ANTIQUITIES OF THE LAW.[Wehave received this article from a very distinguished and learned member of the New York bar, with an accompanying letter, in which he writes, among other things, as follows:“Confined as I am by my infirmities to my house, and wearying of the sameness of the life I have to lead, I sometimes vary my occupation by delving into the ‘Antiquities of the Law.’“I have lately come across an old law book published in 1711, which has been several years in my library, but entirely lost sight of by me until recently.“From that I have been compiling some articles for one of our law journals, and began the accompanying article for the same publication.“While writing it, it occurred to me that it might be more useful, if not more interesting, to the readers of such a journal as yourCatholic Worldthan to those of a mere law journal; and as I abhor religious intolerance in all forms, and see so much of it in this country, I concluded to send it to you, thinking perhaps you may deem it advisable to use it.”]Abjuration.—The statute 35Eliz. cap.2 was made wholly against Popish Recusants convict above 16 Years of Age, enjoining them not to remove above 5 Miles from their Habitation: if they do, and not being covert (married?), nor having Land to the Value of 20 Marksper Annumor Goods worth £40, they must abjure the Kingdom.Hale’s Pl. Cr.228.“Likewise upon Persons who absent themselves from Church without just Cause, and refusing to conform within 3 Months after conviction.”35 Eliz. cap. 1.Armour.—(Recusancy was denying the Supremacy of the Queen and adhering to the Pope as Supreme Head of the Church.) “The Armour of Recusants convict shall be taken from them by Warrant from Four Justices of Peace.”“If they conceal their Arms or give any Disturbance in the Delivery, one Justice may commit them for 3 months without Bail.”3 Jac. cap. 5.Bail: When allowed or denied.—A Minister “depraving” the Common Prayer-Book, as fixed by Statute, was liable, for first offence, to commitment for 6 months; for second offence, for a year; and for third offence, for life.“Being present at any other Form: First Offence, Commitment for 6 Months; Second Offence, 12 Months; Third Offence, for Life.”Recusants. “Suspected to be a Jesuit, Seminary, or Priest, and being examined refuseth to answer, may be committed till he answer directly.”“Impugning the Queen’s Authority in Ecclesiastical causes; perswading others to it or from coming to church; meeting at Conventicles, under Colour of Religion, or perswading others to meet there, commitment till they conform and make an open Submission and Declaration of their conformity.”“Absenting from Church on Sunday, and no Distress to be had, Commitment till Forfeiture is paid.”“Above the Age of 16, and absentingfor a Month: Forfeiture 20s.per Month, or be committed till paid.”23 Eliz. cap. 1.Keeping a School Master or “any other Servant in the House, and not coming to Church for a Month, the Master of such House forfeits £10perMonth.”Blasphemy.—By Statute 9 and 10Will., “Any Person bred in or professing the Christian Religion, and who shall, by Writing, Printing, Teaching, or advised Speaking deny any one of the Persons in the Trinity; or assert that there are more Gods than one; or deny the Christian Religion to be true, or the Holy Scriptures to be of Divine Authority, shall be disabled to have any office,” and “if convicted a second time, he shall be disabled to sue in any court, or to be a Guardian or Executor or Administrator, and be incapable of any Legacy or Gift, or of any office, and shall be committed for Three Years without Bail.”Church Wardens.—“By Common Law they are a corporation to take care of the Goods of the Church.”“An Attorney cannot be made a Church Warden.”2 Roll. Abr. 272.“He is to see that the Parishioners come to Church every Sunday and Holiday, and to present the Names of such who are absent to the Ordinary, or to levy 12d. for every offence,per Stat. 5and6 Ed., 1 Eliz. cap. 1.”“Arresting a Minister going to or returning from Church may be punished by Indictment or bound to Good Behaviour. The Offence is the same if a Layman be arrested. Quarreling in Church or Church Yard, if a Layman may be suspendedab ingressio Ecclesiæ; if a Clergyman,ab officio. But if a Weapon be drawn with intent to strike, the Party may be convicted, etc., and Judgment to lose one of his Ears by cutting it off, and if no Ears, to be marked in the Cheek with the Letter F.”5and6 Ed. VI. cap. 4.Seats in Churches.“The Ordinary may place and displace whom he thinks fit.”“A Man may have a Seat in a Church appendant to his House, and may prescribe for it, etc. But one cannot prescribe to a Seat in theBody of the Churchgenerally.”Roll. Abr., 2 Pars. 288.“The case is the same in anIsle of a Church.”2 Cro. 367.“Presentments” are to be made by the Church Wardens, usually twice a year, but cannot be compelled oftener than once a year, except at the Visitation of the Bishop.The Articles commonly exhibited to them to make their Presentments may be reduced thus, viz.:To Things which concernthe Church, the Parson, the Parishioners.And First, to those Things which concern the Church; as,Alms, whether a Box for that Purpose; Assessments, whether made for repairs; Bells and Bell Ropes, if in Repair; Bible, whether in Folio; Canons, whether a Book thereof; Carpet; Chest, with three Locks; Church and Chancel in Repair; Creed in fair Letters; Cups and Covers for Bread, etc.; Cushion for Pulpit; Desk for Reader; Lord’s Prayer in fair Letters; Marriage, a Table of Degrees; Monuments safely kept; Parsonage House in Repair; Church Yard well Fenced; Commandments in Fair Letters; Common Prayer-Book; Communion Table; Flaggon; Font; Grave Stones well kept; Queen’s Arms, set up; Register Book in Parchment; Supplies, whether any; Table-cloth; Tombs well kept.2.Those Things which concern the Parson:Articles 39, if read twice a Year; Baptizing with Godfathers; Canons, if read once a Year; Catechising Children; Common Prayer, if read, etc.; Dead, if he bury them; Doctrine, if he preach good; Gown, if he preach in it;Homilies, if read or he preach;January30th, if observed; May 29th, if observed; Marrying privately;November5th, if observed; Preaching everySunday; Peace Maker; Perambulation; Sacrament, if celebrated; Sedition, if vented; Sick, if visited; Sober Life; Surplice, if wear it.3.Those Things which concern Parishioners:Adulterers, if any; Alms Houses, if abused; Ale Houses, and in Divine Service; Answering, according to Rubrick; Baptism, neglected by Parents; Blasphemers; Church, resorting to it; Dead, if brought to be buried; Drunkards, if any; Fornicators, if any; Legacies, if any given to pious Uses; Marrying within prohibited Degrees; Marrying without Banns, Licence, or at unlawful hours; Sacraments received 3 times in a year of all above 16, whereof Easter to be one time; School, if abused; Seats, if Parishioners are placed in them without contention; Standing up;Sundays, working therein; Swearers, if any; Women, if come to be Churched.”“A Warrant against one for not coming to Church.“To the Constable, etc.: “Sussex, ss. Whereas Oath hath been made before me That J. O. of, etc., did not upon the Lord’s Day last past resort to any Church, Chapel, or other usual Place appointed by Common Prayers, and there hear Divine Service according to the Form of the Statute in that case made and provided.“These are therefore to require you, etc., to bring the said J. O. before me to answer the Premises. Given, etc.”“Any Man may build a Church or Chappel, but the Law takes no Notice of it as such till it is consecrated, and therefore, whether Church or Chappel, it must be tried by the Certificate of the Bishop.”Clergy and Benefit of Clergy.—“Before the 20Ed. I., the Clergy paid no Tenths to the King for their Ecclesiastical Livings, but to the Pope; but in that King’s reign, their Livings were valued all over England, and the Tenths paid to the King; and by the Statute 26Hen. VIII. cap.3, they were annexed to the Crown forever.”Many of their privileges were “confirmed byMagna Carta, viz.,Quod Ecclesia sit libera.”“As to the Benefit of Clergy, it was introduced by the Canon Law, Exempting their persons from any Temporal Jurisdiction. ‘Tis a Privilege on purpose to save the Life of a Criminal in certain cases, if he was a man of learning, as accounted in those Days, for as such he might be useful to the Publick.—At first it was extended to any person who could read, he declaring that he had vowed or was resolved to enter into Orders, and the Reading was to show he was qualified.—But afterwards the reading without a Vow to enter into Orders was held good, and now ‘tis become a legal conveyance of Mercy to both Clergy and Laity.”“But tho’ the Ordinary usually tenders the Book, the Court are the proper Judges of the Criminal’s Reading: Therefore, where the Ordinary answerQuod legit, the Court judged otherwise, fined the Ordinary, and hanged the Person.”“Now, if a Man cannot read where Clergy is allowable, and ‘tis recorded by the CourtQuod non legit: if theOffender be reprieved, the Book may be tendered to him again because ‘tisin favorem vitæ, for which Reason he may have it under the Gallows.”Dyer, 205b.