[155] _Op. cit., pa.s.sim_. Other examples will be found in _Dean of York"s Visit_., 225, 229 etc. Hale, _Crim. Prec_., 154, 184-8 (John Leache"s case. 1584-6), 190, 198 (One Dawe"s wife teaches without a licence. Warned not to teach any "man child above the age of x yeres, untyll she shall be lawfully licenced." 15-89/90). _Canterbury_ Visit., xxvi, 20, 21, 25, 31, etc.
[156] See J. Cordy Jeaffreson, _A Book about the Clergy_, ii, 58.
[157] Cardwell, _Doc. Ann_., i, 176 and 182.
[158] See also Archbishop Parker"s and other commissioners" precept to churchwardens and others in June, 1571 ("And that in no wise ye suffer any person publicly, or privately to teach, read or preach ... unless such be licenced [etc.] ... as you and every one of you will answer to the contrary"). _Corresp. of Archbp. Parker, Parker Soc_., 382-3. Cf.
also Archbp. Whitgift"s "Commission" to the ministers and churchwardens of London, Aug., 1587, forbidding "that they ... do suffer any to preach in their churches or to read any lectures [etc.]
..." Neal, _History of the Puritans_, (Toulmin"s ed. 1793), i, 428.
[159] _E.g._, Hale, _Crim. Prec_., 188 ff. (Leach, a schoolmaster, was cited for catechizing and preaching, being unlicenced. He was strictly warned by the judge not to "use any private lecture or expositions of Scripture or catechisinge of his schollers in the presence of anye ...
not ... of his owne howse-hold [etc.]." 1586-7). Ibid., 202 (A curate detected for preaching without a licence. He confessed "that he hathe expounded" a little on the text, "but wold that Mr Archdeacon would appoint some time that he might preache before his wor[ship], and yf he should accepte of him, he would request his wor[ship] to be meanes unto my Lord of London that he may be licenced to preache." 1591).
W.H. Overall and A.J. Waterlow, _St. Michael"s, Cornhill_, (London) _Acc"ts_ (1869), 176 ("Paide to Mr. Sadlor for avoidinge one excommunication for suffering a Preacher to preache in o[u]r Churche, being unlycenced, iij s. viij d." 1587-8).
[160] In 1585 the wardens of Pittington (Durham) are "commanded to bye for everie person in our parish a booke ..." _Surlees Soc_., lx.x.xiv, 19. Examples taken promiscuously from the wardens accounts of the day are: "paid for three prayer books for the good successe of the French Kinge;" "paid for a prayer of thankes gevinge for ye over throwe of the Rebelles in the North." In many accounts occur items for books of prayers "for the Earthquake," or "against the Turke," or "Omelies against the rebells," or "in plague tyme," etc.
[161] A number of ballads dating from the reigns of Elizabeth and James have been very recently (Oxon. 1907) published by Mr. Andrew Clark under the t.i.tle of _Shirburn Ballads_.
[162] One of the earliest orders of the High Commissioners preserved dates from 1560 and directs the Wardens of the Stationers to stay certain persons from the printing of primers and psalters in English and Latin, for which printing one Seres had obtained a monopoly. C.R.
Rivington, _The Records of the Worshipful Company of Stationers_ in _London and Middles.e.x Archaeol. Soc. Tr_., vi, 302.
[163] "_A writing of the bishops in answer to the book of articles offered the last session of parliament anno reginae_ xxvii [etc.]." So called by Strype, but a.s.signed by Dr. Cardwell to a date later than 1584. Cardwell, _Doc. Ann_., i, 426. "Excommunication" in the act-books and elsewhere almost invariably refers to the lesser excommunication.
[164] Thus he could not receive communion, be married, stand as G.o.dfather, etc. Burn, _Eccles. Law_, i, 252-3. Compare _Antiquary_, x.x.xii (1896), 143 (Penance and heavy costs for a man who "being excominecated ... ded preseume to marye before ... he was absolved."
1583). Also Hale, _Crim. Prec_., 223 (Presentment of an excommunicate for marrying. 1600).
[165] See Hale., _op. cit_., 198 (Archdeacon"s instructions to a curate in 1589). _Ibid_., 200 (Minister stopping service as an excommunicate would not leave. 1590). _Hist. MSS. Com. Rep. Var.
Coll_. (1901), 78 (Complaint by a vicar to Wilts quarter sessions that an excommunicate tried to remain at service. 1606). _a.s.sociated Architectural Soc. Rep_., (etc.), x.x.xiii, Pt. ii (1897), 373-4 (Device of procuring an excommunicate to enter church and interrupt service so certain youths could continue their morris-dancing, 1617). Chelmsford Acc"ts, _Ess.e.x Arch. Soc_., ii, 213 (Item for "carrying Roger Price out of the Church, he being exc[mmunicated]..." 1632).
