Refusing to

act.

Oath.

which, Catton being duly elected, they decreed for him, with sixty pounds costs (e).

In some places, the lord of the manor prescribeth for the appointment of churchwardens: and this shall not be tried in the Ecclesiastical Court, although it be a prescription of what appertains to a spiritual thing (f).

E., 3 Geo. 1, Stutter v. Freston (g). In the Common Pleas : Prohibition was granted to the Spiritual Court, where it was libelled against the defendant, for not appearing to take upon him the office of churchwarden, though thereunto appointed by the ordinary. And it was held, that although the parishioners and parson neglect for ever so long to choose churchwardens, yet the ordinary hath no jurisdiction; for churchwardens were a corporation at common law, and they are different from questmen, who were the creatures of the Reformation, and came in by the canon law. The canons say, that churchwardens shall be chosen by the parson and parishioners, and if they disagree, then one by the parson and the other by the parishioners; and otherwise they shall not be. By the court: The proper way is, to take a mandamus out of the King's Bench. If there be a custom to conclude a poll for the election of churchwardens at a certain time, that being a reasonable time, the voters must tender their votes within it (h).

IV. Churchwardens refusing to act.

Any person elected to be churchwarden, and refusing to take the oath according to law, may be excommunicated for such refusal; and no prohibition will lie (i).

M., 3 Geo. 1, Castle v. Richardson (k). Libel in the Ecclesiastical Court, for not taking upon him the office of chapelwarden. The defendant pleads, that it is a donative; and thereupon moved for a prohibition. And upon debate, the same was denied; the whole court being of opinion, that though there was a difference as to the incumbent, yet as to the parish officers there was none; for they are the officers of the parish, and not of the patron of the donative.

[See the instances cited above, where the ordinary has compelled churchwardens to take upon them the office (1).—ED.] "We do decree, that laymen, when inquiry shall be made by the prelates and judges ecclesiastical for correcting the

(e) 1 Str. 145. [In the printed Catalogues of Processes in the High Court of Delegates, No. 808, is the following notice of this case, which was appealed to that court from York. "In 1718, Catton v. Berwick: In 1 ma inst negotium circa jus electionis, admissionis, et jurationis guardiani pro Capellâ de Burrowbridge pro ann. 1715.'"]

(f) Godol. 153.
(g) Str. 52.

(h) Rer v. The Commissary of the Bishop of Winchester, 7 East's Rep. 573.

(i) Gibs. 216.

(k) Str. 715.

(1) [Cooper v. Allnutt, 3 Phill. 165; Anthony v. Seger, 1 Consist. 10; Adey v. Theobald, &c. 1 Curteis, 447.]

sins and excesses of such as are within their jurisdiction, shall be compelled (if need be), by sentence of excommunication, to take an oath to speak the truth (m).”

That ordinaries were empowered by the laws of the church, to require an oath of the testes synodales, appears, not only from this constitution, but also from the body of the canon law. And the same practice of administering an oath appears in the ecclesiastical records of our own church; where it is often entered, that the presenters were charged upon their consciences, to discover whatever they knew to want amendment in things and persons; and in process of time, articles of inquiry were delivered to them, upon which to ground their presentments (n).

But as contests grew between the two jurisdictions, ecclesiastical and temporal, this was charged upon the ordinaries and other ecclesiastical judges as an incroachment, that they inserted divers things in their articles of visitation, which were not of spiritual cognizance; and that by requiring an oath from the churchwardens to present according to those articles, they did in consequence require them to take an oath, which by law they could not and ought not to perform. Upon this foundation, prohibitions were applied for and obtained, for removing those matters from the spiritual to the temporal courts. Until at length, the contests of this kind multiplying, and causing great and frequent troubles, both to the spiritual and temporal courts; an oath of a more general form was agreed on by the civilians and common lawyers, by which the churchwardens bound themselves, instead of presenting such things as were contained in the book of articles, to present such things as to their knowledge were presentable by the laws ecclesiastical of this realm (o).

Which oath of the churchwardens is this:

"You shall swear, truly and faithfully to execute the office of a churchwarden within your parish, and according to the best of your skill and knowledge present such things and persons, as to your knowledge are presentable by the laws ecclesiastical of this realm: So help you God, and the contents of this book(p).”

