bishops of this realm, and their successors,
“for the better maintenance of God's true Re-
“ligion, keeping of hospitality, and avoiding of
“dilapidations, and thereby for ever hereafter to
“ avoid all suits and importunities for or con-
“cerning any of the said possessions, hath, out
“of his own mere and godly motion, and of his
“blessed disposition for the public good, without
“all regard of any private respect, vouchsafed
“ and is pleased, That it may be enacted, &c.,
“that every archbishop and bishop within this
“realm, and their and every of their successors,
“shall be, from and after the end of this present
“session of Parliament, for ever wholly and
“utterly disabled in law, to make, do, levy, or
“suffer any act or acts, thing or things, whereby
“ or by means whereof, any of the said honours,
“castles, manors, lands, tenements, or heredi-
“taments, or any part of them, or any of them,
“shall or may be aliened, assured, given, granted,
“demised, charged, or in any sort conveyed to
“our sovereign Lord the King, his heirs or suc-
“ cessors.”
Of these three statutes (1 Eliz., 13 Eliz., I Jac.)
Sir Edward Coke says. “These be excellent
“laws, and have been well expounded, for the

( 16 )
“maintenance of religion, and the good of God's
“Church; for otherwise it is to be feared that
“ the Holy Church would lose more than it
“would gain in these days.”—Coke upon Littleton,
342.
Now, it will be observed, that there is not an
expression in these enactments which can be
tortured into an intention, on the part of the
Legislature to give the State a title to any “sur-
“plus fund” to arise from the revenues of Church
property. On the contrary, there is a uniform
determination throughout to preserve the reve-
nues of Church lands to the Church “without
“ diminution.” A modern Act of Parliament, the
39 & 40 Geo. 3, c. 41, may here be referred to,
as a proof that up to a late period the Legislature
did not assert a title to any “surplus” to arise
from an alteration in the tenure of Church pro-
perty. The following is the Preamble of the
Act.
“Whereas doubts have arisen, whether arch-
“bishops, bishops, masters, and fellows of col-
“leges, deans and chapters of cathedral and
“collegiate churches, masters and guardians of
“hospitals, and others having any spiritual or
“ecclesiastical living or promotion, who are by
“several acts, passed in the reigns of their late
“ majesties king Henry the Eighth, and queen
“Elizabeth, restrained from granting any leases
“of their estates, whereon the accustomed yearly

( 17 )
“rent is not reserved, can lawfully grant sepe-
“ rate leases of parts of lands or tenements which
“ have been usually demised by one lease and
“ under one rent, reserving on the several parts
“so demised less than the rent anciently re-
“ served on the demise of the whole, though the
“aggregate amount of the rents so reserved on
“such separate demises, should be equal to or
“exceed the amount of the annual accustomed
“rent for the whole; And whereas many such
“ separate leases have been granted, and great
“inconvenience may arise to persons claiming
“under such leases, if such leases should not be
“deemed valid and effectual, in case the amount
“ of the rent anciently reserved on demised of the
“whole shall appear to have been reserved on
“ the separate demises of the different parts;
“ and the power of dividing tenements, anciently so
“ demised, in one parcel at one rent, may in many
“cases tend to improve the value of the estates
“ belonging to such ecclesiastical persons and bodies
“ respectively, as well as to the benefit of their
“lessees and the public.” [Various enactments
follow to carry out the proposition contained in
the preamble.]
It was not at that time suggested by the
State, that the old rent only should remain to the
Church, and that the increased rent to arise from
dividing farms should belong to the State.
Nothing of the sort. One of the reasons for the
C

( 18 )
measure was, “to improve the value of the
“estates belonging to such ecclesiastical per-
“ sons.”
As a last resource it may be urged, that,
because this “worst species of tenure” cannot
be altered without the interference of the State,
the State is therefore entitled to the increase to
arise from its interference. The reader may
smile at the improbability of such a claim being
advanced, but it must be remembered, that they
who assert the title of the State to this “ surplus
“fund” are men of whom it may be said in the
language of Burke (French Revolution, 181), “The
“ spoil of the Church has now become the vital
“ principle of all their politics; the sole security
“for the existence of their power.” The claim
may, therefore, be worth the following brief refu-
tation.
Who was entitled to the whole profits of
Church lands at Common Law 2–The Church.
Who created the tenure which has depreciated
the value of Church lands; that tenure which has
been designate by Sir John Campbell as “ the
worst species of tenure for all concerned that ever
was invented”?—The State.
What was the object of the State in creating
it?—To preserve the Revenues of Church lands
to the Church, without diminution.
Suppose this “worst tenure” removed, or in
other words, the restraining Acts repealed, what
( 10 )
would be the result –The Common Law would
be revived, and, as a consequence, the Church
might adopt such mode of leasing &c. as would
secure to it the largest revenue.
Then the Church is still entitled to the whole
profits of Church lands, subject only to the oper-
ation of the restraining statutes, which were
framed to preserve the revenues of Church lands
to the Church without diminution, and not to
transfer to the State any part of those revenues
—Most certainly.
And by consequence, the State has no title to
the “surplus fund” in respect of the power of
the State to alter the present tenure of Church
lands.
The following sentences may be added, though
they refer rather to “power” than “property.”
It would seem then, that the State, intending a
benefit to the Church, has in fact done it a
wrong?—Clearly.
And if the State should now take measures to
increase the revenues of Church lands, but appro-
priate the increase to the State, the State would
thereby take advantage of its own wrong 2–Most
clearly.
It is confidently hoped that the perusal of
these pages will lead the candid reader to the
2 º' g - a ºv.” *. º * *- $.” - - -- - . . . . . . . .” ---, - * - . ºrº-
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sº se “surplus fund,” which his
Majesty’sº º is ãº. propose to create out of the
Revenues of Church lands, does not belong to the
State. If a great name is required to confirm
this opinion, be it remembered Burke has said,
that of Church property “The State is not
“ the proprietor for use or dominion, but the
“guardian only, and the regulator.”— French
Revolution, p. 150.
SUUM CUIQUE.
LINcolN's INN,
19th April, 1887.
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... . . .
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fes ºf *
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LON DON :
C. Row ORTH AND SONs, B I. Lt. Yan D,
F1.P. ET STREET.