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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 conforin 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 litile susceptible of ambiguity. The 2d section also states that all ministers shall use the Book of Common Prayer annexed to the act.
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 forın of the declaration.
Immediately after the passing of this act (May 19th, 1662), an order was made for the printing
of 3000 books of Commou 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 bimself 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 wbich 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 the intention of the makers: 4“ 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 escellent 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 litavies, 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.
Pryone, in his Aurum Regina, recites many records in which the Queen is set forth under the title “The Queen who now is,s
2 Inst. 11. 136. 181. 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" ID 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."
3 See Lye's Sax. Dict. Quena. Uxor, mater-familias, fæmina quævis ; Lup. Serm. 1. 11. Vox olim honesta, inde enim nostra, Queen, scil, uxor, war dtoxin 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 Regpant; because by the Common Law, as unnecessarily declared by the ist Mary, Sess. 3. c. 1. she is, as Sovereign, the same as the King.
4 Vide Treat, on the Rights of the Queen, Pamph. 1762, Harg. Libr. Brit. Mus.
Pryone Aurum Reginæ, p. 124.
&c. ;" it will be argued, that the word Queen has had a more extensive sense given to it; for that, both before and immediately on the passing of the act, Queen Mary (Henrietta Maria, the Queen of Charles the First,) was in the Liturgy under the titles of Queen Mary, and the Queen Mother : true, but as soon as Charles the Second married, Queen Katherine preceded her in the Liturgy, with the pronoun possessive our applied to her name, being fitted to the present occasion according to the direction of lawful authority. The preceding facts only show that the King, desirous to point out the Queen Henrietta Maria as
a person entitled to respect, inserted her name by curtesy as Queen, the same person, but in an inferior character; and it is an argument for and not against the insertiou of the Queen's name, who is so de jure et de facto. Precisely the same took place in the time of James the Second, when Katherine the Queen of Charles the Second was in the Liturgy under the title of Queen Dowager, and continued so in the reign of Queen Anne.
Progeny is a noun comprehending an undefined race or generation, and had been used in the Liturgies of 1611, 1613, 1630, 1637, and 1639; therefore under this word all branches of the royal family have been included. The words “vames be altered and changed” are too clear to require definition.-Can any one say, assisted by the most ingenious contrivance, that they were intended to give the sense borne by the word omit, for that must be the argument on the other side. “From time to time, and fitted to the present occasion.”—Now this may mean either according to existing circumstances at the time of the passing the act, or as circumstances shall arise and require as to the deaths and different relations in which the parties might from time to time stand to each other; the practice has been consistent with both cases. The King and Queen never vary in the sense intended by the statute, and therefore the act required that their names only should be changed from time to time, as occasion should require, according to the direction of lawful authority. What can be intended by the word direction but order? If it be urged that it implies according to the will, the whole sentence becomes nonsense ; the words lawful authority purport an authority acknowledged by law, comprehending all the states of the executive government, the King, a Queen regnant, or a regency, and according to the usage, assisted by their council. These words can have no other construction in a lawful and rightful sense.
In attempting to explain the use of words like the present, which are so technically accurate, providing for all cases that could be contemplated by the law, it is more than probable that the definition only confuses the original; but the statute will soon be descanted upon by orators of all classes and descriptions, some hired, others well regulated and informed, others again who wish to be thought“ wise beyond what is written;" but the irresistible power of the law, (and not a little protected by the memory of the celebrated compilers,) will soon put to confusion the wiles of sophistry, and the noisy and senseless efforts of declamation : since the King, Lords, and Commons, after mature and unexampled consideration, declared, with one voice, that for the peace of the nalion the Queen's name should be from time to time inserted in the Liturgy. The authors of the law (the commissioners, and the convocations of both the provinces of Canterbury and York) knew well enough that the Queen Consort, although a subject of the King, but “superior to all subjects, and inferior to none,” was capable of exciting faction and schism, which had been the case more or less from the time of Elizabeth, the wife of Henry the Seventh, to the then period. For this, among other reasons, they presented to the King the book entitled “ The Book of Common Prayer," in which book is the prayer for the Queen, for the purpose of having it afterwards made the law of the land, and existing circumstances prove what wonderfully wise providence directed their conduct. If the legislature had intended any thing like what is now supposed, how. ohvious would it have been to have placed after the word changed, and omitted as shall seem fitting to lawful authority, which is common parliamentary language, the sense would then have been indisputable. Men of consummate learning, together with both houses of Parliament, are not to be libelled, by first imputing to them the absurdity of framing and passing a special enactment, for the purpose only of authorising ihe King to do a particular act which he could do and had uniforinly done without the aid of ParJiament; and secondly, the ignorance of using expressions uncertain, and inefficient for that purpose, and also a direct violation of all the rules applicable to the construction of the statute law.
Let the section be thought ambiguous, then the rule of law directs a reference to the preamble, not for the purpose of controlJing the enacting parts of the statute, but in order to get at the true intent and meaning of the legislature. After this manner, it is demonstration that King Charles the Second bargained, sold, and released for ever, by matter of record, a little einply prerogative, with an extremely doubtful title, at the magnificent and royal
price of the nation's peace and the honor of religion. And the King, elated with the princely considerations, took upon himself the office of steward, and entailed the duty on his successors; and to evidence the solemnity of the transaction, called in all the wisdom of the age
to witness his execution of the deed. This is not the spirit only but the letter of the statute.
Some will regard the question in a finical and special pleading point of view, forgetting the dignity of the crown, and will contend that although the words would be imperative as applied to a common person, are not so with regard to the King, because he cannot be compelled, by reason of his prerogative, to do any act whatever, and the Queen being his subject is under his control. There is a great difference, in point of law, between a power given to the King to do an act which he may execute or not, as he pleases, and requiring him to do an act which the law has framed for the people's benefit, (and at the express desire of the King himself;) were it not so, the machinery of the constitution might at any moment be stopped, which depends for its existence on perpetual motion. The King can do no wrong; but this high prerogative, Sir M. Hale, (one of the comjilers of the act,) says, (whatever modern episcopal authority inay say to the contrary,) was intended for the people's benefit, and therefore cannot be exerted to their prejudice; and he was not without precedent, for, in the 15th of James the First, Coke, C. J., Croke, Dodderidge, and Houghtou, one having served the crown in the preceding reign, when prerogative was thought omnipotent, resolved that the general words of an act should extend to the Queen (Elizabeth), although the Queen was not expressly named in the act, because "the Queen, Lords spiritual and temporal, and the Commons, who made the said act, have adjudged, as in the preamble appears, long leases made by colleges, &c. to be unreasonable, and against reason, and the law, which is the perfection of reason, will never expound the words of an act against reason, because fearful and dangerous consequences would follow decay of the true religion and spiritual worship of God," (the very words made use of in the statute of Charles); the judge ment also states that the Queen, “who is the fountain of justice, could not thereby be made the instrument of injury and wrong, and of a violation of a pious and excellent law, which she herself, for the maintenance of religion, &c. bad made." And it was further resolved “that the King shall not be exempted by construction of law, out of the general words of acts made to suppress wrong, because he is the fountain of justice and common right, and the King, being God's lieutenant, cannot do a wrong, solum Rer hoc non potest facere quod non potest injuste agere, and therewith agree 19th E. 4.8 a. and the case of Alton Woods, in the first part of my reports, fol. 44 b. 48 a. &c. And although a right was remediless, yet the act, which provides a necessary and profitable remedy for the preservation of it, and to suppress wrong, shall bind the King, as appears in the Lord Berkeley's case, Pl. Com. 246. if