“In those days, an offender might have his Clergy even for Murdertoties quoties, but this was restrained by the statute of 4Hen. VII. cap.13, that he should have it but once. And for the better Observance of that Law, it was then provided That the Criminal should be marked upon the Brawn of the Left Thumb, that he might be known again upon a second Offence”—“which was not intended as any Part of the Judgment”—“It was only a Mark set upon the Offender that he might not have his Clergy a second Time.”By the Common Law, “all Offenders, except in Treason against the Person of the Queen,” should have the Benefit of Clergy “andtoties quoties; but by statute of 25Ed. III. cap.4, it was prohibited in Treasons; and by that of 4Hen. VII.it is restrained to one Time, so that now (i.e.in 1711) there are but very few cases wherein the Common Law denies Clergy, but in many ‘tis taken away by several acts of Parliament.”Among those from whom it was thus taken away, were Popish Recusants by act of 35Eliz. cap.1 and 2, and those who receive Priests being natives of England, and ordained by the See of Rome by act of 27Eliz. cap.2.“In Anno 2Ed. VI., the Reformers, intending to bring the Worship of God under set forms, compiled a Book of Common Prayer, which was established by Act of Parliament in that year.”“But because several things were contained in that Book which showed a compliancy to the superstitious Humours of those times, and some Exceptions being made to it by precise Men at Home and byJohn Calvinabroad, therefore two years afterwards it was reviewed, in whichMartin Bucer[31]was consulted and some Alterations were made, which consisted in adding some Things and leaving out others, as in the former Edition:The Additions were, viz.:A general Confession of sins to the daily service.A general Absolution to the truly Penitent.The Communion to begin with reading the Commandments, the People kneeling.And a Rubrick Concerning the Posture of kneeling, which was afterwards ordered to be left out by the statute of the 1Eliz., but is now again explained as in 2Ed. VI.Left out:The use of Oil in Confirmation and Extream Unction. Prayers for Souls departed.And what tended to a Belief of the Corporeal Presence in the Consecration of the Eucharist.”“Afterwards,Anno5Ed. VI., a Bill was brought into the House of Lords to enjoin Conformity to this new Book with these Alterations, by which all People were to come to those Common Prayers under pain of Church Censure, which Bill passed into a Law,Anno5 and 6Ed. VI.; but not being observed during the reign of Queen Mary, it was again reviewed by a Committee of Learned Men (naming them), and appointedto be used by every Minister,Anno1Eliz., with some Additions, which were then made, viz.:“Certain Lessons for Every Sunday in the Year, some Alterations in the Liturgy, Two Sentences added in the Delivery of the Sacrament, intimating to the Communicants that Christ is not Corporeally present in the Elements, etc. The Form of making Bishops, Priests, and Deacons was likewise added.”“Upon these and other Statutes several Things are to be considered:1. The Punishment of a Minister for refusing to use or depraving the Book of Common Prayer.2. The Punishment of any other Person depraving it, and of such who shall hear or be present at any other form.3. Who are bound to use it.4. Who must provide it.”The Punishment of the Minister was for 1st offence, loss of a year’s Livings and six Months’ imprisonment; 2d offence, Deprivation and Imprisonment for a Year; 3d offence, Imprisonment for Life and Deprivation.Any other Person, for 1st Offence, six months’ Imprisonment; 2d Offence, twelve months; and 3d Offence, for Life. 5 and 6Ed. VI. cap.1.“No Form of Prayer should be used in any Public Place other than according to the said Book.”By Statute 3Jac. cap.4, Constables “must once a Year present to the Quarter Sessions those who absent themselves for the space of a Month from Church”; and he must levy certain forfeitures on those who keep or resort to Bowling, Dancing, Ringing, or any sport whatever on the Sabbath; and on a Butcher who shall kill or sell Flesh on that day.Recusants“are those who refuse or deny Supremacy to the Queen by adhering to the Pope as Supreme Head of the Church.”“Anno24Hen. VIII. cap.12, Parliament prohibitedAppealstoRome, etc.”25Hen. VIII.“The King appointed thatConvocationsshould be assembled by his Writ, and that noCanonsorConstitutionsshould be contrary to his Prerogative or the Laws of the Land.”“In the same Year an Act passed to restrain the Payment ofFirst Fruitsto the Court ofRome.”“In the next Year, 26Hen. VIII., An Act passed by which the First Fruits of all Spiritual Livings were given to the King.”In the same Year, “an Act passed, prohibitingInvestituresof Archbishops or Bishops by the Pope; but that in a Vacancy the King should send hisLetters-missiveto a Prior or Convent, Dean or Chapter, to choose another.”“Likewise, in the same Year, allLicensesandDispensationsfrom the Court of Rome were prohibited, and that allReligious Housesshould be under theVisitation of the King.”And by an Act passed the same Year (viz., 1534), The King was “declared to beSupream Head of the Church.”“But he did not exercise any act of that Power till a year afterwards, by appointing Sir ThomasCromwellto be his Vicar General in Ecclesiastical Matters, and Visitor of all theMonasteriesand other Privileged Places in the Kingdom.”In 27Hen. VIII.(1536) “all thelesser Monasteries, under the number oftwelve Persons, and whose Revenues were not of the Value of £200per annum, were given to the King, his Heirs and Successors; and a Court was erected on purpose for collecting the Revenues belonging to these Monasteries, which was calledThe Court of Augmentation of the King’s Revenue, who had full power to dispose of those Lands for the Service of the King.”The officers of this Court had, among its other duties, that of inquiring “into the Number ofReligiousin the House, and what Lives they led; how many would go into other Religious Houses, and how many into theWorld, as they called it.”The whole of the goods thus confiscated were valued at £100,000, and the rents of these small Monasteries came to £32,000per annum.“This occasioned great Discontents amongst the people,” to appease which the King sold some of the Lands “to the Gentry” at low Rates, “obliging them to keep up Hospitality.”“This pleased both them and the ordinary Sort of People for a little time; and, to satisfy others,” the King “continued or gave back thirty-one Houses. But these, about two Years afterwards, fell under the Common Fate of the great Monasteries, and were all suppressed with them.”“But notwithstanding he gave back some of these Houses, yet the People were still discontented, and openly rebelled inLincolnshire, which was quieted by a Pardon: There was another Rebellion inYorkshireand the Northern Counties, which ended also in a Pardon, only some of the chief of the Rebels were executed for this last Rebellion.”Most of the Monasteries, “seeing their Dissolution drawing near, made voluntary Surrenders of their Houses in the 29thyear of Hen. VIII., in Hopes by this means to obtain Favor of the King; and after the Rebellion, the rest of the Abbots, both great and small, did the like; for some of them had encouraged the Rebels, others were convicted by the Visitors of great Disorders, and most of them had secured all the Plate, Jewels and Furniture belonging to their Houses, to make Provision for them and Relations and then surrendered their Monasteries.”“Afterwards,Anno31Hen. VIII., a Bill was brought into the House of Peers to confirm these surrenders. There were 18 Abbots[32]present at the first Reading, 20 at the second, and 17 at the third. It soon passed the Commons and the Royal Assent; and by this Act all the Houses, etc., were confirmed to the King.”“‘Tis true, the Hospitallers, Colleges and Chanteries, etc., were not yet dissolved.... These had large endowments to support themselves and to entertain Pilgrims,” etc.“But notwithstanding the King was declared to be the Supreme Head of the Church, yet these Hospitallers would not submit,” etc., “and therefore, Anno 32Hen. VIII. cap.24, The Parliament gave their lands to the King and dissolved their Corporation.”“The Colleges and Chanteries still remained; but the Doctrine of Purgatory being then grown out of Belief[33]and some of those Fraternities having resigned in the same manner as the Monasteries, the Endowments of the rest were then thought to be for no purpose, and therefore,Anno37Hen. VIII., all these Colleges, Free Chapels, Chanteries, etc., were given to the King by Act of Parliament.”“Thus in the Compass of a few years, the Power and Authority of the See ofRomewas suppressed in this Kingdom. And because frequent Attempts have been made to revive it, therefore, in succeedingTimes, several Laws have been made to keep them in subjection.”Among those were the following: Recusant Convict above 16 must go to his place of Abode and not remove 5 miles without license or otherwise abjure the Realm. Not departing within the time limited by the Justices, or returning without license from the Queen, was felony without Benefit of Clergy. 35Eliz. cap.2.“To absolve or to be absolved by Bulls from the Bishop of Rome was High Treason.” 13Eliz. cap.2.“Bringing anAgnus Deihither, or offering it to any Person to be used, both he and the Receiver incurs aPremunire.[34]13Eliz. cap.2. All Armour shall be taken from Recusants by order of four Justices.” 7Jac. cap.6.Bringing over Beads or offering them to any person, both he and the Receiver incur a Premunire. 13Eliz. cap.2.“Two Justices may search Houses for Books and Relicks, and burn them.” 3Jac. cap.5.“Every Popish Recusant must be buried in Church or Church yard according to the Ecclesiastical Laws, or his Executor or Administrator forfeits £20.” 3Jac. cap.5.“Children of Recusants must be baptized by a lawful Minister, or the Parent forfeits £100.” 3Jac. cap.5.“Popish Recusant, if he sue any person, the Defendant may plead it in Disability.”He “shall not be Executor, Administrator, or Guardian.” 