[166] See Canons of 1597, Cardwell, _Syn_., i, 156. Burn, _op. cit_., 457-8. For such a sentence see E.H. Chadwyck Healey, _Hist. of West Somerset_ (1901), 184 (Archdeacon of Taunton requiring a minister to denounce solemnly three obstinate excommunicates, and to warn all good Christians not to eat or drink, buy or sell, or otherwise communicate with them under the pains of being themselves excommunicated. 1628).
[167] Thus those who talked with him, ate at the same table with him, saluted him, or gave anything to him were themselves _ipso facto_ excommunicate. See Reeve, _Hist. of English Law_ (Finlayson"s ed.), iii, 68. If such an excommunicate brought an action at law, the defendant could plead in bar the excommunication. The testimony of such a man was not admissible in court. Finally, he could not be buried in the parish churchyard nor could services be performed over his body. Burn, _loc. cit., supra_.
[168] See the case of Kenton v. Wallinger, 41 Eliz., _Croke"s Eliz.
Rep., Leache"s ed_., Pt. ii, 838. This has already been mentioned on p. 33, note 102. In the Leverton, Lincoln, Overseers for the Poor Acc"ts, there occurs, _s. a_. 1574 an item of 7s. given to John Towtynge "for the discharge of ... his excomynacion," and the next year a sum of 2s. 6d. given to a woman for a like discharge.
_Archaeologia_, xli, 369-70.
[169] Whereby any but a perjured man would be forced to incriminate himself.
[170] Cf. Maitland, _Canon Law in the Church of England_, chapter, "The Pope the Universal Ordinary." For proceedings by High Commissioners see Stubbs in _Eccles. Courts Com. Rep_. to Parliament (1883), i, Hist. Append., 50.
[171] As to the expense in suing out the writ, and also the slackness of bailiffs, etc., in executing it, see [R. Cosen], _An Apologie of and for Sundrie proceedings by Jurisdiction Ecclesiasticall_ (1st ed., London, 1591), 64-5. Speaking of the great charges incurred in suing out the writ Cosen writes: "So that I dare auowe in Sundrie Diocesses in the Realme, the whole yeerly reuenue of the seuerall Bishops there woulde not reach to the iustifying of all contemnours ... by the course of this writte." That temporal judges sometimes set prisoners under the writ free at their own discretion without notice to the spiritual judges, see Bancroft"s _Pet.i.tion to the Privy Council_ in 1605, Cardwell, _Doc. Ann_. ii, 100. For hostility of temporal judges for ecclesiastical jurisdiction, see Bancroft, _op. cit_., 85. He counts up 488 prohibitions during Elizabeth"s reign, many of them awarded without good cause and "upon frivolous suggestions" of defendants (_Op. cit_., 89).
[172] Hale, _Crim. Prec_., 145 ("_Dominus decrevit scribendum fore regie majestate pro corporis capcione_ [etc.]." The threat subdued the excommunicate, for 15 days later "_solutis_ x.x.xiiis.... _pro expensis contumacie_," absolution was given, and penance enjoined. 1562).
_Ibid_., 172 (Similar threat, we do not hear of the outcome).
Cf. R.W. Merriam, _Extracts from Wilts Quarter Sess_. In _Wilts Arch. and Nat. Hist. Mag_., xxii (1885), 20 (Affray because of an arrest under the writ. 1604). See also Whitgift"s note to his bishops in 1583, Cardwell, _Doc. Ann_., i, 404-6 ("If the ordinarie shall perceave that, either by slackness of the justices or waywardness of juries," recusants cannot be indicated at quarter sessions, then the ordinary shall, after first trying persuasion, excommunicate the culprits, and after forty days procure the writ against them). Bancroft writes, March, 1605, that he will use his "uttermost endeavour" to aid his suffragans in procuring the writ, and in having it faithfully and speedily served. Cardwell, _Doc. Ann_., ii, 80. Cf. also the satirical single-sheet, published June, 1641, ent.i.tled _The Pimpes Prerogative ... a Dialogue between Pimp-Major Pig and Ancient Whiskin_, in Brit. Mus. _Coll. of Polit. and Personal Satires_. Pig: "Tush, their Excommunications fright not us; but our Land-ladies (poore soules) lie in most danger; for them they serve after with _Excommunicato capiendo_, and then our Forts are beleaguer"d with Under-Sheriffs, b.u.m-Bayliffs, Shoulder-clappers, etc., whom we sometimes beat back by violence."
