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[From Manx Soc vol 31]
Respecting the Ecclesiastical Courts of the Isle of Man, and the Legislation in relation to the Church and the Book of Common Prayer, drawn up for the Commissioners appointed by Her Majesty's Royal Commission of the 16th May, 1881, " To inquire into the Constitution and working of the Ecclesiastical Courts, as created or modified under the Reformation Statutes of the 24th and 25th years of King Henry VIII., and any subsequent Acts,"
BY
SIR JAMES GELL,
ATTORNEY GENERAL FOR THE ISLAND.
IN A.D. 1399 the Isle of Man was granted by King Henry IV. (who claimed the Island as a conquest), to Henry de Percy, Earl of Northumberland. It was in 1405 seized by the same King on the ground of its forfeiture by the treason of the Earl of Northumberland, and granted to Sir John Stanley for life. In 1406 the latter grant was made absolute to Sir John Stanley, his heirs and assigns, subject to the service of rendering two falcons to the King of England on the day of his coronation. The Island was governed by Kings or Lords of the House of Stanley, until 1595, when a dispute having arisen as to the succession to the sovereignty of the Island, Queen Elizabeth, at the request of the disputants, assumed the government of the Island, and retained it until her death in 1603. King James I. succeeded to the government of the Isle. In 1607 he granted it to Henry, Earl of Northampton, and Robert, Earl of Salisbury, who surrendered it in 1609, when the King made a new grant to Robert, Earl of Salisbury, and Thomas, Earl of Suffolk. They ruled the Island until 1611, when the dispute to the succession in the House of Stanley having been arranged, the Island was granted to William, sixth Earl of Derby, and (except for about nine years during the Commonwealth, when the Isle was under the rule of Thomas, Lord Fairfax) the Isle continued under the sovereignty of Lords of the House of Stanley until 1736, when it passed by inheritance to James, second Duke of Atholl, who, in 1764, was succeeded by his daughter Charlotte, Baroness Strange, wife of John, third Duke of Atholl. In 1765 the sovereignty of the Island was surrendered to King George III.
During the period from 1399 to 1765 the Insular Kings or Lord, under the grants from the Crown of England, were the sovereigns of the Island, which is an ancient kingdom, and had its own Legislature — the Tynwald. In 1716, in the case of Christian v. Corren, before a Committee of the Privy Council, it was held that an appeal did lie from the decisions of the Kings or Lords of the Island to the King of England in Council, of which right of appeal the subject could not be deprived by the King's grants.
In 1523 Ann, Countess of Derby, widow of Thomas, second Earl of Derby, and fifth King of Man of the House of Stanley, claimed dower in the Island. The decision was against the Countess, on the ground that the Isle was not part of the realm of England. In this case the judges held that no general Act of Parliament extended to the Island, but that by special name an Act might extend to it. This seems to have been the earliest authority for the position that the Isle of Man is bound by Acts of Parliament extending to it by name.
In the reign of Henry VIII., and subsequently, were passed Acts of Parliament affecting the Church and clergy extending to all the King's dominions, but without specially naming any. The Isle of Man was in a very peculiar position with respect to such Acts, by reason of its being under the immediate sovereignty, not of the King of England, but of the Kings or Lords under the grants referred to. Some of such Acts are: —
A.D. 1532-3. — 24 Henry VIII., c. 12: " An Act that the " Appeals in such cases as have been used to "be pursued to the See of Rome, shall not be from henceforth had nor used, but within this Realm."
A:D. 1533-4. — 25 Henry VIII., c. 19: " An Act for the submission of the Clergy to the King's Majesty."
A.D. 1533-4. — .25 Henry VIII., c. 20 : "An Act restraining the payment of Annates."
A.D. 1533-4. — 25 Henry VIII., c. 21 : "An Act concerning the exoneration of the King's subjects from "Exactions and Impositions heretofore paid to the See of Rome; and for having Licences and Dispensations within this Realm, without suing further for the same."
A.D. 1533-4. — 25 Henry VIII., c. 22: " An Act declaring the Establishment of the King's Most Royal Majesty in the Imperial Crown of this Realm." [This Act declares the prohibited degrees of marriage ]
A.D. 1534. — 26 Henry VIII., c. 3 : "An Act concerning the payment of First-fruits of all Dignities, " Benefices, and Promotions spiritual; and Act of Parliament extending to all the Dominions of the Crown. also concerning one annual Pension of the tenth part of all the possessions of the Church, spiritual and temporal; granted to the King's Highness and his Heirs."
A.D. 1536. — 28 Henry VIII., c. I1: "An Act for Restitution of First Fruits in time of vacation to the next Incumbent."
A.D. 1536. — 28 Henry VIII., c. 16: "An Act for the release of such as have obtained pretended Licences and Dispensations from the See of Rome."
A.D. 1548. — 2 & 3 Edward VI., c. l. : "An Act for the Uniformity of Service and Administration of the Sacraments throughout the Realm." [1st Act of Uniformity.]
A.D. 1552. — 5 & 6 Edward VI., c. I : "An Act for the Uniformity of Common Prayer and Administration of the Sacraments." [2nd Act of Uniformity.]