3Jac. cap.5.A married woman, a Popish Recusant convict, “not conforming within 3 months after conviction, may be committed by two Justices until she conform, unless her Husband will pay to the King 10 shillings per month or a third part of his Lands.” 7Jac. cap.6.“Popish Recusant marrying otherwise than according to the Forms of the Church of England shall forfeit £100. If a woman, not have her Dower or Jointure or Widow’s Estate.” 3Jac. cap.5.“Saying Mass forfeits 200 marks, hearing it 100 Marks.”“Jesuits, Seminary Priests, etc., and other Ecclesiastical Persons born within the Queen’s Dominions, coming in or remaining in the said Dominions, is guilty of Treason.” 27Eliz. cap.2.“Any knowing a Jesuit or Priest to be here and not within 12 days afterwards discovering him to a Justice of Peace shall be committed and fined.” 27Eliz. cap.2.“Per Stat. 3Jac. cap.4, to move any one to promise Obedience to the See of Rome or other Prince is High Treason in the Mover and he that promiseth Obedience.”“Recusant Convict must not practice the Art of Apothecary, Civil Law, Common Law, Physick, or be an officer in any Court or amongst Soldiers, or in a Castle, Fortress or Ship.” 3Jac. cap.5.“Sending Persons beyond Sea to be instructed in Popish Religion forfeits £100, and the Persons sent are incapable to take any Inheritance.” 1Jac. cap.4.“Children shall not be sent beyond Sea without License from the Queen or six of her Privy Council, whereof the Principal Secretary of State to be one.”“Notwithstanding all these Laws, the Parliament (11 and 12Will.) was of Opinion that Popery increased, and therefore to prevent its growth a Law was made That if any person should take one or morePopishBishop,JesuitorPriest, and prosecute him till he is convicted ofsaying Massor exercising any other part of the Office or Function of aPopish BishoporPriest,” he shall have a reward of £100.“If any Popish Bishop, Priest or Jesuit, shall be convicted of saying Mass, etc., or any Papist shall Keep School, etc., he shall be adjudged to perpetual Imprisonment in such place where the Queen by Advice of her Council shall think fit.”“Every Papist, after the 10th of April, 1700, is made incapable of purchasing Lands, etc., either in his own Name or the name of other Person, to his use.”The Sabbath.—“Shoemaker putting Boots or Shoes to sale forfeits 3s.4d.and the goods.” 1Jac. I. cap.11.“Carriers, Drivers, Waggoners, travelling on that day forfeit 20s.” 3Car. I. cap.1.“Butchers killing or selling, or causing to be killed or sold or privy or consenting to kill or sell Meat on that day, forfeit 6s.8d.” 3Car. I. cap.1.By 29Car. II. cap.7 “Public and private Duties of Piety are enjoined, all worldly business is prohibited, and all above the Age of 14 forfeit 5s.”“Drovers or their servants coming to their Inns on that day forfeit 20s.”“If the Offender is not able to pay the Forfeiture, he shall be put in the Stocks for two Hours.”“Meeting together out of their own Parish for any Sports or Pastimes, forfeit 3s.4d.” 1Car. I. cap.1.Sacrament.—“Depraving or doing any Thing in contempt of the Sacrament must be committed.” 1Ed. VI. cap.1, 1Eliz.2, 3Jac.4.Schoolmaster.—“Not coming to church or not allowed by the Bishop of the Diocese, forever disabled to teach Youth, and shall be committed for a year without bail.” 23Eliz. cap.1.Tythes.—“A canon was madeAnno1585 for payment of Tythes as founded on the Law of God and the ancient Custom of the Church.”“When Glanville wrote (about 1660), a Freeholder was allowed to make a Will, so as he gave the best Thing he had to theLord Paramount, and the next best to theChurch.”“They are said to be Ecclesiastical Inheritances collateral to the Estate of the Land, out of which they arise, and are of their own Nature due only to Spiritual Persons.”Certain Lands were, however, exempt. “Most orders of Monks were first exempted; but in time this was restrained to three orders—Cistertians, Hospitallers, Templars.”Dissenters.—After the various laws against “Popish Recusants,” as they were called, had had the effect of rendering somewhat firm the establishment of the English Protestant Church, and about the time of the reign of Queen Elizabeth, a new trouble arose from those who dissented from that church, in its forms and in some of its principles, and government then began to interfere with them.In the 1st Year of the reign of William and Mary these “Dissenters” were exempted from the statutes of 1Eliz. cap.2, 23Eliz. cap.1, 3Jac. cap.4, above mentioned. “But they must not assemble in Places with Doors locked, barred, or bolted, nor until the place is certified to the Bishop of the Diocese or to the Arch Deacon or to the Justices at the Quarter Sessions, and registeredthere and they have a certificate thereof.”Their Preachers must declare their Approbation, and subscribe the “Articles of Religion,” except the 20th, 34th, 35th, and 36th articles, and must take the oaths and subscribe the Declaration prescribed Dy certain statutes, and that at the Quarter Sessions where they live.So that, from the reign of Elizabeth, through the reign of James I., and until the the troubles which ended in the civil war and the Protectorate of Cromwell, Dissenters were subject to many of the restrictions which had been imposed on the Roman Catholics; and even when those troubles finally ended in the flight of James II., and the elevation of William and Mary to the throne, freedom of religion was not allowed to the Dissenters, but they were permitted to enjoy their dissent from the forms and ceremonies of the Church of England only by declaring their assent to many of its most important tenets of faith or doctrine.The oaths of allegiance and supremacy enjoined by the statutes of1 Eliz.and3 Jac.were abrogated by the Statute of1 Will., and Mar. cap. 8, and the following substituted:“I, A. B., do sincerely promise and swear that I will be faithful and bear true allegiance,” etc.“I, A. B., do swear that I do from my Heart abhor, detest and abjure as Impious and Heretical, that damnable Doctrine and Position that Princes excommunicated or deprived by the Pope or any authority of the See of Rome may be deposed by their subjects or any other whatsoever; and I do declare that no Foreign Prince, Person, Prelate, State or Potentate, hath or ought to have any Jurisdiction, Power, Superiority, Pre-eminence or Authority, Ecclesiastical or Spiritual, within the Realm. So help me God.”
ANTIQUITIES OF THE LAW.[Wehave received this article from a very distinguished and learned member of the New York bar, with an accompanying letter, in which he writes, among other things, as follows:“Confined as I am by my infirmities to my house, and wearying of the sameness of the life I have to lead, I sometimes vary my occupation by delving into the ‘Antiquities of the Law.’“I have lately come across an old law book published in 1711, which has been several years in my library, but entirely lost sight of by me until recently.“From that I have been compiling some articles for one of our law journals, and began the accompanying article for the same publication.“While writing it, it occurred to me that it might be more useful, if not more interesting, to the readers of such a journal as yourCatholic Worldthan to those of a mere law journal; and as I abhor religious intolerance in all forms, and see so much of it in this country, I concluded to send it to you, thinking perhaps you may deem it advisable to use it.”]Abjuration.—The statute 35Eliz. cap.2 was made wholly against Popish Recusants convict above 16 Years of Age, enjoining them not to remove above 5 Miles from their Habitation: if they do, and not being covert (married?), nor having Land to the Value of 20 Marksper Annumor Goods worth £40, they must abjure the Kingdom.Hale’s Pl. Cr.228.“Likewise upon Persons who absent themselves from Church without just Cause, and refusing to conform within 3 Months after conviction.”35 Eliz. cap. 1.Armour.—(Recusancy was denying the Supremacy of the Queen and adhering to the Pope as Supreme Head of the Church.) “The Armour of Recusants convict shall be taken from them by Warrant from Four Justices of Peace.”“If they conceal their Arms or give any Disturbance in the Delivery, one Justice may commit them for 3 months without Bail.”3 Jac. cap. 5.Bail: When allowed or denied.—A Minister “depraving” the Common Prayer-Book, as fixed by Statute, was liable, for first offence, to commitment for 6 months; for second offence, for a year; and for third offence, for life.“Being present at any other Form: First Offence, Commitment for 6 Months; Second Offence, 12 Months; Third Offence, for Life.”Recusants. “Suspected to be a Jesuit, Seminary, or Priest, and being examined refuseth to answer, may be committed till he answer directly.”“Impugning the Queen’s Authority in Ecclesiastical causes; perswading others to it or from coming to church; meeting at Conventicles, under Colour of Religion, or perswading others to meet there, commitment till they conform and make an open Submission and Declaration of their conformity.”“Absenting from Church on Sunday, and no Distress to be had, Commitment till Forfeiture is paid.”“Above the Age of 16, and absentingfor a Month: Forfeiture 20s.per Month, or be committed till paid.”23 Eliz. cap. 1.Keeping a School Master or “any other Servant in the House, and not coming to Church for a Month, the Master of such House forfeits £10perMonth.”Blasphemy.