Abbildungen der Seite

or addition to certain lessons without the aid of an act of parliament; and why? By virtue of her prerogative, as confirmed by the 27th of Henry, she surely might have so done, but the statute of the 5th and 6th Edw. 6th, chap. 1. made the Common Prayer uniform, and annexed it to the act by way of schedule, and took away, by construction of law, the exclusive power given to the King by the 27th of Henry the Eighth.

In the reign of Elizabeth many laws were made touching ecclesiastical matters; most of them were, certainly, of a mixed kind, and partook of civil rights; the object of some might have been attained with her high notions of prerogative, aided by the statute of Henry, without the assistance of the statute law. But Elizabeth was a very wise woman, and probably had read and well considered what Bracton and others had written, and time approved; viz. that Kings consult the common weal when they are anxious for the advice of their parliaments. Before the 18th and 14th of Charles the Second is commented upon, the state of the law at this time should be minutely considered. By the statutes of Edward and Elizabeth the Common Prayer was made as unalterable as it is now, and the Litany stands the same, with additions. In the time of Edward there was no Queen Consort, and his half sisters, the Queens Mary and Elizabeth, who would have come under the description of progeny, were not in the Liturgy,-the reasons, unnecessary to consider, are obvious-doubt was at that period entertained about the legitimacy of the one, and no doubt about the religion of the other. Anne, the Queen of James the First, being the first Queen Consort, after the passing of the statute of Elizabeth, was, immediately on James's accession to the throne, inserted in the Liturgy. This fact is irresistible evidence to prove, that the insertion of her name was deemed within the true intent and meaning of the preceding statutes, for by force of them the King could not make any alteration or addition whatsoever, as demonstrated by the first of Elizabeth, without an act of parlia ment for that purpose.

Previously to an examination of the statute, the reader should be reminded that the same was prepared by Keeling, afterwards Lord Chief Justice, in conjunction with Sir Matthew Hale and the great Lord Clarendon, at the time Lord Chancellor, who had, in addition to great legal and technical knowledge, the magna vis humanitatis, which was once thought honorable, and much for the benefit of the state.

In examining the statute, on which the question mainly depends, we must-1st, see what the legislature intended; 2dly, whether the words made use of in the enacting parts convey ideas which can unambiguously effectuate the purpose; and, 3dly, whether the King

is not bound by the letter of the statute with regard to that which he is required to do.

The rules uniformly adhered to in the construction of statutes, from the earliest period to the present day, are extremely simple:

First, "The most natural and genuine way of construing a statute is, to construe one part by another part of the same statute, for this best expresseth the meaning of the makers:"

Secondly, "The words of an act of parliament must be taken in a lawful and rightful sense:"

Thirdly, "That construction must be made of a statute in suppression of the mischief, and in advancement of the remedy:"

Fourthly," The preamble of a statute is a good mean to find out the meaning of the statute, and, as it were, a key to open the understanding thereof: "

Fifthly, "A statute ought, upon the whole, to be so construed, that, if it can be prevented, no clause, sentence, or word, shall be superfluous, void, or insignificant:"

Sixthly," Where words in a statute are express, plain, and clear, the words ought to be understood according to their genuine and natural signification and import, unless by such exposition a contradiction or inconsistency would arise in the statute by reason ⚫of some subsequent clause, from whence it might be inferred that the intent of the Parliament was otherwise; and this holds with respect to penal as well as other acts."

[ocr errors]

The first section, after declaring that the act of parliament passed in the first year of the said late Queen (Elizabeth), for the uniformity of common prayer and service in the church, was very comfortable to all good people desirous to live in Christian conversation, and most profitable to the estate of this realm, upon which the mercy, blessing, and favor of Almighty God is in no wise so readily and plentifully poured as by common prayers, recites,—“ And whereas by the great and scandalous neglect of ministers in using the said order of Liturgy so set forth and enjoined as aforesaid, great mischiefs and inconveniences, during the times of the late unhappy troubles, have arisen and grown; and many people have been led into factions and schisms, to the great decay and scandal of the reformed religion of the church of England, and to the hazard of many souls: For prevention whereof in time to come; for settling the peace of the Church; and for allaying the present distempers, which the indisposition of the time hath contracted, the King's Majesty (according to his declaration of the five and twentieth of October, one thousand six hundred and sixty), granted his com

'1 Inst. 381,-1 Show. 108.-Hard. $44.—Parker, 233,-Hob. 93, 97.Plowden, 369.

mission under the great seal of England to several bishops, and other divines, to review the Book of Common Prayer, and to prepare such alterations and additions as they thought fit to offer; and afterwards the convocations of both the provinces of Canterbury and York, being by his Majesty called and assembled (and now sting), His Majesty hath been pleased to authorize and require, the presidents of the said convocations, and other the bishops and clergy of the same, to review the said Book of Common Prayer, and the book of the Form and Manner of the making and consecrating of Bishops, Priests, and Deacons; and that after muture consideration, they should make such additions and alterations in the said books respectively, as to them should seem meet and convenient ; and should exhibit and present the same to his Majesty in writing, for his further allowance or confirmation; since which time, upon full and mature deliberation, they the said presidents, bishops, and clergy of both provinces, have accordingly reviewed the sund books, and have made some alterations, which they think fit to be inserted to the same; and some additional prayers to the said Book of Common Prayer, to be used upon proper and emergent occasions; and have exhibited and presented the same unto his Majesty in writing, in one book, intituled The Book of Common Prayer, and Administration of the Sacraments, and other Rites and Ceremonies of the Church, according to the Use of the Church of England; together with the Psalter or Psalms of David, pointed as they are to be sung or said in Churches; and the Form and Manner of making, ordaining, and consecrating of Bishops, Priests, and Deacons all which his Majesty having duly considered, hath fully approved and allowed the same, and recommended to this present Parliament, that the said books of Common Prayer, and of the Form of Ordination and Consecration of Bishops, Priests, and Deacons, with the alterations and additions which have been so made and presented to his Majesty by the said convocations, be the book which shall be appointed to be used by all that officiate in all cathedral and collegiate churches and chapels, and in all chapels of colleges and halls in both the universities, and the colleges of Eaton and Winchester, and in all parish churches and chapels within the kingdom of England, dominion of Wales, and town of Berwick-upon-Tweed, and by all that make or consecrate bishops, priests, or deacons, in any of the said places, under such sanctions and penalties as the house of parliament shall think fit."