A.D. 1554. — 1 & 2 Philip and Mary, c. 8 : "An Act repealing "all the Statutes, Articles, and Provisions made against the See Apostolick of Rome since the twentieth year of King Henry the Eighth; and also for the establishment of all Spiritual and Ecclesiastical Possessions and Hereditaments conveyed to the Laity."
A.D. 1558. — 1 Elizabeth, c. I : "An Act restoring to the Crown the Ancient Jurisdiction over the State Ecclesiastical and Spiritual, and abolishing all Foreign Power repugnant to the same."
A.D. 1558. — 1 Elizabeth, c. 2: "An Act for the Uniformity of Common Prayer and Divine Service in the Church, and the Administration of the Sacraments." [3rd Act of Uniformity.]
A.D. 1558. — 1 Elizabeth, c. 4 : " An Act for the restitution of the First Fruits and Tenths, and Rents reserved nomine decimae, and of Parsonages impropriate, to the Imperial Crown of this Realm."
A.D. 1558. — 1 Elizabeth, c. 19: "An Act giving authority to the Queen's Majesty, upon the avoidance of any Archbishoprick or Bishoprick, to take into her hands certain of the Temporal Possessions thereof, recompensing the same with Parsonages impropriate and Tenths."
A.D. 1562. — 5 Elizabeth, c. 1 : "An Act for the Assurance of the Queen's Majesty's Royal Power on all " Estates and Subjects within Her Highness's Dominions."
A.D. 1570. — 13 Elizabeth, c, 2 : "An Act against the bringing in and putting in execution of Bulls and other Instruments from the See of Rome."
A.D. 1570. — 13 Elizabeth, c. 12: "An Act to reform certain Disorders touching Ministers of the Church."
[NOTE. — All the foregoing Acts were passed during the reign in the Isle of Man of Edward, third Earl of Derby, sixth Lord of Man of the House of Stanley.]
Many of the provisions in these Acts were inapplicable to the Isle of Man. First fruits and tenths are not payable in respect of livings there. At the same time, it is presumed the Reformation was brought about in the Island by means of the recognition of some of the Acts ; for there are no Acts of the Insular Legislature bearing on the Reformation.
The Church is "established" in the Isle of Man as in England; but if there can be implied from the relative positions of the Church and State in the Island the terms or compact on which the Establishment was effected, such terms, as to the Ecclesiastical Courts, differ from those in England. The Bishop, Archdeacon, Vicars-General, Official and Registrar of such courts must, on appointment, take their respective oaths of office before the temporal authorities. The Sumner-General, the apparitor of the courts, is appointed by the Crown, through the Governor; but he takes the oath of office before a Judge of the Ecclesiastical Court. There may be two Vicars-General, who have concurrent jurisdiction, and they may act jointly or separately. The Bishop, Archdeacon, and Vicars-General are ex officio members of the Insular Council, which acts in a double capacity, it being the Upper House of the Insular Legislature and also the Privy or Executive Council of the Sovereign and Governor. The Archdeacon's Official may be summoned to the Council in its executive capacity only.
On a vacancy occurring in the See, the Vicars. General, Registrars, and Surrogates (who act in the issuing of marriage licences only) are appointed by the Governor, on behalf of the Crown, to act during the vacancy in the see. Obedience to the citations, orders, and judgments of the Ecclesiastical Courts is enforced by the authority of the Governor. The service of citations, &c., is made by the Sumner-General or one of his parochial deputies, who are styled " Sumners," and the fact of service is certified to the Court by such officer. If a defendant or witness cited to appear at the Court do not appear, the Judge endorses the certificate with a memorandum to the effect that the person, for his contempt in not appearing, is "presented." In like manner, an order or judgment of the Court is served by the same officer; and if the officer can, of his own knowledge, certify the fact of disobedience he does so, and the Judge endorses the certificate as in the case of contempt for non-appearance. The Sumner's certificate, with the Judge's "presentment" endorsed, is filed in the Rolls Office, where the records of the temporal courts are kept, and the Governor issues a "writ of contempt," which is enforced by a constable, who, in the case of a writ of contempt for non-appearance, either imprisons the presented person or takes him personally before the Court to which he had been cited, and, in the case of a writ of contempt for disobedience to an order or judgment, imprisons the person presented. In cases where the Sumner cannot certify the contempt, the matter of the alleged contempt is, at the instance of the plaintiff, inquired into in Court; and if the Court finds the contempt to have been committed, the judge makes a presentment of it, and a writ of contempt issues. Before 1765, soldiers performed the civil duties now performed by constables, and enforced the writs of contempt. Formerly, under general orders of the Governor, a soldier was authorized to take the person presented into custody without a special writ being issued in each case; but the custom of arresting under a general order has been long dis continued, The Ecclesiastical Court has no control over the imprisonment of a person in custody under a writ of contempt: such person can be discharged only by the Governor, on terms prescribed by him, the terms being usually such as will ensure obedience. It may be observed that, except as to the officer by whom service is made, the like course of procedure is followed in the temporal Courts.