—By Statute 9 and 10Will., “Any Person bred in or professing the Christian Religion, and who shall, by Writing, Printing, Teaching, or advised Speaking deny any one of the Persons in the Trinity; or assert that there are more Gods than one; or deny the Christian Religion to be true, or the Holy Scriptures to be of Divine Authority, shall be disabled to have any office,” and “if convicted a second time, he shall be disabled to sue in any court, or to be a Guardian or Executor or Administrator, and be incapable of any Legacy or Gift, or of any office, and shall be committed for Three Years without Bail.”Church Wardens.—“By Common Law they are a corporation to take care of the Goods of the Church.”“An Attorney cannot be made a Church Warden.”2 Roll. Abr. 272.“He is to see that the Parishioners come to Church every Sunday and Holiday, and to present the Names of such who are absent to the Ordinary, or to levy 12d. for every offence,per Stat. 5and6 Ed., 1 Eliz. cap. 1.”“Arresting a Minister going to or returning from Church may be punished by Indictment or bound to Good Behaviour. The Offence is the same if a Layman be arrested. Quarreling in Church or Church Yard, if a Layman may be suspendedab ingressio Ecclesiæ; if a Clergyman,ab officio. But if a Weapon be drawn with intent to strike, the Party may be convicted, etc., and Judgment to lose one of his Ears by cutting it off, and if no Ears, to be marked in the Cheek with the Letter F.”5and6 Ed. VI. cap. 4.Seats in Churches.“The Ordinary may place and displace whom he thinks fit.”“A Man may have a Seat in a Church appendant to his House, and may prescribe for it, etc. But one cannot prescribe to a Seat in theBody of the Churchgenerally.”Roll. Abr., 2 Pars. 288.“The case is the same in anIsle of a Church.”2 Cro. 367.“Presentments” are to be made by the Church Wardens, usually twice a year, but cannot be compelled oftener than once a year, except at the Visitation of the Bishop.The Articles commonly exhibited to them to make their Presentments may be reduced thus, viz.:To Things which concernthe Church, the Parson, the Parishioners.And First, to those Things which concern the Church; as,Alms, whether a Box for that Purpose; Assessments, whether made for repairs; Bells and Bell Ropes, if in Repair; Bible, whether in Folio; Canons, whether a Book thereof; Carpet; Chest, with three Locks; Church and Chancel in Repair; Creed in fair Letters; Cups and Covers for Bread, etc.; Cushion for Pulpit; Desk for Reader; Lord’s Prayer in fair Letters; Marriage, a Table of Degrees; Monuments safely kept; Parsonage House in Repair; Church Yard well Fenced; Commandments in Fair Letters; Common Prayer-Book; Communion Table; Flaggon; Font; Grave Stones well kept; Queen’s Arms, set up; Register Book in Parchment; Supplies, whether any; Table-cloth; Tombs well kept.2.Those Things which concern the Parson:Articles 39, if read twice a Year; Baptizing with Godfathers; Canons, if read once a Year; Catechising Children; Common Prayer, if read, etc.; Dead, if he bury them; Doctrine, if he preach good; Gown, if he preach in it;Homilies, if read or he preach;January30th, if observed; May 29th, if observed; Marrying privately;November5th, if observed; Preaching everySunday; Peace Maker; Perambulation; Sacrament, if celebrated; Sedition, if vented; Sick, if visited; Sober Life; Surplice, if wear it.3.Those Things which concern Parishioners:Adulterers, if any; Alms Houses, if abused; Ale Houses, and in Divine Service; Answering, according to Rubrick; Baptism, neglected by Parents; Blasphemers; Church, resorting to it; Dead, if brought to be buried; Drunkards, if any; Fornicators, if any; Legacies, if any given to pious Uses; Marrying within prohibited Degrees; Marrying without Banns, Licence, or at unlawful hours; Sacraments received 3 times in a year of all above 16, whereof Easter to be one time; School, if abused; Seats, if Parishioners are placed in them without contention; Standing up;Sundays, working therein; Swearers, if any; Women, if come to be Churched.”“A Warrant against one for not coming to Church.“To the Constable, etc.: “Sussex, ss. Whereas Oath hath been made before me That J. O. of, etc., did not upon the Lord’s Day last past resort to any Church, Chapel, or other usual Place appointed by Common Prayers, and there hear Divine Service according to the Form of the Statute in that case made and provided.“These are therefore to require you, etc., to bring the said J. O. before me to answer the Premises. Given, etc.”“Any Man may build a Church or Chappel, but the Law takes no Notice of it as such till it is consecrated, and therefore, whether Church or Chappel, it must be tried by the Certificate of the Bishop.”Clergy and Benefit of Clergy.—“Before the 20Ed. I., the Clergy paid no Tenths to the King for their Ecclesiastical Livings, but to the Pope; but in that King’s reign, their Livings were valued all over England, and the Tenths paid to the King; and by the Statute 26Hen. VIII. cap.3, they were annexed to the Crown forever.”Many of their privileges were “confirmed byMagna Carta, viz.,Quod Ecclesia sit libera.”“As to the Benefit of Clergy, it was introduced by the Canon Law, Exempting their persons from any Temporal Jurisdiction. ‘Tis a Privilege on purpose to save the Life of a Criminal in certain cases, if he was a man of learning, as accounted in those Days, for as such he might be useful to the Publick.—At first it was extended to any person who could read, he declaring that he had vowed or was resolved to enter into Orders, and the Reading was to show he was qualified.—But afterwards the reading without a Vow to enter into Orders was held good, and now ‘tis become a legal conveyance of Mercy to both Clergy and Laity.”“But tho’ the Ordinary usually tenders the Book, the Court are the proper Judges of the Criminal’s Reading: Therefore, where the Ordinary answerQuod legit, the Court judged otherwise, fined the Ordinary, and hanged the Person.”“Now, if a Man cannot read where Clergy is allowable, and ‘tis recorded by the CourtQuod non legit: if theOffender be reprieved, the Book may be tendered to him again because ‘tisin favorem vitæ, for which Reason he may have it under the Gallows.”Dyer, 205b.“In those days, an offender might have his Clergy even for Murdertoties quoties, but this was restrained by the statute of 4Hen. VII. cap.13, that he should have it but once. And for the better Observance of that Law, it was then provided That the Criminal should be marked upon the Brawn of the Left Thumb, that he might be known again upon a second Offence”—“which was not intended as any Part of the Judgment”—“It was only a Mark set upon the Offender that he might not have his Clergy a second Time.”By the Common Law, “all Offenders, except in Treason against the Person of the Queen,” should have the Benefit of Clergy “andtoties quoties; but by statute of 25Ed. III. cap.4, it was prohibited in Treasons; and by that of 4Hen. VII.it is restrained to one Time, so that now (i.e.in 1711) there are but very few cases wherein the Common Law denies Clergy, but in many ‘tis taken away by several acts of Parliament.”Among those from whom it was thus taken away, were Popish Recusants by act of 35Eliz. cap.1 and 2, and those who receive Priests being natives of England, and ordained by the See of Rome by act of 27Eliz. cap.2.“In Anno 2Ed. VI., the Reformers, intending to bring the Worship of God under set forms, compiled a Book of Common Prayer, which was established by Act of Parliament in that year.”“But because several things were contained in that Book which showed a compliancy to the superstitious Humours of those times, and some Exceptions being made to it by precise Men at Home and byJohn Calvinabroad, therefore two years afterwards it was reviewed, in whichMartin Bucer[31]was consulted and some Alterations were made, which consisted in adding some Things and leaving out others, as in the former Edition:The Additions were, viz.:A general Confession of sins to the daily service.A general Absolution to the truly Penitent.The Communion to begin with reading the Commandments, the People kneeling.And a Rubrick Concerning the Posture of kneeling, which was afterwards ordered to be left out by the statute of the 1Eliz., but is now again explained as in 2Ed. VI.Left out:The use of Oil in Confirmation and Extream Unction. Prayers for Souls departed.And what tended to a Belief of the Corporeal Presence in the Consecration of the Eucharist.”“Afterwards,Anno5Ed. VI., a Bill was brought into the House of Lords to enjoin Conformity to this new Book with these Alterations, by which all People were to come to those Common Prayers under pain of Church Censure, which Bill passed into a Law,Anno5 and 6Ed. VI.; but not being observed during the reign of Queen Mary, it was again reviewed by a Committee of Learned Men (naming them), and appointedto be used by every Minister,Anno1Eliz., with some Additions, which were then made, viz.:“Certain Lessons for Every Sunday in the Year, some Alterations in the Liturgy, Two Sentences added in the Delivery of the Sacrament, intimating to the Communicants that Christ is not Corporeally present in the Elements, etc. The Form of making Bishops, Priests, and Deacons was likewise added.”“Upon these and other Statutes several Things are to be considered:1. The Punishment of a Minister for refusing to use or depraving the Book of Common Prayer.2. The Punishment of any other Person depraving it, and of such who shall hear or be present at any other form.3. Who are bound to use it.4. Who must provide it.”The Punishment of the Minister was for 1st offence, loss of a year’s Livings and six Months’ imprisonment; 2d offence, Deprivation and Imprisonment for a Year; 3d offence, Imprisonment for Life and Deprivation.Any other Person, for 1st Offence, six months’ Imprisonment; 2d Offence, twelve months; and 3d Offence, for Life. 5 and 6Ed. VI. cap.1.