the mode of proceeding against clergymen charged with offences, in consequence of the Church Discipline Act, has transferred from them to the commissioners appointed by the bishop for the occasion, and to the bishop himself, that part of their jurisdiction which would have been most connected with our present purpose. It is moreover probable that, within a very short time, an important alteration may be made in all the inferior ecclesiastical courts, a bill having already been introduced for that purpose, and many of them will most probably be abolished. What they are. Perform the men. SECTION 2. Of Churchwardens. f Churchwardens, as their name imports, are the proper guardians or keepers of the parish church, and their duties were originally confined to the care of the ecclesiastical property of the parish, over which they exercise discretionary powers for certain purposes. But in addition to the duties which are incident to them in that character, several other duties have been cast upon them by custom or by particular statutes, such as are those which they have in connection with the overseers. Of these, however, some are foreign to the general scope and purpose of this work. In the ancient episcopal synods, the bishops were wont duties of sides to summon divers men out of each parish to give information of the disorders of the clergy and people, and these, in process of time, became standing officers, called synodsmen, sidesmen, or quest men; and the whole of the office of these persons seems by custom to have devolved upon the churchwardens. To what extent they are a corporation. g Churchwardens cannot, strictly speaking, be considered as a corporation; for they cannot, except by custom, as in London, or by their particular charter, as at Wallingford, or when authorised by statute, purchase lands or take by grant. But they are a corporation, or quasi corporation, for certain purposes, and, it is said, that as the parson of the church is a corporation for the taking lands for the use and benefit of the church, and not capable of taking goods or personalty in that behalf, so the churchwardens are a corporation to take money or goods or other personal estates for the use of the church, but are not f 1 Black. Comm.; 1 Hagg. 173. g Kennett, Par. Ant. 649. enabled to take lands. But even with respect to the personal property, which they are capable of purchasing or taking in succession for the use of the parishioners, they are little else than a name to sue by, and in all actions, &c. by them, it must be laid ad damnum parochianorum.i In this manner, however, they may sue for the goods of In what way the church, and bring an action of trespass for them, and they ought to this whether against the parson or a parishioner, and whether for goods taken in the time of their predecessors, or in their own time.k sue. Their power over the goods But although they may thus take goods, yet as they are a quasi corporation for the benefit, and not for the preju- of dice of the parish, they cannot dispose of any of the church goods without the consent of the majority of the parishioners legally declared in vestry, and the license of the ordinary. The parishioners are in fact the owners, the churchwardens being temporarily entrusted by them with the custody, so that if the churchwardens should dispose of them, the parishioners would have no remedy to recover them, for it would be as if they had themselves parted with the goods. And it is the fault of the parishioners if they choose and trust unfit persons. m That churchwardens are a corporation, so as to bind their successors and the parishioners whom they represent in matters beneficial to the church and parish, is well exemplified by the rather singular case of the parish of Hammersmith, where the wife of the incumbent Dr. Martin, having been annoyed by the ringing of the five o'clock bell, and being about to remove in consequence, it was agreed between him and the churchwardens, that the former should, at his own expense, build a cupola, and erect a clock and new bell; in consideration of his doing which, the ringing of the five o'clock bell should cease during the lifetime of himself and wife. Some years afterwards, however, and after the cupola, &c. been erected, the bell was again rung by order of the churchwardens, but Dr. Martin obtained an injunction from the Court of Chancery." It appears however from the judgment, that in granting this injunction, the court was much influenced by the fact that what had been done was, on the whole, beneficial for the parish, and as such a matter must always be open to doubt, it is suggested that it would be very i Viner's Abr., Churchwardens. See Rogers's E. L., Churchwardens. 1 Prideaux, 135; Ayl. Parer. 171. the church. Persons dis unsafe to deal with churchwardens in a similar manner, for if the agreement could not be clearly proved to be beneficial to the parish, it rather appears that it could not be supported. Aliens, papists, Jews, children under ten years of age, qualified for the and persons having been convicted of felony, are absolutely disqualified to serve as churchwardens."" office. Persons not compelled to serve. Dissenters. Quakers not compelled to serve. Peers of the realm, clergymen, members of parliament, attorneys of the King's Bench, attorneys' clerks in the several courts of law, physicians, surgeons and apothecaries being free of their corporation or company, and duly qualified to practise as such according to the statutes, teachers in pretended holy orders, who are teachers of a congregation, and duly qualified by 1 Will. III. c. 18, serjeants, corporals, drummers and private men of militia, from the time of their enrolment to their discharge, commissioners, assistant commissioners or officers of customs, persons employed in collection or management of accounts for revenue of customs, clerks or persons acting under them, all persons who have prosecuted a felon to conviction for an offence in the parish where they would have been chosen, all these are exempted from being chosen or appointed to bear the office of churchwardens; but with respect to those persons whom