And the sidesman's oath, agreed upon in like manner by the civilians and common lawyers, is as follows:

"You shall swear, that you will be assistant to the churchwardens, in the execution of their office, so far as by law you are bound: So help you God (q)."

[By 5 & 6 Will. 4, c. 62, s. 9, a declaration is substituted for the oath, and no sidesman shall be compelled to take any oath on quitting office (r).—ED.]

Which said oath of the churchwardens, being thus modelled,

(m) Boniface, Lind. 109.

(n) Gibs. 960.

(0) Ibid.

(q) Gibs. 216.

(p) Ibid. 216.

(r) [See Public Worship.]

Refusing to administer the Oath.

was allowed and confirmed two several times in the Court of King's Bench; once in the 25th, and again in the 29th of King Charles II.: before both which judgments, it had been expressly declared in the same court, that though some things might be inserted in the articles of visitation, which were not properly of ecclesiastical cognizance; yet if the oath was conceived and tendered in those general terms, the churchwardens could not legally refuse it: inasmuch as the articles were offered only by way of direction and charge; and by the tenor of the oath, the ecclesiastical laws, and not the articles, were now become the legal rule and measure of their duty (s).

V. Refusing to admit Churchwardens.

If the party elected offer himself, and the ecclesiastical judge refuse to tender the oath to him; a mandamus from the temporal court will be granted (t).

H., 8 & 9 Will. 3, The King v. Martin Rice (u). A mandamus was directed to the Archdeacon of St. Asaph, to swear and admit a person duly elected by the parish, according to the custom, to be churchwarden. To which it was returned, that he was a person unfit, being a poor dairyman, and the like. And the question was, whether the archdeacon can refuse to swear and admit the churchwarden so elected, for any cause whatsoever. And it was resolved, that he hath no such power: for the churchwarden is an officer of the parish; and his misbehaviour will prejudice them, and not the archdeacon; for he hath not only the custody, but also the property, of the goods belonging to the church, and may maintain actions for them; and for that reason it is an office merely temporal, and the archdeacon is only a ministerial officer. And therefore a peremptory mandamus was granted.

Which same case, as it seemeth, is reported by Salkeld under the name of Morgan and the Archdeacon of Cardigan (x), as followeth Mandamus to the archdeacon, to swear a churchwarden, being duly elected. The archdeacon made this return, that he was a poor dairyman, and a servant, and unable and unfit to execute the office. And thereupon a peremptory mandamus was awarded: for the churchwarden is a temporal [406] officer; he hath the property and custody of the parish goods; and as it is at the peril of the parishioners, so they may choose and trust whom they think fit; and the archdeacon hath no power to elect, or control their election.

M., 11 Geo. 1, The King v. Simpson (y). Mandamus to the Archdeacon of Colchester, to swear Rodney Fane into the office of churchwarden. He returns, that before the coming of the writ, he received an inhibition from the Bishop of Lon

(s) Gibs. 961; 3 Keb. 206; 1
Ventr. 127.
(t) Gibs. 216.

(u) 1 Lord Raym. 138.
(r) 1 Salk. 166.

(y) 1 Str. 610.

administer the Oath.

don, with a signification that he had taken upon himself to act Refusing to in the premises. But by the court: The return is ill. It doth not appear, that the town of Colchester is within the diocese of the bishop who inhibits; besides, the archdeacon is but a ministerial officer, and is obliged to do the act, whether it be of any validity or not. And a peremptory mandamus was granted.

M., 11 Geo. 1, The King v. White (z). To a mandamus directed to the archdeacon to swear a churchwarden, he returned, that he was not elected. Upon opening which Mr. Justice Fortescue said, that it was settled, and had been often ruled, that the archdeacon could not judge of the election; and therefore this return was ill whereupon a peremptory mandamus was granted. But note (saith Lord Raymond) it was certainly wrong; for the return was a good return, and hath often been made to such mandamus, and actions brought upon the return and tried.