“No Form of Prayer should be used in any Public Place other than according to the said Book.”By Statute 3Jac. cap.4, Constables “must once a Year present to the Quarter Sessions those who absent themselves for the space of a Month from Church”; and he must levy certain forfeitures on those who keep or resort to Bowling, Dancing, Ringing, or any sport whatever on the Sabbath; and on a Butcher who shall kill or sell Flesh on that day.Recusants“are those who refuse or deny Supremacy to the Queen by adhering to the Pope as Supreme Head of the Church.”“Anno24Hen. VIII. cap.12, Parliament prohibitedAppealstoRome, etc.”25Hen. VIII.“The King appointed thatConvocationsshould be assembled by his Writ, and that noCanonsorConstitutionsshould be contrary to his Prerogative or the Laws of the Land.”“In the same Year an Act passed to restrain the Payment ofFirst Fruitsto the Court ofRome.”“In the next Year, 26Hen. VIII., An Act passed by which the First Fruits of all Spiritual Livings were given to the King.”In the same Year, “an Act passed, prohibitingInvestituresof Archbishops or Bishops by the Pope; but that in a Vacancy the King should send hisLetters-missiveto a Prior or Convent, Dean or Chapter, to choose another.”“Likewise, in the same Year, allLicensesandDispensationsfrom the Court of Rome were prohibited, and that allReligious Housesshould be under theVisitation of the King.”And by an Act passed the same Year (viz., 1534), The King was “declared to beSupream Head of the Church.”“But he did not exercise any act of that Power till a year afterwards, by appointing Sir ThomasCromwellto be his Vicar General in Ecclesiastical Matters, and Visitor of all theMonasteriesand other Privileged Places in the Kingdom.”In 27Hen. VIII.(1536) “all thelesser Monasteries, under the number oftwelve Persons, and whose Revenues were not of the Value of £200per annum, were given to the King, his Heirs and Successors; and a Court was erected on purpose for collecting the Revenues belonging to these Monasteries, which was calledThe Court of Augmentation of the King’s Revenue, who had full power to dispose of those Lands for the Service of the King.”The officers of this Court had, among its other duties, that of inquiring “into the Number ofReligiousin the House, and what Lives they led; how many would go into other Religious Houses, and how many into theWorld, as they called it.”The whole of the goods thus confiscated were valued at £100,000, and the rents of these small Monasteries came to £32,000per annum.“This occasioned great Discontents amongst the people,” to appease which the King sold some of the Lands “to the Gentry” at low Rates, “obliging them to keep up Hospitality.”“This pleased both them and the ordinary Sort of People for a little time; and, to satisfy others,” the King “continued or gave back thirty-one Houses. But these, about two Years afterwards, fell under the Common Fate of the great Monasteries, and were all suppressed with them.”“But notwithstanding he gave back some of these Houses, yet the People were still discontented, and openly rebelled inLincolnshire, which was quieted by a Pardon: There was another Rebellion inYorkshireand the Northern Counties, which ended also in a Pardon, only some of the chief of the Rebels were executed for this last Rebellion.”Most of the Monasteries, “seeing their Dissolution drawing near, made voluntary Surrenders of their Houses in the 29thyear of Hen. VIII., in Hopes by this means to obtain Favor of the King; and after the Rebellion, the rest of the Abbots, both great and small, did the like; for some of them had encouraged the Rebels, others were convicted by the Visitors of great Disorders, and most of them had secured all the Plate, Jewels and Furniture belonging to their Houses, to make Provision for them and Relations and then surrendered their Monasteries.”“Afterwards,Anno31Hen. VIII., a Bill was brought into the House of Peers to confirm these surrenders. There were 18 Abbots[32]present at the first Reading, 20 at the second, and 17 at the third. It soon passed the Commons and the Royal Assent; and by this Act all the Houses, etc., were confirmed to the King.”“‘Tis true, the Hospitallers, Colleges and Chanteries, etc., were not yet dissolved.... These had large endowments to support themselves and to entertain Pilgrims,” etc.“But notwithstanding the King was declared to be the Supreme Head of the Church, yet these Hospitallers would not submit,” etc., “and therefore, Anno 32Hen. VIII. cap.24, The Parliament gave their lands to the King and dissolved their Corporation.”“The Colleges and Chanteries still remained; but the Doctrine of Purgatory being then grown out of Belief[33]and some of those Fraternities having resigned in the same manner as the Monasteries, the Endowments of the rest were then thought to be for no purpose, and therefore,Anno37Hen. VIII., all these Colleges, Free Chapels, Chanteries, etc., were given to the King by Act of Parliament.”“Thus in the Compass of a few years, the Power and Authority of the See ofRomewas suppressed in this Kingdom. And because frequent Attempts have been made to revive it, therefore, in succeedingTimes, several Laws have been made to keep them in subjection.”Among those were the following: Recusant Convict above 16 must go to his place of Abode and not remove 5 miles without license or otherwise abjure the Realm. Not departing within the time limited by the Justices, or returning without license from the Queen, was felony without Benefit of Clergy. 35Eliz. cap.2.“To absolve or to be absolved by Bulls from the Bishop of Rome was High Treason.” 13Eliz. cap.2.“Bringing anAgnus Deihither, or offering it to any Person to be used, both he and the Receiver incurs aPremunire.[34]13Eliz. cap.2. All Armour shall be taken from Recusants by order of four Justices.” 7Jac. cap.6.Bringing over Beads or offering them to any person, both he and the Receiver incur a Premunire. 13Eliz. cap.2.“Two Justices may search Houses for Books and Relicks, and burn them.” 3Jac. cap.5.“Every Popish Recusant must be buried in Church or Church yard according to the Ecclesiastical Laws, or his Executor or Administrator forfeits £20.” 3Jac. cap.5.“Children of Recusants must be baptized by a lawful Minister, or the Parent forfeits £100.” 3Jac. cap.5.“Popish Recusant, if he sue any person, the Defendant may plead it in Disability.”He “shall not be Executor, Administrator, or Guardian.” 3Jac. cap.5.A married woman, a Popish Recusant convict, “not conforming within 3 months after conviction, may be committed by two Justices until she conform, unless her Husband will pay to the King 10 shillings per month or a third part of his Lands.” 7Jac. cap.6.“Popish Recusant marrying otherwise than according to the Forms of the Church of England shall forfeit £100. If a woman, not have her Dower or Jointure or Widow’s Estate.” 3Jac. cap.5.“Saying Mass forfeits 200 marks, hearing it 100 Marks.”“Jesuits, Seminary Priests, etc., and other Ecclesiastical Persons born within the Queen’s Dominions, coming in or remaining in the said Dominions, is guilty of Treason.” 27Eliz. cap.2.“Any knowing a Jesuit or Priest to be here and not within 12 days afterwards discovering him to a Justice of Peace shall be committed and fined.” 27Eliz. cap.2.“Per Stat. 3Jac. cap.4, to move any one to promise Obedience to the See of Rome or other Prince is High Treason in the Mover and he that promiseth Obedience.”“Recusant Convict must not practice the Art of Apothecary, Civil Law, Common Law, Physick, or be an officer in any Court or amongst Soldiers, or in a Castle, Fortress or Ship.” 3Jac. cap.5.“Sending Persons beyond Sea to be instructed in Popish Religion forfeits £100, and the Persons sent are incapable to take any Inheritance.” 1Jac. cap.4.“Children shall not be sent beyond Sea without License from the Queen or six of her Privy Council, whereof the Principal Secretary of State to be one.”“Notwithstanding all these Laws, the Parliament (11 and 12Will.) was of Opinion that Popery increased, and therefore to prevent its growth a Law was made That if any person should take one or morePopishBishop,JesuitorPriest, and prosecute him till he is convicted ofsaying Massor exercising any other part of the Office or Function of aPopish BishoporPriest,” he shall have a reward of £100.“If any Popish Bishop, Priest or Jesuit, shall be convicted of saying Mass, etc., or any Papist shall Keep School, etc., he shall be adjudged to perpetual Imprisonment in such place where the Queen by Advice of her Council shall think fit.”“Every Papist, after the 10th of April, 1700, is made incapable of purchasing Lands, etc., either in his own Name or the name of other Person, to his use.”The Sabbath.—“Shoemaker putting Boots or Shoes to sale forfeits 3s.4d.and the goods.” 1Jac. I. cap.11.“Carriers, Drivers, Waggoners, travelling on that day forfeit 20s.” 3Car. I. cap.1.“Butchers killing or selling, or causing to be killed or sold or privy or consenting to kill or sell Meat on that day, forfeit 6s.8d.” 3Car. I. cap.1.By 29Car. II. cap.7 “Public and private Duties of Piety are enjoined, all worldly business is prohibited, and all above the Age of 14 forfeit 5s.”“Drovers or their servants coming to their Inns on that day forfeit 20s.”“If the Offender is not able to pay the Forfeiture, he shall be put in the Stocks for two Hours.”“Meeting together out of their own Parish for any Sports or Pastimes, forfeit 3s.4d.” 1Car. I. cap.1.Sacrament.—“Depraving or doing any Thing in contempt of the Sacrament must be committed.” 1Ed. VI. cap.1, 1Eliz.2, 3Jac.4.Schoolmaster.