The memorandum itself, which is somewhat lengthy, appears to have been
drawn up with a view to satisfying Sir Robert that in the event of the
Pretender being placed upon the throne of England no attempt would be
made to interfere with the privileges of the Protestant Church. It
begins:—
HEADS OFFERED TO CONSIDERATION IN RELATION TO THE SECURITY
AND ADVANTAGE OF THE CHURCH OF ENGLAND
When in the year 1721 I looked over Archbp. Sancroft’s
manuscripts and papers, I found among them one containing a
scheme for the government of the Church of England under a R.C.
Prince; which I thought exceeding well drawn, as well for
preserving a just prerogative in the Crown, as for providing a
reasonable security for the Church. It appeared to me to be
drawn at the time of the Bill of Exclusion, when the late K.
Charles offered to come into any scheme of that nature, though
he was resolved never to passe that Bill, as conceiving it to be
contrary to honour, justice and conscience. I laid that scheme
aside, with some curious discourses of the Archbps. and
abundance of valuable letters which I selected in order to write
his life. But being to passe into Leicestershire and spend 3 or
four months before I got to London, I left them at Fresingfield,
intending to send for them to town, as soon as I got thither.
But being forced to come abroad not long after in 1722, they
still remained at Fresingfield, and were swept away by Dr.
Tanner, then Chancellor of Norwich, with the rest of the
ArchBps. manuscripts, which he bought in the beginning of 1728,
about a quarter of a year before I returned to England. Dr.
Tanner dying about 3 years ago and leaving all his MSS. to the
University of Oxford, I made two journeys thither last year to
search for this scheme: but though I looked over every
individual paper of his that had been delivered to the
University, I could not find what I searched for. This makes me
conclude that the Drs. Executors did not deliver to the
University all the MSS. that were bequeathed them; and the
rather because I did not observe among them half even of the
most curious MSS. of the ArchBps. which I had taken a short
catalogue of for my own use.
In defect of this scheme, I venture to draw up my own thoughts
on the subject, and to mention some particulars which I conceive
may be either for the security or for the advantage of the
Church of England.
First, that which I imagine would be a very good and perhaps a
better security to it than any other privilege, is the restoring
to the Clergy their ancient right of taxing themselves; a right
enjoyed by the Clergy in all parts of Europe, and never enjoyed
by the English till 3 years after King Charles the Second’s
restoration; when the Convocation then sitting gave it up by a
Solemn Act, without ever consulting their Constituents,
reserving, however, to themselves by an express clause a power
to resume it whenever they should think fitting. It would be
against all law, justice, and equity to deny them such a
resumption whenever they demand it; which they are now
universally desirous of doing, having seen the Sitting of
Convocations interrupted, and that representative Body and chief
judicature of the Church rendered useless, almost ever since
they gave up this right. The House of Commons, fond of
allocations of extending their power, and grasping at everything
that will aggrandize themselves, may not perhaps care to part
with this new branch of their power; but it is not the interest
of the Crown that the Commons should grow too great, and the
experience of 1641 ought for ever to make a Prince, and indeed
all orders of men, jealous of every accession of power which
accrews to that Body: and if ever they are to be prevailed with
to part with this additional branch thereof, it is most likely
to be done on the account here mentioned, viz. for the security
of religion. For by the constant and regular sitting of the
Convocation concurrent with every Parliament (which will be
fully provided for by restoring to the Clergy this right of
taxing themselves), it will be scarce possible for any material
steps to be taken for the introducing of another religion, when
there is a body of men sitting and on the watch against all
measures of that kind, and ready to oppose them by their weighty
and prudent remonstrances. There is no method so proper for
redressing grievances as by returning to the old ways of our
Constitution; all deviations from which have ever been found of
mischievous consequence. The inconveniences of new institutions
are seldom thought of till they are felt; but we have the
experience of ages to shew us the wisdom and advantages of
ancient usages: and as no inconvenience ever yet attended this
right of taxation during the many hundreds of years that the
Clergy enjoyed it, it cannot with the least pretence to reason
be surmised that any should now attend the restoring it to them.
I knew not whether I need observe that the only reason why the
Convocations grants of subsidies were inserted in Acts of
Parliament was that the Collectors thereof might have a power of
distraining on the glebe and goods of the Clergy; which could
not be given by any Ecclesiastical authority.
2. Another thing that would contribute greatly to the security
of the Church, and be as much for its benefit, is a repeal of
the Act of Submission passed in the time of Henry 8, which
hinders ArchBps. and Bps. from holding provincial and diocesan
synods, to which they were obliged by the old canons of the
Church, but are deterred from doing so by the dread of a
Praemunire, which in such case they would incur according to the
terms of that Act. The right of holding such synods in provinces
and dioceses, for the due ordering of Ecclesiastical affairs and
the better execution of the Canons, is as ancient as the
institution of Christianity, and is enjoyed in all Christian
countries upon earth, except in England. For the Act of
Submission having never taken place in Ireland (where as there
had been no exercise of the Legative power, so there had been no
obedience paid to it, and consequently no penalties thereby
incurred), the Clergy in that Island still enjoy the right of
meeting in provincial and diocesan synods. ArchBp. King of
Dublin lately held one of the first sort, and the Acts of one of
the latter kind held by Bedell, Bp. of Kidmore, are published in
the life of that prelate: which are sufficient evidences of this
right of the Church of Ireland. It was in this manner that the
Primitive Church was governed, and it is fit that every National
Church in times posteriour to their should be governed in the
same manner; as that of England indeed ever was till the Act of
Submission. These Synods will be a great security to the Church
of England in the intervals of Parliaments and Convocations.