The law as to lapse is, that in case the Bishop have the right to present to an incumbency, and be do not present within six months from the Easter next following the avoidance, the right of presentation falls to the Crown, not to the Archbishop; and where a benefice in the Bishop's patronage falls vacant during a vacancy in the see, the right of presentation falls to the Crown,
Previously to A.D. 1637, it was considered to be the law of the Isle that all appeals from the Ecclesiastical Courts lay, not to the Archbishop, but to the Lord or Sovereign of the Isle, or to the temporal Courts of Appeal. Some time after the passing of the Act of Parliament 33 Henry VIII., e. 31. (1542) — " An Act dissevering the Bishoprick of Chester, "and of the Isle of Man from the Jurisdiction of Canterbury to the Jurisdiction of York" — it was considered by some that, whatever may have been the law with respect to appeals prior to 1542, the effect of the Act of Parliament was to vest in the Archbishop the like right and power as to appeals which he had with respect to the diocese of Chester under the Act. By the Act it is enacted that the diocese of Chester shall be " of the Province and Archbishoprick of York, "and of the metropolitical jurisdiction of the same, to every "effect and purpose, according to the ecclesiastical laws in "this realm," and that the Bishoprick and diocese of Man, in the Isle of Man, be " also annexed, adjoined, and united to the said Province and Metropolitan jurisdiction of York in all "points, and to all purposes and effects, as the said Bishoprick of Chester i8 annexed, adjoined, and united to the same." By others it was contended that the Act did not effect any change in the law of the Isle as to Ecclesiastical Courts. However, by order of James, Lord Strange, Lord of the Island, dated 22nd November, 1636, he directed that, until further order, no appeal should thereafter be made to the Governor of the Isle or the temporal Court there "for "any cause depending or determined in the Ecclesiastical Courts which do merely concern government of the Church, excommunications, suspensions, incest, adultery, fornication, profanation of God's name, profanation of the Sabbath, cursing, probate of wills and testaments, granting of administration, granting tuition of infants' goods, or merely subtracting tithes, or for or concerning the defamations determinable or punishable by the ecclesiastical laws." It is to be remarked that the order does not affirm the jurisdiction of York in matters of appeal, nor direct that appeals should not be made to the Lord himself : it professes merely to take away, in certain cases, the right of appeal to jurisdictions inferior to the Lord. However, though it was sometimes asserted by Manx jurists, including Judges of the Ecclesiastical Courts, that the order was of no legal validity, in course of time appeals to York in relation to the subjects referred to in the order were acknowledged, the appeals in other matters being to the Staff of Government, the Insular Court of Appeal.
Grants of Probate and Letters of Administration were governed by the Insular law, and though the Archbishop's Provincial Court exercised Appellate Jurisdiction, a Provincial Grant of Probate or Administration was of no validity in the Island. Since the transfer of the Probate Jurisdiction in England from the Ecclesiastical Courts to the Court of. Probate, there have been no appeals in testamentary cases in the Island. It is doubtful whether the Appellate Jurisdiction of the Archbishop's Court in Manx testamentary causes has been affected by the Act which transferred the English jurisdiction in testamentary cases.
Prior to A.D. 1737, whenever a person was excommunicated by the Ecclesiastical Court, he was, by the Court, "delivered over, body and goods," to the Lord of the Isle. By an Insular Act of that year, such practice was abolished, and it was enacted that a person excommunicated continuing obstinate for three months should, upon application to the Governor by the Court, be confined three months in prison, but such imprisonment was not to be understood as taking off the censure.
Formerly the Court of the Archdeacon of the Isle of Man exercised Ecclesiastical Jurisdiction in certain matters — the judge of the Court being the Archdeacon's Official. By an Act of the Insular Legislature, passed in 1874, " the voluntary, and contentious jurisdiction and authority of the Court of the Archdeacon of the said Isle, and of the Archdeacon and his Official, with reference to the grant or revocation of probate of wills or letters of administration of the effects of deceased persons, and in relation to any matters or. causes testamentary, and also with reference to all suits or matters relating to the estates of deceased persons, and to all other matters of judicial cognizance, ecclesiastical or otherwise, and whether conferred by statute or otherwise " should cease, and all such jurisdiction and authority were transferred to the Ecclesiastical Courts of the Bishop of Sodor and Man, to be exercised by such Courts, or by the Bishop or his Vicar. General.
With reference to the Book of Common Prayer the law in the Isle of Man is in a very extraordinary and unsatisfactory position. There seems to be no doubt that from the Refor mation the Book of Common Prayer, for the time being in use in England, or a Manx translation of it, has been, with some slight variations, in use there. Assuming that the Isle of Man is sufficiently designated, as it were by special name, by an Act of Parliament which is declared to extend to all the dominions of the Crown of England, the several Acts of Uniformity of 1548, 1552, and 1558 were obligatory in the Isle of Man, but the Act of Uniformity to 14 Charles 11., c. 4 (1662), does not extend to that Isle, even by implication, for it declares that it shall apply to the realm of England, dominion of Wales, and town of Berwick-on-Tweed. So then, so far as legislation is concerned, the Book of Common Prayer directed to be used by the Act of Uniformity of Queen Elizabeth — the Act of 1558 — is, if such Act be unrepealed, that only which can be legally used in the Isle of Man.
