Canon 4.

Canon 38.

Canon 93.

Penalties on ministers by

14 Car. 2, c. 4.

By 2 & 3 Edw. 6, c. 1, s. 2, and

1 Eliz. c. 2, s. 2. Derogation or depraving Prayer Book.

be excommunicated ipso facto, and not restored but by the bishop of the place, or archbishop, after his repentance and public revocation of such his wicked errors."

By Can. 38, "If any minister after he hath subscribed to the Book of Common Prayer shall omit to use the form of prayer, or any of the orders or ceremonies prescribed in the Communion Book, let him be suspended; and if after a month he do not reform and submit himself, let him be excommunicated; and then if he shall not submit himself within the space of another month, let him be deposed from the ministry."

And by Can. 98, " After any judge ecclesiastical hath pronounced judicially against contemners of ceremonies, for not observing the rites and orders of the Church of England, or for contempt of public prayer, no judge ad quem shall allow of his appeal, unless the party appellant do first personally promise and avow, that he will faithfully keep and observe all the rites and ceremonies of the Church of England, as also the prescript form of common prayer, and do likewise subscribe to the same."

By 14 Car. 2, c. 4, s. 5, "In all places where the proper incumbent of any parsonage or vicarage or benefice with cure doth reside on his living, and keep a curate, the incumbent himself in person (not having some lawful impediment to be allowed by the ordinary of the place) shall once, at the least, in every month openly and publicly read the common prayers and service in and by the said book prescribed, and (if there be occasion) administer each of the sacraments and other rites of the church, in the parish church or chapel belonging to the same, in such order, manner and form as in and by the said book is appointed, on pain of 57. to the use of the poor of the parish for every offence, upon conviction by confession, or oath of two witnesses, before two justices of the peace; and in default of payment within ten days, to be levied by distress and sale by warrant of the said justices, by the churchwardens or overseers of the poor of the said parish" (d).

By 2 & 3 Edw. 6, c. 1, s. 2, and 1 Eliz. c. 2, s. 2, it is enacted as follows: "If any parson, vicar, or other whatsoever minister, that ought or should sing or say common prayer mentioned in the said book, or minister the sacraments, refuse to use the said common prayers, or to minister the sacraments in such cathedral or parish church, or other places as he should use to minister the same, in such order and form as they be mentioned

(d) Newberry v. Godwin, 1 Phill. 282.

and set forth in the said book or shall wilfully or obstinately, standing in the same, use any other rite, ceremony, order, form, or manner of celebrating the Lord's Supper, openly or privily, or mattens, evensong, administration of the sacraments, or other open prayer than is mentioned and set forth in the said book; or shall preach, declare or speak anything in the derogation or depraving of the said book, or anything therein contained, or of any part thereof; and shall be thereof lawfully convicted according to the laws of this realm, by verdict of twelve men, or by his own confession, or by the notorious evidence of the fact, he shall forfeit to the king (if the prosecution is on the statute of the 2 & 3 Edw. 6) for his first offence the profit of such one of his spiritual benefices or promotions as it shall please the king to appoint, coming or arising in one whole year after his conviction, and also be imprisoned for six months; and for his second offence be imprisoned for a year, and be deprived ipso facto of all his spiritual promotions, and the patron shall present to the same as if he were dead; and for the third offence shall be imprisoned during life; and if he shall not have any spiritual promotion, he shall for the first offence suffer imprisonment six months, and for the second offence imprisonment during life." And if the prosecution is on the statute of the 1 Eliz. c. 2, s. 31, then he shall "forfeit to the king for the first offence the profit of all his spiritual promotions for one year, and be imprisoned for six months; for the second offence shall be imprisoned for a year, and deprived ipso facto of all his spiritual promotions, and the patron shall present as if he were dead; and for the third offence shall be deprived ipso facto of all his spiritual promotions, and be imprisoned during life: and if he have no spiritual promotion, he shall for the first offence be imprisoned for a year, and for the second offence during life."

c. 2, s. 3.

And by the said statutes, "If any person shall in any 2 & 3 Edw. 6, interludes, plays, songs, rhymes, or by other open words, c. 1,s. 3: 1 Eliz. declare or speak any thing in the derogation, depraving or despising of the same book, or of any thing therein contained, or any part thereof; or shall by open fact, deed, or by open threatenings compel or cause, or otherwise procure or maintain any parson, vicar or other minister in any cathedral or parish church or chapel, or in any other place, to sing or say any common or open prayer, or to minister any sacrament otherwise, or in any other manner and form, than is mentioned in the said book; or by any of the said means shall unlawfully interrupt or let any parson, vicar or other minister, in any cathedral, or parish

2 & 3 Edw 6, c. 1, s. 3; 1 Eliz.

c. 2, s. 3.

2 & 3 Edw. 6, c. 1, s. 4:

1 Eliz. C. 2, s. 5.

church, chapel or other place, to sing or say any common and open prayer, or to minister the sacraments or any of them, in such manner and form as is mentioned in the said book; every such person, being thereof lawfully convicted in form aforesaid, shall (if the prosecution is on the statute of the 2 & 3 Edw. 6) forfeit to the king for the first offence 107., for the second offence 201., for the third offence shall forfeit all his goods and be imprisoned during life: and if for the first offence he do not pay the 107. within six weeks after his conviction, he shall instead of the said 107. be imprisoned for three months; and if for the second offence he do not pay the said sum of 201. within six weeks after his conviction, he shall instead of the said 207. be imprisoned for six months." And if the prosecution is on the statute of the 1 Eliz. c. 2, then he shall "forfeit to the king for the first offence 100 marks, for the second offence 400 marks, for the third offence shall forfeit all his goods and be imprisoned during life; and if he do not pay the sum for the first offence within six weeks next after his conviction, he shall instead thereof be imprisoned for six months; and if he do not pay the sum for the second offence within six weeks next after his conviction, he shall instead thereof be imprisoned for twelve months.