They will be likewise of great use in other respects, and
contribute much to the ends of religion. They may restore the
just discipline of the Church, and correct abundance of
grievances, as well as in regard of the scandalous corruption of
the spiritual Courts, as of the shameful oppression of the
Clergy by some Bps. in many cases. Bishops in France and other
countries abroad, tho’ obliged by the Canons to hold diocesan
Synods every year, are yet not very fond of holding them,
because they are a curb upon their authority. For tho’ they can
put a negative upon the resolutions of the majority, yet being
often ashamed of dissenting from truth and reason, the
Presbyters or incumbents of livings are still found to have the
greatest weight in such Synods. And possibly for the same reason
they may be as little agreeable to our English Bishops, who
having in a manner quite lost the power of exercising any part
of their authority over the Laity, endeavour continually to make
themselves amends by lording it over other Clergy; insisting (as
their Archdeacons also, after their example and in virtue of
their delegated authority, have done) upon the oath of canonical
obedience, which they pretend obliges the Clergy to obey them in
everything whatever that they enjoin which is not absolutely
unlawfull; an interpretation of that oath contrary to the sense
of all Canonists abroad, who agree that it only obliges to
obedience in such things as are prescribed by the Canons. But
the fonder they are of power, the more necessary is it that
their power should be restrained to the ancient bounds, and that
institutions of such great use as Diocesan and Provincial Synods
should be restored.
It was in such provincial Synods, that all disputes about
matters of faith were determined and heresies condemned during
the 3 first centuries of Christianity. It is in these that the
authority and jurisdiction of the Church has in all ages been
chiefly and most usefully exerted. ’Tis a hardship peculiar to
the Church of England to be deprived of a benefit which all
other Churches upon earth enjoy, and therefore it is much to be
wished this right of holding provincial Synods were restored.
There would then be no want of visible judge of doctrine and
controversies, such as served to direct the primitive Christians
and martyrs in the first ages of the Gospel in the way of
salvation. There would not then be any want either of a ready
antidote against any heretical or irreligious books that are
published nowadays with encouragement rather than impunity, or
of power to censure them and punch the authors thereof if they
should prove to be Clergymen. There would not then, if any Bp.
or other Ecclesiastick should preach and maintain any heretical
tenets or assert any of the new erroneous doctrines which the
Court or Church of Rome have grafted upon the ancient faith of
the Church, or be guilty of any other crime the Canons have
decreed to be punished with deprivation, be any want of
canonical authority to take cognisance of the cause, and
pronounce sentence in a regular manner. For it is in these
provincial Synods that Bishops have in all ages of the Church
been ever judged and deprived in such cases: and if the same
method had been established in England in Q. Mary’s time, the
church would not then have been ruined. For none of the Edwards
Bps. were deprived canonically by a Synod of their comprovincial
Bps., but by a few persons, some of them Laicks, empowered by a
particular commission from Her Majesty. The High Commission
Court has indeed been since put down by an Act of Parliament,
which provides that neither that Court nor any like it shall
ever be erected for the future. But lawyers may possible dispute
whether that Act extends to such particular commission as Q.
Mary issued (which perhaps were not thought of in 1690 when this
Act passed); so that it is highly to be wished that Provincial
Synods might be restored, and the offences of Bps. and Clergymen
inferring deprivation, subject to their cognisance.
Diocesan Synods never intermeddled in matters of faith. Their
business was confined to points of mere discipline, and their
chief care was to make proper regulations for inforcing the
practise of that discipline, and to provide for the due
observance of the Canons within their district. Offences against
these were also within their cognisance, and whatever else was
under the jurisdiction of the Bp. in his single capacity, came
also before him when at the head of these Synods; which may be
composed either of all incumbents in his Diocese, or of the
Chapter of the Cathedral, the Archdeacons, Rural Deans, and two
Proctors chosen by the Clergy of each Deanery. And if in the
interval of these Synods a Bp. was obliged to consult with the
Chapter of his Church, and the Rural Deans of his Diocese before
he gave judgment in any cause, and to use them as his
co-assessors in hearing it, this would add much to the dignity
and effect of such sentence, and would probably reconcile
abundance to Episcopary, that are at present disaffected to that
kind of government.
There was in the last Sitting Convocation in 1713/4 a proposal
made and an intention formed of reviving the institution of
Rural Deans, and it would probably have taken place in the next,
had there not happened a change of government which has ever
since put an end to the Sitting of Convocations. But were that
old institution revived, and such a method of episcopal and
synodical jurisdiction settled, it might easily be so adjusted,
as to reform abundance of shameful practices in the spiritual
Courts to prevent any false doctrines either heretical or Roman
from being instilled into the people. For whilst there is so
short and easy a method of calling those who reach them to an
accompt before their brethren of the Clergy in their own
neighbourhood, scarce anybody will dare to attempt such an
innocation, when he must expect a censure to be immediately
passed upon him by his Bp. not alone, but assisted by a
venerable Council of Rural Deans recommended for their merit by
the body of the Clergy, and antecedent to his crime approved of
and constituted by their Diocesan.
