Sivut kuvina
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may cease to be so. 1. By death. 2. By cession, in taking another benefice. For by statute 21 Hen. VIII., c. 13, if any one having a benefice of £8 per annum, or upward, according to the present valuation in the king's books,P accepts any other, the first shall be adjudged void, unless he obtains a dispensation, which no one is entitled to have but the chaplains of the king, and others therein mentioned, the brethren and sons of lords and knights, and doctors and bachelors of divinity and law, admitted by the universities, of this realm. And a vacancy thus made, for want of a dispensation, is called cession." 3. By consecration; for, as was mentioned before, when a clerk is promoted to a bishopric, all his other preferments are void the instant that he is consecrated. But there is a method, by the favor of the crown, of holding such living in commendam. Commenda, or ecclesia commendata, is a living commended by the crown to the care of a clerk, to hold till a proper pastor is provided for it. This may be temporary for one, two, or three years, or perpetual; being a kind of dispensation to avoid the vacancy of the living, and is called a commenda retinere. There is also a commenda recipere, which is to take a benefice de novo, in the bishop's own gift, or the gift of some other patron con- [393] senting to the same; and this is the same to him as institution and induction are to another clerk.q" 4. By resignation. But this is of no avail till accepted by the ordinary, into whose hands the resignation must be made. 5. By deprivation, either, first, by sentence declaratory in the ecclesiastical court, for fit and sufficient causes allowed by the common law; such as attainder of treason or felony, or conviction of other infamous crime in the king's courts; for heresy, infidelity,t gross immorality, and the like; or, secondly, in pursuance of divers penal statutes, which declare the benefice void for some nonfeasance or neglect, or else some malfeasance or crime; as, for simony;" for maintaining any doctrine in derogation of the king's supremacy, or of the Thirty-nine Articles, or of the Book of Common Prayer; for neglecting, after institution, to read the Liturgy and

P Cro. Car., 456.

↑ Page 383.

9 Hob., 144.
Cro. Jac., 198.

(15) By sect. 11 of 1 & 2 Vict., c. 106, the acceptance of preferment by any spiritual person holding any other preferment or benefice vacates the former preferment. It has been already observed, that 21 Hen. VIII., c. 13, has been repealed by 57 Geo. III., c. 99, and 1 & 2 Vict., c. 106; under the latter of which statutes, only dispensations to hold two livings are now grantable; see sects. 6 & 7. Under this act two preferments can not, in general, be held by the same person, unless the benefices be within VOL. I.-A A

Dyer, 108; Jenk., 210.

Fitz. Abr., tit. Trial, 54.

Stat. 31 Eliz., c. 6; 12 Ann., c. 12. * Stat. 1 Eliz., c. 1, 2; 13 Eliz., c. 12.

ten miles of each other (sect. 3); or if
the population of one such benefice ex-
ceed three thousand, or their joint yearly
value exceed £1000 (sect. 4); unless
the yearly value of one of such benefices
be less than £150, and its population
exceed two thousand, in which case the
two may be held jointly (sect. 5).

(16) By sect. 18 of 6 & 7 Wm. IV., c.
77, it was enacted, that no commendams
should be in future held by any bishop.

VI. Curates.

Articles in the church, or make the declarations against popery, or take the Abjuration Oath ;w for using any other form of prayer than the Liturgy of the Church of England; or for absenting himself sixty days in one year from a benefice belonging to a popish patron, to which the clerk was presented by either of the universities ;y in all which and similar cases the benefice is ipso facto void, without any formal sentence of deprivation.

VI. A curate is the lowest degree in the church; being in the same state that a vicar was formerly, an officiating temporary minister, instead of the proper incumbent. Though there are what are called perpetual curacies, where all the 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 its vacancy shall be paid such [394] 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 ; and that if any rector or vicar nominates a curate to the ordinary to be licensed to serve the cure in his absence, the ordinary shall settle his stipend under his hand and seal, not exceeding £50 per annum, nor less than £20, and on failure of payment may sequester the profits of the benefice, b17

VII. Churchwardens.

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. Church-wardens 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 favor of the church, to be for some purposes a

Stat. 13 Eliz., c. 12; 14 Car. II., c.

4; 1 Geo. I., st. 2, c. 13.

