A practical analysis of the several letters patent forming the episcopal charter of the see and diocese of Calcutta, and the laws and canons applicable thereto; including ecclesiastical proceedings and precedents

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Preface

Some apology may be deemed requisite for a publication, which, with respect to the extensiveness of its utility, will possibly appear to some readers to be uncalled for and unnecessary.

From the augmented number of the episcopal establishment in British India, the whole of the Honorable Company's Chaplains and licenced Missionary Clergy, with the different officers holding ecclesiastical appointments under the Bishop and Archdeacons, now amount ia the Indian Diocese, to upwards of two hundred, and are yearly encreasing : and from the extreme distances and magnitude of the respective Archdeaconries, subordinate to that See, as well as from the veryscattered, detached, and remote residencies and stations of all the Clergy, it has been long suggested, that a work, calculated to afford information in a practical view, in reference to the general provisions of the several Letters Patent) and to comprise the necessary ecclesiastical forms in force throughout that Diocese, was heavily felt as a desideratum, in many parts of India.

It was therefore chiefly in the hope of being able to supply this want, in the now greatly augmented state of the establishment, that the following pages were attempted.

It was thought also that such a publication would not be found wholly useless to the different Registrars, on account of the number of ecclesiastical forms it contains ; and the work has been in consequence published, and is with some anxiety respectfully offered to the Clergy, and such of the Proctors of His Majesty 's Courts of judicature in British India, as are already connected with, or as may eventually be

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appointed to the English episcopal establishment adverted to, in the humble assurance of its meeting with every indulgence. It may be noticed, by way of introduction, that by the 53 Geo. 3, cap. 155, § 52,* it was enacted, that it should be lawful for His Majesty from time to time, ifhe should think fit, by His Majesty's Letters Patent, to grant to the Bishop of Calcutta, such ecclesiastical jurisdiction and the exercise of such episcopal functions within the East Indies and parts therein mentioned, as His Majesty should think necessary, for the administering holy ceremonies and for the swperintendance and good government of the Ministers of the Church establishment within the East Indies and parts aforesaid : and that by the Letters Patent of 1814,| (which declare that the See and Diocese, and Bishop of Calcutta, should be subject and subordinate to the Archiepiscopal See of the Province and Archbishop of Canterbury, in the same manner as any other See within that province in England, except in the matter of appeals, which were directed should be made to the Commissioners Delegate as therein appointed) His Majesty gave to that Bishop authority to ordain and to confirm, and to perform all other functions peculiar to the office of a Bishop, within the Diocese of Calcutta : and authorized that Bishop and his Commissaries to exercise jurisdiction, spiritual and ecclesiastical, throughout the same Diocese, according to the ecclesiastical law of England, in the several causes and matters specified; ajl which will be found to be fully detailed in the following Analysis.

In reference to the due exercise of such authority and jurisdiction as above granted, according to the ecclesiastical law of England, it may be useful to premise that the ecclesiastical law is compounded, partly of the civil law, by which is meant the law of the ancient Romans; partly of the canon law, of which more hereafter; of the common law, which is the

* For which see extracts, Appendix.

f See Letters Patent of the 2nd May 1814, 54th Geo. 3di Appendix.

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municipal law or rule of justice throughout the realm of England, and known as the lex non scripta or unwritten law ; and pf the statute, or written law contained in the acts of parliament.*

, It is mentipned, that under .the head of, the statute law, are reckoned the Thirty-nine Articles;! and which have been referred to in the Analysis, simply to exhibit the law as thereby established.

As the Canon Law may in the Indian Diocese be considered of primary importance, something more, in explanation, may be added concerning it.

It is observed of the Canon Law, that the Apostles of our Saviour framed certain regulations for the government of the Church, which were called Kavuveg, or rules, to distinguish them from the laws enacted by the secular authority, although the learned have differed as to the authenticity of the Canons of the Holy Apostles, which are to be found both in the corpus juris civilis and juris canonici. These rules were explained and enlarged by several councils of the Church, and Justinian, in Novel 331, cap, 1, gives the force of civil law to those established by the four Councils of Nice, of Constantinople, ,of the first Council of Ephesus, and of the Council of Chal- .eedon.f

After the reign of Justinian, the authority, of Canons made in the general or provincial councils, and of the writings of ,the Fathers still prevailed.