I may observe that, notwithstanding the Act of Elizabeth being applicable to all the Queen's dominions, which included Ireland, the Parliament of Ireland passed an Act — 2 Elizabeth, c. 2 (1559) — for uniformity in the public services in the Church. The Act is similar to that passed in England. The same Parliament passed another Act of Uniformity in the reign of Charles II. — 17 & 18 Charles II., c. 6 (1660) — but, as with respect to the Isle of Man, the English Act of Charles II. (1662) did not extend to Ireland. However, if the English Act of Elizabeth was in force in Ireland, it was questionable how far the Irish Act of Elizabeth was valid.
Since 1662 reference has been made to the Book of Common Prayer in various Acts of Parliament professing to extend to the Isle of Man. For instance: —
(1) The Calendar Act — 24 George II., c. 23 (1750-1). — By this Act the new computation was to take effect "throughout all His Majesty's dominions in "Europe, Asia, Africa, and America, belonging or subject to the Crown of Great Britain." By section 3 it is enacted that the feast of Easter, and any of the moveable feasts be no longer kept or observed according to the supputation then used, or the table prefixed to the Book of Common Prayer, but should be kept and observed according to the new calendar in England, " and in all the dominions and countries "aforesaid wherein the Liturgy of the Church of " England now is or hereafter shall be used." In a schedule are the new Calendar, Tables, Rules, &c. (In the Isle of Man the Legislature, in 1753, passed an Act for regulating the commencement of the year, and for establishing the New Calendar then used in England. This Act contained many provisions similar to those in the English Act, but it included some which had reference solely to local matters which would be affected by the change. Amongst the provisions is one relating to the Book of Common Prayer, to which reference is made hereafter.) In 1782 the Irish Parliament passed the Act 22 George III., c. 48, which repealed the Calendar and Tables in the Book of Common Prayer, and enacted that all statutes made in England or Great Britain, as concerned the style or calendar should be accepted, used, and executed in Ireland.
(2) The Public Notices Act — 7 Wm. IV. & I Vie., e. 45 (1837) — prohibits the publication of certain notices in or at the Church, but it provides that the pro hibition shall not extend to notices by the curate, in pursuance of the rules of the Book of Common Prayer, &c. (By Act of Parliament 33 & 34 Vic., c. 51 [1870], the Act of 1837 was repealed as to the Isle of Man, and declared never to have applied to or been enforced in the Isle.)
(3) Act as to Subscriptions and Oaths of Clergy — 28 & 29 Vic., c. 122 (1865). — By this Act the clergy are required to declare their assent to the Book of Common Prayer :" I will use the form in the said "book prescribed, and none other, except so far as "shall be ordered by lawful authority." (Although the Book of Common Prayer referred to in this Act is meant to be that of 1662, yet the declaration of assent is not inapplicable to Queen Elizabeth's Prayer Book of 1558, if that be the book in use by lawful authority in the Isle of Man, the title of the book, as used in the Act, being applicable equally to each of the books of 1559 and 1662.)
(4) Public Worship Regulation Act — 37 & 38 Vic., c. 85 (1874). — This Act directs how proceedings are to be taken in cases of failure to observe the rules or directions of the Book of Common Prayer, or in case of the use of additions thereto. (In this Act the Book of Common Prayer referred to is declared to be " 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 he said or sung in churches, and the form or manner of " making, ordaining, and consecrating of Bishops, Priests, and Deacons, together with such alterations as have, from time to time, been or may hereafter be made in the said book by lawful authority." The title of the book here given is that of the Prayer Book of 1662 only. The title of the Prayer Book of 1558 is: "The Book of Common Prayer and Administration of the Sacraments, and other Rites and Ceremonies of the Church of England." If, therefore, there be no legal obligation in the Isle of Man to use the Book of 1662, then, although the Act of 1874 extends to the Island, the operation of it there may be a nullity, as proceedings under it can be only as to the Prayer Book of 1662.)
The Act 34 & 35 Vic., c. 37 (1871), directing the use of a New Table of Lessons, and the Act 35 & 36 Vic., c. 35 (1872), permitting the use of shortened services, do not extend to the Isle of Man.
Since 1662, reference to and provision affecting the Book of Common Prayer have also been made in Acts of the Insular Legislature. The following are instances : —
(1) The Calendar Act of 1753, previously referred to. This Act contains a provision similar to that in the English Act of 1750-1, that the feast of Easter, and any of the moveable feasts thereon depending, shall not be kept or observed in the Isle according to the method of supputation formerly used, or the Table prefixed to the Book of Common Prayer, and that such Table and the column of Golden Numbers, As they are prefixed to the respective clays of the month in the said Calendar, shall be disused, and that the new Calendar, Tables, and Rules established in England shall be preferred and used in the room and stead thereof. Also that the fixed Feast days, Holy days, and Fast days, which were formerly kept and observed by the Church in the Island, and also the several solemn days of Thanksgiving and of Fasting and Humiliation, which are from time to time to be kept and observed, shall be kept and observed on the respective days marked for the celebration of the same in the said new Calendar.