[173] Cardwell, _loc. cit_., 100. Ecclesiastical jurisdiction derived also much temporal strength from the fact that practically every bishop was also a justice of the peace. For proof of this see Strype, _Annals of the Reformation_ (Oxon. ed.), iii, Pt. ii, 451 (Bishop of Peterboro" complaining that he alone was left out of the commission.
1587). Cardwell, _Doc. Ann_., ii, 80 (Bancroft"s letter, 1605: "We that are bishops, being all of us (as is supposed) justices of the peace"). When commissioning justices Burghley referred to the bishops for lists of orthodox men. See such lists in Strype, _op. cit_., 453-60. Also in Strype, _Life of Whitgift_, i, 187-8. _Victoria County History of c.u.mberland_, ii, 73-4. _Suss.e.x Arch. Soc. Coll_., ii (1849), 58-62. Mary Bateson, _Letters from the Bishops to the Privy Council_, 1564, _with Returns of the Justices of the Peace_, etc., in _Camden Miscellany_, ix (1895). By 1 Eliz. c. 2, bishops could at pleasure a.s.sociate themselves to justices of _oyer and terminer_ or of a.s.size. Cf. Strype, _Whitgift_, 329.
[174] Presentments on this score are frequent. Take only a single jurisdiction, that of the Dean of York"s Peculiar, between the years 1592-1601, and a number will be found. See _Dean of York"s Visit_., 222 (5 persons); 226, 229, 315, 326, 329 (Remaining excommunicate for a month); 334 (Over 40 days. Also a person presented for harboring an excommunicate); 335 (Over a year); 341 (14 days).
[175] Cosen, _An Apologie_, etc., 64. As has been above stated, an excommunicate could not attend service. P. 47 _supra_.
[176] According to 23 Eliz. c. i, sec. 4 and sec. 6.
[177] See _A.P.C_., xiii, 271-2 (1581). Cardwell, _Doc. Ann_., i, 406 (Whitgift alludes to the "waywardnes" of juries).
[178] Not suspension from office (as might be supposed) but from service and sacraments.
[179] P. 19, note 33, _supra_.
[180] Hale, _Crim. Prec_., 150 ("_Contra_ ... Because he will not be churchwarden accordinge to the archdeacon"s judgment." Excommunicated.
1566). Ibid., 162 ("_Contra ... Detectum_ that he obstinately refuseth to be churchwarden, notwithstanding he was chosen by the consent of the parson and parishioners." Excommunicated. 1576). Cf. ibid., 183 (Presentment for refusing to be sideman), and ibid., 207 (Refusing churchwardenship).
[181] In equity specific performance is nothing more than the giving of an instrument transferring t.i.tle after all has previously been done on both sides, but this, to complete the transaction.
[182] Denunciation "in many poyntes resembleth a Presentment," Cosen, _An Apologie_ (etc.), 70. See his book for the modes of proceeding.
Cf. also Hale, _Crim. Prec_., Introd., p. lviii. In commenting on Archdeacon Hale"s book, which we have so often here cited (_A Series of Precedents in Criminal Causes from the Act Books of Ecclesiastical Courts of London_, 1475-1640 [pub. in 1847]), Sir J.F. Stephen in his _History of Crim. Law in England_, ii, 413, makes these observations: "It is difficult even to imagine a state of society in which, on the bare suggestion of some miserable domestic spy, any man or woman whatever might be convened before an archdeacon or his surrogate and put upon his or her oath as to all the most private affairs of life; as to relations between husband and wife; as to relations between either and any woman or man with whom the name of either might be a.s.sociated by scandal; as to contracts to marry, as to idle words, as to personal habits, and, in fact, as to anything whatever which happened to strike the ecclesiastical lawyer as immoral or irreligious."