To the foregoing may be added, some novel constitutions of the Bishops of Rome.§

Besides these portions, which are termed in England the Foreign Canon Law, there is also that of the Canon Law of England, which, as Mr. Justice Black stone, adds, " js com - " posed of legatine and provincial constitutions, and adapted "only to the exigencies of this Church and Kingdom. The

* Dr. Burn's preface to his Ecclesiastical Law.

tia.

X Mr, Tyrvvhitt's note e. to 8th Edit, Burn's Freface, p. xxii. $ Bum's Ecclesiastical Law, preface, p. xxir.

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" Legatine Constitutions were ecclesiastical laws enacted in ci national synods held under the Cardinals Otho and Otho- " bon, Legates from Gregory IX. and Clement IV. in the reign " of King Henry III, about the year 1220 and 1268. The *f Provincial Constitutions are, principally, the decrees of " provincial synods held under divers Archbishops of Can- •* terbury, from Stephen Langton, in the reign of Henry III, " to Henry Chichelle in the Reign of Henry V, and adopted " also by the province of York, in the reign of Henry VI. At " the dawn of the Reformation in the reign of Henry VIII, it " was enacted in parliament, (statute 25 Hen. VIII, c. 19, "revived and confirmed by 1 Elizabeth, c. 1.) that a review "should be had of the Canon Law: and till such review •' should be made, that all canons, constitutions, ordinances, *' and synodals provincial, being then already made, and not <c repugnant to the law of the land or the King's prerogative, " should still be used and executed ; and as no such review " has yet been perfected, upon this statute now depends the % authority of the Canon Law of England." Bla. Com. vol. 1, p. 83.

With respect to the present operation and force and effect of the Canon Law over the Clergy generally, particularly as to the Canons of 1603, {in the appendix) though they have never passed parliament, the following authority may be considered as decisive. Lord Hardwicke cites in 2 Atk. 605, the opinion of Lord Holt, and declares, " it is not denied by any one, that it " is very plain all the Clergy are bound by the Canons, con- " firmed by the King only:" and again, in More v. More, 2 Atk. 158, it is laid down, " that the Canons must be pursued " with the utmost exactness by ecclesiastical persons."*

* Of the four species of Courts in England, in which the canon laws (as well as the civil law) are permitted under different restrictions to be used, the Courts of the Archbishops and Bishops and their derivative offices are mentioned. In all it is laid down the reception of those laws, in general, and the different degrees of that reception, are grounded entirely upon custom. 1 Com. 83. Thus,

1. The courts of common law have the superintendency over these Courts, to keep them within their jurisdiction, to determine wherein they exceed them, and to restrain and prohibit

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No other proof is required to shew that the canon law, which is thus obligatory on the Ministers of the Church of England universally, must be equally binding on the Clergy of the Indian Diocese, now annexed to the province of Canterbury. If such proof were wanting, the following extract would supply it: and scarcely any other apology need be offered for inserting in this place, as introductory in every respect, the following passages from Bishop Middleton's Primary Charge to his Clergy, delivered at Calcutta in the year 1815, admirably pointing out the measures necessary to be pursued and adhered to, for giving effect to the purposes, which the legislature contemplated when it made provision for an episcopal establishment in British India: and some of the practical duties concerning the Clergy in this Diocese.

" I am fully aware, that in proceeding to the consideration " of these points, I am entering upon a subject of no common < ( difficulty : I am deeply sensible of the difference, which sub- " sists between the condition of Christianity in these regions, " and the order and stability, which it has long attained in " England: I am ready to admit, that the duties of the Clergy " are here to be performed in circumstances somewhat pecuw liar; that the public feeling is to be considered and conif ciliated ; and that the suggestions of Christian prudence no

such excess ; and in case of contumacy, to punish the officer who executes, and in some cases the Judge who enforces the sentence so declared to be illegal.