(2) The Marriage Act of 1757. — As to Banns it is by the Act directed that they be published " according to "the form of words prescribed by the Rubrick prefixed to the Office of Matrimony in the Book of " Common Prayer, upon three several Sundays (in " which particular the Parliament of Great Britain "have, in like manner, thought proper to alter the " Rubrick), preceding the solemnization of marriage, "during the time of morning service, or of evening "service if there be no morning service in such " church, upon any of those Sundays, immediately "after the second lesson." Provision is made where the parties to be married dwell in divers parishes, that the publication be in each parish, and " that all "other rules prescribed by the said rubrick concerning the publication of banns and the solemnization of matrimony, and not altered as aforesaid, be " observed." The Act also contains provisions as to the issue of marriage licences. (By the Common Law of the Island the Bishop can appoint surrogate to issue licences of marriage, and the Bishop can himself grant special licences for marriage at any time or place.) The rubrick as to banns in the Prayer Book of 1558 is: — " First, the banns must "be asked three several Sundays, or holy days, in "the time of service, the people being present, after "the accustomed manner"; and in the Prayer Book of 1662 :"First, the banns of all that are to be " married together must be published in the church "three several Sundays, or holy-days, in the time of "Divine Service, immediately before the sentences for the offertory, the curate saying after the accustomed manner, — I publish," &c. (There is in this Act a clear recognition of the use in the church in the Isle of Man of the Book of Common Prayer, and no doubt the book then in use was that of 1662. As such Prayer Book was not used by Legislative authority, it was competent to the Insular Legislature to make the enactments contained in the Marriage Act, so far as regarded that book. But if the Act of Uniformity of Elizabeth was in force in the Island, the power of the Insular Legislature to make any enactment affecting the Book of Common Prayer of 1558, the use of which was prescribed by that Act, is open to question. And, further, it might also be a question how far the Insular Legislature could legislate at all on the subject of the solemnization of marriage, or whether marriages could legally take place otherwise than after publication of banns subsequently to the passing of the first Act of Uniformity of 1549, the Prayer Book of that year being virtually part of the Act. The English Marriage Acts do not extend to the Isle of Man.)
(3) The Marriage Act of 1849. — This Act repeals the Act of 1757, and makes other provisions with respect to marriages; but it contains a like enactment as to the publication of the banns and the rubrick prefixed to the Office of Matrimony in the Book of Common Prayer to that contained in the Act of 1757. (My remarks as to that Act apply to this.)
(4) The Dissenters' Marriage Act of 1849. — By this Act provision is made for the marriage of persons who object to and decline the offices of the Established Church in a Registrar's office or in places of worship specially licensed. Under certain circumstances, marriages celebrated after the passing of the Act of 1757 by Roman Catholic priests and Presbyterian and other Protestant Dissenting ministers or teachers were declared valid.
(5) The Public Notices Act, 1872. — By this Act no proclamations or notices under any law, statute, or custom are thereafter to be made or given in, or at or near the doors of, churches ; and no decree relaying to a faculty, nor any other decree, citation, or proceeding in the Ecclesiastical Court, is to be read or published in any church or chapel during or immediately after divine service. There is a proviso that nothing in the Act shall extend to the publication of banns of marriage; nor to notices of the celebration of divine service, or of sermons, or of special applications of the offertory, or of meetings for religious purposes ; nor to restrain the curate, in pursuance of the rules of the Book of Common Prayer, from declaring unto the people what holy days or fasting days are in the week following to be observed; nor to restrain the minister from proclaiming or publishing what is prescribed by the rules of the Book of Common Prayer, or enjoined by Her Majesty or her successors, or by the Governor of the Island, or by the Ordinary. (It will be observed that this proviso gives a liberty of publication in church much greater than that given in the rubric in the Communion Service, whether in the Prayer Book of 1558 or that of 1662.)
(6) Bishop Barrow's Charity Act, 1875. — By this Act provision is made for the erecting a new chapel for King William's College. The Bishop is authorized to license a clergyman of the Church of England to serve the chapel, and administer therein the sacrament of the Lord's Supper, and perform such other offices and services of the Church of England, except the solemnization of marriages, as the Bishop might include in the licence. The offertory and alms collected at the chapel are to be disposed of for charitable purposes, as the minister thereof shall determine. (The provision as to the offertory differs from that in the rubric in the Communion Service in the Prayer Book of 1662. The Act of Parliament — " The Private Chapels Act," 34 & 35 Vic., c. 66 (1871) — does not extend to the Isle of Man.)
(7) The Burials Act, 1881. — Under this Act, the burial service according to the rites of the Church of England may, after thirty-six hours' notice to the in cumbent, be dispensed with; and a burial may take place in any burial ground in which the parishioners or inhabitants of a parish or ecclesiastical district have rights of burial, either without any religious service, or with such Christian and orderly service at the grave as the person having charge of the funeral shall think fit. The Act relieves a minister in holy orders of the Church of England from any censure or penalty for officiating with the service for the burial of the dead in any unconsecrated burial ground or building thereon, and authorizes any such minister, in any case where the office for the burial of the dead according to the rites of the Church of England may not be used, and in any other case at request of the person having charge of or being responsible for the burial, to use at the burial such service, consisting of prayers taken from the Book of Common Prayer and portions of holy scripture as may be prescribed or approved of by the Ordinary, without being subject to any ecclesiastical or other censure or penalty. (The provisions as to burials in this Act are very nearly identical with those in the English Burials Act, 43 & 44 Vic., c. 41 (1880), which does not extend to the Isle of Man. As in the case of the Marriage Act, it might be open to question, if the Act of Uniformity of Elizabeth be in force in the Island, how far the Insular Legislature could enact provisions inconsistent with the Prayer book of 1558 established by such Act.)
