or upon reasonable let thereof, to some usual place where common Gibs. 291. But they who repair to no place of public worship, are still punishable as before that act [or the 31 G. 3. c. 32.] And if the churchwardens shall happen to present a person, who possibly may go to some other place; the proof thereof rests upon the person presented, and the absence from church justifies the presentment. Gibs. 964. Having no lawful or reasonable excuse] In the case of Elizabeth Dormer, an exception was taken to the indictment, because these words were omitted, not having any lawful or reasonable excuse ; but it was agreed by all, that these words are to come in on the other side, and need not be put into the indictment. Gibs. 291. To their parish church] If one goes to a customary chapel within the parish, it is a good excuse; but this must be pleaded. Gibs. 292. If the plea in the spiritual court be, that this is not his parish church, and they refuse the plea, a prohibition will be granted: because that court cannot intermeddle with the precincts of pa rishes. Gibs. 292. Or upon reasonable let thereof, to some usual place where common prayer and such service of God shall be used in such time of let] By the common law or practice of the church of England, no person can be duly discharged from attending his own parish church, or warranted in resorting to another, unless he be first duly licensed by his ordinary, who is the proper judge of the reason[234] ableness of his request, and grants him letters of licence under seal, to be exhibited (as there shall be occasion) in proof of his discharge. Which licences are very common in our ecclesiastical records. Gibs. 291. And there to abide orderly and soberly] It is not enough to come, unless he also abide; nor enough to abide when he is come, unless he come so as to be present at the several parts of divine service, and also remain there throughout orderly and soberly: the clause being penned conjunctively, and so the guilt and forfeiture incurred by the violation of any one branch. Gibs. 292. Among the constitutions of Egbert, archbishop of York, one is, that whilst the minister is officiating, if any person shall go out of the church, he shall be excommunicated; and this is taken from a canon of the fourth council of Carthage. Gibs. 964. [No man shall be molested for any of the above offences, except he be indicted at the next general sessions of oyer and terminer or of assize, held next after any offence committed. 5 & 6 Ed. 6. c. 1. § 9. 1 El. c. 2. § 20.] And all archbishops and bishops, and every of their chancellors, commissaries, archdeacons, and other ordinaries having any peculiar ecclesiastical jurisdiction, shall have power to inquire hereof in their visitation, synods, and elsewhere within their jurisdiction, at any other time and place, and to take accusation, and informations of all and every the things above mentioned, done, committed, or perpetrated within the limits of their jurisdictions; and to punish the same by admonition, excommunication, sequestration, or deprivation, and other censures and process, in like form as heretofore hath been used in like cases by the queen's ecclesiastical law. § 23. And And the justices of assize shall have power to inquire of, hear and determine the same at the next assizes; and to make process for execution, as they may do against any person being indicted before them of trespass, or lawfully convicted thereof. every archbishop and bishop may at his liberty and pleasure join and associate himself to the justices of assize, for the inquiring of, hearing, and determining the same. § 17, 18, 19. And all mayors, bailiffs, and other head officers, of cities, boroughs, and towns corporate to which justices of assize do not commonly repair, shall have power to inquire of, hear and determine the same yearly within fifteen days after the feast of Easter and St. Michael the archangel; in like manner and form as the justices of assize may do. § 22. Also by the 3 J. c. 4. If any subject of this realm shall not repair every Sunday to some church, chapel, or usual place appointed for common prayer, and there hear divine service, according to the said statute of the 1 El. c. 2. it shall be lawful for one justice of the peace, on proof to him made by confession or oath of witness, to call the party before him; and if he shall not make a sufficient excuse and due proof thereof to the satisfaction [235] of such justice, he shall give warrant to the churchwarden of the parish where the party shall dwell, to levy 12d. for every such default by distress and sale: and in default of distress, shall com On pain of 201. a month. [236] On pain of being disabled from offices. mit him to prison till payment be made: which forfeiture shall be to the use of the poor of the parish where the offender shall be resident at the time of the offence committed. Provided, that no man be impeached upon this clause, except he be called in question for his said default within one month next after the default made: And that no man being punished according to this branch, shall for the same offence be punished by the forfeiture of 12d. on the statue of the first of Elizabeth. § 27, 28, 29. And provided, that whatsoever persons shall for their offences first receive punishment of the ordinary, having a testimonial thereof under the ordinary seal, shall not for the same offence eftsoons be convicted before the justices; and likewise receiving for the said offence punishment first by the justices, shall not for the same offence eftsoons receive punishment of the ordinary. 1 El. c. 2. § 24. 4. By the 23 El. c. 1. § 5. Every person above the age of sixteen years, which shall not repair to some church, chapel, or usual place of common prayer, but forbear the same contrary to the 1 El. c. 2., and be thereof lawfully convicted, shall forfeit to the queen 201. a month. And there are many regulations concerning the same, by that, and by several subsequent statutes; which being chiefly intended against popish recusants, are more properly treated of under the title Popery XV. And by the toleration act, the same shall not extend to qualified protestant dissenters: See Dissenters, I. 2. But no papist, or popish recusant, shall have any benefit by the said act of toleration. [But by the 31 G. 3. c. 32. Roman catholics who shall take the oath and subscribe the declaration thereby prescribed, are exempted from several penalties to which they were before subject; for which see title opery.] And by the 23 El. c. 1. Every person which usually on the Sunday shall have in his house divine service which is established by the law of this realm, and be thereat himself usually or most commonly present, and shall not obstinately refuse to come to church and shall also four times in the year at least be present at the divine service in the church of the parish where he shall be resident, or in some other common church or chapel of ease, shall not incur the said penalty of 207. a month for not repairing to church, § 12. [By 31 G. 3. c. 32. § 9. all laws made for frequenting divine service on Sundays are confirmed unless such persons frequent a legal dissenting congregation.] 