2. The common law has reserved to itself the exposition of all such statutes as concern either the extent of these Courts, or the matters depending before them, and therefore if the Courts either refuse to allow those acts of parliament, or wall expound them in any other sense than what the law puts on them, the Courts at Westminster will grant prohibitions to restrain, and contrqul them.

3. An appeal lies from all these Courts to the King in the last resort, which proves that the jurisdiction exercised in them is derived from the Crown of England, and not from any foreign potentate or intrinsic authority of their own. See stat. 25 H. 8, cap. 21.

From these three strong marks and ensigns of superiority, it appears beyond a doubt, that the canon (and civil) laws, though admitted in some cases by custom, in some Courts, are only subordinate ' et leges sub graviore lege;' and that thus admitted, restrained, altered, new modelled and amended, they are by no means a distinct, independent, species of laws, but inferior branches of the customary or unwritten laws of England, properly called the King's ecclesiastical, military, maritime, or academical laws. 1 Bla. Com, 83, 84. ant} see also 3 Bla, Cum, 102, 103.

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" where require to be observed with stricter care : but thev " inferences, which arise from this state of things, must be "drawn with discrimination, or they will lead to conse- " quences, which instead of removing our difficulties, could " only tend to increase them. You are not to infer, where an " object is definite, and legitimate, and accompanied, as we " cannot doubt, with God's blessing, that impediments, "however formidable in the outset, can in their nature be "permanent: it would be wrong to infer, that schemes of " improvement are not to be prosecuted with ardour, because "hitherto they have been scarcely thought of, or under every "disadvantage have failed ; and admitting the existence of "difficulties to the utmost extent,! will venture to remind " you, that the just conclusion is the necessity of a ready and " conscientious co-operation under one head ; upon whom, < x after all, (and I feel it to, be no light responsibility,) the "blame of failure must principally rest. And when we " recollect, that those who have been most forward to allege " the peculiar circumstances of this country as arguments " against improvement, have usually been persons not re- " markable for their attachment to the Christian cause, I trust " that the last to insist upon impediments, and to shelter " themselves behind anomalies, will be the English Clergy. " We have no natural impediments to contend against, but the " manners and habits incidental to an enervating climate : and " yet there is no region on the earth, where the religion of "Jesus, if due care be taken to plant and to water it, will not "flourish. The most dissipated city of the East became one " of the earliest and most distinguished seats of the Gospel. " We know taht * the disciples were called Christians first at " Antioch ;' and that a branch of the church of Antioch has " subsisted for centuries, under every discouragement, amidst " the mountains of Malabar.

"An unavoidable delay in the promulgation, by the Supreme "Government, of His Majesty's Letters Patent, has induced " me to postpone, for so long a period, the exercise of certain

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* c powers vested in the Bishop, and especially the very im- 11 portant measure of licensing my Clergy. The new system, " however, is now in full force; and 1 am enabled to inform f you, in what light yon are henceforward to consider your- " selves, as well as to afford you a sketch of some particular

" obligations.

" I wish that I could announce to you, that you were in all "respects placed upon the footing of parochial incumbents; " that each of you was to have his parish church, to which i* he was to be regularly instituted and inducted, and that he " was to be assisted in the superintendence of his flock by " church-wardens and overseers, as the parochial clergy are 6( in England. Tn time, no doubt, beneficial changes will be " oradually introduced : for the present, however, you are " required to make the best of the circumstances in which (< you are actually placed ; and they 1 are ,such as to justify " the expectation of your discharging the duties of Clergymen V with a high degree of usefulness and effect. You are many <i of you still, by the nature of your duties, military chap- " lains ; but by no means subject to all the inconveniences, " which the name seems to imply. You are placed com- 4t pletely and exclusively under ecclesiastical jurisdiction: ■" you have fixed and permanent stations, to which you are ?' henceforward to be nominated by myself;* and your corres- " ponclence on all ecclesiastical matters will be carried on " with myself or my Archdeacons : the rules prescribed for " the regulation of your conduct will be precisely the same, " except where local circumstances render it impracticable, " with those which subsist at home : my Letters Patent direct " me to administer the ecclesiastical laws, as they are received " in the realm of England: and they evidently contemplate " no other discipline, than that under which our Church has " been favoured with such manifestations of the divine bless- " ing, and still continues, notwithstanding* the cavils of

* The Court of Directors^-di^ not con^xm tfcs t^guiatioa Chen made by the local Government in this respect.

