EXTRACTS FROM THE NOTULÆ OF THE REV. S. ISAACSON, B.A. RECTOR OF FRECKENHAM. 1719. I AM THAT I AM.- "That is," says Maimonides, "he that necessarily exists." He who so is, that he must needs be; i. e. the Eternal Immutable Being, (so Elmanus interprets it; the Eternal that never dies,) who am faithful to my promises, and will be to you what I told your fathers I would be. Whatsoever I said in the days of Abraham, concerning the giving the land of Canaan, I will certainly perform, for I change not. THE SPOILING OF THE EGYPTIANS.-" But every woman shall borrow." The original word is of a doubtful meaning; for it signifying in general to ask or to pray, one may pray another either to give or to lend. Now, if the Egyptians gave or bestowed the jewels upon the Israelites upon their request, no wrong was done them. If they borrowed them, it was by the authority of God, whose the whole world is, and the fulness thereof; and who has a right to transfer the goods of one man to another. SWINE'S FLESH.-The Jews, among other reasons, abhorred swine's flesh for fear of the leprosy, it being a proverbial saying among them, that "ten measures of leprosy descending into the world, swine took to themselves nine of them, and the rest of the world one." NOTULE. The new Egyptian king that knew not Joseph, but was very cruel to the Israelites, was named Rameses Miamoun- Pharaoh, or prince, who reigned 66 years. The Jews say, there were ten things God created after the world was perfected; and they mention "the mouth of the earth" as one of them, i. e. the gaping of the ground to swallow up Corah, &c. There are six hundred and thirteen precepts contained in the law of Moses. Pharaoh did not order the female Hebrew children to be killed, because Ασθενὲς εἰς πολεμὸν γύνη. Justin, speaking of Moses, says, "Formæ pulchritudo commendabat." No sacrifices were appointed in the law for murder and adultery, but the offenders were to be cut off without mercy. Pliny says of locusts, that they eat all things that come in their way; his words are, "Omnia morsu erodentes, et fores quoque tectorum." An omer was something less than half a peck of our measure. CONCUBINE.-A concubine among the Jews, was a gentile servant, or Heathen woman, that a Jew thought fit to marry. Now the children of such a bond, or Heathen woman, could not inherit their father's estate, but he gave them portions. Thus Abraham dealt with his son Ishmael. And the reason why Jephthah was ejected by his brethren, was, because he was the son of a strange woman. Judges ii. 2. And at this very day, in some countries, as Denmark, &c. the custom of matrimonium morgengabicum, i. e. marriage gift, obtains. For neither the second wife, nor any of her children, can enjoy any part of the husband's or father's inheritance. LAW REPORT. No. LII.—QUAKERS EXEMPT FROM SERVING THE office of IN THE COURT OF THE ARCHDEACON OF LONDON. THIS was a proceeding instituted by Mr. Thomas Adey, one of the churchwardens of the parish of Allhallows, London Wall, on the part of the parish, against Mr. Samuel Theobald, of Bishopsgate-street, a member of the Society of Friends (commonly called Quakers), to compel him to take upon himself the office of churchwarden, to which he had been duly chosen. A citation having been served upon Mr. Theobald, calling upon him to appear, and take upon himself the office of churchwarden, he appeared, and objected thereto: he was then assigned to set forth his objections in an act on petition. MR. THEOBALD stated in the act, that he was a member of the religious Society of Friends-that he could not, consistently with his religious scruples, take upon himself the discharge of the office of churchwarden, whereby he should be called upon to take care of the goods, repairs, and ornaments of the church; to present offenders to the Ecclesiastical Court; to levy the church-rate, and to see that the parishioners duly attended to divine service that his objections were increased by the extent of the declaration which he would have to make, "that he would truly and faithfully execute the office of a churchwarden, and according to the best of his skill and knowledge, present such things and persons as to his knowledge are presentable by the laws ecclesiastical of the realm"-that the Society of Friends never voluntarily make the payment of church-rates, and that he could not, consistently with his principles, make the above declaration-that although the Act of 1st William and Mary, commonly called the Toleration Act, permitted persons who scrupled to undertake the office, to execute it by a sufficient deputy, yet that he felt that that statute afforded him no relief that it was a maxim, no less of christian morals than of English law, that the principal is responsible for the act of his agent, that qui facit per alium facit per se. That he was the only member of the religious Society of Friends resident within the parish; and he submitted that, by reason of his religious principles and scruples, he was entitled to claim relief from discharging the duties of the said office. It was alleged, in reply to this, on behalf of MR. ADEY,-that Mr. Theobald had been elected to the office in due rotation-that the parish, although MR. THEOBALD submitted, that upon the grounds set forth in his petition, he was entitled to be relieved from serving the office. DR. BURNABY, for Mr. Adey, contended that the duty of the Court was merely ministerial that it must assign Mr. Theobald to take upon himself the office that he had been duly chosen churchwarden, and had no right in law to be exempted-that the exemptions are set forth by Prideaux, and that a Quaker was not among those who are excused-that the provisions of the Toleration Act, the 1st William and Mary, would be nugatory if the person who has scruples is to be excused altogether from serving;-but that Act was imperative. In its terms it enacted, that “if any person dissenting from the Church of England shall be chosen or appointed to bear the office ofchurch warden, and such person shall scruple to take upon him such office, in regard of the oaths, or any other matter or thing required by the law to be taken or done in respect of such office, he shall and may execute the same by a sufficient deputy, by him to be provided, that shall comply with the laws in that behalf"-the terms "shall and may," are imperative; and if the Court were to excuse this gentleman, it would in effect be dispensing with an act of Parliament-that the maxim, qui facit per alium facit per se, had no application to the case, for that the deputy when approved of, was de facto et de jure the churchwarden; as in the case of the ballot for the militia, the substitute was really the person serving; to which no objection was made by the Quakers, although the maxim that the principal was answerable for the acts of his agent, would apply more strongly than in the present case. But supposing this gentleman's scruples extended so far, still the other alternative was left, and to which no reference whatever was made by him in the act on petition, namely, to pay thirty pounds in relief of the poor-rate, and which other parishioners had paid—that if Mr. Theobald were altogether excused, it would be unfair and unjust to the rest of the parish. Sentence.