we have here mentioned as exempt, it does not appear that they are ineligible, and they may serve such office if they are willing. And if any dissenter from the Church of England shall be appointed churchwarden, and have any scruple to take the office, he may appoint a deputy, provided such deputy be duly approved. But it appears now to be determined, that a Quaker would not be compelled to undertake the discharge of this office, either by himself or by deputy. One Theobald, a Quaker, having been cited for this purpose by the Ecclesiastical Court, set forth in a petition his various conscientious scruples which prevented him from undertaking the office, which applied equally, as he alleged, to the case of a deputy, because qui facit per alium facit per se. Dr. Phillimore, sitting for the judge of the court, observed that he was not aware of any authority in which any court in a contested suit had compelled a Quaker to take upon himself the execution of such an office; and alluded to the various duties which a churchwarden was called upon to perform, and which it would be impossible 1 Hagg. R. 9, 10. P 1 Burn's Eccl. Law, 398; 2 Rol. Abr. 272, 368; 6 & 7 Will. 3, c. 4; 10 & 11 Will. 3, c. 23; 42 Geo. 3, c. 90; 9 Geo. 4, c. 76, s. 2; Rogers's E. L. 219. 9 52 Geo. 3, c. 155. for a Quaker to perform with a clear conscience; and he more particularly referred to the case (hereafter mentioned) where it had been held to be a justification of an assault in a churchwarden, that he took off a man's hat who was wearing it during Divine Service: whereas a Quaker 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. He added, "I infer from the dictum of Lord Stowell in the case of Anthony v. Seager, that there is a discretion in the court whether it should feel itself called upon to enforce the performance of these duties. I do not mean to say that all dissenters are exempted, nor to specify whether any, or, if any, what class are exempted. If the case comes before me, it will be time to distinguish according to circumstances and facts; but the Society of Friends are known,-they are a marked and peculiar caste, and, having the means of knowing the conscientious scruples of this sect, a judge of an ecclesiastical court ought seriously to pause, not only before he attempts to violate the religious scruples of this class of persons, but also for the purpose of asking himself whether he can conscientiously admit into the bosom of our Church persons who are disqualified from obeying her directions, and giving full force and effect to her institutions and ordinances. The parish must proceed to another election.” From this case it may be inferred that, notwithstanding the provisions of the statute before mentioned, directing that dissenters may, if elected, appoint a deputy, it is uncertain whether the court would compel any one so to do; for it certainly is not easy upon principle to discover any grounds why the indulgence thus conceded to the Quaker should be withheld from other dissenters, whose scruples may be equally conscientious. rishioners must serve if chosen. With these exceptions it may be stated generally, that General rule every parishioner must serve the office of churchwarden, that all paif legally chosen into it; nor is it essential to constitute a person parishioner that he should be actually residing within the parish; for if he occupy a farm, or be partner in a house of trade situate within the parish, he will be equally considered as a parishioner." And if a person be in other respects eligible, it appears that the circumstance of any ordinary infirmity would not be allowed as an excuse to exempt him from serving. Thus deafness seems to have been considered as an insufficient cause for ex Adey v. Theobald, 1 Curteis, 447. * R. v. Poynder, 1 Barn. & Cres. 178; Attorney-General v. Forster, 10 Ves. 3 3. Number of emption. And where one had been chosen churchwarden and had been excused upon payment of a fine, and another had then been chosen in his stead at the same vestry meeting, it was held that the person secondly chosen was bound to serve, and that the circumstances under which he was chosen did not make it optional with him whether he would serve or not." The 90th Canon, which prescribes the mode of choosing churchwardens. churchwardens, speaks of them in the plural number; and in all statutes where they are mentioned, it is invariably in the plural number; yet a custom will prevail, even where opposed to the words of the canon; and if there is a custom in a parish that there shall be only one churchwarden, it may be good for the reason that such a custom might have existed before the canon, and in that case could not have been destroyed or varied by it. But a custom that there should be no churchwardens is necessarily bad." Election of. How chosen. Having thus defined what churchwardens are, and who may be appointed to the office, and become qualified to act, we proceed to speak of the method of their election. It is directed by the 90th Canon, that churchwardens 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; without which joint or several choice none shall take upon themselves to be churchwardens. But this canon prevails only in the absence of any custom to the contrary; and it may be doubted whether the canon can be taken to be any thing more than declaratory of the custom, or of the common law, at the time when it was made; for by Coke, Chief Justice, a convocation hath power to make constitutions for ecclesiastical things or persons, but they ought to be according to the law or custom of the realm; and they cannot make churchwardens that were eligible 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 a canon. And it has been the opinion of great authorities, that by the common law the right of choosing both the churchwardens was in the parishioners, and that the parson only nominated by custom; but this is opposed to the opinion and decision of Park, J. in a case tried before him at the Croydon Summer Assizes in 1829; for t 3 Phil. 165. u Birnie v. Weller and another, 3 Hagg. 474. ▾ R. v. Inhabitants of Hinckley, 12 East, 361. * Godol. 162, |