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" bigoted or ignorant men, to be the great depositary of " scriptural knowledge and sacred truth, and, under Christ, " the main support of Christian piety throughout the world.

" It is needless, I trust, in any circumstances, to employ " much time in reminding Clergymen of the obligation which " they contracted, when they solemnly devoted themselves to V their holy calling; to bring to their recollection, that they " promised, by the help of God, to f give faithful diligence " always so to minister the doctrine and sacraments, and the " discipline of Christ, as the Lord hath commanded, and as " this Church and realm hath received the same :' and that " in the public worship of God they will use the form pres- 4t cribed in the Book of Common Prayer, and none other: " an engagement, which precludes addition and omission, and " every alteration whatever, And yet, perhaps, in the peculiar " circumstances attending the situation of the Clergy in this " country, one great danger, to which they have been exposed, " has been that of falling into habitual neglect of canonical "regularity: some practices of this kind have, in truth, come " to my knowledge, of which, in the reliance that they will not " be persisted in, I would much rather suggest the excuse, than *\ pronounce the censure. I am ready to admit, that the Clergy " have hitherto been placed in a condition by no means favour- " able to the correct and regular performance of their duties. " It is doubtless a high advantage enjoyed by your brethren in If. England, that their attention is so frequently drawn to every " topic connected with their profession. Episcopal and archi- "' diaconal visitations afford the means of instruction and ad* * vice, as well as of a ready and frequent intercourse among " the Clergy of the same district : the example of an incumbent " of revered character and approved judgment silently yet " powerfully operates on his younger brethren, who are " placed in his immediate neighbourhood : and occasionally, " the penalties inflicted on the grosser derelictions of duty, " and sometimes even on the omission of forms, will not suffer " any to fall into a general inattention to subjects of this

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" nature. In the utter absence of these helps and restraints, " it cannot be matter of surprise, if uncanonical practices have M sometimes been admitted ; especially in a country, where "the laity themselves, little conversant with such subjects, " have not exacted from the Clergy the same attention to " established order, which is generally expected at home. " These considerations seem to demand, especially at this " our first meeting, that I should somewhat enlarge upon the "topic of discipline.

" The age in which we live, is not generally chargeable with " any want of zeal in behalf of religion. The value of Christian " nity is feltand acknowledged by the great mass of Christians ; " and very praiseworthy efforts are made for its diffusion. " Much, however, of this zeal is destitute of regulation, or is " directed only by the private views and notions of those, by " whom it is cherished ; and while those notions are so discor- " dant, and are sometimes inculcated with so little regard to any ¥ recognised authority, it is to be expected, that the obligation " to order in religious proceedings should be little attended to, "and, inconsequence, not generally understood: there seems " even to-be a prejudice against it, as if it were injurious to zeal, " by having a tendency to cramp its exertions and to narrow " the range of piety. It may be supposed, that an order of u men, who have voluntarily adopted the sober views of the " Church of England, and who know the grounds on which her " discipline is established, and have had experience of its use " and necessity, will be little liable, on such a subject, to be " affected by the fluctuating opinions of the day ; and yet, per- " haps, it is too much to hope, that any of us, especially in such " circumstances, should be wholly exempt from the influence " of prevailing sentiment : human nature is too weak to adhere " invariably and inflexibly to principles, which, however " solemnly adopted and powerfully established, are yet dis- " paraged in the public estimation, and not always observed in " practice. I would remind you, then, that the order and " discipline of our Church are an integral part of its constitution,

