CANONS OF 1571 AND OF 1603.

79

Lord Hardwicke,* in answer to a pretence of "inconvenience" if the voice of the Parish were to be the test, "be an inconvenience to say such power is lodged in the vicar; for he might make use of it to influence which churchwarden he thought fit, against the sense of the majority of the parishioners."

But beyond these clear and unanswerable proofs, it can be shown, even from an unimpeachable witness on the ecclesiastical side, that the Canon of 1603 as to Churchwardens was an entire novelty. That witness is, the Canons made by the same Body of ecclesiastics, thirty-two years earlier. The comparison of the Canons of 1571 with those of 1603, on this point, gives an instructive illustration of the progress of ecclesiastical usurpation, while it leaves ecclesiastical writers without the possibility of a pretext for alleging the existence of any custom that the Parson usually nominated one Churchwarden before and at the time of the Canons of 1603. The words of the Canon of 1571 are as follow:-" Churchwardens, according to the custom of their parish,† shall be chosen by the Votes of their Parishioners and Minister: otherwise, they shall not be churchwardens: nor shall they remain in that office more than one year, unless they shall be again elected.") Observe how, while the same general form of words is retained, a startling interpolation is introduced in the Canon of 1603, which runs as follows:-"All Churchwardens and questmen in every parish shall be chosen by the joint consent of the minister and the parishioners, if it may be. But if they cannot agree upon such a choice, then the minister shall choose one, and the parishioners another and without such a joint or several choice, none shall take upon them to be churchwardens;-neither shall they continue any longer than one year in that office, except perhaps they be chosen again in like manner."§ Besides the transposition of the Minister's place, which is significant,-precedence being here given to him before the Parishioners,-the words in

:

Cases in the time of Lord Hardwicke, p. 276. Compare with the language of Chauncy, quoted before, p. 74.

+ See the meaning of these words explained by Lord Hale, after, p. 82. Sparrow's Canons, p. 234. The words of the original are :-" Æditui, pro consuetudine suæ quique Parochiæ, parochianorum suorum, et ecclesiastici sui ministri, suffragiis eligentur: alioqui æditui non erunt: nec amplius quam unum annum durabunt in illo munere, nisi forte iterum eligantur." See 27 Hen. VIII. c. 25, s. 23, as to the annual election of Churchwardens. § 89th Canon.

italics in this later Canon are an entire interpolation, which altogether departs from the sense of the Canon of 1571. The meaning of the latter Canon is, that the Minister should have a Vote as one among the Votes of the Parishioners,—which, be it observed, was itself an encroachment,*-but that no one could act as churchwarden by mere nomination, nor unless freely elected to that office upon and by these suffrages. The Canon of 1603 wholly inverts the process. The minister is no longer to be content with having a vote among the rest of the elective body, but his single voice is sought to be made of equal account with that of all the Parishioners put together! Thus rapidly do ecclesiastical usurpations extend themselves. The Canon of 1571 was itself an innovation: but that of 1603 was the bold grasp of daring usurpation. The comparison of the two affords clear and valuable demonstration of the novelty of the latter, and of its being "contrariant and repugnant to the Laws and customs of the realm." It thus comes clearly within the terms of the Statutes of Henry VIII. and Charles II. already quoted, and stands proved, by its own terms, to be illegal and void. At the same time, the comparison of these two Canons, between the dates of which only thirty-two years had elapsed, gives a practical illustration of Lord Coke's observation, made nearly at the date of the later Canon, that "many ministers have grown of late more troublesome to their parishioners;" to which the remark of Lord Clarendon gives forcible confirmation, when, speaking of the time just following the Canons of 1603, he says that "the inferior clergy took more upon them than they were wont, and did not live towards their neighbours of quality, or their patrons themselves, with that civility and condescension they had used to do."‡

* The fact that the Parson or Minister has not at Common Law, and formerly never had in practice, any part in the election of Churchwardens or other Parish Officers, is unquestionable. It is abundantly proved by the various extracts given in the text (and see before, p. 71 and 78). But as I have shown, above, the gradually increasing usurpations of one set of Canons by comparing them with an earlier one, so it may be shown, by going still earlier than these canons of 1571, that the Parson had no Voice in the choice of Churchwardens. The "Injunctions" of Edw. VI. (A.D. 1547) and of Elizabeth speak of the keys of the Chest being kept by "the churchwardens, or any other two honest men, to be appointed by the parish from year to year" (Sparrow's Canons, pp. 9, 74). See also, from Kennett, after, p. 86, note. + Second Institute, p. 610.

History, Book I. See further, after, p. 85 and note.

BOTH TO BE CHOSEN BY THE PARISH.

81

Whatever may have been done in any parish since 1603, through a mistaken notion of the force of the Canon, cannot be treated as in the slightest degree evidence of a custom. It has been already seen that any custom, to be lawful, must have a "legal commencement."* But the commencement

of this practice was in an illegal canon. As to the "Common Right," which that Canon clearly violates, there cannot be even a question. Thus any such alleged custom is now plainly void.

It may be here remarked that, through the whole of the very important records called Inquisitiones Nonarum, there is not a word to indicate, but, on every page, that which conclusively negatives, the presumption, that the Minister ever had any right or legal power whatever to interfere, in any way, (even by having a single vote as a Parishioner,) with the election of the " sworn men" or churchwardens, or with any of their functions. This ecclesiastical encroachment can, indeed, find no countenance in any of those records to which alone we must look for authority on the Common Law. Even the elder books of churchmen themselves are against it. Ayliffe distinctly admits, both directly and impliedly, that the choice of both the churchwardens belongs to the Parish, and that the Canon of 1603 is the only pretext for a contrary practice. This is a distinct and unevadible acknowledgment that such Canon is “contrariant and repugnant" to the Common Law and earlier custom.