[183] The case of John Johnson in the official"s court in Durham city forms an excellent commentary on the whole system. He was presented as suspected of incontinency. After repeated citations and a threat of excommunication, he appeared, denying the charge and alleging that a churchwarden with others had falsely concocted it. At the pet.i.tion of an apparitor, who acted as public prosecutor, seven of Johnson"s fellow-parishioners were cited to swear not to the _fact_ of his guilt, but to the general _belief_ in it. Articles were then drawn up upon which depositions were taken and published. The case was adjourned repeatedly so that the many formalities of procedure might drag out their weary length. The oath _ex officio_ was forced on Johnson, but he denied all guilt. Finally, he was enjoined to procure three compurgators. These swore that they believed _"in animis suis"_ that Johnson had sworn to the truth. Though p.r.o.nounced innocent, Johnson was condemned to pay the costs of all the formalities that the apparitor had set in motion against him, and a last time was dragged into court in order to be admonished under pain of excommunication to pay these fees, amounting to 1. 3s. 4d., within a month! The case had extended from 11th June, 1600, to 22nd May, 1601. _Surtees Soc_., lx.x.xiv (1888), 359-362. Cf. also the following: "payed for annswerynge dyuerse faulse vntrothes suggested by [five names] to the sayd Commyssyoneres vj s. viij d." Minchinhampton, Gloucester, Acc"ts, _s.a._ 1576 (archbishop"s visitation), _Archaeologia_, x.x.xv. "pd. for our charges to lycoln when we were p[re]sented by the apparytor unjustly for that our church should by [be] mysvsed vs. vjd."
Leverton, Lincoln, Acc"ts, _s.a._ 1579, _Archaeologia_, xli, 365.
Under 1595 the Leverton wardens have the entries: "pd. to the apparitor for fallts in the churche ijs. viijd.," and: "for playing in the churche iijs. viijd." The last is explained by a third entry: "to the apparator for suffering a plaie in the church." (_Op. cit_., 367.) This looks like bribery, or blackmail, or both. For examples of bribery see Wing Acc"ts, _s.a._ 1561, _Archaeologia_, x.x.xvi ("to ye S[um]m[o]ner to kepe us ffrom Lincoln for slacknes of o[u]r auters").
Abbey Parish Acc"ts, _s.a._ 1600, _Shrop. Arch. Soc_., i. 65 ("paid to Cleaton, the Chauncelor"s man for keeping us from Lichfield"). Great Witchingham Acc"ts, _Norfolk and Norwich Arch. Soc_., xiii, 207 ("Simp the sumner for his fees for excusing us from Norwich"). _St. Mary Woolchurch Haw_, London, _Acc"ts, s.a_. 1594 ("more unto the paratour and Doctor Stanhopes man for their favours"). Hale, _Crim. Prec_., 202 ("_Fa.s.sus est_ that he gave xs. to ... the apparitor to thend that he might not be called into this corte." 1590). For examples of fees paid for absolution from an unjust excommunication see _Minchinhampton Acc"ts, s.a_. 1606 ("layd out [at] Gloucester when we wer excommunicated for our not appearinge when wee were not warned to appeere, vj s. viij d"). St. Clement"s, Ipswich, Acc"ts, _East Anglian_, in (1890), 304 ("Payed for owr Absolution to the Commissary, being reprimanded for that we did not give in our Verdict, where as we nether had warning nor notice given us of his Corte houlden, ij[s.]
x[d.]:" and: "Payed more ffor the discharg of his boocke, viijd."
1610). Churchwardens accounts are pretty reliable evidence, for they were subject to the scrutiny of those who had to foot the bills.
[184] See Mr. Andrew Clark"s _Shirburn Ballads_ (Oxon. 1907), 306 ff.
Mr. Clark"s notes and ill.u.s.trations drawn from other contemporary sources are most valuable.
[185] A number of broadsides and pamphlets were published in 1641 upon the abolition of the spiritual courts. Consult Mr. Stephen"s _Catalogue_ (1870) for those in the British Museum. One of them is ent.i.tled _The Proctor and Parator their Mourning ... Beinge a true Dialogue, Relating the fearfull abuses and exorbitances of those spirituall Courts, under the names of Sponge the Proctor and Hunter the Parator_. In the spirited dialogue between the two _Hunter_ tells of his ways of extorting money from recusants, seminary priests and neophytes, "whose starting holes I knew as well as themselves"; also, he adds, "I got no small trading by the Brownists, Anabaptists and Familists who love a Barne better than a Church." "Poor Curates, Lecturers and Schoolmasters ... that have been willing to officiate their places without licences" are also his special prey. As for minor offenders "against our terrible Canons and Jurisdiction ... had I but given them a severe looke, I could ... have made them draw their purses ..." "I tell you," he concludes, "the name of Doctors Commons was as terrible to these as Argier [Algiers] is to Gally-slaves."
_Sponge_ admits that he has made many a fat fee by _Hunter"s_ procurement. For more serious doc.u.ments in corroboration see Whitgift"s circular to his suffragans in May, 1601, and also his address to his bishops a few months later in Strype, _Whitgift_, ii, 447 ff. Among many other and grave abuses he refers to "the infinite number" of apparitors and "petty Sumners" hanging upon every court, "two or three of them at once most commonly seizing upon the subject for every trifling offence to make work to their courts." Cf. Canons of 1597, can. xi (Mult.i.tude of apparitors and their excesses) in Cardwell, _Syn_., i, 159. Also Canons of 1603/4, _ibid_. Most of the Elizabethan and Stuart metropolitan and diocesan injunctions call for the presentment of the abuse of apparitors and other court officials.
