said oath, which implieth only an obedience according to the canon law, as it is in force in this realm; and that there is no canon, foreign or domestic, which requireth him to do this; but on the contrary, that the ancient canon law injoineth the visitor himself to preach at his own visitation. But the court admonished him to comply; and on his refusal, fined him 5007. and imprisoned him till he should pay the same, and also make submission; and afterwards degraded and deprived him. Johns. Huntley's case.

But this perhaps may be one instance, amongst others, charged against that court whilst it subsisted, of carrying matters with a pretty high hand.

And Dr. Ayliffe observes from the sixth book of the Decretals, that amongst the orders to be observed by archbishops, bishops, [20] and others in their visitations, the first is, that they ought to preach the word of God, by giving the congregation a sermon. Ayl. Par. 515.

Exhibits.

Nevertheless, it is presumed, very few clergymen would refuse to discharge the offices of their function on the like occasion, at the request or intimation of their superior.

8. Can. 137. Forasmuch as a chief and principal cause and use of visitation is, that the bishop, archdeacon, or other assigned to visit, may get some knowledge of the state, sufficiency, and ability of the clergy, and other persons whom they are to visit: We think it convenient, that every parson, vicar, curate, schoolmaster, or other person licensed whosoever, do at the bishop's first visitation, or at the next visitation after his admission, shew and exhibit unto him his letters of orders, institution, and induction, and all other his dispensations, licences, or faculties whatsoever, to be by the said bishop either allowed, or (if there be just cause) disallowed and rejected; and being by him approved, to be (as the custom is) signed by the register: And that the whole fees accustomed to be paid in the visitations in respect of the premises, be paid only once in the whole time of every bishop, and afterwards but half of the said accustomed fees, in every other visitation, during the said bishop's continuance.

To be by the said bishop allowed] None but the bishop, or other person exercising ecclesiastical authority by commission from him, hath right de jure communi to require these exhibits of the clergy; nor doth the enacting part of this canon convey the right to any other; and therefore, if any archdeacons are intitled to require exhibits, in their visitations, it must be upon the foot of custom; the beginning whereof hath probably been an incroachment; since it is not likely, that any bishop should give to the archdeacon and his official a power of allowing or disallowing such instruments as have been granted by himself or his predecessors. Gibs. 959.

Whole fees] In the registry of archbishop Islip, there is a sequestration of the benefices of divers clergymen refusing to make due exhibits in a visitation. Gibs. 1545.

And afterwards but half of the said accustomed fees] Lindwood, speaking of the letters of orders to be exhibited by stipendiary curates going from one diocese to another, saith that after the archdeacon or his official or other ordinary hath satisfied himself of their orders and of their life and conversation, they may be admitted to officiate, and their names ought to be entered in the register of such ordinary; whereupon in other visitations or inquiries their letters of orders ought not to be reinspected, nor their names to be entered again, seeing they are sufficiently known already: And so they do ill (he says) who in every their visitations take something for the inspection and approbation of the said letters of orders; seeing such entry ought not to be made but once, namely, at the first admission. Lind. 225. Gibs. 959.

of

9. Edm. There shall be in every deanry two or three men, having God before their eyes, who shall at the command of the archbishop or his official, present unto them the public excesses of prelates and other clerks. Lind. 277.

In every deanry] That is, in every rural deanry. Lind. 277. Public excesses] That is, notorious, whereof there is great and public infamy; and this, although the same be not upon oath but if such excesses shall not be notorious, then the same shall not be presented, unless there be proof upon oath. Lind.

277.

As to the churchwardens' duty in this particular, although they have for many hundred years been a body corporate, to take care of the goods, repairs, and ornaments of the church, as appears by the ancient register of Writs; yet this work of presenting hath been devolved on them and their assistants, by canons and constitutions of a more modern date. Anciently, the way was, to select a certain number at the discretion of the ordinary to give information upon oath; which number the rule of the canon law upon this head evidently supposeth to have been selected while the synod was sitting, and the people as well as clergy in attendance there. But in process of time this method was changed; and it was directed in the citation, that four, six, or eight, according to the proportion of the district, should appear (together with the clergy) to represent the people, and to be the testes synodales. Gibs. 960. (a)

But all this while we find nothing of churchwardens presenting, but the style of the books is, The parishioners say, The laymen say, and the like, until a little before the Reformation,

(a) See Churchwardens, 8.

[ 21 ]

Present

ments, by whom to

be made.

[ 23 ]

when the churchwardens began to present, either by themselves, or else with two or three more parishioners of credit joined with them. And this last (by the way) is evidently the original of that office, which our canons do call the office of sidemen or assistants. Gibs. 960.

In the beginning of the reign of king James the first, a commissary had cited many persons of several parishes, to appear before him at his visitation; and because they appeared not, they were excommunicated. But a prohibition was granted; because the ordinary hath not power to cite any into that court, except the churchwardens and sidemen. [To these he may give his articles, and inquire by them.] Noy, 123.