Under the Act 33 Henry VIII., e. 31 (1542), before referred to, the Bishopric of Man was made part of the province of York. Such Bishopric is represented in the Convocation of York by the Bishop, the Archdeacon, and one Proctor elected by the clergy. The canons passed by the Convocation are binding on the clergy in the Isle of Man to the same extent as they are on the clergy within the English dioceses of the province; and it might possibly be contended that if none of the English Acts of Uniformity apply to the Island, the canons of 1604 (which are said to have been adopted by the York Convocation, and which include canons relating to divine service and the use of the Book of Common Prayer) are in force there. If so, it is not clear to what Book of Common Prayer the canon would legally apply as regards the Isle of Man. The canons seem to have been made after the proclamation of King James I. (5th March, 1604), by which the use of a Book of Common Prayer somewhat altered from that of Elizabeth, or rather the Prayer Book of Elizabeth with "explanations," was ordered to be used. However, if the Book of Common Prayer rested on the authority of the canons only, the power of the Insular Legislature to legislate, as it has done, with reference to divine service is unaffected.
If the Act of Uniformity of Elizabeth were in force in the Isle of Man, it is doubtful whether divine service could be legally conducted there except according to the Book of Common Prayer in the English language. Yet, the fact is that previously to 1765 Manx written translations of the Book of Common Prayer were in general use throughout the Island. By the great bulk of the population, particularly outside the towns, the English language was very little understood, and the use of the Manx language in divine service was a necessity. In 1765 was issued a printed edition of the Book of Common Prayer, translated into Manx for the use of the diocese of Man under the direction of Dr. Mark Hildesley, Bishop of Sodor and Man; and such translation is that which has ever since continued in use, though by reason of the widespread knowledge of the English tongue, particularly within the last thirty years, the occasions for its use are now rare. The translation is of the 'Prayer Book of 1662, thus showing that such book had superseded that of Elizabeth, and also of James I., if ever used. (It contains special petitions amongst the State prayers for the Lord and Lady and the Government of the Isle, and it omits the prayer for the High Court of Parliament, which was evidently not used, as the Island has its own Legislature.)
The Bishop and clergy of Man assembled in synod or convocation have on several occasions made canons applicable to the Church in the Island. In the year 1703-4, during the episcopate of Dr. Thomas Wilson, a code of canons was adopted by the Convocation, but, as they comprised matters affecting the laity, they were submitted for approval to the Insular Legislature, and they were approved and passed as an Act of Tynwald. By one of such canons it is thus provided " For the better government of the Church of Christ, for "the making of such orders and constitutions as shall from "time to time be found wanting, and that better inquiry may " be made into the execution of those that are in force, there " shall be (God willing) a convocation of the whole clergy of the diocese on Thursday in Whitsun week every year after this, at the Bishop's chapel, if his Lordship be within this Isle, or as soon as conveniently after his return". At the Convocation held on the 16th of May, 1706, a special form of service for receiving penitents to be used in churches and chapels, prepared by the Bishop, was adopted and the use of it enjoined.
It has been usual in the Island for the Governor by proclamation to appoint days of fasting, humiliation, and thanksgiving, as is done in England by authority of the Sovereign; and the Bishop has, on such occasions, been directed to prepare forms of prayer to be used. But the Bishops have frequently on their own authority directed the use of special forms of prayer or service. It has evidently been considered that the Island is not bound by the Acts of Uniformity, and that the Bishop by his episcopal authority has power to give directions with respect to public worship. Bishop Wilson frequently directed the use of special forms. On June 18th, 1705, he made the following order: — "It is hereby ordered "(by the approbation of the Civil Government) that in the public services of the Church this petition be inserted in the "Litany, in the place and manner following, and constantly used in all the churches within this Isle, viz.: 'That it may please Thee to give and preserve to our use the kindly fruits of the earth, and to restore and continue to us the blessings of the seas, so as in due time we may enjoy them."' That order is obeyed until this day, and in the Manx translation of the Prayer Book, the petition in the Litany is that altered as above by Bishop Wilson. Keble, in his life of Bishop Wilson, says (p. 233) : " Perhaps the Act of Uniformity, not mentioning in the body of it the Isle of Man, had not been so "accepted there as to take away from the Bishop the common "prerogative of his order, to regulate (within certain limits) the details of divine service in his own diocese"; and (p. R31), "He used without scruple his episcopal liberty in such matters, warranted, I suppose, by the omission of the "name of the Island in the Act of Uniformity." Bishop Wilson prepared " A Form of Consecrating Churches and "Chapels, and Churchyards and Places of Burial," which is in use to the present time; and he directed the use of a form of prayer (drawn up by himself) "by the clergy of the "diocese of Man, who, according to a laudable custom, are " bound to attend the boats during the herring fishing." This form has fallen into disuse, but it was used long after the Bishop's episcopate.
It has been an old custom within the Isle to use proper lessons on Ash Wednesday, and at the meetings of the Tynwald Court, when assembled to promulgate new laws. There were no proper lessons for Ash Wednesday in England before 1871.