The second section points out, in language unequivocal, the intention of the legislature; it was "in regard that nothing conduced more to the settling of the peace of this nation, (which is desired

of all good men) nor to the honor of religion, and the propagation thereof, than an universal agreement in the public worship of Almighty God; and to the intent that every person within this realm may certainly know the rule to which he is to conform in public worship and administration of sacraments, and other rites and ceremonies of the Church of England," &c.; those who advised the King knew from history, that the most likely means to make the protestant faith universal was first of all to make it uniform. No act was ever penned that so clearly defined the intention of the legislature, and made use of words so little susceptible of ambiguity. The 2d section also states that all ministers shall use the Book of Common Prayer annexed to the


The 3d section enacts, that all persons who had enjoyed any ecclesiastical benefice shall, before the feast of St. Bartholomew (24th August) 1662, read publicly the Book of Common Prayer, and declare his assent thereto. It then sets out th form

of the declaration.

Immediately after the passing of this act (May 19th, 1662), an order was made for the printing of 3000 books of Common Prayer, for the use of all the parishes in England, many of which were not ready for delivery till after the 24th of August, of which the clergy complained, as an opportunity had not been afforded them of getting the Common Prayer, and thereby avoiding the penalty created by the 5th section.

Charles the Second was married on the 30th of June, 1662, and the remaining part of the 3000 copies, which were printed after that period, contained the name of himself and Queen Katherine.

The 6th section requires every person thereafter promoted to any benefice to read the Book of Common Prayer, with a penalty for not so doing. The 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 22d, and 23d, are not material to the present purpose; but the 24th enacts," that all those statutes of the realm, which have been formerly made, and now in force, for the uniformity of prayer, shall stand and be in full force for the establishing and confirming the book called the Book of Common Prayer; this statute therefore recognizes the acts of Edward and Elizabeth before referred to."

We now come to the 25th section, on the legal interpretation of which the question turns, and let us ever bear in mind the persons who prepared this act, and this most important rule, that great regard ought, in construing a statute, to be paid to the construction which the sages of law, who lived about the time or soon after it was made, put upon it, because they were best able to judge of

[ocr errors]
[ocr errors]

the intention of the makers: "Provided always, and be it further enacted by the Authority aforesaid, That in all those prayer, litanies, and collects, which do any way relate to the King, Queen, or royal progeny, the names be altered and changed from time to time, and fitted to the present occasion, according to the direction of lawful authority: Provided always, and be it further enacted," (that is, made one of the laws of the realm); "by the authority aforesaid," (that is, by the King's most excellent Majesty, by the advice and with the consent of the Lords spiritual and temporal, and of the Commons, in this present Parliament assembled, and by the authority of the same,)" that in all those prayers, litanies, and collects, which do any way relate to the King, Queen, or royal progeny,"-What does the pronoun those refer to, but to the litanies, prayers, and collects, in the book annexed to the statute? -And it is most important, and nearly conclusive of the question, that in this book the prayer for the Queen, after the one for the King's or the Queen's Majesty, stands thus:-" A Prayer for ***. At this time, (May 19th, 1662) Charles the Second was not married, but as soon as he was married the Prayer Books had inserted in them the title of "A prayer for the Queen and the rest of the royal family," which proves, beyond all dispute, the intention of the legislature; Contemporanea expositio est fortissima in lege." The true definition of the word Queen, is as unequivocal as that of the King, it means the wife of the King, and is derived from the Saxon; as the wife of the King her majesty is entitled to many high privileges and immunities, some of them depending on the existence of the King, but altogether exclusive of his will.


Prynne, in his Aurum Regina, recites many records in which the Queen is set forth under the title "The Queen who now is,

[merged small][ocr errors]

2 Dr. William Nicholl, a man of great learning, and who was intimately acquainted with all persons of note at the time of the Revolution, and whom Queen Anne personally requested to revise the Liturgy, writes "In the sealed books the title is only "A Prayer for* ** *, the rest is from time to time to be supplied by order of the Privy Council."

See Lye's Sax. Dict. Quena. Uxor, mater-familias, fœmina quævis; Lup. Serm. 1. 11. Vox olim honesta, inde enim nostra, Queen, scil. uxor, KaTox Regia Uxor, Regina: notwithstanding this authority it will be found, on a critical examination, that the word Queen means, strictly, the wife or companion of the King, and answers to Countess, Baroness, &c. The Queen, in this Pamphlet, is not considered under the title of Queen Regnant; because by the Common Law, as unnecessarily declared by the 1st Mary, Sess. 3. c. 1. she is, as Sovereign, the same as the King.

✦ Vide Treat. on the Rights of the Queen, Pamph. 1762, Harg. Libr. Brit. Mus.

5 Prynne Aurum Reginæ, p. 124.

« ZurückWeiter »