There was at the same time another proposal made of reviving
also the charge of Suffragan Bps. as anciently used in the
Church of England, or as at last regulated in the reign of
Henry, and continued to that of Q. Elizabeth. And as some
Dioceses in England are too large, they might be very useful for
the due exercise of discipline, as well as for reforming the
corruptions and lessening the power of Spiritual Courts.
It might be observed that the corruption of those Courts is not
owing to the Bishops. Some of these have endeavoured to reform
them, but in vain, they have put limiting clauses into the
patents, and they have granted to Vicars general, Chancellors
and Commissiaries, but still to no purpose, even with regard to
the granting of licenses to preach, which being, by the Rubrick
of the Common Prayer book established by Act of Parliament,
reserved expressly to Bps. they naturally thought they might
very well restrain their deputies from granting them. But these
deputies, distinguished by the several titles before mentioned,
pretend that a Bp. having constituted them Vicars general,
Chancellors or Commissiaries by patent, they are in virtue
thereof actually invested with all the power usually annexed to
such office, and that all restraining clauses are null by common
Law: and so they continue to exercise a power in those cases
wherein by the express terms of the patent they are debarred the
exercise thereof. Our Common Law is in truth but too favourable
to such iniquities, and it is highly reasonable that an Act
should pass to restrain the power of these officers to the terms
of their patent; or perhaps it may not be amiss to provide that
such offices should be held only for the life or incumbency of
the person that grants them; or if allowed to be granted to
persons quamdice bene se gesserint, certain cases may be
specified wherein these officers shall be removable by the
judgment of the Bp. in conjunction with the Chapter and Rural
Deans of the Diocese, from whose sentence there should lye no
appeal to Common Law.
The Courts of Common Law, however they have intrenches on the
jurisdiction of the Spiritual Courts, do yet give countenance
and protection to all their iniquities, which serve to bring
them in business; and this makes the Common Lawyers so loath to
see them reformed, and so ready to baffle all attempts of that
nature. The judges thereof have stuck to no maxim so constantly
as to that scandalous one of St. Edw. Cokes, A Boni judicies est
ampliare jurisdictionem curice suce, and have by monstrous
fictions, and by the help of numberless querks and pretences
swallowed up in a manner all the jurisdiction of other Courts,
as the Lord Constable and Marshals, Admiralty, etc. in order to
draw all business to themselves. Thus also as often as they
please they call by prohibitions (for which they never want
pretences) all causes before them from Spiritual Courts and
other Ecclesiastical or Visitatorical jurisdictions: and when a
cause is once brought into their Courts, where they can invent
and start an hundred points and issues to be argued, there is no
end of the expense or no hopes of a decision, so that it must
drop at last after several years continuance without any
determination as the late affair of Dr. Bentley. It is very fit
there should be prohibitions in many cases, as there are appels
d’abus in France; but it is as fair that those cases should be
settled fixed and determinate. There was in the time of K. James
I. a judgment given upon this subject by the King in his Privy
Council (to whose judicature it properly belongs to decide of
the just authority of different Courts when they quarrel about
their jurisdiction) and proper bounds were fixed to the
authority, as well of Spiritual Courts as of those of Common
Law, which were tolerably well observed till the troubles of
1641 threw all government into confusion, and Episcopacy being
destroyed and the jurisdiction of Bps. suppressed with their
Order, the Common Law carried all before it, swallowed up the
Ecclesiastical authority, and has ever since kept a great part
of what it then invaded.
This is now grown to so intolerable an height, that at present
there is not any Ecclesiastical authority in England to call a
Clergyman to an accompt, and punish him for preaching or
printing any heretical doctrine or any erroneous tenets of the
Court of Rome: so that unless the Common Law be restrained in
this respect, and the use and authority of provincial and
diocesan Synods be revived, I do not see how it can be
practicable to secure the Church of England from being overrun
with false doctrines. For unless there be a short and easy way
of punishing those that vent them, many will be induced to do
so, when temptations shall be offered and encouragements given
for the attempt: and this power can be vested nowhere so
properly, so safely and so unexceptionally as in provincial and
diocesan Synods, agreeable to the constitution of the Primitive
Church.
If it be apprehended that these Synods may be apt to assume too
great a power (not to say that such an apprehension is
groundless) it is a very easy matter to prevent their doing so
by restraining their jurisdiction to the crimes of heresy, false
doctrine and Simony and to the persons of the Clergy, leaving
all Laicks who are guilty of the like offences to the cognisance
of the Civil Courts.
3. Another method for the security of religion is, to
distinguish between _Legatine_, and the _Archiepiscopal_ power
of the ArchBp. of Canterbury, and to reduce that exorbitant
power he possesses at present to what it was before the year
1400, when he enjoyed only his Archiepiscopal authority, not
being made _legaties natus_ till after that year. These two
powers are compounded at present, and the ArchBp., though he
enjoys the legatine, only in virtue of the exercise thereof by
his predecessors, derived originally from a Papal grant of no
force in England, does yet continue to exercise it, tho’ he
hereby encroaches upon the jurisdiction and rights of all the
Bishops and the Kingdom in several cases, and by the abuse
thereof may ruin the established church when he pleases. It was
in virtue of this Legatine power, which is as yet affirmed by no
law, that Dr. Tennison deprived Watson Bp. of St. Davids by his
single authority; tho’ according to the ancient Canons and
constitution of the Christian Church, no Bp. can be regularly
condemned, but by the sentence of a Provincial Synod, in which
twelve Bps. are present. ’Tis easy to see how fatal such a claim
of power, now supported by the seeming countenance of an House
of Lords, may be in its consequence to the Church of England.