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" considering it as an instrument in the hands of God for the " maintenance and diffusion of truth. The inculcation of sound te doctrine is perceived by the most superficial, to be the highest " object and aim of religious instruction; but it is not always " remembered, that sound teaching can be maintained only by " salutary discipline; and that the unity of truth must be pre- " served by a reference to some particular interpretation of " Scripture. Neither can provision be generally made for the *' maintenance of religion, but through the aid of an ecclesiastical polity; not necessarily, indeed, enjoying the sanction and V protection of the state, but sufficiently strong to maintain and "enforce its regulations against opposition : which, however, " in the present condition of society, is scarcely supposable to " any great extent, without the assistance of the temporal " power. And such appears to be the actual constitution of " the Church of England. Its government and discipline ori- " ginally emanate from higher authority than any human " enactments, or the power of princes; even from the word of " God, and the promises of Christ, and the practice of his " apostles: its liturgy and its articles, though of human com- *' position, are yet interpretations of Scripture by persons, ta " whom was committed the ministry of the word : and the " rubric, which it has framed to preserve a decency and proj; priety of worship, and the canons, by which it has provided " for its government, are the results of piety and experience " applied to these particular subjects: the part which the state " has taken in these proceedings, has been only to adopt and " to sanction them, and to secure to the Clergy, who teach in " conformity with such principles, the emoluments, which a "Christian state will appropriate to the maintenance of the " Gospel, together with certain immunities and honours, to " uphold them in the eyes of the world.

" If this statement, then, be just, nothing can be more "unfounded than any prejudice against the order and disci- " pline of our Church, as tending to interfere with a salutary "zeal; I mean, supposing such prejudice to subsist among

PREFACE. XV

" many of its members. With respect to others, the case is *' more intelligible, though it hardly deserves our notice : it " is natural for those, who have no idea of sacred truth " beyond the narrow views of the sect or party, with which " they happen to be connected, to cherish a hope, that if the *' established interpretations of Scripture were divested of " authority, and order and system could be brought into " disrepute, their opinions would meet with less opposition : " but with such we have at present no concern. For us it is " sufficient to be convinced, that all the undoubted verities " of Scripture are maintained and inculcated by our Church ; " that it furnishes the most ample means of grace, and well- " founded hopes of glory ; that its rites are primitive, and *' decent, and edifying; and that it imposes no restraints on '"' zeal, but such as are necessary to order and peace, and to the *' maintenance of that establishment, under which the pur- " poses of genuine piety are most easily attainable : and if * 6 any occasional inconvenience seems to result from the " operation of the rules, which it has prescribed, it will be right <( to consider, though I cannot imagine a case, in which the *• inconvenience can be shewn, that in this, as in other " instances, particular must give way to general good.

" But in considering the unreasonableness of the prejudices *' against ecclesiastical discipline, it were unjust to rest its de- *f fence upon abstract principles, or even upon the constitution *' of the Church of England. The primitive Church, if we " may rely upon the records of its earliest proceedings, was " not more remarkable for the zeal and intrepidity of its " preachers, than for their strict conformity to order, and their " care to inculcate respect for discipline on the minds of their K converts. To imagine that the first Christians bore any *' resemblance to the wild fanatics, who act as if it were a " mark of piety to * despise dominion and to speak evil of " dignities,'* would indicate an utter ignorance of the history " of our religion. It is well known, that the order and dis- " cipline, the foundation of which had been laid by the

* Jude 8,

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" apostles, was a subject of unremitted attention in their " immediate successors. Not only is this apparent from the " writings of the apostolical fathers, but still more so, if " possible, from the history of the early councils, and the care "to provide for every emergency in the government of the ~" rising church. Many of the canons decreed at these " councils refer to doctrine, and scarcely fewer to discipline: " and though it is admitted, that the work which has come " down to us, under the name of ' apostolical canons/ did " not actually proceed from the apostles, it has been shewn "to be of an antiquity little posterior to the apostolic age, "and in the judgment of Bishop Beveridge has merited the " appellation of ' the Code of the Primitive Church.'* The " truth appears to be, that the zeal of the early Christians "went hand in hand with order and submission to authority; " and whatever may be alleged of the influence and splendour, " which the Church acquired by the conversion of Constan- " tine, it is certain that the jurisdiction of the hierarchy had " been fully recognised from the earliest times ; and that the " great body of Christians evinced a conscientious obedience to " laws enforced under no other penalty than that of spiritual " excommunication, and deriving no support from the state." Bishop Middleton then proceeds to apply this part of his address, as connected with the possible extension of the Gospel in India; and after reverting to an act of the legislature in the reign of King William, which enjoins, that "such Ministers, " as should be sent to reside in India, should apply them- " selves to learn the native language of the country, the better "to enable them to instruct the Gentoos, who should be "servants of the Company, or of their agents, in the Pro- " testant religion,"! continues the above subject as follows:- —