Stat. 1 Eliz., c. 2.

y Stat. 1 Wm. & M., c. 26.
6 Rep., 29, 30.

21 Burn, Eccl. Law, 427.

(17) If a non-resident incumbent neglect to appoint a curate, the bishop may appoint one under sect. 75 of 1 & 2 Vict., c. 106, or if the spiritual duties of any benefice seem to him to be inadequately

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, l. 3, c. 7.

performed, see s. 78, 105; as to the sti pends of such curates, which must in no case be less than £80 per annum, see sects. 83-92.

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 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 levyd a shilling forfeiture on all such as do not repair to church on Sundays and holydays, and are empowered to keep all persons orderly while there; [395] to which end it has been held that a church-warden may justify the pulling off a man's hat, without being guilty of either an assault or trespass. There are also a multitude of other petty parochial powers committed to their charge by divers acts of Parliament.f

clerks and

VIII. Parish clerks and sextons are also regarded by the VIII. Parish common law as persons who have freeholds in their offices; sextons. and therefore, though they may be punished, yet they can not 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 the establishment of the custom turns it into a temporal or civil right.h"1

d Stat. 1 Eliz., c. 2.

e 1 Lev., 196. [S. C., 1 Saund., 13.] f See Lambard, of Church-wardens, at the end of his Eirenarcha; and Dr.

(18) As to the extent to which churchwardens are a corporation, see Rogers's Eccl. Law, tit. Church-wardens.

(19) Formerly the church-wardens, as such, could not hold lands; a feoffment in trust was, therefore, necessary to preserve lands given for the benefit of the parish, which trust was from time to time renewed, by putting new trustees in the place of those who died; see 10 B. & C., 885. But, by 59 Geo. III., c. 12, the church-wardens and overseers were empowered to hold such lands in the nature of a body corporate, and also all other

Burn, tit. Church, Church-wardens, Vis-
itations.

2 Roll. Abr., 234. h Cro. Car., 589.

buildings, lands, and hereditaments be-
longing to the parish. Also, by 5 & 6
Wm. IV., c. 69, the guardians of the poor
of every union or parish are incorporated,
and enabled to hold lands or heredita-
ments and other property for the benefit
of the union or parish.

(20) By 55 Geo. III., c. 127, church rates not exceeding £10 in amount may be recovered summarily before the justices of the peace where the validity of the rate is not disputed.

(21) The 91st canon of 1603 ordains,

that no parish clerk shall be chosen within the city of London, or elsewhere, but by the parson or vicar; or, where there is no parson or vicar, by the minister of that place for the time being; which choice shall be signified by the said min ister, vicar, or parson to the parishioners the next Sunday following in the time of divine service. Eight years after this canon, in the 8 Jac. I., it was decided that the parson, by color of a new canon, could not deprive the parishioners of their right to choose their parish clerk, 13 Rep.,70; for no canon can repeal the common law; and a parish clerk is a temporal officer, and not removable by ecclesiastical authority. The same point was decided, Str., 942, 1108; and see 1

Burr., 367. In Cowp., 370, a mandamus was granted to restore a parish clerk, where it was admitted that the appointment was in the minister.

As to the office of sexton, it has been said that the common law considers it to be a freehold; see 2 Roll. Abr., 234; Ile's case, 1 Ventr., 153; but the court doubted this, though they granted a mandamus to restore him, upon a certificate that he held the office for life; 3 Bac. Abr., 530; Str., 115. A woman may hold this office. Str., 1114; see, further, 1 Cowp., 413; 1 T. R., 20. In 5 Ad. & El., 584; 1 N. & P., 453, it was decided that, where the office is full, the proper mode to try the right is by mandamus, not by quo warranto.

396

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.

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 honor.

All degrees of nobility and honor 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, marquises, earls, viscounts, and barons.b

1. A duke, though he be with us, in respect of his title of no- Duke. bility, inferior in point of antiquity to many others, yet is su- [397] perior 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 hereroga;d 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 honor any subjects with the title of duke, till the time of Edward

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 Honor.

c Camden, Britan., tit. Ordines.

This is apparently derived from the same root as the German hertzog, the ancient appellation of dukes in that country.-Seld., tit. Hon., 2, 1, 22.

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