There was in the time of Henry 8 (when the Papal power was
abolished in England) an authority vested in the ArchBp. of
Canterbury to grant faculties and dispensations in all cases
where the Pope used before to dispense. Under pretext of this
general grant Archbishops have taken upon themselves to grant
dispensations in cases where the Pope himself could not
effectually dispense. Such particularly is the power of
qualifying persons for living and dignities annexed by Law to
certain degrees in our Universities. The Pope had certainly long
used to confer honorary degrees on such as he saw fit, but these
degrees never qualified persons in France or other countries
abroad for benefices and dignities appropriated to Graduates in
their Universities. This is so settled a point that even in the
Pope’s own territory of the Comtat de Venagsein about Avignon,
tho’ he confess such benefices on those who are not graduates,
yet he always in his bulls obliges them to take their degree
requisite in the Universities. Yet in England ArchBps. of
Canterbury have of late exerted their power in numberless
instances to the great discouragement of learning and prejudice
of our Universities. This is a point that well deserves to be
corrected.
4. As the Universities are a nursery for the Church, and a great
support of the established religion, there cannot be too great
an assurance given of the preservation of their privileges,
their statutes and rights of election; which should not be
liable to be invaded, by any Ecclesiastical Commission for the
extraordinary visitation of particular Colleges or of the
Universities in general, or by writs of Mandamus for putting in
Heads or Fellows of Colleges, contrary to their Statutes and
right of election; or in fine, by appeals from the sentence of
Visitors to the Courts of Common Law, where they have been
controverted of late; particularly in Dr. Bentley’s case; tho’
such sentences were ever deemed unappealable and have been so
declared in the House of Lords in the case of Exeter College,
wherein they gave judgment against their own jurisdiction in
this point.
But if it should be apprehended that an unlimited restraint from
all relief at Common Law, may in some eases be hard on a
sufferer by a Visitor’s sentence, the absolute prohibition of an
appeal may be thus limited, “unless the body of the University
assembled in a Convocation (whereof, and as well of the occasion
of its being called as the day and time when it is to be held,
publick notice shall be given a month before) shall within a
year or 6 months after such sentence petition the King for a
revision thereof; and then his Majesty may issue out a
Commission of Delegates, composed of the Chancellor of the
University, the Visitors of all the Colleges therein, and an
equal number of Drs. of Civil Law, to review the process and
give a final decision.” If University causes come into Common
Law Courts, there is no end of them, and no supporting the
expense: and our ancestors wisely provided they should never
come there: but those Courts are hardly ever at a loss for
pretexts to draw all causes to the Bar, and to break through all
regulations. Their power is now grown to an exorbitant height,
and with it their oppression is extended; so that since the
Chancery, by being put almost ever since the Reformation into
the hands of Common Lawyers, is become in a manner a Common Law
Court where equity is little considered, they are become one of
the greatest grievances of the Nation.
5. Whereas Deans and Chapters of Cathedral Churches in England
do at present retain an empty shadow of the privilege they
formerly had of choosing their own Bps. in that a Conge d’Elire
is constantly upon the vacancy of a see, sent to them and
requiring them to proceed to such election; but they are obliged
to choose the person named to them by the King in a letter
missive sent at the same time, under the pain of incurring a
Praemunire and subjecting themselves to the penalties of the Act
of Henry 8 regulating the election and confirmation of Bishops.
It were to be wished that a better regulation might be made in
this respect, and that Deans and Chapters may, in the case of a
person whom they cannot in conscience contribute by any act of
theirs to advance to a See of which he is unworthy (by having
preached or published heretical and false doctrines, or by being
guilty of Simony or other crimes punishable by deprivation), be
allowed the liberty of declining their choice and approbation
without being liable to the said penalties. It may not perhaps
be fit to make them judges in the case any further than relates
to their own conduct, and therefore upon their signifying the
crime of which the person named in the letter missive is accused
and on account whereof they cannot choose him, and of the
grounds they have to presume of his guilt, till he is judicially
cleared, the cognisance thereof may in the case of a Bp. be
taken by a Provincial Synod, and in the case of a Presbyter, by
a Synod of the Diocese, wherein he has usually resided; and if
the person be acquitted therein, the Chapter then to be obliged
to choose him under all the penalties of the aforesaid Act, but,
if he be condemned, to be justified in their rejecting him, and
a better to be named in his stead.
There are some other regulations of a like kind, that would be
useful with regard to the inferior Clergy, viz.: that every
Certificate of good behaviour and right principles in religion,
usually brought to a Bp. by every person that comes for
Ordination or for Institution to a Living, be signed by the
Rural Dean of the district wherein he has resided for the time
mentioned therein; (unless such person hath been constantly
resident in the University, in which case the Certificate of his
College may serve as at present) otherwise the Bp. to be at
liberty to reject him. And if a Bp. upon examining a person
presented to a benefice shall find him illiterate and
unqualified for the Cure, he shall appoint such person to attend
him another day, when he shall likewise summon the Rural Deans
of his Diocese to appear and shall in their presence examine the
pretentee; and if upon the concurrent judgment of all or of the
major part, or of two thirds of them, he shall be declared
illiterate and insufficent for the charge of a cure of Souls,
the Bp. shall be justified in refusing him institution without
being aliable to any suit in law, or other prosecution whatever.