But by Can. 113. Because it often cometh to pass, that churchwardens, sidemen, questmen, and such other persons of the laity as are to take care for the suppressing of sin and wickedness, as much as in them lieth, by admonition, reprehension, and denunciation to their ordinaries, do forbear to discharge their duties therein, either through fear of their superiors, or through negligence, more than were fit, the licentiousness of these times considered; we do ordain, that hereafter every parson and vicar, or in the lawful absence of any parson and vicar, then their curates and substitutes, may join in every presentment with the said churchwardens, sidemen, and the rest abovementioned, at the times of visitation, if they the said churchwardens and the rest will present such enormities as are apparent in the parish: or if they will not, then every such parson and vicar, or in their absence as aforesaid their curates, may themselves present to their ordinaries at such times, and when else they think it meet, all such crimes as they have in charge or otherwise, as by them (being the persons that should have the chief care for the suppressing of sin and impiety in their parishes) shall be thought to require due reformation. Provided always, that if any man confess his secret and hidden sins to the minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him, we do not any way bind the said minister by this our constitution, but do straitly charge and admonish him, that he do not at any time reveal and make known to any person whatsoever, any crime or offence so committed to his trust and secrecy (except they be such crimes as by the laws of this realm his own life may be called in question for concealing the same) under pain of irregularity.

And by Can. 116. It shall be lawful for any godly disposed person, or for any ecclesiastical judge, upon knowledge or notice given unto him or them, of any enormous crime within his jurisdiction, to move the minister, churchwardens, or sidemen, as they tender the glory of God and reformation of sin, to present the same, if they shall find sufficient cause to induce

them thereunto, that it may be in due time punished and reformed.

Provided, that for these voluntary presentments there be no fee required or taken.

10. Boniface. We do decree, that laymen, when inquiry shall To be made be made by the prelates and judges ecclesiastical for correcting upon oath. the sins and excesses of those that are within their jurisdiction,

shall be compelled (if need be) to take an oath to speak the truth. Lind. 109.

And that ordinaries are impowered 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. Gibs. 960.

Articles of

11. Can. 119. For the avoiding of such inconveniences as heretofore have happened, by the hasty making of bills of pre- inquiry. sentments upon the days of visitation and synods, it is ordered, that always, hereafter, every chancellor, archdeacon, commissary, and official, and every other person having ecclesiastical jurisdiction at the ordinary time when the churchwardens are sworn, and the archbishop and bishops when he or they do summon their visitation, shall deliver or cause to be delivered to the churchwardens, questmen, and sidemen of every parish, or to some of them, such books of articles as they or any of them shall require (for the year following) the said churchwardens, questmen, and sidemen to ground their presentments upon, at such times as they are to exhibit them. In which book shall be contained the form of the oath which must be taken immediately before every such presentment; to the intent that having beforehand time sufficient, not only to peruse and consider what their said oath shall be, but the articles also whereupon they are to ground their presentments, they may frame them at home both advisedly and truly, to the discharge of their own consciences (after they are sworn), as becometh honest and godly men.

Frame them at home] By an entry in one of our records about 200 years ago, the ancient way of making presentments seems to have been, the ordinary's examination of the synodal witnesses, and the taking their directions and presentments by word of mouth, and then immediately entering them in the acts of the visitation. And although presentments are now required to be framed at home, there is no doubt but every visitor hath the same right of personal examination that ancient visitors had, as often as he shall find occasion. Gibs. 963.

By reason of several disputes which have been made concerning

[ 24 ]

Present

ments on

common fame.

[ 25 ]

the articles of inquiry, the convocation hath sometimes attempted to frame one general body of articles for visitations; but the same as yet hath not been brought to effect. Gibs. 962.

12. Can. 115. Whereas for the reformation of criminous persons and disorders in every parish, the churchwardens, questmen, sidemen, and such other church officers are sworn, and the minister charged to present as well the crimes and disorders committed by the said criminous persons, as also the common fame which is spread abroad of them, whereby they are often maligned and sometimes troubled by the said delinquents or their friends; we do admonish and exhort all judges both ecclesiastical and temporal, as they regard and reverence the fearful judgment-seat of the highest Judge, that they admit not in any of their courts any complaint, plea, suit or suits, against any such churchwardens, questmen, sidemen, or other church officers, for making any such presentments, nor against any minister for any presentments that he shall make all the said presentments tending to the restraint of shameless impiety, and considering that the rules both of charity and government do presume that they did nothing therein of malice, but for the discharge of their consciences.

But there is more danger now, than when these canons were made, of actions being brought against churchwardens for presenting upon common fame; because the person accused in those days was required to answer upon oath to the charge laid against him, and to bring his compurgators: but the oath ex officio being now abolished, it seemeth not safe, to present any person upon common fame only, without proof. (b)

And even when the oath of purgation was in force, Mr. Clerke gives a caution, that all, both churchwardens and others, take care, how they accuse or present any person for any crime or fame thereof, unless they can prove either the crime, or that the fame thereof arose from just causes and strong presumptions. Therefore, although the fame or rumour of any crime hath been spread amongst many and good men, yet if it had its beginning from enemies or evil-minded persons, or (as is often the case) from the sole accusation of a woman confessing her own turpitude, the presentment or accusation in such case ought not to be general, but particular; that is, that such a fame or rather rumour was spread by such persons, or by the accusation or confession of such woman in child-birth confessing her own baseness: And then, if the person accused shall proceed against the accuser in a cause of defamation, he shall fail in his suit, if proof shall be made that there was such a fame or rumour as was set forth in the presentment. 1 Ought. 236.

(b) See Churchwardens, 8. and 17.