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porary 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 fome particular reafons exempted from the ftatute of Hen. IV.) but, inftead 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 fuch as ferve a church during it's vacancy fhall be paid fuch ftipend as the ordinary thinks reasonable, out of the profits of the vacancy; or, if that be not fufficient, by the fucceffor within fourteen days after he takes poffeffion": and that, if any rector or vicar nominates a curate to the ordinary to be licenced to ferve the cure in his abfence, the ordinary fhall fettle his ftipend under his hand and feal, not exceeding 50 l. per annum, nor less than 20 l. and on failure of payment may sequester the profits of the benefice ».

THUS much of the clergy, properly fo called. There are alfo certain inferior ecclesiastical officers of whom the common law takes notice; and that, principally, to affift the ecclefiaftical jurifdiction, where it is deficient in powers. On which officers I shall make a few curfory remarks.

VII. CHURCHWARDENS are the guardians or keepers of the church, and reprefentatives of the body of the parish. They are fometimes appointed by the minifter, fometimes by the parish, fometimes by both together, as cuftom 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 firft 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

21 Burn. eccl. law. 427.

a Stat. 28 Hen. VIII. c. 11. Stat. 12 Ann. ft. 2. c. 12.

In Sweden they have fimilar officers, whom they call kiorekiowariandes. Stiernhook. 1. 3. 6. 7•

yard,

d

yard, &c, they have no fort of interest therein; but if any damage is done thereto, the parfon only or vicar shall have' the action. Their office alfo is to repair the church, and make rates and levies for that purpose: but these are recoverable only in the ecclefiaftical court. They are also joined with the overfeers 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 fundays and holidays, and are empowered to keep all perfons 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 trefpafs. There are alfo a multitude of other petty parochial powers committed to their charge by divers acts of parliament f.

VIII. PARISH clerks and fextons are alfo regarded by the common law; as perfons who have freeholds in their offices; and therefore though they may be punished, yet they cannot be deprived, by ecclefiaftical cenfures. The parish clerk was formerly very frequently in holy orders, and fome are fo to this day. He is generally appointed by the incumbent, but by cuftom may be chofen by the inhabitants; and if fuch cuftom appears, the court of king's bench will grant a mandamus to the arch-deacon to fwear him in, for the establishment of the custom turns it into a temporal or civil right 1.

Stat. 1 Eliz. c. 2.

e I Lev. 196.

f See Lambard of churchwardens,

at the end of his eirenarcha; and Dr

Burn, tit. church, churchwardens, vifitations.

g 2 Roll. Abr. 234.

h Cro. Car. 589.

CHAPTER THE TWELFTH.

OF THE

CIVIL STATE.

HE lay part of his majesty's fubjects, or fuch 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 divifion, the civil ftate, includes all orders of men from the highest nobleman to the meanest peafant, that are not included under either our former divifion. of clergy, or under one of the two latter, the military and maritime ftates: and it may fometimes include individuals of the other three orders; fince a nobleman, a knight, a gentleman, or a peasant, may become either a divine, a foldier, or a feaman.

THE civil ftate confifts 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 fupreme branches of the legislature, I have before fufficiently fpoken: we are here to confider them according to their feveral degrees, or titles of honour.

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 nobility are not of equal antiquity. Thofe now in ufe are dukes, marqueffes, earls, vifcounts and barons ".

a 4 Inft. 363.

b For the original of thefe titles on the continent of Europe, and their sub13

fequent introduction into this island, fee Mr Selden's titles of bonour.

1. A duke

1. A duke, though he be with us, in refpect 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 figgified, as among the Romans, the commanders or leaders. of their armies, whom in their own language they called perezoga; and in the laws of Henry I (as tranflated by Lambard) we find them called heretochii. But after the Norman conqueft, 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 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 like honour. However, in the reign of queen Eli zabeth, A. D. 1572°, the whole order became utterly extinct; but it was revived about fifty years afterwards by her fucceffor, 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 by our ancestors) to guard the frontiers and limits of the kingdom; which were called the marches, from the teutonic word, marche, a limit: such as, in particular, were the marches of Wales and Scotland, while each continued to be an enemy's country. The perfons, who had command there, were, called lords marchers, or marqueffes; whofe authority was abolished by ftatute 27 Hen. VIII. c. 27: though the title had long before been made a mere enfign of honour; Robert Vere, earl of Oxford, being created marquess of Dublin, by Richard II in the eighth year of his reign f.

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BOOK I. 3. An earl is a title of nobility fo antient, that it's original cannot clearly be traced out. Thus much feems tolerably certain: that among the Saxons they were called caldormen, 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 feveral divifion or fhire. 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 firft used in the empire) from being the king's attendants; "a focietate "nomen fumpferunt, reges enim tales fibi affociant" After the Norman conqueft they were for fome time called counts or countees, from the French; but they did not long retain that name themselves, though their fhires are from thence called counties to this day. The name of earls or comites 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 fheriff, the earl's deputy, or vice-comes. In writs, and commiffions, and other formal inftruments, the king, when he mentions any peer of the degree of an earl, usually stiles 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 sisters, actually related or allied to every earl then 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 reafon has long ago failed.

4. THE name of vice-comes or viscount was afterwards made use of as an arbitrary title of honour, without any fhadow of office pertaining to it by Henry the fixth; when, in the eighteenth year of his reign, he created John Beaumont a peer, by the name of viscount Beaumont, which was the firf instance of the kind 1.

5. A baron's is the most general and universal title of nobility; for originally every one of the peers of fuperior rank

g Britan. tit. ordines.

↳ Bracton. /. 1.c. 8. Flet. 1. 1. c. 5°

i 2 Inft. 5.

had

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