5. By the 3 J. c. 5. No recusant convict shall practise law or physic, nor shall be judge or minister of any court, or bear any military office by land or sea and shall forfeit for every offence 100%. : and shall also be disabled to be executor, administrator, or guardian. § 8. 22. 6. By the 3 J. c. 4. Every person who shall retain in his service, Penalty of or shall relieve, keep, or harbour in his house any servant, so- such recuharbouring journer, or stranger, who shall not repair to church, but shall sant. forbear for a month together, not having reasonable excuse, shall forfeit 10l. for every month he shall continue in his house such person so forbearing: And the justices of the peace in their sessions may hear and determine the same. § 32, 33. 36. conform 7. But by the 1 J. c. 4. A recusant conforming himself shall Recusant be discharged of all penalties, which he might otherwise sustain ing. by reason of his recusancy. § 2. (p) II. Establishment of the book of common prayer. 1. Art. 20. The church hath power to decree rites, or ceremonies, that are not contrary to God's word. Power of the church to decree Art. 34. It is not necessary that traditions and ceremonies rites and be in all places one, or utterly like; for at all times they have ceremonies. been divers, and may be changed according to the diversity of countries, times, and men's manners: so that nothing be ordained against God's word. Whosoever through his private judgment, willingly and purposely doth openly break the traditions and ceremonies of the church, which be not repugnant to the word of God, and be ordained and approved by common authority; ought to be rebuked openly (that other may fear to do the like), as he that offendeth against the common order of the church, and hurteth the authority of the magistrate, and woundeth the consciences of weak brethren. Every particular or national church, hath authority to ordain, change, and abolish ceremonies or rites of the church, ordained only by man's authority; so that all things be done to edifying. Can. 6. Whoever shall affirm, that the rites and ceremonies of the church of England by law established, are wicked, antichristian, or superstitious; or such as, being commanded by lawful authority, men who are zealously and godly affected may not with any good conscience approve them, use them, or as [237] occasion requireth subscribe unto them: let him be excommunicated ipso facto, and not restored until he repent, and publicly revoke such his wicked errors. 2. In the more early ages of the church, every bishop had a power to form a liturgy for his own diocese; and if he kept to the analogy of faith and doctrine, all circumstances were left to his own discretion. Afterwards the practice was, for the whole province to follow the service of the metropolitan church; which also became the general rule of the church: And this Lindwood (p) In what respects these acts are mitigated, see titles Dissenters, Popery. Liturgy be fore the acts of unifor mity. Act of uniformity of the 2 E. 6. acknowledgeth to be the common law of the church; and intimates, that the use of several services in the same province (as was here in England) was not to be warranted but by long custom. Gibs. 259. The Latin services, as they had been used in England before, continued in all king Henry the eighth's reign, without any alteration: save some rasures of collects for the pope, and for the office of Thomas Becket and of some other saints, whose days were by the king's injunctions no more to be observed; but those rasures or deletions were so few, that the old mass books, breviaries, and other rituals, did still serve without new impressions. Gibs. 259. 3. In the second year of king Edward the sixth, a liturgy was established by the statute of the 2 & 3 Ed. 6. c. 1. as followeth : Where of long time there hath been had in this realm of England and in Wales, divers forms of common prayer, commonly called the service of the church, that is to say, the use of Sarum, of York, of Bangor, and of Lincoln; and besides the same, now of late much more divers and sundry forms and fashions have been used in the cathedral and parish churches of England and Wales, as well concerning the mattens or morning prayer, and the evensong, as also concerning the holy communion commonly called the mass, with divers and sundry rites and ceremonies concerning the same, and in the administration of other sacraments of the church; and albeit the king, by the advice of his council, hath hitherto divers times assayed to stay innovations or new rites concerning the premises, yet the same hath not had such good success as his highness required in that behalf; whereupon his highness being pleased to bear with the frailty and weakness of his subjects in that behalf; of his great clemency hath not only been content to abstain from punishment of those that have offended in that behalf, but also to the intent a uniform, quiet, and godly order should be had concerning the pre[238] mises, hath appointed the archbishop of Canterbury, and certain other of the most learned and discreet bishops and other learned men of this realm, having respect to the most sincere and pure christian religion taught by the scripture, as to the usages in the primitive church to draw and make one convenient and meet order, rite, and fashion of common and open prayer and administration of the sacraments to be had and used in his majesty's realm of England and in Wales; the which, by the aid of the Holy Ghost, with one uniform agreement is of them concluded, set forth and delivered in a book entitled, "The book of common prayer and administration of the sacraments and other rites and "ceremonies of the church, after the use of the church of England." Wherefore the lords spiritual and temporal, and the commons, in this present parliament assembled, considering as well the 66 |