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ECCLESIASTICAL LAW

IN THE

STATE OF NEW YORK.

CHAPTER I.

CHURCH OF ENGLAND IN THE COLONY.

HE legal and actual position of the Church of England

THE

in the Colony of New York is of importance upon some questions even at this day. It is of much interest to all Churchmen. The Protestant Episcopal Church will be very imperfectly understood if we do not comprehend the state of the Church of England in the Colony.

From the time that Master Wolfall, in Hudson's Bay, after a godly sermon, administered the Holy Communion after the order of the Church of England,1 and from the time when the first services were held according to the Book of Common Prayer, on the bank of James River,2 efforts were made to make the Church of England the established Church of many of the colonies, and to compel a general contribution for its support. At the same time the system of toleration, as it prevailed in England, was allowed.

In Hoffman's "Law of the Church" (p. 19, et seq.), are authorities, showing that in South Carolina, Virginia, and Maryland, the establishment was complete. Conformity was enjoined, and the support of the ministry enforced. All this was the act of the legislative assemblies, the then representatives of the people, and undoubtedly representing

1 Hakluyt, vol. iii. p. 166 (1578).

2 A. D. 1607.

their actual opinion in those colonies. The English Toleration Acts were recognized or reenacted.

An impartial examination of the annals of the period will support the assertion, that the system of an established Church was enforced with far more moderation and justice, in what may be termed the Church of England Colonies, than in any other.

We may now advert to the enactments bearing upon this subject.

By the laws of the Duke of York of 1664, "no minister was to be allowed to officiate, unless he should produce testimonials to the Governor, that he had received ordination, either from some Protestant bishop or minister within some part of His Majesty's dominions, or the dominions of some foreign prince, of the Reformed Religion."

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Upon this the Governor shall induct the minister into the parish, that shall make presentation of him as duly elected by the major part of the inhabitants, householders." 1

By an order of the Court of Assizes in 1672, it was directed, that although divers persons may be of different judgments, yet all shall contribute to the minister established and allowed of. The laws were to be duly observed as to parochial churches. And in 1675, a similar order was made to levy a rate upon all the towns which had not already a sufficient maintenance for a minister.

By another of the Duke's laws of 1664, it was ordered, that for the orderly management of all parochial affairs, eight of the most able men of each parish should be chosen by the major part of the householders, to be overseers, out of which number, the constable and such eight overseers shall yearly make choice of two to be church-wardens; and in case of the death of any of the said overseers and churchwardens, or his or their departure out of the parish, the said constable and overseers shall make choice of another to supply his room.

These church-wardens were to make presentment at the

1 Church, 4. Coll. Hist. Society, vol. i. p. 332.

sessions of misdemeanors which had come to their knowledge, as swearing, Sabbath-breaking, etc.

"The minister of every parish was to preach every Sunday, to pray for the King, etc. He was publicly to administer the Sacrament of the Lord's Supper once every year at least in his parish church, not denying it to persons that for want of health shall require it at their houses. He was not to refuse the Sacrament of Baptism to the children of Christian parents, when they shall be tendered.”

"No person shall be molested, fined, or imprisoned for differing in judgment in matters of religion, who professes Christianity."

This is a remarkable body of laws to have proceeded from a governor of the Duke of York, afterwards James the Second, and by his authority. It may perhaps be regarded as springing from the same motives which afterwards led him to form that strange union with the Dissenters in Englandhis animosity to the Anglican Church, and his intention to plant the Roman Catholic Church upon her ruins. caulay's History, vol. ii. p. 195 etc.).

(Ma

The following are important documents upon the present subject.

One article of the instructions to Governor Dongan of 1686 is: "You are to take especial care that God Almighty be devoutly served throughout the government, the Book of Common Prayer as it is now established read every Sunday and Holy Day, and the blessed Sacraments administered according to the rites of the Church of England."

"You shall be careful that the churches already built, be well and orderly kept, and more be built in the Colony. And that besides a competent maintenance be assigned to the minister of each church, a convenient house be built at the common charge for each minister; and a competent proportion of land be assigned for a glebe."

"And you are to take care that the parishes be so limited and settled, as you shall find most convenient for accomplishing this good work." (Art. 32.)

"Our will and pleasure is, that no minister be preferred

by you to any ecclesiastical benefice in our Province, without a certificate from the Archbishop of Canterbury, of his being conformable to the doctrine and discipline of the Church of England, and of a good life and conversation." (Art. 33.)

And by Article 35,-" to the end that the ecclesiastical jurisdiction of the Archbishop of Canterbury may take place in our Province as far as conveniently may be, you are to give all countenance and encouragement in the exercise of the same, except only the collating of benefices, granting licenses for marriages, and probate for wills, which we have reserved to you, our Governor for the time being."

"You are to permit liberty of conscience to all persons except Papists, so that they be content with a quiet enjoyment of the same." 1

The instructions to Governor Sloughter of 1689 were the same, except that the Bishop of London was substituted for the Archbishop of Canterbury. Those to the Governor, the Earl of Bellemont, of 1697, and to Governor Hunter of 1709, are also nearly identical. In the latter is this clause: "We authorize you to collate any person or persons to any churches, chapels, or other ecclesiastical benefices within our said Province and territories aforesaid as often as any of them shall happen to be void."

The term "Collation," used in these documents, has in general the same meaning in the English law as "Institution," except that it is the term exclusively used when the benefice is in the Bishop. Then there is no presentation, but immediate institution.

The clerk by institution or collation, hath the care of souls committed to him. In virtue of collation as well as of institution, the clerk can enter into the glebe, and take the tithes; though for want of induction, he cannot yet grant or sue for them. (Burns, vol. i. pp. 104, 170.) In the letter of the Society for the Propagation of the Gospel, to Queen Anne, of the 20th of August, 1712, it is stated, "that out of her pious concern that all her subjects in all 1 Colonial Documents, vol. iii. p. 372.

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