See Cardwell, _Doc. Ann_., ii, _pa.s.sim_. Also _Appendix to 2nd Rep. of the Com. on Ritual_ to Parliament (1870), where a large number of injunctions from Parker to Juxon (1640) are gathered together.
[186] By this system, if the accused could get together a certain number of his neighbors (3, 4, 6 or more) to act as oath-helpers, _i.e._, who would swear that they believed him on oath, he was acquitted. It seems to have been no concern of the judge to weigh the evidence on the facts themselves.
[187] The churchwardens accounts are full of items for horse hire and other expenses for long journeys, for ecclesiastical courts were held at all kinds of places at the pleasure of the judges. See Mr. Bruce"s remarks on the Minchinhampton Acc"ts, _Archaeologia_, x.x.xv, 419 ff. Cf.
the Ludlow Acc"ts, _Shrop. Arch. Soc. 2nd. ser_., i, 235 ff.--in fact any of the accounts of the period that have been printed in detail.
[188] Archdeacon Hale in _Crim. Prec_., introd., p. lx.
[189] Hale, _Crim. Prec_., 205 (1591). In Warrington deanery, at the bishop"s visitation in 1592, one Grimsford is cited for not living with his wife. On a later occasion he appeared and affirmed that his wife had run away with another man, "whereupon the Judge, having regard to the poverty of the man," absolved him. _Warrington Deanery Visit_., 190. An ecclesiastical judge in Durham city made this decree in 1580: "_Dominus ... decrevit scribendum fore Aldermanno_ ... to whip and cart the said Rowle and Tuggell in all open places within the city of Durham, for that they faled in their purgacion, and therefore convicted of the crime detected." _Barnes" Eccles. Proc_., 126.
[190] A most important piece of evidence--because coming from such a source--is Whitgift"s circular and (later) his address to his bishops, already alluded to (note 185) given in Strype"s life of him. Whitgift mentions the frequent keeping of officials" or commissaries" courts and the mult.i.tude of apparitors serving under them, so that "the subject was almost vexed weekly with attendance on their several courts." He adds that "what with Churchwardens" continual attendance in these courts, which in many places came to more than was by a whole parish for any one cessment made to her Majesty, the poor men who were chosen Church wardens ... were in their estates hindered greatly in leaving their day labor for attendance there." These and like complaints, the metropolitan continued, were daily brought to him "with a general exclamation against Commissaries" and Officials"
courts." In prophetic language he warned his suffragans that if they were not more zealous for reform all their courts might be swept away.
We have further the unceasing complaints and the numberless pet.i.tions that were presented in every Elizabethan parliament from 1572 onwards.
Some of these are given in Strype, _Annals_, etc., some in his _Whitgift_. Mr. Prothero has conveniently gathered some, with references to others, in his _Statutes and Const.i.tutional Doc.u.ments_ (1st ed.), pp. 209, 210, 215 and 221. See also Heywood Townshend, 110, _et pa.s.sim_; D"Ewes, 302, _et pa.s.sim_, and the canons and injunctions of the time. Peculiars were doubtless most subject to abuses, as being often exempt from the oversight and corrective discipline of the diocesan. Offenders sometimes fled to these for protection. See Strype, _Ann_., iii, Pt. ii, 211-12 (Bishop of Coventry and Lichfield complaining in 1582 of peculiars, some of which belonged to laymen, as holders of abbey lands, in the matter of recusants). Cf. Blomefield, _Hist. of Norfolk_, iii, 557. _Camden Miscellany_, ix (1895), 41 (Letters from bishops to Privy Council in 1564. Recusants flying to exempt places). On the scandalous neglect of duty of some holders of peculiars see _Dean of York"s Visit_., 199, 201 ff., 324, _et pa.s.sim_.
See also Mr. W.E.B. Whittaker"s article "_On Peculiars with special reference to the Peculiar of Hawarden_," in _Archit. Arch. and Hist.
Soc. for Chester and N. Wales_, n.s. xi (1905), 66 ff. and records there given. See also _Eccles. Courts Com. Rep_., 1830-2, printed as appendix to Vol. i of _Eccles. Courts Com. Rep_. of 1883, p. 198.
Lists of peculiars will be found in the above authorities.