Such expedients as these afford undoubtedly a very rational
security to the Church of England, and yet none of them really
intrench on the just prerogative of the Crown, unless the
redeeming of the Church from the slavist part of the Letter
missive put upon it contrary to the first article of Magna
Charta be deemed to do so, tho’ it does not infringe the Kings
right of naming the Sees but only provides against the ill
consequences of his being deceived and drawing into the naming
of unworthy prelates; or unless it be in the waving of the claim
of right to make writs of Mandamus for putting Heads and Fellows
upon Colleges in the University; which if it was a right of the
Crown, has been exercised very rarely and never without great
odium, and which seems only to be founded upon a notion, that
the incorporation of Colleges and establishment of Status for
electing the Heads and members thereof, as well as for
regulating their conduct, tho’ made at the request of the
Founders who endowed them, yet derived their force from the
authority of the Crown, which might therefore dispense with
Statuts of their own creating and rights of their own granting,
whenever there was occasion or it was thought proper to exert
the unlimitedness of the prerogative. But if this maxim were
good and would hold in Law, it would hold as well in regard to
Corporations as Colleges; and yet it was never used in the ease
of the former, unless upon some crime and forfeiture of their
privileges, or at least on a pretence thereof, and even then
when advantage was taken of such forfeiture (as was the case a
little before the Revolution) it raised a terrible ferment in
the nation.
There are some other things which tho’ not immediately relating
to the security of the Church of England, yet being much for the
benefit, dignity, and credit of the Clergy, will contribute not
a little to its support.
The English being naturally a serious and devout people ran
eagerly in all ages into all the modes of religion then in
vogue. Hence an infinite number of Monasteries of all kinds were
erected in the Kingdom, and the Religious thereof being by their
institution more attached to the Pope than the secular Clergy
were, it came to pass that when the Papal power was first
introduced into England in the reign of Henry the First (in
whose time the Cardinal de Crema came over the first Legate of
the See of Rome, and appeals to that Court began to be
introduced), they soon got the Pope to exert the plentitude of
his power, and the sovereignty he claimed over all the
possessions of the Spirituality (tho’ originally the grant of
our Kings) and to appropriate the tythes glebe and revenues of
livings to Monasteries. This was done generally between the
years 1120 and 1250. Hereupon the Religious of these
Monasteries, keeping all the great tythes and sometimes the
small ones also, and even the oblations (which in those days
were very considerable) to themselves either supplied the cures
by one of their own body, or endowed a resident vicar either
with a slender portion of the small tythes, or with a stipend in
money, which, whatever it was in those days, is now very
inconsiderable, and insufficient for his maintenance. When
Monasteries were dissolved, and their lands given to Henry 8,
the tythes and revenues of Livings thus appropriated to
religious houses were given to him at the same time, and were
alienated by that Prince together with the Abbey lands. Thus was
the Church miserably impoverished, and even to the time of the
Rebellion in 1642 there were left 6000 Vicarages in England
under £30 a year, 4000 under £20 and 2000 not worth £10 a year.
The Bishops upon the Restoration having abundance of leases,
particularly of Tythes (for Q. Elizabeth had forced their
predecessors to exchange their manners of their Sees for the
tythes then remaining in the Crown which she could not keep in
conscience as she alledged) that were either expired during the
troubles or were near expiring, took care in the renewal thereof
to augment great numbers of these poor vicarages. Private
persons have since made them considerable benefactions and many
Vicarages have been of late augmented out of the revenue of the
First fruits and Tenths: yet still there are some thousands so
meanly provided for that they do not afford a competent
subsistence to a Minister.
Of all Livings throughout the Kingdom none suffered so much in
the general alienation of Church revenues as those in Cities and
great Towns; for scarce any of these were without one or more
Monasteries, the Monks whereof supplying the cure of those
Livings, had only a small stipend for their pains. Hence these
Livings are the most provided for of any in England, two or
three of them being often united together to make up about £30 a
year for an Incumbent, whose poverty neither allows him to buy
books to increase his stock of learning, nor to live with a
dignity suitable to his character, not to do that good or speak
with that authority in his parish which a better income would
enable him to do, and generally speaking worthless Livings will
be filled with worthless Clergymen. This hath proved as much to
the disservice of the Crown as of the Church. For these great
Towns being sorrily supplied with Ministers, and being many of
them thronged with Calvinists that came out of the Low
countries, Germany and other foreign countries and settled there
for the sake of trade, the Puritan party in the reigns of K.
James and K. Charles took care to send Lecturers thither (to
whom they gave large stipends) to propagate Sedition and
disaffection to the Church and Crown among the inhabitants of
those great Towns, which by that means generally sided with the
Parliament against the King in the rebellion of 1641, and by
their wealth contributed greatly to the neine of His Majesties
affairs. Had these Towns been duly supplied with a learned and
well affected Clergy, the rebellion would probably have been
prevented or the event of the war have proved more favourable to
the royal cause. There are few things would be more serviceable
to the interests both of the Church and Crown than a proper
endowment of the Livings in such great Towns and Cities: and if
any forfeited houses therein, or forfeited lands and tythes of
lands adjoining thereto were applied thereto, the benefit to
both would be great, and the Clergy in such Cities would by
their interests as well as principle be obliged to support the
Crown from which they desire such benefactions.
