Z

reasons exempted from the statute of Hen. IV) but, instead thereof, fuch perpetual curate is appointed by the appropriator. With regard to the other species of curates, they are the objects of fome particular statutes, which ordain, that such as serve a church during it's vacancy shall be paid fuch stipend as the ordinary thinks reafonable, out of the profits of the vacancy; or, if that be not fufficient, by the successor within fourteen days after he takes poffeffion: and that, if any rector or vicar nominates a curate to the ordinary to be licenced, the ordinary shall settle his stipend under his hand and feal, not exceeding 501. per annum, nor less than 207. and on failure of payment may sequester the profits of the benefice b.

THUS much of the clergy, properly so called. There are also certain inferior ecclefiaftical officers of whom the common law takes notice; and that, principally, to affist the ecclefiaftical jurifdiction, 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 fometimes 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 fome 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. 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 their place. As to lands, or other real property, as the church, church-yard, &c, they have no fort of interest therein ;

Z

■ Burn. eccl. law. 427.

a Stat. 28 Hen. VIII. C. II.

b Stat. 12 Ann. ft. 2. c. 12.

• In Sweden they have fimilar officers, whom they call kiorckiowariandes. Stiernhook. 1. 3. c. 7.

but

d

but if any damage is done thereto, the parfon 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 fhilling forfeiture on all fuch 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 affault or trespass. 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 ecclefiaftical censures 5. The parish clerk was formerly always in holy orders; and some are so to this day. He is generally appointed by the incumbent, but by custom may be chofen by the inhabitants; and if such custom appears, the court of king's bench will grant a mandamus to the arch-deacon to swear him in, for the establishment of the custom turns it into a temporal or civil right.

church, churchwardens, visitation.

& 2 Roll. Abr. 234.
Cro. Car. 589.

CHAPTER THE TWELFTH.

OF THE CIVIL STAT E.

T

HE 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.

THAT part of the nation which falls under our first and most comprehenfive 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 ; fince a nobleman, a knight, a gentleman, or a peasant, may become either a divine, a soldier, or a feaman.

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 fufficiently spoken: we are here to confider them according to their several degrees, or titles of honour.

ALL

ALL degrees of nobility and 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 honour are not of equal antiquity. Those now in use are dukes, marquesses, earls, vifcounts, and barons b.

1. A duke, though it be with us, as a mere title of nobility, inferior in point of antiquity to many others, yet it is superior to all of them in rank; 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 Peperogad; and in the laws of Henry I (as tranflated 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 fubjects with that title, till the time of Edward III; who, claiming to be king of France, and thereby lofing the ducal in the royal dignity, in the eleventh year of his reign created his fon, Edward the black prince, duke of Cornwall: and many, of the royal family especially, were afterwards raised to the fame honour. However, in the reign of queen Elizabeth, A. D. 1572°, 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 perfon 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 by our ancestors) to guard the frontiers and limits of the kingdom;

a

4 Inst. 363.

d This is apparently derived from the fame root as the German Hertzogen, the antient appellation of dukes in that country. Seld. tit. hon. 2. 1. 22.

Воок І. which were called the marches, from the teutonic word, marche, a limit: as, in particular, were the marches of Wales and Scotland, while they continued to be enemies countries. The perfons who had command there, were called lords marchers, or marquefies; whose authority was abolished by statute 27 Hen. VIII. c. 27: though the title had long before been made a mere ensign of honour; Robert Vere, earl of Oxford, being created marquess of Dublin, by Richard II in the eighth year of his reign.

3. An earl is a title of nobility so antient, that it's original cannot clearly be traced out. Thus much feems tolerably certain: that among the Saxons they were called ealdormen, quafi elder men, fignifying the fame as fenior or fenator among the Romans; and alfo fchiremen, because they had each of them the civil government of a several divifion or shire. On the irruption of the Danes, they changed the name to eorles, which, according to Camden, fignified the fame in their language. In Latin they are called comites (a title first used in the empire) from being the king's attendants; “ a focietate nomen fumpferunt, reges enim tales "fibi affociant." After the Norman conquest they were for fome time called counts, or countees, from the French; but they did not long retain that name themselves, though their shires are from thence called counties to this day. It is now become a mere title, they having nothing to do with the government of the county; which, as has been more than once obferved, is now entirely devolved on the sheriff, the earl's deputy, or vice-comes. In all writs, and commiflions, and other formal inftruments, the king, when he mentions any peer of the degree of an earl, always ftiles him "trusty and well beloved coufin:" an appellation as antient as the reign of Henry IV; who being either by his wife, his mother, or his fisters, actually related or allied to every earl in the kingdom, artfully and conftantly acknowleged that connexion in all his letters and other public acts; from whence the usage has defcended to his fucceffors, though the reason has long ago failed.

f

2 Inft. 5.

Bracton. 1. 1. c. 8. Fleta. 1. 1. c. 5.