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porary minister, instead of the proper incumbent. Though there are what are called perpetual curacies, where all the [394 ] tithes are appropriated, and no vicarage endowed, (being for some particular reasons exempted from the statute of Hen. IV.) but, instead thereof, such perpetual curate is appointed by the appropriator. With regard to the other species of curates, they are the objects of some particular statutes, which ordain, that such as serve a church during it's vacancy shall be paid such stipend as the ordinary thinks reasonable, out of the profits of the vacancy; or, if that be not sufficient, by the successor within fourteen days after he takes possession a: and that if any rector or vicar nominates a curate to the ordinary to be licenced to serve the cure in his absence, the ordinary shall settle his stipend under his hand and seal, not exceeding 50l. per annum, nor less than 20%. and on failure of payment may sequester the profits of the benefice b. (16)

THUS much of the clergy, properly so called. There are also certain inferior ecclesiastical officers of whom the common law takes notice; and that, principally, to assist the ecclesiastical jurisdiction, where it is deficient in powers: on which officers I shall make a few cursory remarks.

VII. CHURCHWARDENS are the guardians or keepers of the church, and representatives of the body of the parish. They are sometimes appointed by the minister, sometimes by the parish, sometimes by both together, as custom directs. They are taken, in favour of the church, to be for some purposes a kind of corporation at the common law (17); that is,

z 1 Burn. eccl. law. 427.
a Stat. 28 Hen. VIII. c.11.
b Stat. 12 Ann. st. 2. c.12.

In Sweden they have similar officers, whom they call kiorckiowariandes. Stiernhook, 1.3. c.7.

as relates to the maintenance of
See Vol. III. p. 90. n.(3).

the case of Withnell v. Gartham,

(16) So much of the statute of Anne curates is repealed by the 57 G.3. c. 99. (17) This is expressed cautiously. In 6 T.R.396. Lord Kenyon denied that they were in legal language a corporation, and pointed out many distinctions between them and a strictly corporate body. It is true, however, that they have merely as such officers a property in goods and chattels, of which individually they have never had

they are enabled by that name to have a property in goods and chattels, and to bring actions for them, for the use and profit of the parish. Yet they may not waste the church goods, but may be removed by the parish, and then called to account by action at the common law; but there is no method of calling them to account, but by first removing them; for none can legally do it, but those who are put in [395] their place. As to lands, or other real property, as the church, churchyard, &c. they have no sort of interest therein; but if any damage is done thereto, the parson only or vicar shall have the action. Their office also is to repair the church, and make rates and levies for that purpose: but these are recoverable only in the ecclesiastical court. (18) They are also joined with the overseers in the care and maintenance of the poor. They are to levy a shilling forfeiture on all such as do not repair to church on Sundays and holidays, and are empowered to keep all persons orderly while there; to which end it has been held that a churchwarden may justify the pulling off a man's hat, without being guilty of either an assault or trespasse. There are also a multitude of other petty parochial powers committed to their charge by divers acts of parliament f.

VIII. PARISH clerks and sextons are also regarded by the common law, as persons who have freeholds in their offices; and therefore though they may be punished, yet they cannot be deprived, by ecclesiastical censures . The parish clerk was formerly very frequently in holy orders, and some are so to this day. He is generally appointed by the incumbent, but by custom may be chosen by the inhabitants; and if such custom appears, the court of king's bench will grant a mandamus to the archdeacon to swear him in, for

d Stat. 1 Eliz. c. 2.

e 1 Lev. 196.

f See Lambard of churchwardens, at

the end of his eirenarcha; and Dr. Burn,
tit. church, churchwardens, visitations.
2 Roll. Abr. 234.

possession; since they may sue for the recovery of such as have been taken away in the time of their predecessors. Hadman v. Ringwood, Cro. Eliz. 145. 179.

(18) Where the rates in arrcar do not exceed 107., and the validity of the rate itself is not disputed, the 55 G. 3. c. 127. gives a summary method of recovering them before two justices. See Vol. III. p. 92. n. (5).

the establishment of the custom turns it into a temporal or civil right ". (19)

h Cro. Car. 589.