There is one view of the Acts of Uniformity in regard to the Isle of Man which perhaps has been considered before namely, that the second and each subsequent Act of Uniformity repealed, though not in express words, the provisions of the previous Act so far as it directed the use of a particular Book of Common Prayer; and therefore that the Act of uniformity of Charles II. repealed the provisions of the Act of Elizabeth as to the use of the Prayer Book then established, not only within England, but generally throughout all the dominions of the Crown, though the use of the new Book of Common Prayer was enjoined throughout England and Wales only. There was much reason for the limitation as to the use by the last Act of Uniformity, as the provisions of a general Act of this kind were not really applicable to the extending dominions of the Crown where there was no Established Church ; and it certainly could not have been the intention of Parliament in 1662, to enjoin the use of a new Prayer Book in England and continue in use in other parts of the King's dominions the Prayer Book of Elizabeth. If this be the correct view of the Act of 1662, then all the action of the Insular Legislature and of the Bishops of Sodor and Man with reference to the Book of Common Prayer and the conduct of divine worship were within their respective powers, and were regular and duly authorized.
The Act of Parliament 3 & 4 Vic., c. 86 (1840) — " The Clergy Discipline Act" — does not extend to the Isle of Man. The procedure in the Insular Ecclesiastical Courts is that which has existed from ancient times, but with a few statute-able modifications. Occasionally the Bishops have acted in the spirit of the English Clergy Discipline Act by referring matters of complaint against clergy to persons acting as Commissioners; but this has been done only where the accused clergyman voluntarily submitted to the reference.
Very many of the Acts of Parliament which affect the church and clergy do not apply to the Isle of Man. The Church Building Acts and those relating to the Ecclesiastical Commissioners are, as to the Island, in much confusion, by reason of some being made to extend to the Island, and others not so extending. Amongst the Acts relating to the clergy, which are not applicable to the Island, are —
(1) 1 & 2 Vic., c. 106 (1838). — An Act to abridge the holding of benefices in plurality, and to make better provision for the residence of the clergy.
(2) 4 & 5 Vic., c. 14 (1841) — An Act to make good contracts made or which may be entered into by banking and other corporations which may include clergy.
(3) 27 & 28 Vic., c. 94 (1864). — This Act contains restrictions as to persons ordained by Scotch Bishops being admitted to benefices, or officiating in England or Ireland.
(4) 33 & 34 Vic., c. 91 (1870) — The Clerical Disabilities Act. — By this Act a clergyman may relinquish his status.
I may observe that the Insular Legislature have passed Acts — in 1696 against non-residence; in 1734 and 1879 to provide for the erection and improvement of houses of residence for the clergy, and as to dilapidations ; in 1844 to regulate the respective rights of outgoing and incoming incumbents as to the temporalities; and in 1880 for the appointment of Church Commissioners, who have powers somewhat similar to those of the Ecclesiastical Commissioners in England as to the formation of parochial districts formed out of parishes, and the establishment of rural deaneries, &c. By the same Act provision is made against the holding two benefices together, whether the benefices be both or one within the Island, and to enable the Bishop to appoint a curate to discharge the duties of an incumbent who is of unsound mind.
It has never been considered to be the law of the Isle of Man that the contracts of joint-stock companies or corporations are affected by reason of a clergyman being a member, nor that there is any restraint, by the law of the Island, as to the services of Episcopally ordained clergymen, whether as incumbents or curates, wherever they may have been ordained, save only where the restraint is by Act of Parliament, such as exists under the Colonial Clergy Act, 1874 (37 & 38 Vic., c. 77), which extends to the Isle of Man. Acts have been frequently passed by the Insular Legislature with respect to parish and other churches, burial grounds, and the temporalities of the Bishop and clergy. Of the latter character is the Act for the Commutation of Tithes, passed in 1839, but there is this important difference between the Manx Act and that passed in England, the collection of the Tithe-rent charge is taken out of the hands of the clergy and managed by an agent appointed by the Crown, the Bishop, and the clergy.
In my opinion there ought to be substantial uniformity in the law as to the Book of Common Prayer in England and the Isle of Man. At present the law is in much confusion and uncertainty. Legislation on this subject ought to be by Act of Parliament, but within certain limits provision might be made for modifications suited to local circumstances.
But as to the tribunals for matters of ecclesiastical cognizance, and the practice and procedure in the Ecclesiastical Courts of the Island, there is no necessity for the action of Parliament. All such matters, and matters relating to the external affairs of the church, as the Established Church of the Island, ought to be left to the Insular Legislature. The removal of cases which come under the Public Worship Regulation Act, 1874, to be heard by the judge of the Provincial Court, in the first instance, might occasion great hardship and much unnecessary expense to suitors. There is no objection, of course, to an appeal to the Provincial Court, as at present.
J. GELL, ATTORNEY-GENERAL FOR THE ISLE OF MAN.
Castletown, Isle of Man, 12th April, 1882.