—“Not coming to church or not allowed by the Bishop of the Diocese, forever disabled to teach Youth, and shall be committed for a year without bail.” 23Eliz. cap.1.Tythes.—“A canon was madeAnno1585 for payment of Tythes as founded on the Law of God and the ancient Custom of the Church.”“When Glanville wrote (about 1660), a Freeholder was allowed to make a Will, so as he gave the best Thing he had to theLord Paramount, and the next best to theChurch.”“They are said to be Ecclesiastical Inheritances collateral to the Estate of the Land, out of which they arise, and are of their own Nature due only to Spiritual Persons.”Certain Lands were, however, exempt. “Most orders of Monks were first exempted; but in time this was restrained to three orders—Cistertians, Hospitallers, Templars.”Dissenters.—After the various laws against “Popish Recusants,” as they were called, had had the effect of rendering somewhat firm the establishment of the English Protestant Church, and about the time of the reign of Queen Elizabeth, a new trouble arose from those who dissented from that church, in its forms and in some of its principles, and government then began to interfere with them.In the 1st Year of the reign of William and Mary these “Dissenters” were exempted from the statutes of 1Eliz. cap.2, 23Eliz. cap.1, 3Jac. cap.4, above mentioned. “But they must not assemble in Places with Doors locked, barred, or bolted, nor until the place is certified to the Bishop of the Diocese or to the Arch Deacon or to the Justices at the Quarter Sessions, and registeredthere and they have a certificate thereof.”Their Preachers must declare their Approbation, and subscribe the “Articles of Religion,” except the 20th, 34th, 35th, and 36th articles, and must take the oaths and subscribe the Declaration prescribed Dy certain statutes, and that at the Quarter Sessions where they live.So that, from the reign of Elizabeth, through the reign of James I., and until the the troubles which ended in the civil war and the Protectorate of Cromwell, Dissenters were subject to many of the restrictions which had been imposed on the Roman Catholics; and even when those troubles finally ended in the flight of James II., and the elevation of William and Mary to the throne, freedom of religion was not allowed to the Dissenters, but they were permitted to enjoy their dissent from the forms and ceremonies of the Church of England only by declaring their assent to many of its most important tenets of faith or doctrine.The oaths of allegiance and supremacy enjoined by the statutes of1 Eliz.and3 Jac.were abrogated by the Statute of1 Will., and Mar. cap. 8, and the following substituted:“I, A. B., do sincerely promise and swear that I will be faithful and bear true allegiance,” etc.“I, A. B., do swear that I do from my Heart abhor, detest and abjure as Impious and Heretical, that damnable Doctrine and Position that Princes excommunicated or deprived by the Pope or any authority of the See of Rome may be deposed by their subjects or any other whatsoever; and I do declare that no Foreign Prince, Person, Prelate, State or Potentate, hath or ought to have any Jurisdiction, Power, Superiority, Pre-eminence or Authority, Ecclesiastical or Spiritual, within the Realm. So help me God.”
[Wehave received this article from a very distinguished and learned member of the New York bar, with an accompanying letter, in which he writes, among other things, as follows:
“Confined as I am by my infirmities to my house, and wearying of the sameness of the life I have to lead, I sometimes vary my occupation by delving into the ‘Antiquities of the Law.’
“I have lately come across an old law book published in 1711, which has been several years in my library, but entirely lost sight of by me until recently.
“From that I have been compiling some articles for one of our law journals, and began the accompanying article for the same publication.
“While writing it, it occurred to me that it might be more useful, if not more interesting, to the readers of such a journal as yourCatholic Worldthan to those of a mere law journal; and as I abhor religious intolerance in all forms, and see so much of it in this country, I concluded to send it to you, thinking perhaps you may deem it advisable to use it.”]
Abjuration.—The statute 35Eliz. cap.2 was made wholly against Popish Recusants convict above 16 Years of Age, enjoining them not to remove above 5 Miles from their Habitation: if they do, and not being covert (married?), nor having Land to the Value of 20 Marksper Annumor Goods worth £40, they must abjure the Kingdom.Hale’s Pl. Cr.228.
“Likewise upon Persons who absent themselves from Church without just Cause, and refusing to conform within 3 Months after conviction.”35 Eliz. cap. 1.
Armour.—(Recusancy was denying the Supremacy of the Queen and adhering to the Pope as Supreme Head of the Church.) “The Armour of Recusants convict shall be taken from them by Warrant from Four Justices of Peace.”
“If they conceal their Arms or give any Disturbance in the Delivery, one Justice may commit them for 3 months without Bail.”3 Jac. cap. 5.
Bail: When allowed or denied.—A Minister “depraving” the Common Prayer-Book, as fixed by Statute, was liable, for first offence, to commitment for 6 months; for second offence, for a year; and for third offence, for life.
“Being present at any other Form: First Offence, Commitment for 6 Months; Second Offence, 12 Months; Third Offence, for Life.”
Recusants. “Suspected to be a Jesuit, Seminary, or Priest, and being examined refuseth to answer, may be committed till he answer directly.”
“Impugning the Queen’s Authority in Ecclesiastical causes; perswading others to it or from coming to church; meeting at Conventicles, under Colour of Religion, or perswading others to meet there, commitment till they conform and make an open Submission and Declaration of their conformity.”
“Absenting from Church on Sunday, and no Distress to be had, Commitment till Forfeiture is paid.”
“Above the Age of 16, and absentingfor a Month: Forfeiture 20s.per Month, or be committed till paid.”23 Eliz. cap. 1.
Keeping a School Master or “any other Servant in the House, and not coming to Church for a Month, the Master of such House forfeits £10perMonth.”
Blasphemy.—By Statute 9 and 10Will., “Any Person bred in or professing the Christian Religion, and who shall, by Writing, Printing, Teaching, or advised Speaking deny any one of the Persons in the Trinity; or assert that there are more Gods than one; or deny the Christian Religion to be true, or the Holy Scriptures to be of Divine Authority, shall be disabled to have any office,” and “if convicted a second time, he shall be disabled to sue in any court, or to be a Guardian or Executor or Administrator, and be incapable of any Legacy or Gift, or of any office, and shall be committed for Three Years without Bail.”
Church Wardens.—“By Common Law they are a corporation to take care of the Goods of the Church.”
“An Attorney cannot be made a Church Warden.”2 Roll. Abr. 272.
“He is to see that the Parishioners come to Church every Sunday and Holiday, and to present the Names of such who are absent to the Ordinary, or to levy 12d. for every offence,per Stat. 5and6 Ed., 1 Eliz. cap. 1.”
“Arresting a Minister going to or returning from Church may be punished by Indictment or bound to Good Behaviour. The Offence is the same if a Layman be arrested. Quarreling in Church or Church Yard, if a Layman may be suspendedab ingressio Ecclesiæ; if a Clergyman,ab officio. But if a Weapon be drawn with intent to strike, the Party may be convicted, etc., and Judgment to lose one of his Ears by cutting it off, and if no Ears, to be marked in the Cheek with the Letter F.”5and6 Ed. VI. cap. 4.
Seats in Churches.“The Ordinary may place and displace whom he thinks fit.”
“A Man may have a Seat in a Church appendant to his House, and may prescribe for it, etc. But one cannot prescribe to a Seat in theBody of the Churchgenerally.”Roll. Abr., 2 Pars. 288.
“The case is the same in anIsle of a Church.”2 Cro. 367.
“Presentments” are to be made by the Church Wardens, usually twice a year, but cannot be compelled oftener than once a year, except at the Visitation of the Bishop.
The Articles commonly exhibited to them to make their Presentments may be reduced thus, viz.:
To Things which concernthe Church, the Parson, the Parishioners.
And First, to those Things which concern the Church; as,
Alms, whether a Box for that Purpose; Assessments, whether made for repairs; Bells and Bell Ropes, if in Repair; Bible, whether in Folio; Canons, whether a Book thereof; Carpet; Chest, with three Locks; Church and Chancel in Repair; Creed in fair Letters; Cups and Covers for Bread, etc.; Cushion for Pulpit; Desk for Reader; Lord’s Prayer in fair Letters; Marriage, a Table of Degrees; Monuments safely kept; Parsonage House in Repair; Church Yard well Fenced; Commandments in Fair Letters; Common Prayer-Book; Communion Table; Flaggon; Font; Grave Stones well kept; Queen’s Arms, set up; Register Book in Parchment; Supplies, whether any; Table-cloth; Tombs well kept.
2.Those Things which concern the Parson:
Articles 39, if read twice a Year; Baptizing with Godfathers; Canons, if read once a Year; Catechising Children; Common Prayer, if read, etc.; Dead, if he bury them; Doctrine, if he preach good; Gown, if he preach in it;Homilies, if read or he preach;January30th, if observed; May 29th, if observed; Marrying privately;November5th, if observed; Preaching everySunday; Peace Maker; Perambulation; Sacrament, if celebrated; Sedition, if vented; Sick, if visited; Sober Life; Surplice, if wear it.