"And the justices of assize shall have power to inquire of, hear, and determine all offences contrary to the said acts, and to make process for the execution of the same, as they may do against any person being indicted before them of trespass, or lawfully convicted thereof. Provided, that may associate every archbishop and bishop may at his liberty and pleasure associate himself to the said justices of assize, for the inquiring of, hearing, and determining the same.

Archbishop and bishop

himself with justice of assize.

Ecclesiastical jurisdiction reserved.

"But no person shall be molested for any offence against these acts, unless he be indicted thereof at the next assizes."

And lords of parliament for the said offences on 2 & 3 Edw. 6, are to be tried by their peers. But if the prosecution is on 1 Eliz. c. 2, then they shall only "for the third offence be tried by their peers."

"And all mayors, bailiffs, and other head officers of cities, boroughs, or towns corporate, to which justices of assize do not commonly repair, shall have power to inquire of, hear and determine offences against these acts within fifteen days after the Feast of Easter and St. Michael the Archangel yearly, as the justices of assize may do.

"Provided that all archbishops and bishops, and every of their chancellors, commissaries, archdeacons and other ordinaries having any peculiar ecclesiastical jurisdiction,

dictions.

shall have power by virtue of these acts, as well to inquire Peculiar and in their visitations, synods, and elsewhere, within their exempt jurisjurisdiction, at any other time and place, to take accusations and informations of all and every the things above mentioned, done or committed within the limits of their jurisdiction, 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 king's ecclesiastical laws. And for their authority in this behalf, all and singular the same archbishops, bishops, and other their officers exercising ecclesiastical jurisdiction as well in places exempt as not exempt within their diocese, shall have full power and authority to reform, correct and punish by censures of the church, all and singular the said offenders within any their jurisdictions or dioceses; any other law, statute, privilege, liberty or provision heretofore made, had, or suffered to the contrary notwithstanding. Provided, that whatsoever persons shall for their offences first receive punishment of their ordinary, having a testimonial thereof under the ordinary's 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."

If any Parson, Vicar, or other whatsoever Minister.] Roman Catholic priests, as well as others, were so subject; for in an action hereupon, in the 3 Eliz., brought against a Roman priest for saying mass, it was held by the whole court, that he was within the purview of the statute of 1 Eliz. c. 2, it appearing clearly by the next clause thereof, that the design of the parliament was to abolish the superstitious service, and to establish the new service in its place (e).

What ministers were subject

hereto.

Use any other Rite.]-In the 26 & 27 Eliz., Fleming What is "Any was indicted upon this statute of 1 Eliz. c. 2, and punished; other rite?" because he had given the sacrament of baptism in other form than is here prescribed (ƒ).

In 1 Jac. 2, an indictment for using other prayers, and in other manner, seems to have been judged insufficient, because the prayers used may be upon some extraordinary occasion, and so no crime; and it was said, that the indictment ought to have alleged, that the defendant used other forms and prayers instead of those enjoined, which were neglected by him; for otherwise every person may

Open prayer. 1 Eliz. c. 2, B. 2; 2 & 3 Edw. 6, c. 1,

8. 2.

Ecclesiastical jurisdiction.

Caudrey's

case.

As to exemption from

criminal law.

be indicted that uses prayers before his sermon, other than such which are required by the Book of Common Prayer (g).

These words, "use any other rite," have been construed by recent decisions to operate as prohibiting any variation, however trifling, in the performance of divine service from that ordered by the Statutes of Uniformity. The cases on this subject will be set forth in the section "On the Performance of the Divine Service,"

Or other open Prayer.]-By the said acts, open prayer in and throughout the same, "meaneth that prayer which is for others to come unto, or hear either in common churches, or private chapels or oratories, commonly called the service of the church" (h).

Shall forfeit.]-A clerk was indicted hereupon, for using other prayers, and was fined 100 marks; and it was holden by the whole court to be ill: because they can inflict no other punishment than what is directed by the statute (¿).

All Archbishops and Bishops.]—If a minister preach against the Book of Common Prayer, this is a good cause of deprivation by the ecclesiastical law without aid of the said statutes: for he that speaks against the peace and quiet of the church, is not worthy to be a governor of the church. And the statutes being in the affirmative, do not take away the ordinary's power of depriving for the first offence on the contrary, there is an express proviso, which reserves to him his power (k).

In 33 Eliz., Robert Caudrey, clerk, was deprived of his benefice before the high commissioners, as well for that he had preached against the Book of Common Prayer, as also for that he refused to celebrate divine service according to the said book; which deprivation, though not prescribed by the statutes for the first offence, was declared to be good; because the ecclesiastical judge might lawfully inflict such sentence before the making of these statutes, and is not inhibited (on the contrary his ancient power is reserved) by the same statutes (1).

upon

At Thetford Lent Assizes, 1795, a clerk was indicted these statutes; but the evidence was not that he had left out or added any prayers or altered the form of worship, but that he did not read prayers twice on a Sunday, but alternately one Sunday in the morning, and the next

(g) 3 Mod. 79.

(h) See Freeland v. Neale, 1 Robertson, 643; 6 Notes of Cases, 232.

(i) 3 Mod. 79.

(k) 2 Rolle's Abr. 222; Sanders v. Head, 2 Notes of Cases, 355; 4 Moo. P. C. 186.

(1) Gibs. 268; Caudrey's case, 5 Co. 1.