* NOTE. — The following is the text of this Act: —
An Act. dissevering the Bishoprick of Chester, and of the Isle of Man, from the Jurisdiction of Canterbury, to the Jurisdiction of York. Cap. xxxi, Whereas the Kin; e Highness, of his most gracious goodness, as well for the advancement of Christ's religion, as for the better instruction of his subjects in the laws of God, hath, by his Letters Patent, bearing date the sixteenth day of July, in the thirty-third year of his noble reign, erected, founded, and established, in the late monastery of St. Werberge, in his city of Chester, a Cathedral Church, or Bishop's See ; willing the same to be named and called the Bishoprick, or Bishop's See of Chester; and to the same hath appointed limits and bounds of one perfect and entire Diocese, ordained, and willing the same to be named and called the Diocese of Chester. And amongst other things, h hath appropried, united, and annexed, to the said Diocese of Chester, that Archdeaconry of Richmond, and all the jurisdictions thereof, which Archdeaconry was late parcel of the Diocese of York; and, moreover, hath the same whole and entire Diocese of Chester, with all the limits and bounds, and all things, annexed, appropried. and united, to the same, decreed, ordained, and established. to be of the Province of the Archbishop of Canterbury. and under the jurisdiction metropolitical of the same, as in the same Letters Patent doth more largely appear. Forasmuch, as his said Highness graciously considereth, that the said Archbishop of Canterbury hath a sufficient number of Dioceses and Suffragans under him, and in his province, and that the Archbishop of York bath, within the realm of England, only two Suffragans And. moreover, that if the said Diocese should remain under the said Archbishop of Canterbury, that then, all his Highnesses subjects of all that Diocese of Chester, and so of the Archdeaconry of Richmond, should be constrained for appeals to resort to the audience of Canterbury; which thing, to many of the said Diocese, and specially to them of the Archdeaconry of Richmond, should be. by reason of hang journey of almost three hundred miles from some places thereof, intolerable fatiguation, and insupportable charges, And, therefore tenderly, like a most gracious Prince, studying and caring for his said subjects, must commodity, quietness, and ease, and, upon further deliberation, hath, with the advice of his most honourable Court determined and ordained to remove, and dissever, the said Bishoprick and Diocese of Cheater, from the said province, and Archbishoprick of Canterbury, and to unite and annex the same to the province and Archbishoprick of York, as a Diocese, Member, and Bishoprick of the same.
Be it therefore ordained, enacted, and established, by the King's Highness, and by the consent of the Lords spiritual and temporal, and the Commons in this present Parliament assembled, and by the authority of the same, that the said whole and entire Diocese, or Bishoprick of Chester, and every parcel and member thereof, be from henceforth united and annexed to the Province and Archbishoprick of York, as a Diocese and Bishoprick of the same; and that from henceforth the said Diocese of Cheater, and every parcel thereof, exempt as well as , not exempt, be, and be taken, named, and reputed to be, of the Province and Archbishoprick of York, and of the metropolitical jurisdiction of the same, to every effect and purpose, according to the ecclesiastical laws in this realm ; and that the Bishop of the same, that now is, and all other his successors, shall be Suffragans to the Archbishop of York, that now is, and his successors, and to the same shall owe their obedience, and be under the jurisdiction metropolitical of the same, as well they as the Dean and Chapter of Chester, and all the Archdeacons, and the whole Clergy, and all other the King' subjects, being within the limits and bounds of the said Diocese; any thing comprised m the said Letters Patent of the erection of the said Diocese and Bishoprick of Chester, notwithstanding. And from henceforward, neither the said Bishop of Chester, neither the Clergy, nor any other the King's subjects, being of the said Diocese. of Chester, shall recognize the Archbishop of Canterbury as their Metropolitan, but only the Archbishop of York. and his successors, and the same shall obey in all things, according to the laws, as well temporal as ecclesiastical, in this realm.
Be it also further enacted and established by the King's Highness, with the assent of the Lord's spiritual and temporal, and the Commons m this present Parliament assembled, and by the authority of the same, that the Bishoprick and Diocese of Man, in the Isle of Man, be also annexed, adjoined, and united to the said Province, and metropolitical jurisdiction of York, in all points, and to all purposes and effects, as the said Bishoprick of Chester is annexed, adjoined, and united to the same.
Provided always, and be it enacted by our Sovereign Lord the King, with the assent of the Lords spiritual and temporal, and the Commons in this present Parliament assembled, and by authority of the same, that this Act be not prejudicial to the Archbishop of Canterbury now being, nor to his successors, nor to the Dean and Chapter of the same, nor to any other Bishop or Chapter of this realm ; but that all places, lands, promotions, possessions, as well spiritual as temporal, being and lying without the bounds and limits of the Archdeaconries of Richmond and Chester, and without the bounds and limits of the city of Chester, and the county of the same, and the counties of Lancaster and Chester, or any of them, shall be still of the province of Canterbury, and of such Diocese and Dioceses as they were of before the erection of the Bishoprick of Chester, and of the jurisdiction of the same, and not of the province of York, nor shall be accounted to be any parcel of the said Diocese of Chester any thing in this present act, or in the book of erection of the said Bishoprick of Chester, notwithstanding.
Saving to the Bishop of Chester, and his successors, that his house at Weston, being within the Diocese of Coventry and Lichfield, shall be accounted and taken to be of his Diocese, and that he being resident in the same, shall be taken and accounted as resident in his own Diocese; and for the time of his abode there, shall have jurisdiction in the same, likewise, as all other Bishops have in the houses belonging to their Sees, wheresoever they lie, in any other Bishoprick within this realm, for the time of their abode in the same. Any thing in this present act, and provision to the contrary thereof, in anywise notwithstanding.
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