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And in the second year of his Majesty's reign, an Act passed, whereby it is enacted, that upon representation made to the General Court or Assembly, that any town or district is destitute of a minister, qualified as by law is provided, or do neglect to make due provision for the support of their minister, the General Assembly shall provide and send an able, learned, orthodox minister, of good conversation, being first recommended by three or more of the settled ordained ministers, or may lay a tax for the maintenance of the minister.
From these letters patent and laws, we cannot collect that there is any regular establishment of a national or provincial church in this colony, so as to warrant the holding of convocations or synods of the clergy; but if such synods might be holden, yet we take it to be clear, in point of law, that his Majesty's supremacy in ecclesiastical affairs, being a branch of his prerogative, does take place in the plantations, and that synods cannot be held, nor is it lawful for the clergy to assemble as in a synod, without his royal license.
The second question is: how far his Majesty's prerogative may be concerned, in which an application, not to the LieutenantGovernor, as representing his Majesty's person, but to him and the Council and House of Representatives?
We conceive such application to be a contempt of his Majesty's prerogative, as it is a public acknowledgment that that power resides in the legislative body of the province which by law is vested only in his Majesty; and the Governor, Council, and Assembly intermeddling therein, was an invasion of his royal authority, which it was the particular duty of the Governor to have withstood and rejected.
The next question is: whether the consent of the Council and House of Representatives be a sufficient authority for their holding a synod?
We are of opinion such consent will not be a sufficient authority; but we beg leave to observe, that it does not appear, by the papers transmitted to us, that the Council and Assembly have given their consent thereto, but that the House of Representatives, upon reading the resolution of the Council, adjourned the further consideration thereof till the next session, to which resolution of adjournment the Council concurred and the Governor subscribed his consent.
The next question is: if this pretended synod should be actually sitting when the Lords Justices' directions in this matter are received by the Lieutenant-Governor, what can be done to put an end to their meeting?
We humbly apprehend, that in case such synod should be actually sitting, yet the Lieutenant-Governor, by order from his Majesty or your Excellencies, may cause them to cease their meeting; and that for this purpose it may be proper that he should be directed to signify to them, that their assembly is against law, and a contempt of his Majesty's prerogative, and that they do forbear to meet any more; and if, notwithstanding that, they shall continue to hold their assembly, that the principal actors therein be prosecuted, by information, for a misdemeanor. But we apprehend no formal act should be done to dissolve them, because that may imply that they had a right to assemble.
The principal difficulty in this case will be, if there should be an Act of the General Court or Assembly to warrant their meeting. And we conceive, that if such Act should pass in the nature only of the resolution above-mentioned, it will have no effect; but if it should have the regular form of a law, it will admit of great doubts whether it will be agreeable to the powers granted by the charter, and therefore, we humbly apprehend, it will be fit for his Majesty to disallow it. But it is difficult to give an opinion upon the effect and consequence of such an Act without seeing the Act itself.
The last question is: what authority those ministers have to meet in a general convention, and being so assembled, to make and present addresses, or to do any other public act?
We apprehend that such meeting is not unlawful provided they do not take upon them to do any authoritative act, being only a voluntary society; and they may lawfully make addresses, either to the Crown or to the General Court or Assembly, in case the subject-matter of such addresses be lawful.
It being taken notice of in the address of the General Convention of Ministers, that such a synod as is now desired was holden fortyfive years ago, we cannot help observing to your Excellencies, that this computation falls in with the year 1680, and that the former charter, upon which the government of this province depended, was repealed by scire facias in the year 1684, and the new charter granted in the year 1691; from whence it appears, that such synod or assembly was holden a short time before the repealing of their old charter, but none since the granting of the new one.
All which is humbly submitted to your Excellencies' great wisdom.
September 29, 1725. 0. Wearg.
(3.) Opinion of the Attorney General,Sm Edward Nobthey, on the Right of Presentation to Benefices in Virginia. 1703.