Chief Justice Holt declares that, "Of Common Right, the choosing Churchwardens belongs to the Parishioners. 'Tis true, in some places the incumbent chooses one, but that is only by usage; and the canon concerning the choosing churchwardens is not regarded by the Common Law. This was the opinion of the Lord Chief Baron Hale."§ The language of Chief Baron Hale himself is this:-"There are at least thirty precedents to the contrary [of the election being according to ecclesiastical Canons]. And for reasons:-first: Churchwardens are lay incorporations. Of Common Right, every parish ought to choose their own churchwardens. But, because the

* Before, p. 48, note.

+ See further, p. 85 and note.

Parergon, pp. 171, 358. He states, also, the power of removal and rechoice by the Parishioners. See p. 171.

§ Carthew's Reports, p. 118. And see before, p. 77.

manner of election* varies and is uncertain, a custom may be alleged. And issue may be taken whether a special and select vestry, or the whole parish, ought to choose these churchwardens and that would be a proper issue."+ The point whether the parson has any hand in the election, much less has the entire donative of the office of one who is to be appointed, is not even entertained by this learned judge. He distinctly declares that the only question capable of being raised as a proper issue is, whether the choice lie in a Select Vestry or in the whole Body of the Parishioners. It is remarkable that Lord Coke specifically says:-"It would be very mischievous if the parson should elect whom he please to be churchwarden. A convocation hath power to make constitutions for ecclesiastical things or persons. But they ought to be according to the law and custom of the Realm. And they cannot make churchwardens, that were elective, to be donative, without Act of Parliament: and the Canon is to be intended where the parson had the nomination of a churchwarden before the making of the Canon."§ The onus of proof is thus clearly thrown, in each case, on those who would in any place sustain the practice according to the rule of the Canon, to establish that such was the practice in that parish before the Canon. It must not be forgotten that while, often, in things in themselves indifferent, a "lawful commencement" will be presumed,|| this case is not a matter indifferent. The alleged custom is declared by the highest authority to be contrary to common right and to the common Law. Such a

* See the "pro consuetudine suæ quique parochia" of the canon of 1571, as above quoted, p. 79.

+ Hardres' Reports, p. 378.

So the Court said in another case :-"If every parson might have election of one churchwarden, without the assent of the parishioners, they might be much prejudiced." Warner's Case, Cro. Jac. 532. Such remarks, then made, are entirely conclusive that no such custom existed before the canon, but that the usurpation was being then sedulously attempted under colour of it. See after, p. 85, note.

§ Noy's Reports, p. 139. In the case of Hubbard v. Penrice, Strange's Reports, p. 1246, neither the Principle nor the Authorities were investigated. The above judgments prove that the dictum of the single judge in that case is untrue as matter of fact. The peculiar weight of those judgments lies in their nearness to the time of the Canon itself, showing, first, that, as a matter of fact, no such custom did then exist in any common sense; and, second, that the practice was regarded, by all the greatest Lawyers, as contrary at once to Law, to common right, and to sound policy. See an example, before, p. 42.

MAY BE REMOVED BY THE PARISH.

83

practice in any place is, therefore, necessarily tainted with suspicion of an unlawful commencement, through the fact of the novelty of the Canon. Nothing can be inferred in such a case; but the entire onus lies on those seeking to sustain such a custom, to prove that it was a lawful custom before the time of the Canon of 1603. Any decision or holding contrary to this is so clearly not Law, that, after the authorities cited above, it can be unnecessary to add further illustration or argument.

It must next be remarked, that it is unquestionably in the power of the parish to remove both or either of the Churchwardens at any time during their term of office. But it is selfevident that the existence of this power entirely negatives, from the necessity of the case, any pretensions of the minister to intermeddle in any way with the choice of either of the Churchwardens. It renders the allegation of his power to nominate one of them, and the attempt of this Canon to turn the office into a donative, a palpable absurdity.* A few authorities on this point, out of the great number that might be quoted, will be enough. Each one of these is, however, conclusive and direct. And it must be remarked that there is no authority even suggesting that the parson has such power of removing either; while not even the Canon itself, on the other hand, allows the parson to take part in the choice of churchwardens except in Easter week. It is perfectly certain that the Parishioners can, at any time, remove either or both, and choose fresh ones in place of both, or more, if there are more than two.

"It was agreed, by all the judges, that, if a parish chooses. every year two men to be wardens of their church; or the custom is for those elected to be wardens for two years; yet the parish may, at any time, within the two years, remove such wardens so chosen, and make new ones. For, if the wardens should waste the goods of the church, it would be a great inconvenience if the parishioners could not remove them. So might the goods be all wasted before the end of the two years. Wherefore the parish can at any time remove them."+

* In their anxiety to usurp power, the authors of the Canons of 1603 forgot the right of the Parishioners to dismiss Churchwardens. The Canon (90) names Easter week for the choice of Churchwardens. Whatever force any ecclesiastic may, therefore, claim for the Canons, he is bound, by those Canons themselves, not to take part in any election at any other time than in Easter week. The Parishioners may elect at any time.

+ Year Books, 26 Hen. VIII. fo. 5. See before, pp. 78, 79.