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of Hen. IV.) but, instead thereof, such perpetual curate is appointed by the appropriator.

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.

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; that is, 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. 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. 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 hath been held that a churchwarden may justify the pulling off a man's hat, without being guilty either of an assault or trespass. There are also a multitude of other petty

parochial powers committed to their charge by divers acts of parliament.

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. 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 the establishment of the custom turns it into a temporal or civil right,

CHAPTER XII.

OF THE CIVIL STATE.

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

The civil state consists of the nobility and the commonalty. All degrees of nobility or honour are derived from the king as their fountain; 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, marquisses, earls, viscounts, and barons.

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. 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 afterwards raised to the

like honour.

2. A marquiss, marchio, is the next degree of nobility. His office formerly was, (for dignity and duty were never separated by our ancestors) to guard the frontiers and limits of the kingdom.

3. An earl is a title of nobility so ancient, that its origin cannot clearly be traced out. In writs, and commissions, and other formal instruments, the king, when he mentions any peer of the degree of an earl, usually stiles him "trusty and wellbeloved cousin."

4. The name of vice-comes or viscount was afterwards made use of as an arbitrary title of honour, without any shadow of office pertaining to it, by Henry VI.

5. A baron's is the most general and universal title of nobility; for originally every one of the peers of superior rank had also a barony annexed to his other titles. Richard II. afterwards made a baron a mere title of honour, by conferring it on

divers persons by his letters patent. Peers are now created either by writ, or by patent: for those who claim by prescription must suppose either a writ or patent made to their ancestors; though by length of time it is lost. The creation by writ, or the king's letter, is a summons to attend the house of peers, by the stile and title of that barony which the king is pleased to confer: that by patent is a royal grant to a subject of any dignity or degree of peerage.

The principal incidents attending the nobility, exclusive of their capacity as members of parliament, and as hereditary counsellors of the crown, are, that in criminal cases a nobleman shall be tried by his peers. It is said, that this does not extend to bishops; who, though they are lords of parliament, and sit there by virtue of their baronies which they hold jure ecclesiae, yet they are not ennobled in blood, and consequently not peers with the nobility. Peeresses, either in their own right or by marriage, shall be tried before the same judicature as peers of the realm. If a woman, noble in her own right, marries a commoner, she still remains noble, and shall be tried by her peers but if she be only noble by marriage, then by a second marriage with a commoner, she loses her dignity; for as by marriage it is gained, by marriage it is also lost. Yet if a duchess dowager marries a baron, she continues a duchess still; for all the nobility are pares, and therefore it is no degradation. A peer, or peeress (either in her own right or by marriage) cannot be arrested in civil

cases; and they have also many peculiar privileges annexed to their peerage in the course of judicial proceedings. A peer, sitting in judgment, gives not his verdict upon oath, like an ordinary juryman, but upon his honour: he answers also to bills in chancery upon his honour, and not upon his oath; but, when he is examined as a witness either in civil or criminal cases, he must be sworn: for the respect which the law shews to the honour of a peer, does not extend so far as to overturn a settled maxim, that in judicio non creditur nisi juratis. The honour of peers is however so highly tendered by the law, that it is much more penal to spread false reports of them, and certain other great officers of the realm, than of other men: scandal against them being called by the peculiar name of scandalum magnatum, and subjected to peculiar punishment by divers ancient statutes.

The commonalty, like the nobility, are divided into several degrees.

The first name of dignity after the nobility, is a knight of the order of St. George, or of the garter; first instituted by Edward III. A. D. 1344. Next (but not till after certain official dignities, as privy counsellors, the chancellors of the exchequer and dutchy of Lancaster, the chief justice of the king's bench, the master of the rolls, and the other English judges) follows a knight banneret ; who, in order to intitle himself to this rank, he must have been created by the king in person, in the field, under the royal banners, in time of open Else he ranks after baronets; who are the

war.

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