3.Those Things which concern Parishioners:
Adulterers, if any; Alms Houses, if abused; Ale Houses, and in Divine Service; Answering, according to Rubrick; Baptism, neglected by Parents; Blasphemers; Church, resorting to it; Dead, if brought to be buried; Drunkards, if any; Fornicators, if any; Legacies, if any given to pious Uses; Marrying within prohibited Degrees; Marrying without Banns, Licence, or at unlawful hours; Sacraments received 3 times in a year of all above 16, whereof Easter to be one time; School, if abused; Seats, if Parishioners are placed in them without contention; Standing up;Sundays, working therein; Swearers, if any; Women, if come to be Churched.”
“A Warrant against one for not coming to Church.
“To the Constable, etc.: “Sussex, ss. Whereas Oath hath been made before me That J. O. of, etc., did not upon the Lord’s Day last past resort to any Church, Chapel, or other usual Place appointed by Common Prayers, and there hear Divine Service according to the Form of the Statute in that case made and provided.
“These are therefore to require you, etc., to bring the said J. O. before me to answer the Premises. Given, etc.”
“Any Man may build a Church or Chappel, but the Law takes no Notice of it as such till it is consecrated, and therefore, whether Church or Chappel, it must be tried by the Certificate of the Bishop.”
Clergy and Benefit of Clergy.—“Before the 20Ed. I., the Clergy paid no Tenths to the King for their Ecclesiastical Livings, but to the Pope; but in that King’s reign, their Livings were valued all over England, and the Tenths paid to the King; and by the Statute 26Hen. VIII. cap.3, they were annexed to the Crown forever.”
Many of their privileges were “confirmed byMagna Carta, viz.,Quod Ecclesia sit libera.”
“As to the Benefit of Clergy, it was introduced by the Canon Law, Exempting their persons from any Temporal Jurisdiction. ‘Tis a Privilege on purpose to save the Life of a Criminal in certain cases, if he was a man of learning, as accounted in those Days, for as such he might be useful to the Publick.—At first it was extended to any person who could read, he declaring that he had vowed or was resolved to enter into Orders, and the Reading was to show he was qualified.—But afterwards the reading without a Vow to enter into Orders was held good, and now ‘tis become a legal conveyance of Mercy to both Clergy and Laity.”
“But tho’ the Ordinary usually tenders the Book, the Court are the proper Judges of the Criminal’s Reading: Therefore, where the Ordinary answerQuod legit, the Court judged otherwise, fined the Ordinary, and hanged the Person.”
“Now, if a Man cannot read where Clergy is allowable, and ‘tis recorded by the CourtQuod non legit: if theOffender be reprieved, the Book may be tendered to him again because ‘tisin favorem vitæ, for which Reason he may have it under the Gallows.”Dyer, 205b.
“In those days, an offender might have his Clergy even for Murdertoties quoties, but this was restrained by the statute of 4Hen. VII. cap.13, that he should have it but once. And for the better Observance of that Law, it was then provided That the Criminal should be marked upon the Brawn of the Left Thumb, that he might be known again upon a second Offence”—“which was not intended as any Part of the Judgment”—“It was only a Mark set upon the Offender that he might not have his Clergy a second Time.”
By the Common Law, “all Offenders, except in Treason against the Person of the Queen,” should have the Benefit of Clergy “andtoties quoties; but by statute of 25Ed. III. cap.4, it was prohibited in Treasons; and by that of 4Hen. VII.it is restrained to one Time, so that now (i.e.in 1711) there are but very few cases wherein the Common Law denies Clergy, but in many ‘tis taken away by several acts of Parliament.”
Among those from whom it was thus taken away, were Popish Recusants by act of 35Eliz. cap.1 and 2, and those who receive Priests being natives of England, and ordained by the See of Rome by act of 27Eliz. cap.2.
“In Anno 2Ed. VI., the Reformers, intending to bring the Worship of God under set forms, compiled a Book of Common Prayer, which was established by Act of Parliament in that year.”
“But because several things were contained in that Book which showed a compliancy to the superstitious Humours of those times, and some Exceptions being made to it by precise Men at Home and byJohn Calvinabroad, therefore two years afterwards it was reviewed, in whichMartin Bucer[31]was consulted and some Alterations were made, which consisted in adding some Things and leaving out others, as in the former Edition:
“Afterwards,Anno5Ed. VI., a Bill was brought into the House of Lords to enjoin Conformity to this new Book with these Alterations, by which all People were to come to those Common Prayers under pain of Church Censure, which Bill passed into a Law,Anno5 and 6Ed. VI.; but not being observed during the reign of Queen Mary, it was again reviewed by a Committee of Learned Men (naming them), and appointedto be used by every Minister,Anno1Eliz., with some Additions, which were then made, viz.:
“Certain Lessons for Every Sunday in the Year, some Alterations in the Liturgy, Two Sentences added in the Delivery of the Sacrament, intimating to the Communicants that Christ is not Corporeally present in the Elements, etc. The Form of making Bishops, Priests, and Deacons was likewise added.”
“Upon these and other Statutes several Things are to be considered:
1. The Punishment of a Minister for refusing to use or depraving the Book of Common Prayer.
2. The Punishment of any other Person depraving it, and of such who shall hear or be present at any other form.
3. Who are bound to use it.
4. Who must provide it.”
The Punishment of the Minister was for 1st offence, loss of a year’s Livings and six Months’ imprisonment; 2d offence, Deprivation and Imprisonment for a Year; 3d offence, Imprisonment for Life and Deprivation.
Any other Person, for 1st Offence, six months’ Imprisonment; 2d Offence, twelve months; and 3d Offence, for Life. 5 and 6Ed. VI. cap.1.
“No Form of Prayer should be used in any Public Place other than according to the said Book.”
By Statute 3Jac. cap.4, Constables “must once a Year present to the Quarter Sessions those who absent themselves for the space of a Month from Church”; and he must levy certain forfeitures on those who keep or resort to Bowling, Dancing, Ringing, or any sport whatever on the Sabbath; and on a Butcher who shall kill or sell Flesh on that day.
Recusants“are those who refuse or deny Supremacy to the Queen by adhering to the Pope as Supreme Head of the Church.”
“Anno24Hen. VIII. cap.12, Parliament prohibitedAppealstoRome, etc.”
25Hen. VIII.“The King appointed thatConvocationsshould be assembled by his Writ, and that noCanonsorConstitutionsshould be contrary to his Prerogative or the Laws of the Land.”
“In the same Year an Act passed to restrain the Payment ofFirst Fruitsto the Court ofRome.”
“In the next Year, 26Hen. VIII., An Act passed by which the First Fruits of all Spiritual Livings were given to the King.”
In the same Year, “an Act passed, prohibitingInvestituresof Archbishops or Bishops by the Pope; but that in a Vacancy the King should send hisLetters-missiveto a Prior or Convent, Dean or Chapter, to choose another.”
“Likewise, in the same Year, allLicensesandDispensationsfrom the Court of Rome were prohibited, and that allReligious Housesshould be under theVisitation of the King.”
And by an Act passed the same Year (viz., 1534), The King was “declared to beSupream Head of the Church.”
“But he did not exercise any act of that Power till a year afterwards, by appointing Sir ThomasCromwellto be his Vicar General in Ecclesiastical Matters, and Visitor of all theMonasteriesand other Privileged Places in the Kingdom.”
In 27Hen. VIII.(1536) “all thelesser Monasteries, under the number oftwelve Persons, and whose Revenues were not of the Value of £200per annum, were given to the King, his Heirs and Successors; and a Court was erected on purpose for collecting the Revenues belonging to these Monasteries, which was calledThe Court of Augmentation of the King’s Revenue, who had full power to dispose of those Lands for the Service of the King.”
The officers of this Court had, among its other duties, that of inquiring “into the Number ofReligiousin the House, and what Lives they led; how many would go into other Religious Houses, and how many into theWorld, as they called it.”
The whole of the goods thus confiscated were valued at £100,000, and the rents of these small Monasteries came to £32,000per annum.
“This occasioned great Discontents amongst the people,” to appease which the King sold some of the Lands “to the Gentry” at low Rates, “obliging them to keep up Hospitality.”
“This pleased both them and the ordinary Sort of People for a little time; and, to satisfy others,” the King “continued or gave back thirty-one Houses. But these, about two Years afterwards, fell under the Common Fate of the great Monasteries, and were all suppressed with them.”
“But notwithstanding he gave back some of these Houses, yet the People were still discontented, and openly rebelled inLincolnshire, which was quieted by a Pardon: There was another Rebellion inYorkshireand the Northern Counties, which ended also in a Pardon, only some of the chief of the Rebels were executed for this last Rebellion.”
