Archbishop of Canterbury, Anno 1236, it was ordered, that there fhould be in every Urban and Rural Deanery two or three Men, having GOD before their Eyes, who at the Command of the Archbishop, or his Official, fhould inform of the publick Exceffes of Prelates and other Clerks. But afterwards their Number was contracted into two for every Diocefe, chofen annually, who were to have no Jurifdiction, but to inquire into all Matters that wanted Correction and Reformation, and faithfully report them to the next Provincial Council or Epifcopal Synod, where Inquiry was made according to certain Articles drawn out of the Canons, which were generally the fame; according to which, the Juratores Synodi or Teftes Synodales were to give their Answers, upon a folema Oath which was therefore called Juramentum Synodale, as is now by Churchwardens to make their Prefentments. So that when the Urban and Rural Deans loft this Synodical Honour, that Part of their Duty which related to the Information of Scandals and Offences, was conferred upon the Churchwardens of every Parish, who became the Grand Inqueft upon every Vifitation, and were upon Oath to prefent all Offenders or Violators of the Church. Kennet's Parochial Antiquities, p. 649. 3. From hence fprung the Office of Churchwardens, or at lealt of Synodfmen or Sidefmen, as to that Part of their Office which relates to Prefentments; for to other Purposes, viz. To take Care of the Goods, Repairs and Ornaments of the Church, the Churchwardens at the Common Law for many hundred Years have been a Corporation; but it is probable they did not begin to make Prefentments till a little before the Reformation; for I do not find this Part of their Office inforced by any exprefs Canon, till the Year 1571. Churchwardens then being (as has been said) a Lay Corporation, to take Care of the Goods of the Church to which they have a Right, for the Benefit of the Parishioners, I fhall treat of them under thefe following Heads. 1. By whom Churchwardens are to be chosen. 2. Of Presentments made by them. 3. What Actions they may bring, and for what. 4. When and to whom they are to account. 5. Of Actions brought against them. 6. Of their Power in and about the Church. 7. Of Rates, &c. 8. Of Sequeftrations, &c. 9. Of their Duty by feveral Statutes. 4. They are annually chosen by the joint Confent of the How ChurchMinifter and the Parishioners in Easter Week, and fworn the wardens are first Week after, or fome following Week, according to the chofen. Direction of the Ordinary; but if the Minifter and Parifhioners cannot agree in their Choice, then by the 89th Canon the Minifter fhall chufe one, and the Parishioners the other. But this Right in fome Places hath been loft by Difufe, and Some Parishes choose both Churchwardens by Cuftom, &c. If Archdeacon refufe to fwear them, a Man damus lies. it hath been faid, that of common Right, every Parish ought 5. Before the making this Canon, the Parishioners in fome Places chose both the Churchwardens, and where that was used, the Canon doth not abrogate the Custom: And in fuch Cafe, if the Adchdeacon, or other Ecclefiaftical Officer, fhould refuse to fwear them, a Mandamus lies. So it was in the Cafe of The King verfus Martin Rice, the Archdeadon returned, that he was a poor Dairy man, and a Servant, and unable and unfit to execute the Office, &c. This return was held insufficient; the Archdeacon hath nothing to do but ad 2 Cro. 532. Churchwardens are Temporal Officers, and a Corporation by Law. Comb. 417. 1 Ld Raym. 138. But though every Parish might formerly have a Right to choose their Churchwardens, yet they vary in the Manner of their choofing; therefore a Cuftom may be alledged, and Iffue may be taken at Law to try whether a select Vestry or the whole Parish ought to choofe. Jones 439. Cro. Car. 551, 552, 589. 2 Roll. Abr. 234, 287. Hardres 379. Noy 31, 139. And to fuch a Mandamus the Archdeacon ought not to return, Quod non fibi conftat, that there is fuch a Cuftom, for his Return fhould be pofitive, upon which an Action might be grounded to try the Custom, which was allow'd by the Court to prevail against the Canon. 1 Vent. 267. And if he fhould return a Cuftom for the Parfon to choose one, and it should happen to be falfe, both the Churchwardens may join in Action on the Cafe against him for fuch a false Return, in which Damages shall be recovered by both. 3 Lev. 362. In 2 Lut. f. 1012. there is a Precedent of fuch an Action of the Cafe brought by a Churchwarden against a Chancellor of the Diocese of Chefer, upon refufing to fwear him, and returning to a Mandamus that he was not chofen Churchwarden of the Parish of St. Peter in Chefter. In Carpenter's Cafe, the Mandamus was directed to the Commiffary to fwear two Churchwardens, who were chofen by the Parishionors by Virtue of a Cuftom which the Rector denied and infifted upon his Right to choose one. The Commiffary made a Special Return, which is fet forth at large in the Report, but a Pro hibition hibition was granted, for the Ecclefiaftical Court cannot try the Cuftom. Raym. 439. To a Mandamus to fwear a Churchwarden, the Archdeacon returned Non fuit electus; in B. R. this Return was held to be ill, and a Peremptory Mandamus was granted. But the Reporter bids us Note, it was certainly wrong: for, the Return is a good Return, and has often been made to fuch Mandamus, and Actions brought upon the Return, and tried, The King v. White, 2 Ld. Raym. 1379, 1380. and according to this Opinion of Ld. Raymond, it was ruled by him and Rynolds Juftice, in the Cafe of The King v. Harwood, 2 Ld. Raymond 1405. 