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of this great King of the church, when every man will rise into glory and honour, or sink into shame and everlasting contempt, according to the fidelity or negligence of his present conduct, and that all shall be recompensed according to their present works.

Amen! Even so come, Lord Jesus!

[N. B. The above account hath been given chiefly with a view to shew the great ingratitude and treachery of Charles II. and to set in its true light an historical fact, which seems to be forgotten in the reproaches occasionally thrown out against the Dissenters as enemies to monarchical government; for, otherwise, it reflects no little dishonour on the Presbyterians, that they should have been so active in bringing about the restoration without stipulating some conditions for the future security both of civil and religious liberty. ---Conditions, indeed, were intended, and a motion was made in the house of Commons, for that purpose, by Mr. Hale, afterwards the famous chief justice. Lord Broghill, in a letter to Thurloe, dated May 8, 1660, says, "I heartily beg "of the Lord that our steps may be as safe as

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they are expeditious, and that we may ascer"tain those just rights, by an agreement, which "we contended for so successfully in the war."*

But the fact was, that making any stipulations with the king was prevented by the falsehood, dissimulation, and treachery of General Monk; and the Presbyterians, with the rest of the nation, were also deluded by the king's promises, and admitted him to the throne without making any proper provisions for their own security. They had, afterwards, abundant reason to repent of their weakness and credulity; and the Presbyterians received the most injurious treatment, and experienced the utmost baseness and ingratitude, from a prince whom they had been highly instrumental in raising from a state of indigence and banishment to all the splendors of a throne!]

Harris's Life of Charles II. Vol. I. page 337.

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APPENDIX.

Number II.

CASE

Respecting a clergyman's refusing to administer the Sacrament to an open and notorious evilliver, with the several opinions of

Mr. Serjeant HILL,
Mr. MADOCKS, and
Mr. HARGRAVE.

CASE.

A MAN accepts an office, and, by law, he

ought, within three months after accepting the same, to receive the sacrament of the Lord's Supper, in some parish church, according to the usage of the church of England. He gives timely notice of his intention to receive the sacrament to the clergyman of the parish to which he belongs, agreeably to the rubric, and he attends, with others of the congregation, on the proper Sunday, for the purpose of receiving the sacrament as a qualification for holding his office; but the clergyman, knowing him to have long been, and still to be, an open and notorious evil-liver, refuses, for that reason only, to administer the sacrament to him; and, by reason of such refusal, he incurs the disabilities and penalties enacted

by the Stat. of the 25th year of Car. II. c. 2. commonly called the Test-act, for exercising his office contrary to the said statute.

Q. Can the man maintain an action against the clergyman for refusing, under these circumstances, to admit him to receive the sacrament, and are there any adjudged cases on the point?

The opinion of Mr. Serjeant HILL, on the foregoing Case.

I THINK an action is maintainable by the person who accepted the office against the clergyman, for refusing, under the above circum-. stances, to admit him to receive the sacrament; for, though I know of no case adjudged in point, yet there are several adjudged on a principle applicable to this case, viz. that the two only requisites, in any action on the case, are damnum et injuria, both of which, I think, concur in this case. As to the first, it is in itself apparent, and therefore there can be no question about any thing but the other; that is, whether the refusal was injurious or unlawful, and I think it was; because every parishioner has a right to partake of the sacrament when generally administered in his own parish, if there be not just cause of refusing him, which I think there is not in this case. The cause pretended is the first of the two in the rubric. Now that in the rubric is thus expressed, viz. that the party applying is "an "open and notorious evil-liver, or has done some

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wrong to his neighbour, by word or deed, so "that the congregation be thereby offended." The whole description, and more particularly the conclusion, is loose, and scarcely possible to be proved. In the present case it is stated, that the only reason of the refusal is, that the parish-, ioner is an open and notorious evil-liver, which

is but part of the description of this cause of refusal, and therefore can be no justification, even if it would were it the whole, which I should think doubtful, as the Test-act requires all, who have any of the offices therein described, without exception, to receive the sacrament; and, being later than the act establishing the rubric, it seems, in that particular, to be a virtual repeal of it, and an action on the case will lie against an ecclesiastical person either for a misfeasance or a nonfeasance in his office, notwithstanding the matter be spiritual, where a temporal damage is the consequence of it. Dr. & Stud. lib. 2. c. 32.--12, Coke 128. 2. Bulstr. 266. In Siderfin,34. an action was brought for refusing to administer the sacrament: and, though no temporal damage was laid, yet the court declined giving judgment on the point, and determined the case merely on a fault in the pleadings; but in 1 Keb. 947, it is said to have been agreed by the court, that an action on the case will lie for refusing the sacrament to one who was bound to receive it under a penalty. That is a book of very little authority, otherwise this is an opinion, though not a judgment, nearly in point; for, it is asserted without any exception, and I think it right. Watson, in page 315, 316, of the fol. edit. of the Complete Incumbent, is of a contrary opinion; but I pay no regard to that opinion, being delivered with warmth; and the authorities referred to, and the reason given for the opinion, make against it. The authorities are the two last I have taken notice of; and his reason, that then those who live in schism, and join separate congregations, might be admitted, must, I think, have been inserted whilst the law against occasional conformity subsisted, and, by an oversight, continued in the later editions after it was repealed; for, the repeal of that law, shews the sense of the legislature, that occasional confor

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mists are not to be refused. However, there being no case adjudged in point, it is not possible to be certain what the determination might be, if the point be brought to a decision: but I am surprised the parishioner will not receive it in some other church, as by the act he is not confined to his own parish-church, and there are many other parishes where it is well known he might receive it without objection.

Lincoln's-Inn,

March 24, 1787.

The opinion of Mr. MADOCKS on the foregoing Case.

BY the 1 Ed. VI. c. 1.The minister shall not without lawful cause, deny the sacrament to any person that will devoutly and humbly desire it. This act, which was repealed in Queen Mary's time, was revived by 1 Eliz. c. 1. The only cases on the point are Clovell versus Cardinall, 12 Charles II. in 1 Syderfin, page 34. An action on the case was brought against the defendant, a parson in Essex, for refusing to administer the sacrament on two Sundays, and the declaration concluded against the form of the statute. A verdict was found for the plaintiff, and entire damages. The court arrested the judgment, because the declaration had not alleged, that, on the second Sunday, the plaintiff requested the defendant to give it him, and the damages went to both counts. But, at the end of the case, are these words, "But the court did not deliver any

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opinion whether the action lay." The only other case is 1 Keble, 947. Sir And. Henley versus D. Burstow. The case relates to a different matter; but it is there said, that Maynard, for the plaintiff, said an action upon the case lies

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