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for herefy, infidelity, grofs immorality, and the like: or, Secondly, in pursuance of divers penal ftatutes, which declare the benefice void, for fome nonfeafance or neglect, or elfe fome malfeazance or crime; as, for fimony; for maintaining any doctrine in derogation of the king's fupremacy, or of the thirty-nine articles, or of the book of common-prayer; for neglecting after institution to read the liturgy and articles in the church, or make the declarations. against popery, or take the abjuration oath"; for using any other form of prayer than the liturgy of the church of England ; or for absenting himself fixty days in one year from a benefice belonging to a popish patron, to which the clerk was prefented by either of the univerfities; in all which and fimilar cases y the benefice is ipfo facto void, without any formal fentence of deprivation.

VI. A CURATE is the lowest degree in the church; being in the fame flate that a vicar was formerly, an officiating temporary minifter, inftead of the proper incumbent. Though [394] there are what are called perpetual curacies, where all the

tithes are appropriated, and no vicarage endowed, (being for fome particular reafons z exempted from the statute of Hen. IV.) but, inftead thereof, fuch perpetual curate is appointed by the appropriator. With regard to the other fpecies of curates, they are the objects of some particular statutes, which ordain, that such 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 poffeffiona: 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 fhall fettle his ftipend under his hand and feal, not exceeding 50l. per annum, nor lefs

s Fitz. Abr. t. Trial. 54.

* Stat. 31 Eliz. c. 6. 12 Ann. c. 12.
* Stat. : Eliz. C. I, 2. 13 Eliz. c. I2.
"Stat. 13 Eliz. c. 12.
1 Geo. I. c. 6.

14 Car. II. c. 4.

w Stat. I Eliz. c. 2.

Stat. 1 W. & M. c .26.

y 6 Rep. 29, 30.

z 1 Burn, eccl. law. 427.

a Stat. 28 Hen. VIII. c. 11,

than

than 20%. and on failure of payment may fequefter the profits of the benefice." (40)

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

(40) It was provided in 1603, by canon 33, that if a bishop ordains any person not provided with fome ecclefiaftical preferment, except a fellow or chaplain of a college, or a master of arts of five years standing, who lives in the univerfity at his own expence, he shall support him till he shall prefer him to a living. 3 Burn. Ec. L. 28. And the bishops, before they confer orders, require either proof of fuch a title as is described by the canon, or a certificate from fome rector or vicar, promifing to employ the candidate for orders boná fide as a curate, and to grant him a certain allowance, till he obtains fome ecclefiaftical preferment, or fhall be removed for fome fault. And in a cafe where the rector of St. Ann's, Weftminster, gave fuch a title, and afterwards difmiffed his curate without affigning any cause, the curate recovered, in an action of affumpfit, the fame falary for the time after his difmiffion which he had received before. Cowp. 437. And when the rector had vacated St. Ann's by accepting the living of Rochdale, the curate brought another action to recover his falary fince the rector left St. Ann's; but lord Mansfield and the court held, that that action could not be maintained, and that these titles are only binding upon thofe who give them, while they continue incumbent. in the church for which fuch curate is appointed. Doug. 137.

The 36 Geo. III. c. 83. has given a power to the bishop or ordinary to grant an allowance not exceeding 757. to any curate, . who fhall be employed by any rector or vicar, or by any curate or incumbent of any church or chapel, which has been augmented by queen Anne's bounty, or by the curate or incumbent of any perpetual curacy, although it has not been so augmented.

And where a rector or vicar does not relide four months in the year at least, the bishop or ordinary may grant the use of the rectory or vicarage-house, with the garden and stable, for one year to the curate for his actual refidence in it. Or he may grant him 157. a year in lieu of the rectory or vicarage-houfe. The grant of the house he has power to renew, and at any time he revoke it, and he may annex to it fuch conditions as he shall think reasonable. If the curate refuses to give up poffeffion at the determination of the grant, he fhall forfeit to his rector or vicar all the tipend which fhall be or become due to him, and 50%. befides.

may

And

THUS much of the clergy, properly fo called. There are alfo 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 fhall 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 minister, 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 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 fort of interest therein; but if any damage is done thereto, the parfon only or vicar fhall 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 ecclefiaflical 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 Sundays and holidays, and are empowered to keep all perfons ørStiernhook, l. 3. c. 7. d Stat. 1. Eliz. c. 2.

In Sweden they have fimilar officers, whom they call hiorckiowariandes.

d

And the ordinary has power to licence any curate who shall be employed by any rector, vicar, or other incumbent of a parish church or chapel, although no nomination fhall have been made to him for that purpose: or he may revoke his licence, or remove any curate for a reasonable cause, but subject to an appeal to the archbishop of the province, to be determined in a fummary manner.

derly

derly 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 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 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 fwear him in, for the establishment of the custom turns it into a temporal or civil right.h

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CHAPTER THE TWELfth.

OF THE CIVIL STATE.

THE lay part of his majesty's fubjects, 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 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 division, of clergy, or under one of the two latter, the military and maritime states: and it may fometimes include individuals of the other three orders; fince a nobleman, a knight, a gentleman, or a peafant, 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 spoken: we are here to confider them according to their feveral degrees, or titles of honour.

1

ALL degrees of nobility and honour are derived from the king as their fountain a a: 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 use are dukes, marqueffes, earls, viscounts, and barons. b

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