On consideration of the laws of Virginia, provision being made by the Act entitled, "Church to be built, or Chapel of Ease," for the building a church in each parish j and by the Act entitled "Ministers to be Inducted," that ministers of each parish shall be inducted on the presentation of the parishioners; and the churchwardens, being, by the Act entitled "Churchwardens," to keep the church in repair, and provide ornaments, to collect the minister's dues; and by the "Act for the better support and maintenance of the Clergy," provision being made for the ministers of the parishes; and by the said Act for inducting ministers, the Governor being to induct the minister to be presented, and thereby he being constituted ordinary, and as bishop of the plantation, and with a power to punish ministers preaching contrary to that law, I am of the opinion, the advowsons and the right of presentation to the churches, is subject to the laws of England, there being no express law of that plantation made further concerning the same; therefore, when the parishioners present their clerk, and he is inducted by the Governor (who is and must induct on the presentation of the parishioners), the incumbent is in for his life, and cannot be displaced by the parishioners. If the parishioners do not present a minister to the Governor within six months after any church shall become void, the Governor, as ordinary, shall and may collate a clerk to such church by lapse, and his collatee shall hold the church for his life; if the parishioners have never presented, * they have a reasonable time to present a minister; but if they will not present, being required so to do, the Governor may also, in their default, collate a minister. In inducting ministers by the Governor, on the presentation of the parishes, or on his own collation, he is to see the ministers be qualified, according as that Act for inducting ministers requires. In case of the avoidance of any church, the Governor, as ordinary of the plantation, is, according to the statute of 28th Henry 8, cap. 11, s. 5, to appoint a minister to officiate till the parish shall present one, or the six months be lapsed; and such person appointed to officiate in the vacancy, is to be paid for his service out of the profits thereof, from the time the church becomes void by the law above stated. In this case no minister is to officiate as such till he hath showed to the Governor he is qualified, according as the said Act for induction directs; if the vestry do not levy the tobacco for the minister, the courts there must decree the same to be levied.
July 29, 1703. Edward Northey.
(4.) Opinion of the Attorney General, Sir Edward Northey, on the granting of Letters of Administration on the same Estate, both in England and in the Colonies. 1707.
To the Right Honourable the Lords Commissioners for Trade and
May It Please Your Lordships,—In obedience to your Lordships' commands, signified to me by Mr. Popple, I have considered of the enclosed extract of Lord Cornbury's instructions, and of his letter relating to the granting letters of administration; and your Lordships having required my opinion thereon, and what may be fit for her Majesty to do in all the plantations on the like occasions, I do most humbly certify to your Lordships, that by law, where a man dies intestate in the plantations, having a personal estate there, and also any personal estate, or debts owing, here in England, the right of granting administration belongs to the Archbishop of Canterbury; and if administration be granted, in the plantations, also (which may be), that administrator will be accountable to the administrator in England, but will be allowed the payment of just debts, if paid in the order the law allows of-—that is to say, the whole personal estate, in England and the plantations, will be liable to all the intestate's debts in both places, and out of the whole, first, debts owing to her Majesty, then judgments, statutes and recognizances, then bonds, then debts, without speciality, both there and in England, are to be satisfied; and the administrator in the plantations will not be allowed the payment of any debts, without speciality, if there be debts of a superior nature unsatisfied in England; for every administrator is bound to take care to apply the intestate's assets to discharge his debts, in the order the law directs, and it matters not whether the debts were contracted in England or the plantations. If there be debts of equal nature in England and the plantations, the administrator may discharge which he pleases, before he be sued for any other of the like nature. This, indeed, is some difficulty on administrators, but it is no more there than in England; and attempts have been made by Acts of Assembly, in some of the plantations—particularly, as I remember, in Pennsylvania—to appropriate the effects in the plantations, of persons dying there, to the discharging debts contracted there; but those Acts have been repealed here, as being prejudicial to this kingdom. I am also of opinion, that when the letters of administration arrive at the plantations, under the seal of the Prerogative Court of Canterbury, they are to be allowed there, and the authority of the administration granted in the plantations from that time ceases.
March, 1707. Edw. Northey.
(5.) Observations by the King's Advocate, Sir James Marriott, on enforcing residence at a living in Barbadoes, in the Case of the Rev. Mr. Barnard (i). 1764.
It is stated that the Governor of Barbadoes institutes to all livings in the island of Barbadoes.
That no law of the island enforces residence.
That there is no judicature there to inflict the penalty of the Act of Parliament.
The question is, how residence can be enforced?
It appears that the commission granted by George I. to Bishop
(i) From a MS. in the possession of Sir Trnvors Twiss, Queen's Advocate, which formerly belonged to Sir James Marriott, King's Advocate.