K. Charles the First gave all the Tythes remaining in his time
to the Crown throughout Ireland to the Churches whereunto they
originally belonged, as often as Leases of Crown lands were to
be renewed or grants thereof expired. K. Charles the Second
after the Restoration gave all the forfeited tythes in that
Kingdom to the Church. Many grants of lands in England, with
tythes annexed thereto or part thereof, may probably be now
expired or are continually dropping in to the Crown; and
forfeitures of a like nature will according to the course of
human affairs be making from time to time and afford
opportunities of the like benefactions; for if tythes were
exempted as well in the renewal of such grants as in the
remission of forfeitures, they might be very usefully applied
for the better endowment of churches in popular Cities. In this
or the like manner may that great inconvenience be in a good
measure removed.
A noble grant hath been made of the First Fruits, and Tenths for
the augmentation of small Livings, which will in a course of
years be a considerable, though slow remedy for this evil. But
it is still a question whether the Church will gain more by that
benefaction, than it will lose in the same term of years, by the
late change of the maxims of the Court of Exchequer in relation
to tythes by the great encouragement which the Judges thereof
give to pretended and unreasonable moduses (or certain trifling
payments of money in lieu of tythes of 20, 30 or fifty times
their value) and by the continual multiplying of such moduses
all over the Kingdom; which Gentlemen are labouring by all ways
to find pretexts to create, and corrupt patrons have too great
opportunities of effecting with regard to livings in their
Advowson, so that the evil is not unlikely in some years to grow
universal.
The case of the Clergy is certainly very hard in this respect.
They come to a Living generally Strangers to the place and
ignorant of the rights and dues belonging to the Church. It is
the interest and commonly the business of every one in their
parish to impose upon them with false accounts of the value of
their tythes, and to draw them into agreements much below the
real value thereof. Their predecessor being dead, his papers
neglected or carried off by his executors, they derive little
knowledge from either. After long waiting for some equivalent to
the large expense of a University education, coming at last into
a benefice, they are glad to take the first offer that will make
them easy, being either by their former manner of life and
attachment to their studies, indisposed to have their time and
thoughts taken up in the collecting of tythes, or by the
ignorance of country affairs utterly unqualified to manage so
new and troublesome an affair as the gathering of them in kind,
not caring to oppress or disoblige their parishioners, or to go
to law upon a footing they do not fully understand, and at an
expense they are not able to bear; especially since they have
only a life interest in the Living, and if they can but be easy
for their own time, they are willing to leave the burden of
asserting the rights of the Church to their next successor.
These circumstances and this temper of mind induce the Clergy
too often to afford those who have a mind to make a prey of the
revenue of the Church, means of effecting their dishonourable
purpose; in which they are not a little favoured by the
proceedings of the Courts of Westminster Hall.
Great care had been taken in ancient times to preserve the
revenue of the church, but it was by methods adapted to the
nature and circumstances of those times. Terriers or particular
accounts of the rights of each benefice in a Diocese, have been
for many ages given in at every Bps. triennial visitation; and
these being drawn up by the joint consent of the Incumbent and
Parishioners, and signed by the Minister and Churchwardens were
used to be looked upon, and in all reason and equity ought to be
deemed exceptionable evidences of such rights. They were
accordingly received as such in the spiritual Courts where all
suits for Tythes and other dues of the Clergy were carried on,
and being Ecclesiastical causes and only of their cognisance.
But since the Reformation the Common Lawyers have found out
querks in law to draw these causes into their Courts, and
particularly whenever a modus is pretended, that pretence is a
sufficient reason for a Judge to issue out a prohibition
ordering the Spiritual Court to proceed no further in such a
cause. It being thus brought into the Common Law Courts, the
next thing is to set aside all the evidences against such
pretence of a modus, arising from the agreement of these
Terriers for hundreds of years together; which is done on a
pretext that these Terriers were taken by direction from Bps.
and not in virtue of any special commission from the Crown, the
result of which alone is all the evidence allowed in these
Courts.
The Clergy thus stripped of all the evidences wherein they
confided, and had been ever safe before, were forced to have
recourse to other methods for opposing such pretences of a
modus. Now by Law a Modus must have been from time immemorial,
and this was judged to be the time of Richard I. higher than
whose reign none of our Records relating to this subject go; and
indeed none are ancienter except the Piperolls and Domesday
book. When therefore a Modus of sixpence an acre for land now
set at twenty shillings an acre and the Crop whereof is probably
worth considerably more was pretended, they thought it a
sufficient refutation of such Modus, to shew by records of the
Tax rolls in the resigns of the Successors of that King, and by
Inquisitions taken in virtue of commissions from the Crown, that
the very land in question was set in later reigns than Richards
but at three pence an acre, and therefore six pence an acre
could never be then paid for the tythe thereof. This proof was
indeed allowed till Baron Pryse was removed from the Exchequer
Court; since which it has been rejected and all the maxims
formerly received there in favour of tythes laid aside; so that
the decision of the cause is now left to the testimony of living
witnesses for the time of their particular memory; in which
respect the Clergy lye under a manifest disadvantage, few caring
to depose on their side, and their predecessors papers and
accompt books seldom falling into the hands of the successors,
whilst all the receipts of those predecessors are in the hands
of their adversaries with whom they are at law.