t Charter of the East India Company, A. D. 1698. — The author would not omit the allusion to the Rev. D. Corrie, the present Archdeacon of Calcutta, in this part of the charge. Adverting to the Missionary proceedings of that time, Bishop Middleton observes, he had met with none* which had been conducted with a happier combination of zeal and judgment than one of the clergy (the Gentleman now named) had displayed.

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" Every consideration, which can be urged in behalf of our "national Church, clearly supposes it to be well administered, iS and that the Clergy, each in his station, be observed to dis- " charge their allotted duties with regularity and regard to " system. We otherwise become unconnected individuals, and " cannot possess in the public estimation any advantage arising " from our peculiar fitness to form a general standard. Even if with a view to our making converts by the mere force of u example, the effect of such regularity can hardly fail to be felt. " In the early ages, unbelievers, in endeavouring to account for " the rapid progress of the Gospel, laid great stress on the re- " gularity and order of the Clergy; and Sozomen* has preserved ft to us a remarkable letter of Julian the apostate to the high " priest of Galatia, in which he urges the priest to engraft on " paganism the laws and usages, by the observance of which " the Christian Clergy had been so successful. But in the " lowest view of the subject, and supposing that in the plan of " providence other means should be chiefly effectual in dis- " seminating the truth, if the doctrines of our church are " ultimately to be received as the preferable interpretation of '* scripture, they must be diligently and consistently incul- " cated ; and if her discipline is to be the model, it must be " exhibited in all its strength. This is our proper vantage " ground : and if we are verily persuaded, that the purest " principles of the Christian faith are those which we are " pledged to maintain, and that our Church is really built on " the foundations of the apostles and prophets, Jesus Christ " himself being the chief corner-stone, we shall not abandon " our ground by remissness, by irregularity, or by specious ff attempts at accommodation.

" In the course of my connexion with you, if Providence " should spare my life, I shall endeavour to keep in view the " general principles here laid down, and apply them to circum- " stances, as these may arise. For the present, under this

* Hist. Eccles. lib. r. c. 16.

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" head, I will content myself with urging you to a strict con- " formity with the rubric and the canons of our Church: they " have the same force in India that they have in England : and " they are equally to be observed, wherever they are not " plainly inapplicable : of which I shall be enabled to judge. u Your dress, minute as the subject may seem, is by no means to " be disregarded ; and I am not aware that even the climate " can require us to divest ourselves of any of the external marks " of our profession : where, indeed, the Clergy are so few, it is " more especially necessary, that they should be distinguish- " able, and should maintain respect. The same remark will ap- " ply to every feature of yourdeportment and conversation : and " in truth, whenever I consider these points, I am convinced, " that the responsibility which attaches to your situation, is " even, if possible, greater than that which belongs to incum- " bents in England. The Ministers of the Gospel are every " where ordained to be lights in the world ; but here, in a " world of thick darkness : and if any of you hide his light, there " is no one at hand to supply his place, or to keep alive the " sacred fire of divine truth in a region of wide extent ; the " charge is committed to a single individual, on whose fidelity " and vigilance every thing must depend. Under the same x< head of admonition, I would remind you of the propriety, u wherever there are Churches, of using them in the perform- " ance of such offices, as the rubric does not authorise in any " other place. The practice which has been admitted in some " instances, of performing the marriage service at all hours of "the day, and in private houses, even where a Church is " within a convenient distance, I cannot sanction or allow: " and even where there is no Church, the decency and " solemnity, which have prescribed certain hours for the pur- " pose are quite as deserving of regard in this country as in " any part of the world. So likewise in the administration of " the office of baptism, the attendance of sponsors is to be "required in the manner which the rubric directs : it is a " salutary institution, both with respect to the provision,