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 This act, which was repealed in Queen Mary's time, was revived by 1 Eliz.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 conlcuded 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 "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 against the defendant for refusing the sacrament, which the court agreed to, on 1 Eliz, because the party is bound to receive on penalty. This reason

P

is a bad one; for, there is no such penalty in the 1st Eliz. The penalty is not for going to church, not for neglecting to receive the sacrament. Lord Chief Baron Comyns, in his Abridgment, referring to the case in Syderfin, says, "It seems "than an action does not lie." Suppose an action would lie, it comes to be a question, whether, in this case, there was lawful cause of refusal within the statute of Edward VI. The rubric, which in Strange, 1062, is held to bind the laity, says, that if any be an open and notorious evil liver, the curate shall call him, and advertise him that he do not presume to come to the Lord's table until he has openly declared himself to have repented; and the same order the curate shall use with those betwixt whom he perceiveth malice and hatred to reign, not suffering them to be partakers of the Lord's table till he knoweth them to be reconciled. The rubric: does not say expressly that the curate may refuse in the case of an evil-liver, but, asit goes on, it says, the same order the curate shall use in case of malice, and shall not suffer them to partake. It seems to me he may refuse in both cases. Under these circumstances, I think it a nice question whether an action will lie. I should be inclined to think it would, as, by statutes made since the case of Clovell versus Cardinall, persons appointed to offices are liable to penalties for not receiving the sacra ment. If an action should be brought, he must plead a justification, which it will be incumbent upon him to prove, which will leave the question open in arrest of judgment, whether the action will lie in case a verdict is against him, or whether the declaration be good.

The opinion of Mr. HARGRAVE on the foregoing case.

THAT there are reasons which will justify a clergyman in denying the sacrament to a person soliciting is recognised by the statute of the 1st of Edward VI. c. 1. which enjoins the minister not to deny without a lawful cause: according also to the rubric before the communion service, in the book of Common prayer, which is sanctioned by act of parliament, being an open and notorious evil-liver is a reason for the clergyman's cautioning the party against presuming to come to the communion table, without open declaration of repentance. I therefore incline to think, that, in the case supposed, the clergyman acted legally in refusing the sacrament; yet it appears to me to be very perilous in the parson of the church, or his curate, to deny the sacrament on the ground stated in this case; because, if questioned, the minister, so denying, may be at least liable to ecclesiastical censure from the want of proof of the facts on which he founds the refusal. Whether, having denied to administer the sacrament, without being able to prove a just cause, more especially where the person refused holds an office, in respect of which taking the sacrament, is essential to prevent the penalties of the Test-act, will bear an action, is, in my opinion, a question of considerable doubt and difficulty; nor do I at present know any case in which such a point has received a judicial decision. The only printed cases, in which I observe a point of this kind to have arisen, are Clovell against Cardinall, 1 Siderf. 34, and Henley against Burstow, in 1 Kebl. 947. In the former case, a decision of the point became unnecessary. In the latter, there is the

assertion of Serjeant Maynard, arguing, as counsel, that an action on the case will lie where the party refused is liable to a penalty for not receiving the sacrament, and the court is said to have agreed to this: but the reporter is of little authority, and the opinion is apparently extrajudicial.

Boswell-court,

March 26, 1787. FRANCIS HARGRAVE.

SUPPLEMENT.

IT hath been frequently asserted, by the advo

cates for conformity to the church of England, and it is, we believe, the opinion of many, if not the greater part of the clergy, that the unfeigned assent and consent, which the act of uniformity requires, to all and every thing contained in the book of Common Prayer and administration of sacraments, &c. relates to the use of the things prescribed, and not to the inward and entire approbation of whatever is enjoined and included in that book. The contrary might justly be argued from the general language of the act, and especially from the word unfeigned, which cannot well be applied to any other than the real conviction of the mind. not to insist upon this point, it will be evident from the following account, taken from the Lords and Commons Journals, what was the sense of the legislature on the subject.

But

In the year 1663, a bill was brought into the house of commons, and passed there, entitled,

An act for the relief of such persons as, by "sickness or other impediment, were disabled "from subscribing the declaration in the act of "uniformity, and explanation of part of the "said act.' This bill was carried up to the house of peers on the 18th of July, and was read the first and second time on the 24th of that month; after which it was referred to a committee of twenty-six lords. The committee made their report the next day, and, besides some alterations and amendments of little importance, proposed, to the consideration of the house, a clause to be added as follows:

1