To bring them out of these difficulties and to put a stop to the
growing evil of new Moduses starting up daily nothing seems more
proper or can be more effectual than a Commission to be granted
to worth virtuous and understanding Gentlemen in every County of
the Kingdom to enquiry into the value of Livings and to draw up
a particular account of the rights and dues of each to be
returned into the Court of the Exchequer and there kept on
record. This would stop at once all future pretences to new
Moduses; because there is no averring against a record, and the
rights of the Clergy will be fixed for ever, liable to no
invasion, especially if exemplifications of such returns of the
Commissioners under the Seale of the Court of Exchequer were
lodged in the registry of every Bp. and Archdeacon in England.
K. James the First took this method in Ireland when he granted
the escheated Counties of Ulster in different parcels of land to
Planters, he caused a glebe of 60 acres of land in every
thousand of which a parish consisted, to be set out for the
Minister to whom he likewise gave all manner of tythes in kind
of all the lands throughout each parish. As every Planter was
obliged to pass patents under the Great Seale for this land, so
were the Clergy for their glebe or tythes; but as the passing of
so many single patents as there were benefices in Ulster would
have been too heavy a charge upon each incumbent he directed for
the saving of fees that the endowments of all the livings in
each County should be passed in one patent. Among other happy
consequences of this proceeding, it is a very agreeable one to
the Clergy of that province that they never have any lawsuits
with their parishioners, nor indeed can have, so long as a
record subsists to clear and express in their favour. Were the
same method taken in England, were the rights of Livings as well
ascertained and lawsuits about them as effectually prevented, no
Clergy upon earth would have more credit with their parishioners
than those of England, who are not inferior to any other in
learning, judgment, merit or indeed any other respect. Few
things would be more serviceable to the security of the Church
of England, than such a method of keeping the Clergy always well
with their parishioners.
With the same view was it that K. James settled one common
tything table for all Ulster thereby preventing all disputes in
small matters. It were to be wished, the same method was taken
in England, and that one uniform tything table was settled all
over the Kingdom, or at least in the different quarters thereof,
according to the different circumstances of each quarter. This
would contribute to the same desirable end.
There was about A.D. 1710 a Bill passed in Parliament in favour
of the Clergy, for the more easier recovery of small tythes, by
which in the case of Quakers and other refractory persons
Justices of the Peace were empowered to give the Clergy
possession of their dues by distraining on the premises or on
the goods of the refractory persons. This remedy was speedy
attended with very little expense, and was had at first without
trouble or difficulty. But of late years men disaffected to the
Clergy having been put into the Commissions of the Peace, and
the terms of the Act being that they _may_ (not that they
_shall_) give relief and do justice to the Clergy, these
Justices say, they are indeed empowered but not obliged to help
the Clergy to their rights, and so refuse to act in the case; by
which the law is evaded, and the intent of it defeated. If this
or some other such short and easy method of recovering the dues
of the Clergy were properly established it would be another help
to the security of the Church.
After all the means that have been mentioned for the security of
the Church of England in an ecclesiastical way, there is another
of a different kind more considerable and necessary than all of
them together: and this is the establishing of the choice of an
House of Commons on such a foot, as it may be free from all
Court or Ministerial influence. There cannot be a point
conceived of more absolute necessity for the good of the
kingdom, nor is there any other so universally and ardently the
common wish of the Nation. This, once settled, would secure
everything else that any lover of this country and religion has
to wishe. But the great question is by what means and in what
manner this is to be effected.
For my part, I readily profess that in all cases I am disposed
to have recourse to the old ways of our constitution for the
redress of any pressing grievance. There was formerly a
reasonable proportion between the representatives of Counties
which were about 90, and those of Cities and great Towns which
amounted to about 100, and those of lesser burroughs which
returned about 70 deputies, these making in all about 256
members of Parliament. This proportion of representation lasted
till the time of Q. Elizabeth: but since the beginning of her
reign, it has been gradually destroying, and is now so entirely
overturned, that the smaller burroughs, though they do not
possess the thousandth part of the others property, can outvote
them both in the House of Commons, there having been as many
representatives for these paltry burroughs added to the
Parliament, as it consisted of before that time. In one Session
of Parliament in that Queen’s reign eight small burroughs in
Cornwall were called upon to send Deputies, and the humour went
on till the Parliament of 1641 made up the disproportion now
complained of with so much reason. There does not therefore
appear to me any means of rectifying this abuse and of restoring
the ancient balance of our Constitution, so natural as the
disfranchising at once of all those late created Parliamentary
burroughs, whose constant corruption and bribery of late years
so well known and so easy to be proved, call loudly for such a
method to be taken.
If this should be thought too great a change, and the
disfranchising of these burroughs should be deemed improper,
their corruption may probably be prevented by allowing all the
freeholders of 40s. a year within the hundred, in which such
burrough is situated, to vote equally with the present electors
or inhabitants in the burrough for the representatives thereof:
and in case this method be taken, such Freeholders being allowed
a right of voting for representatives, no wrong would be done
them, if the right of voting in elections of Knights of the
Shire were restrained to Freeholders that pay for 10£ a year to
the land tax: which would render County elections much more easy
and less expensive.