-DR. Phillimore. "The present question arises with respect to the eligibility of a person to serve as churchwarden, in the parish of Allhallows, London Wall. It is an application on the part of the churchwarden, regularly chosen, and who has taken upon himself the exercise of the office, in the name, and on the behalf of the parish, to compel the other person, who has been chosen a churchwarden, who is a member of the Society of Friends, to take upon him the functions of the office. There is no question as to the competency of the vestry, or as to the mode in which the churchwardens were elected. The sole point at issue is, whether I shall compel the party thus brought before the Court, to take upon himself the discharge of the office. "When the question first came to the view of the Court, and I was called upon to assign the party to take upon himself the office, I confess I felt startled at the proposition. I felt that not only the person proceeded against, but that an ecclesiastical judge, might justly entertain scruples with respect to such a proceeding; and with that view, I was willing to give the parish an opportunity of reconsidering the question, and of reflecting, whether the choice they had made was a judicious choice. I am disposed to hold a strong opinion, from my experience, which has been pretty long, of the churchwardens of the metropolis, that the duties of this office are least adequately performed, where they are exacted from persons of different religious persuasions from the Established Church; persons so circumstanced do not perform these functions with the same spirit and zeal, as those who are members of the Established Church. The parish have re-considered the question, and persist in calling upon me to compel this person to take upon himself the office of churchwarden. Mr. Theobald has stated his objections in an act on petition, the parish have replied to them, and Mr. Theobald has put in a rejoinder; an affidavit has been made by the vestry clerk, confirming the allegation, that this gentleman was duly elected, and has refused to assume the office of churchwarden, and this is the evi dence on which I am to decide the question. "In the first place, it seems to me extremely injudicious in members of the Established Church, to compel persons, whose religious principles are so well known as this gentleman's are, to discharge duties which all who take upon themselves the office of churchwardens are bound to do; and for this reason, I have been anxious to look out any authority on the point-any authority that is, in which any court, in a contested suit, has compelled a Quaker to take upon himself the execution of such an office. I am not aware of any such authority, and I must therefore take the case as one prime impressionis. I have been reminded that several persons of this gentleman's persuasion have taken upon themselves this office, and undoubtedly my own recollection furnishes me with several examples to that effect. But it has always appeared to me an extraordinary anomaly, that dissenters should be constituted the guardians and keepers' of our Esta blished Church (for thus they are termed by high authority), and take upon them an office like this, with the functions belonging to it, so closely and intimately connected with our Church. There are various duties of the office of a churchwarden, pointed at and enjoined by the ecclesiastical law, which this person could not perform. Many of the canons of 1603; the 19th, 50th, 52d, 80th, 83d, 84th, 85th, 109th, 110th, 111th, 112th, prescribe duties to a churchwarden, which it would be incompetent for a Quaker to perform: such, for instance, as the preserving order during divine service; and there are duties also prescribed by the Rubric as attached to the office of churchwarden, and implying even the necessity of their presence at the administration of the sacrament itself, which it is utterly impossible for this person, with a strict adherence to conscience, to perform. There is an old case in 1st Levinz, p. 196, Hill v. Fleurer, in which a churchwarden was tried for an assault, for pulling off the hat of a person during divine service. In the report of the case, it is said, that the justification was, that the party proceeded against was guardian of the church, and that was held to be good, that a churchwarden was justified in preserving decorum during divine service, for the reporter says, how could he act as guardian of the church, and bound to present offenders to the Ecclesiastical Court, if he permitted any one to be guilty of this irreverence and indecency during divine service. But a churchwarden, of the sect in question, would not only not take off the hat of another person, but it would be part of the formal discipline of his caste, to wear his own. But looking to Prideaux, who has been cited for another purpose at the bar, he thus details the duties of a churchwarden. By the duties of his office, he is obliged to be present in the parish church, of which he is churchwarden, on all Sundays and holidays, to take notice of the absence of such parishioners as do not come to the said church, in order to present them for the same; and also to take care that no disorder be committed in the said church or churchyard during divine service and sermon, and that all things be kept in order and quiet.' "In my search for cases, I find a case decided by Sir William Scott, in 1789, the case of Anthony v. Seger, 1st Haggard, p. 9, in which, the question was not the same as this, but the question was, whether an alien-born could be compelled to serve the office of churchwarden. Sir William Scott there held that offices the most ministerial, left a discretion to the judge not to join in an illegal act; and he illustrated this by saying, that if a parish were to return a Papist, or a Jew, or a child of ten years old, or a person convicted of felony, he conceived the ordinary would be bound to reject such a person.' Now, what do I collect from this case? that in the judgment of Sir William Scott, if the person presented by a parish should be a Papist or a Jew, the Ordinary would not compel that person to Blackstone, 1st vol. p. 394. |