Most of the Monasteries, “seeing their Dissolution drawing near, made voluntary Surrenders of their Houses in the 29thyear of Hen. VIII., in Hopes by this means to obtain Favor of the King; and after the Rebellion, the rest of the Abbots, both great and small, did the like; for some of them had encouraged the Rebels, others were convicted by the Visitors of great Disorders, and most of them had secured all the Plate, Jewels and Furniture belonging to their Houses, to make Provision for them and Relations and then surrendered their Monasteries.”
“Afterwards,Anno31Hen. VIII., a Bill was brought into the House of Peers to confirm these surrenders. There were 18 Abbots[32]present at the first Reading, 20 at the second, and 17 at the third. It soon passed the Commons and the Royal Assent; and by this Act all the Houses, etc., were confirmed to the King.”
“‘Tis true, the Hospitallers, Colleges and Chanteries, etc., were not yet dissolved.... These had large endowments to support themselves and to entertain Pilgrims,” etc.
“But notwithstanding the King was declared to be the Supreme Head of the Church, yet these Hospitallers would not submit,” etc., “and therefore, Anno 32Hen. VIII. cap.24, The Parliament gave their lands to the King and dissolved their Corporation.”
“The Colleges and Chanteries still remained; but the Doctrine of Purgatory being then grown out of Belief[33]and some of those Fraternities having resigned in the same manner as the Monasteries, the Endowments of the rest were then thought to be for no purpose, and therefore,Anno37Hen. VIII., all these Colleges, Free Chapels, Chanteries, etc., were given to the King by Act of Parliament.”
“Thus in the Compass of a few years, the Power and Authority of the See ofRomewas suppressed in this Kingdom. And because frequent Attempts have been made to revive it, therefore, in succeedingTimes, several Laws have been made to keep them in subjection.”
Among those were the following: Recusant Convict above 16 must go to his place of Abode and not remove 5 miles without license or otherwise abjure the Realm. Not departing within the time limited by the Justices, or returning without license from the Queen, was felony without Benefit of Clergy. 35Eliz. cap.2.
“To absolve or to be absolved by Bulls from the Bishop of Rome was High Treason.” 13Eliz. cap.2.
“Bringing anAgnus Deihither, or offering it to any Person to be used, both he and the Receiver incurs aPremunire.[34]13Eliz. cap.2. All Armour shall be taken from Recusants by order of four Justices.” 7Jac. cap.6.
Bringing over Beads or offering them to any person, both he and the Receiver incur a Premunire. 13Eliz. cap.2.
“Two Justices may search Houses for Books and Relicks, and burn them.” 3Jac. cap.5.
“Every Popish Recusant must be buried in Church or Church yard according to the Ecclesiastical Laws, or his Executor or Administrator forfeits £20.” 3Jac. cap.5.
“Children of Recusants must be baptized by a lawful Minister, or the Parent forfeits £100.” 3Jac. cap.5.
“Popish Recusant, if he sue any person, the Defendant may plead it in Disability.”
He “shall not be Executor, Administrator, or Guardian.” 3Jac. cap.5.
A married woman, a Popish Recusant convict, “not conforming within 3 months after conviction, may be committed by two Justices until she conform, unless her Husband will pay to the King 10 shillings per month or a third part of his Lands.” 7Jac. cap.6.
“Popish Recusant marrying otherwise than according to the Forms of the Church of England shall forfeit £100. If a woman, not have her Dower or Jointure or Widow’s Estate.” 3Jac. cap.5.
“Saying Mass forfeits 200 marks, hearing it 100 Marks.”
“Jesuits, Seminary Priests, etc., and other Ecclesiastical Persons born within the Queen’s Dominions, coming in or remaining in the said Dominions, is guilty of Treason.” 27Eliz. cap.2.
“Any knowing a Jesuit or Priest to be here and not within 12 days afterwards discovering him to a Justice of Peace shall be committed and fined.” 27Eliz. cap.2.
“Per Stat. 3Jac. cap.4, to move any one to promise Obedience to the See of Rome or other Prince is High Treason in the Mover and he that promiseth Obedience.”
“Recusant Convict must not practice the Art of Apothecary, Civil Law, Common Law, Physick, or be an officer in any Court or amongst Soldiers, or in a Castle, Fortress or Ship.” 3Jac. cap.5.
“Sending Persons beyond Sea to be instructed in Popish Religion forfeits £100, and the Persons sent are incapable to take any Inheritance.” 1Jac. cap.4.
“Children shall not be sent beyond Sea without License from the Queen or six of her Privy Council, whereof the Principal Secretary of State to be one.”
“Notwithstanding all these Laws, the Parliament (11 and 12Will.) was of Opinion that Popery increased, and therefore to prevent its growth a Law was made That if any person should take one or morePopishBishop,JesuitorPriest, and prosecute him till he is convicted ofsaying Massor exercising any other part of the Office or Function of aPopish BishoporPriest,” he shall have a reward of £100.
“If any Popish Bishop, Priest or Jesuit, shall be convicted of saying Mass, etc., or any Papist shall Keep School, etc., he shall be adjudged to perpetual Imprisonment in such place where the Queen by Advice of her Council shall think fit.”
“Every Papist, after the 10th of April, 1700, is made incapable of purchasing Lands, etc., either in his own Name or the name of other Person, to his use.”
The Sabbath.—“Shoemaker putting Boots or Shoes to sale forfeits 3s.4d.and the goods.” 1Jac. I. cap.11.
“Carriers, Drivers, Waggoners, travelling on that day forfeit 20s.” 3Car. I. cap.1.
“Butchers killing or selling, or causing to be killed or sold or privy or consenting to kill or sell Meat on that day, forfeit 6s.8d.” 3Car. I. cap.1.
By 29Car. II. cap.7 “Public and private Duties of Piety are enjoined, all worldly business is prohibited, and all above the Age of 14 forfeit 5s.”
“Drovers or their servants coming to their Inns on that day forfeit 20s.”
“If the Offender is not able to pay the Forfeiture, he shall be put in the Stocks for two Hours.”
“Meeting together out of their own Parish for any Sports or Pastimes, forfeit 3s.4d.” 1Car. I. cap.1.
Sacrament.—“Depraving or doing any Thing in contempt of the Sacrament must be committed.” 1Ed. VI. cap.1, 1Eliz.2, 3Jac.4.
Schoolmaster.—“Not coming to church or not allowed by the Bishop of the Diocese, forever disabled to teach Youth, and shall be committed for a year without bail.” 23Eliz. cap.1.
Tythes.—“A canon was madeAnno1585 for payment of Tythes as founded on the Law of God and the ancient Custom of the Church.”
“When Glanville wrote (about 1660), a Freeholder was allowed to make a Will, so as he gave the best Thing he had to theLord Paramount, and the next best to theChurch.”
“They are said to be Ecclesiastical Inheritances collateral to the Estate of the Land, out of which they arise, and are of their own Nature due only to Spiritual Persons.”
Certain Lands were, however, exempt. “Most orders of Monks were first exempted; but in time this was restrained to three orders—Cistertians, Hospitallers, Templars.”
Dissenters.—After the various laws against “Popish Recusants,” as they were called, had had the effect of rendering somewhat firm the establishment of the English Protestant Church, and about the time of the reign of Queen Elizabeth, a new trouble arose from those who dissented from that church, in its forms and in some of its principles, and government then began to interfere with them.
In the 1st Year of the reign of William and Mary these “Dissenters” were exempted from the statutes of 1Eliz. cap.2, 23Eliz. cap.1, 3Jac. cap.4, above mentioned. “But they must not assemble in Places with Doors locked, barred, or bolted, nor until the place is certified to the Bishop of the Diocese or to the Arch Deacon or to the Justices at the Quarter Sessions, and registeredthere and they have a certificate thereof.”
Their Preachers must declare their Approbation, and subscribe the “Articles of Religion,” except the 20th, 34th, 35th, and 36th articles, and must take the oaths and subscribe the Declaration prescribed Dy certain statutes, and that at the Quarter Sessions where they live.
So that, from the reign of Elizabeth, through the reign of James I., and until the the troubles which ended in the civil war and the Protectorate of Cromwell, Dissenters were subject to many of the restrictions which had been imposed on the Roman Catholics; and even when those troubles finally ended in the flight of James II., and the elevation of William and Mary to the throne, freedom of religion was not allowed to the Dissenters, but they were permitted to enjoy their dissent from the forms and ceremonies of the Church of England only by declaring their assent to many of its most important tenets of faith or doctrine.
The oaths of allegiance and supremacy enjoined by the statutes of1 Eliz.and3 Jac.were abrogated by the Statute of1 Will., and Mar. cap. 8, and the following substituted:
“I, A. B., do sincerely promise and swear that I will be faithful and bear true allegiance,” etc.
“I, A. B., do swear that I do from my Heart abhor, detest and abjure as Impious and Heretical, that damnable Doctrine and Position that Princes excommunicated or deprived by the Pope or any authority of the See of Rome may be deposed by their subjects or any other whatsoever; and I do declare that no Foreign Prince, Person, Prelate, State or Potentate, hath or ought to have any Jurisdiction, Power, Superiority, Pre-eminence or Authority, Ecclesiastical or Spiritual, within the Realm. So help me God.”