If neither of these methods should be approved, it may be
considered whether all these burroughs should not be limited to
one representative, and the choice of the other transferred to
the several Counties of the kingdom in proportion to their
payments towards the Land Tax; by which means the present number
of representatives may be preserved. One or other of these
methods seems necessary to be taken, or else the corruption,
being grown so general and barefaced in these burroughs, will
not admit of a cure: and unless it be cured, Parliaments that
should naturally be the guardians of all our rights and
liberties, will prove the worst of our grievances, and such an
one as will make all the rest irremediable. If these great
points, of the proportion of our representation, and the
unbiassed freedome of elections were once secured, everything
else will easily be secured by Parliament.
To establish this freedom and put a stop to the corruption or
violence that destroy it, nothing appears at first sight more
proper than the putting of Parliaments upon their ancient foot,
allowing them to sit but one Session, and never to continue
above a year. In such a case foreigners or strangers who have no
merit or interest in a burrough but what their bribes and money
purchase them, will never be able to carry elections against the
Gentlemen of the neighbourhood, who have a natural interest in
the place. For as the present circumstances of the Crown and
Nation, so different from what they formerly were, require
Parliament to be annually held for the granting of new supplies,
no private purse can hold out for any length of time in
furnishing those immense sums that are now squandered away by
strangers in the expences of disputed elections: and as this
evill is grown very rife, and all laws made to remedy it have
hitherto proved ineffectual, it is scarce possible to be cured
by any other method.
There is another practice in the House of Commons itself, that
helps to destroy the freedome of Parliaments: I mean the method
taken by the stronger party of thinning the House, and expelling
such as are of different sentiments from themselves, however
duely chosen; altering the rights of electors as they see fit
and as will best furnish them a pretence for that purpose. Some
method should therefore be taken in fixing the right of voting
in elections on an invariable foot, so as not to be violated or
altered by any determination of the House of Commons. If this
were done by an Act of Parliament, and every person whose vote
is refused by the returning officer, or whose right is infringed
by the intrusion of a wrong member, had power to bring an action
and to recover very great damages, from both of these, this
scandalous and mischievous evill might possibly be prevented.
The iniquities of these late times suggest some other measures
to be taken; such as the limiting of the number of officers and
pensioners that sit in the House of Commons; and the disabling
of all Excise men, Custom house officers, and soldiers, that are
under command and consequently not free to vote according to
their own inclinations and real sentiments, from having voices
in elections, unless on account of their freeholds, when they
have any.
In former times the Civil and Military power of the Nation lay
entirely in the hands of Gentlemen of estates, and was incident
to their tenures; but that face of things is now changed, and
the exercise of the Civil power is at present vested in the
Justices of the peace, as that of the military is in the Lord
and Deputy Lieutenants. Very inconsiderable persons have of late
years been put into both these commissions; and very ill
consequences have either been found or are daily apprehended, to
arise from thence. This makes it generally wished that none
should be qualified for the office of a Deputy Lieutenant who
has not £500 a year, or for that of a Justice of peace in any
county, who has not £300 or at least £200 a year in such County.
These methods for restoring in some degree such considerable
branches of our old Constitution would at the same time advance
the security of the Church.
There are penal laws enough already made, and I do not see any
occasion there can be of adding to them unless that instead of
receiving the Sacrament occasionally, the constant conformity of
a person to the established Church, be made the qualification
for any government, command or office of rank or profit: and
that instead of a Certificate of a persons having received the
Sacrament, another of his being a constant communicant with the
Church of England be insisted on and given by the Minister and
Churchwardens of the parish where such person usually resides
six months at least in the year, before he shall be allowed to
enter upon the exercise of his office.
Some such regulations as these, (which are but too much wanted
at present,) would contribute equally to the security of the
Church, and the happiness of the Nation.
At the end of this Memorandum there is appended the following autograph
letter from the Pretender, which would seem to show that Sir Robert
Walpole had personally authorised Mr. Carte to obtain a statement of his
views. It runs as follows:—
ROME, _July 17, 1739_.
The Message you bring could not but appear verry singular and
extraordinary to me because you deliver it only from second hand
and that I have no sort of proof of your being authorised by the
person in question, who cannot but feel that it is natural for
me to mistrust what may come from him. It may be and I hope it
is the case that he wishes me and my cause well, and I am
sensible it may be greatly in his power to serve both.
If he hath realy my interest at heart, lett him send to me some
trusty friend and confident of his to explain to me his
sentiments and viewes; and if he pursues measures which
manifestly tend to my Restoration, I shall be persuaded of his
sincerity, and shall consider and reward him after my
restoration proportionably to the share he may have had in
bringing it about. But whatever may or may not be in this
matter, I have no difficulty in putting it in your power to
satisfy him authoritically on the two articles about which he is
sollicitous, since independant of his desire, I am fully
resolved to protect and secure the Church of England according
to the reiterated promisses I have made to that effect, and
shall be ready after my restoration to give all reasonable
security which a first Parliament can ask of me for that end. As
for ye Princes of the House of Hannover I thank God I have no
ressentment against them, nor against any one living; I shall
never repine at their living happily in their own Country after
I am in possession of my Kingdomes and should they fall into my
power upon any attempt for my restoration, I shall certainly not
touch a hair of their heads.
I thought it proper to explain in this manner my sentiments on
these heads not absolutely to neglect an overture which may be
of great importance if well grounded, and if otherwayes no
inconvenience can arise from what I have here said.