6. The Parishioners are the proper Judges of the Ability of Perfons to ferve as Churchwardens, because they have a Truft repofed in them by the Parish as Temporal Officers, 5 Mod. Rep. 325; I Vent. 266. for if the Churchwardens fail with Money belonging to the Parish in their Hands, the Parishioners are the Lofers. The Oath of a Churchwarden. OU do fwear truly and faithfully to execute the Office Oath of a of a Churchwarden within your Parish, and according Church warden. to the beft of your Skill and Knowledge, prefent fuch Things and Perfons as to your Knowledge are prefentable by the Laws Ecclefiaftical of this Realm. So help you God, and the Contents of this Book. 8. If any Perfon elected to be Churchwarden fhall refufe to take the Oath according to Law, he may be excommunicated for fuch Refusal. 9. The Office of Churchwardens is reputed to continue till the new Churchwardens that fucceed are fworn. 10. All Peers, Clergymen, Parliament-Men, Servants to Who may not the King in Ordinary, Lawyers and Attornies, Phyficians, be chofen Churchwardens Surgeons and Apothecaries, by Stat. 5 H. 8. c. 6. and 32 H. 8. c. 40. 6 W. 3. c. 4. 1 Ann. Teachers or Preachers of Diffenting Congregations. And by Stat. 10 & 11 W. 3. c. 3. all Perfons who fhall take and profecute to Conviction any Felon guilty of privately and Feloniously stealing any Goods, &c. of the Value of 57. or more, by night or Day, out of any Shop, Warehouse, Coach-house, or Stable, though fuch Shop, &c. be not broke open, or though the Owner or any other Perfon be or be not in fuch Shop, &c. (Vide the Act) are all exempted from being Churchwardens. And by Stat. 1 W. &. M. c. 18. if a Diffenter be chofen Churchwarden, he may execute the Office by a fufficient Deputy by him to be provided Churchwardens can't act till fworn. 1 provided, who fhall comply with the Laws in that Behalf. And whoever is legally chofen must be an Inhabitant of the Parish. 11. Till the Churchwardens are fworn, they can do no legal Act, as Churchwardens, nor can they have any Authority (whatever Money they lay out on the Church Account) to make or levy any Rate, or take any other Method again to reimburse themselves; but whatever they do of this Kind, while unfworn, is all to their own Wrong; and if the Parish refuseth to pay them, they can have no Remedy in Law to force them to it. And although they ferved the Office the former Year, and were then fworn into it, yet if they are chofen again, they must be fworn again, or else the Cafe is the fame, Can. 89; and therefore, for preventing of many Inconveniences, where there are others fit to be chofen, it is not fo well for the Parish to choose the same again, but rather to difmifs the old Churchwardens, and choofe new ones in their Stead, according to the Statute of 27 H. 8. c. 25. which pofitively forbids any Churchwarden to continue in his Office above one whole Year. See below Chap. 31. Of their Prefentments by 1. CHAP. XXI. Of Prefentments made by Churchwardens. ry S to Prefentments. As at the Common Law, Inquiis to be made of Offences by Juries, fo by the Statutes, poft. Ecclefiaftical Laws, the Inquiry is to be made by Churchwardens; and this is the chief Design of Vifitations. By the 117th Canon, Churchwardens are to make their Presentments of fuch Things which are given in Charge at the Vifitation, but not oftner than once a Year, where it hath been no oftner used; nor above twice in any Diocese whatsoever, unlefs it be at the Bishop's Vifitation. But voluntary Prefentments of any notorious Offenders may be made oftner. Not to be made 2. Prefentments which they make muft not be with a maliout of Malice. cious Defign to vex the People; for if fo, then an Action on the Cafe lies against them; but if they have a Verdict, they fhall not have double Cofts, though the Statutes of 7 Jac. 1. c. 5. and 21 Fac. 1. c. 12. exprefly provide that they fhall, where the Action is brought against them for any Thing done by Virtue of their Office; because their Prefentments are merely Ecclefiaftical, and the Law-makers never intended to give double Cofts, but where Officers were fued for Temporal Mat ters ters done by them in Execution of their Office. Cro. Car. 3 Vide What they are fworn to prefent. 3. An Oath was tendered by the Spiritual Court to a Church- What Oath not warden to prefent according to the Articles of the Bishop, in obliged to take. which were many fpecial Things; as to prefent filthy Talkers, &c. and a Prohibition was granted; but if the Oath had been to prefent according to the Ecclefiaftical Laws, and the Articles offered only by Way of Direction, in fuch Case a Prohibition ought not to go. I Vent. 114. 4. The Prefentments are by 110th Canon required to be made at Home, yet every Vifitor hath a Right of perfonal Examination as often as he finds Occafion for it, agreeably to the antient Practice. If Churchwardens wilfully refuse to prefent notorious Offenders, they are not to be admitted to the Holy Communion; and upon Proof in Cafes of wilful Omiffion, their Ordinaries fhall proceed against them in fuch Sort as in Cafes of wilful Perjury in the Ecclefiaftical Court, by Canon 117. And by the 121ft Canon, no one ought to be cited into feveral Courts, for one and the fame Crime; and neither the Archdeacon nor the Bishop's Chancellor, fhall intermeddle with the Crimes or Perfon detected and presented in each other's Vifitation, upon Pain of Sufpenfion, until he re No one ought to be cited in two fame Crime. Courts for the |