(19) In the case cited from Cro. Car. no judgment was given, but the case cited from Rolle's Abr. 234. in support of a previous position, for which it is no authority, is directly in point for this last; and in the case of the King v. Warren, Cowp. 370. the court granted a mandamus to the clergyman of a parish to restore a parish clerk, where it was admitted that the appointment was in the clergyman. Lord Mansfield observed that the office was held only during good behaviour, but that though the minister might have a power of removing on a good and sufficient cause, he could never be the sole judge, and remove ad libitum; and the ground of restoration was the want of sufficient cause for removal shown to the court by the clergyman. In the same case another was cited which established the parish clerk to be a temporal officer, and of course not removable by ecclesiastical censures. The same point was held in two cases in Strange's Reports, pp. 942. & 1108., in the former of which the court overruled its own previous decision to the contrary in Townsend v. Thorpe, Str.776. See also Tarrant v. Haxby, 1 Burr.367.

With respect to sextons it can hardly be said that they are regarded by the common law as having freeholds; because the tenure by which they hold, varies exceedingly, and is as often during pleasure, as for life, or during good behaviour. It should seem that the presumption of law is that they hold by the first; in R. v. Churchwardens of Thame, Str. 115. it was said that a mandamus to restore a sexton ought not to be granted unless there was a certificate that he was chosen for life. And it was decided in an election committee of the house of commons, 2 Peck.91., that where the office of sexton is not shewn to be held for life, it gives no right

to vote.

CHAPTER THE TWELFTH.

OF THE CIVIL STATE.

THE lay part of his majesty's subjects, or such of the people as are not comprehended under the denomina-. tion of clergy, may be divided into three distinct states, the civil, the military, and the maritime.

THAT part of the nation which falls under our first and most comprehensive division, the civil state, includes all orders of men, from the highest nobleman to the meanest peasant, that are not included under either our former division, of clergy, or under one of the two latter, the military and maritime states: and it may sometimes include individuals of the other three orders; since a nobleman, a knight, a gentleman, or a peasant, may become either a divine, a soldier,

or a seaman.

THE civil state consists of the nobility and the commonalty. Of the nobility, the peerage of Great Britain, or lords temporal, as forming (together with the bishops) one of the supreme branches of the legislature, I have before sufficiently spoken: we are here to consider them according to their several degrees, or titles of honour.

ALL degrees of nobility and honour are derived from the king as their fountain a: and he may institute what new titles he pleases. Hence it is that all degrees of nobility are not of equal antiquity. Those now in use are dukes, marquesses, earls, viscounts, and barons b.

a 4 Inst. 363.

For the original of these titles on the continent of Europe, and their

subsequent introduction into this island, see Mr. Selden's titles of honour.

1. A duke, though he be with us, in respect of his title of nobility, inferior in point of antiquity to many others, yet is superior to all of them in rank; his being the first title of dignity after the royal family. Among the Saxons the Latin name of dukes, duces, is very frequent, and signified, as among the Romans, the commanders or leaders of their armies, whom in their own language they called Peperoza "; and in the laws of Henry I. (as translated by Lambard) we find them called heretochii. But after the Norman conquest, which changed the military polity of the nation, the kings themselves continuing for many generations dukes of Normandy, they would not honour any subjects with the title of duke, till the time of Edward III.; who, claiming to be king of France, and thereby losing the ducal in the royal dignity, in the eleventh year of his reign created his son, Edward the black prince, duke of Cornwall: and many, of the royal family especially, were afterward raised to the like honour. (1) However, in the reign of queen Elizabeth, A. D. 1572 e, the whole order became utterly extinct; but it was revived about fifty years afterwards by her successor, who was remarkably prodigal of honours, in the person of George Villiers duke of Buckingham.

2. A marquess, marchio, is the next degree of nobility. His office formerly was (for dignity and duty were never separated

< Camden. Britan. tit. ordines.

This is apparently derived from the same root as the German hertzog the antient appellation of dukes in that

country. Seld. tit. hon. 2. 1. 22.
e Camden. Brit. tit. ordines. Spel-
man, Gloss. 191.

(1) It has been objected to this passage that the claim to the crown of France was made after the creation of the dukedom of Cornwall. The formal claim undoubtedly was, but it is clear from many acts and existing documents that Edward had meditated the attempt on the French crown from early youth, though the difficulties of his situation delayed his assertion of his supposed right, and indeed compelled him to do many acts inconsistent with it. It is probable, however, that there were better reasons for the creation of the duke of Cornwall, and the bestowing it on a son of such promise as the Black Prince, at a time too, when the expedition to France was in contemplation, than that surmised in the text. With respect to the dukedom of Normandy, I believe Edward the Third had never borne that title; he was duke of Aquitaine however, so that the argument

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