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the beginning of public worship in a colony.
The first ordained minister of the Church of England in the Colonies was the Rev. Robert Hunt, who came as a missionary to Virginia, arriving at Jamestown early in the year 1607. During that same year a church was built in Jamestown. Certainly, no earlier date than the year 1607 can be taken as the date of the planting of the Church in the Colonies.
What, then, constituted the great body of the Ecclesiastical Law that was in force in England prior to 1607?
We find from the decisions of the English jurists, that even before the landing of St. Augustine upon the shores of Britain, there had grown up a body of Common Ecclesiastical Law, separate and distinct from the Ecclesiastical Law that prevailed on the continent.
As the centuries went on, this branch of the Ecclesiastical Law naturally increased in volume until in the year 1607 we find that besides this great body of what was known as the "King's Ecclesiastical Law" or Common Law Ecclesiastical, were the canonical enactments of the post-Reformation period prior to that year, which included the statutes of Henry VIII, Edward VI, and Elizabeth, the injunctions of Edward VI., and of Elizabeth in 1547 and 1559, the Synod of Archbishop Parker, 1571, the Articula pro Cleri of 1584, the Capitula of London, 1597, and the Canons of 1603, in the reign of James I.
With perhaps the exception of the statutes of Henry VIII, the most important of these are the Canons of 1603, as they superseded the two injunctions of Edward and Elizabeth, and either superseded or modified the other institutions named. The comments and writings of eminent men were also sources of information, and all these except the statutes, formed the testimonials and witnesses of the Common Law of the Church.
Blunt, in his "Book of Church Law," sums up the Law of the Church in England:
"1. The Common Law of the realm.
2. The English Canon Law, ancient and modern, so far as it is not opposed to the Common and Statute Law or to the royal prerogative.
3. Foreign Canon Law, so far as it has been accepted by custom or by Act of Parliament.
4. The Statute Law of the realm, including the Book of Common Prayer and the XXXIX Articles of Religion."
He also says: "Where these laws do interfere and cross each other, the order of preference is this: The Civil Law submitted to the Canon Law; both of these to the Common Law, and all three to the Statute Law."
This, then, formed the great body of the English Ecclesiastical Law when the Church was planted in this country; and this constituted the body of the law of the Church in the colonies. Many modifications arose, even in colonial days, from specific provisions of charters, or particular laws of colonial assemblies, as well as from those changes in the situation of the people and the usages of the community, which rendered some provisions incompatible or inapplicable.
Then came the Revolution. It brought with it many necessary alterations in the law and discipline, as it did in the Liturgy of the Church. These have, for the most part, been defined in our system. Then the Constitution of the Church at large, and the organization of the several Dioceses, have led to a body of regulations partly original and partly adapted, and these with the statutes of the civil authority, cover a very extended field of law.
But outside of our own ecclesiastical enactments, there will yet remain many cases not provided for. In these we must be guided by the Common Law of the Church. By
that Law such cases are to be presumptively decided, leaving it to be shown that such law is repugnant to some principle, settled custom, or institution of our own, secular or ecclesiastical. And more than this, upon every construction of a canon or rubric, of a phrase or precept, its admitted acceptation in the old English Law, i.e., our Common Law, is to prevail, unless or until otherwise expressly interpreted.
Let me illustrate by showing the application of these principles to a concrete case, as set forth by Judge Hoff
What is the Law of the Church as to the performance of the Burial Office? Is it obligatory upon the minister of a parish to read that service over a member of the parish, he having been given proper notice? The only regulation on that subject which we have is found in the rubric of the Burial Office, providing that this office is not to be used for any unbaptized adult, and any who die excommunicate, or who have laid violent hands upon themselves. This is the same as the rubric in the English Prayer Book, except the provision relating to unbaptized adults. In the English Prayer Book it reads "unbaptized persons."
The rubric allows the service, but certainly does not command it. What, then, is the law? We are obliged to resort to the English construction of the rubric, which has become a part of our Common Law.
The decisions of the English Courts on this question were embodied in the 68th Canon of the Canons of 1603, providing, "that any minister refusing to bury a body in such manner and form as prescribed in the Book of Common Prayer, brought to the Churchyard after a convenient warning, shall be suspended for the space of three months.'
When, then, we find that at the adoption of the English
Rubric, such was the law of the Church, we have an interpretation of it making it obligatory to perform the service over all those enumerated, and our rubric being practically the same as the English Rubric, must receive the same construction, and thus the refusal to bury a parishioner would be a violation of the rubric.
Another question grows out of the same rubric, where the application of the principle of the Common Law is even more pointed.
The rubric directs that the Burial Office shall not be used over unbaptized adults. Who are such? Would a minister be justified in refusing the Service over one who had not been baptized by a minister of this Church, one who had received Lay Baptism? I am not aware of any decision of the American Church on this question, and so we must turn to the Law of the Church of England at the time the rubric was adopted for the construction of the word "unbaptized."
When the American Church adopted the Liturgy of the Church of England, as it did, with only minor and necessary alterations, it necessarily adopted the rubrics of the English Prayer Book. Hence, we find that the vast majority of our rubrics are identical with the English rubrics, and in adopting them, it also adopted the English rule of construction. It did this on the same ground that our courts of justice proceed upon where an English statute has been in force in a colony, and is re-enacted by the State.
In view of this fact, it will readily be seen what an important part the Common Law of the Church, which contains the English construction of the rubrics, plays in our American Church judicature. Its importance and relative value may be stated in these three propositions:
1. The Common Law governs, unless it is inconsistent
with, or superseded by positive enactment or institution of
2. Unless it is at variance with any civil law or doctrine of the State, either recognized by the Church or not opposed to her principles.
3. Unless it is inconsistent with, or inapplicable to the position in which the Church in this country is placed.
In other words, the Common Law Ecclesiastical bears the same relation to the Church that the Civil Common Law bears to the State, and it is to that law we are to resort for guidance in all unsettled points.
Our civil courts have universally upheld the controlling force of the English Ecclesiastical Law as embodied in our Common Law, whenever the question has come before them.
One of the earliest decisions on this subject was rendered by the Supreme Court of New Jersey, in the case of Lynd vs. Menzies, where the direct question came before the court as to what laws were of force and obligation in the American Church.
It seems that the Wardens and Vestrymen of St. Barnabas Church in the City of Newark, becoming dissatisfied with their Rector, the Rev. Mr. Lynd, not an unheard of thing even in those days, wrote to him that on Easter Day, then passed, his connection with the parish as Rector had ceased. On the next day, which was Sunday, when he went to the church to officiate, he found the church closed and the doors so fastened as to prevent his entering. A few days afterward he was in a similar manner excluded from the parochial schoolhouse. He then brought an action against the Wardens and Vestrymen, as individuals, for forcibly preventing him from holding service in the church and occupying the parochial school house. The jury returned a verdict in favor of the Rector for one