T., 11 Geo. 1, The King v. Harwood (a). To a mandamus directed to the defendant, Dr. Harwood, as commissary of the dean and chapter of St. Paul's, commanding him to swear William Folbigg, one of the churchwardens of the parish of St. Giles, Cripplegate, London; the defendant returned, that he was not elected. And it was insisted on the behalf of Folbigg, that the return was ill; that the archdeacon, who was only to obey the writ, could not judge of the election: and therefore upon such a return to such a writ, a peremptory mandamus was granted last Michaelmas term, in the case of The King v. White. That the archdeacon could not judge of the qualities of a person chosen by the parish, was cited H., 8 Will., The King v. Rice. But Raymond, Chief Justice, and Reynolds, Justice, held the return to be good. But upon the importunity of the counsel for Folbigg, and pressing the authority of that case of The King v. White, and no counsel for the defendant appearing, a rule was made for a peremptory mandamus unless cause showed. And at another day, the [ 407 ] counsel for the defendant coming to show cause against the rule, it was discharged. But the court not being unanimous, it was ordered to come on again in the paper. But Lord Raymond (who reporteth this case) saith, he never heard that it was stirred again. But there can be no doubt (he says) but such return is good.

And the proper distinction, as to this point, seemeth to be taken in the case of The Queen v. Twitty, M., 1 Ann. (b). Mandamus to swear a churchwarden, suggesting that he was duly elected. The return was, that he was not duly elected. It was objected, that this was not a good return. But by Holt, Chief Justice: Where the writ is, to swear one duly elected, there a return that he was not duly elected, is a good return, for it is an answer to the writ; but where it is to swear one chosen (z) 2 Lord Raym. 1379. (a) Ibid. 1405. (b) 2 Salk. 433.

churchwarden, there a return that he is not duly chosen is naught, because it is out of the writ and evasive.

H., 19 Geo. 2, Hubbard and Sir Henry Penrice (c). To a mandamus to swear the plaintiff churchwarden of Heston in Middlesex, the defendant returned, that he was not duly elected. And in the course of the trial, the question was, where the common right of choosing churchwardens rests. The plaintiff insisted, it was in the parishioners at large as to both the churchwardens, and would therefore have left it upon the defendant, to show a custom or right in the parson to name one. The defendant, on the contrary, insisted, that of common right it was in the parson and parishioners, and therefore it lay upon the plaintiff to prove a custom in the parishioners to choose both. And of this opinion was Lee, Chief Justice, and that though there are some dictums to the contrary, yet they had never been regarded. The plaintiff therefore went on to prove a custom to choose both by the parishioners, but failed in it; it appearing, that though the parson had generally left it to the parishioners, yet he had sometimes interfered. Lee, Chief Justice, likewise held, that a curate stood in the place of the parson, for the purpose of nominating one churchwarden.

T., 3 Geo. 3, The King v. Dr. Harris (d). A mandamus was directed to Dr. Harris, commissary of the consistorial and episcopal court of the Bishop of Winchester for the parts of Surrey, to admit and swear Henry Griffith and Thomas Garner, [408] churchwardens of the parish of St. Olave, Southwark. And a like mandamus was also directed to him to admit and swear another set of churchwardens into the same office. Dr. Harris returns, that a cause was depending before him, in which it was disputed, which of the two sets of churchwardens had been duly elected; and till that is determined, he cannot admit either one set or the other. By Lord Mansfield and the court: The return is bad; the commissary cannot try the right. He ought to obey both writs, and it is of no prejudice to either party. It was proposed by the court, and consented to by the parties, to try the right on a feigned issue; and the execution of the peremptory mandamus to be suspended till after the trial, and then the peremptory mandamus to go to swear in those that shall prevail upon the trial.

[But hear Lord Stowell (e)." It has been said there would be ground for a mandamus, but inaccurately; for offices the most ministerial leave a discretion not to join in an illegal act; and if a parish had returned a Papist, or a Jew, or a child of ten years of age, or a person convicted of felony, I conceive the ordinary would be bound to reject; and though it is the duty of the ordinary not to take slight exceptions, he is bound, I conceive, to take care that an election, in his opinion void in itself, should have no legal effect, and this is a (c) Str. 1246. W. Black. 430.

(d) 3 Bur. Mans. 1420; S. C. 1

(e) [Anthony v. Seger, 1 Consist. 11.]