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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 [395] 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 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. 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

d Stat. 1 Eliz. c. 2.

e 1 Lev. 196.

f See Lambard of church-wardens, at the end of his eirenarcha; and Dr. Burn, tit. church, church-wardens, visitations.

g 2 Roll. Abr. 234.

h Cro. Car. 589.

2 First edition reads "always."

*Cited, 9 Cranch, 53; 7 Leigh, 233

CHAPTER THE TWELFTH.

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 noblemen 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 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. Those now in use are dukes, marquesses, earls, viscounts and barons.b

[397] 1. A duke, though he be with us, in respect of his title of nobility, inferior in point of antiquity to

a 4 Inst. 363.

b For the original of these titles on the continent of Europe, and their subsequent introduction into this island, see Mr. Selden's titles of honour.

8 Previously, "it be with us, as a mere."

many others, yet is superior to all of them in rank; 8 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 heretoga;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 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. 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 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:9 as, in particular, were the marches of Wales and Scotland, while each continued to be an enemy's country.8

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d This is apparently derived from the same root as the German hertzog, the antient appellation of dukes in that country. Seld. tit. hon. 2. 1. 12.

e Camden. Britan. tit. ordines. Spelman. Gloss. 191.

5 Prior editions read here, "it."

8 Previously, "same."

9 Ninth edition inserts, "such."

8 Previously, "they continued to be enemies' countries

The persons, who had command there, were called lords marchers, or marquesses; 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.!

[398] 3. An earl is a title of nobility so antient, that it's original cannot clearly be traced out. Thus much seems tolerably certain: that among the Saxons they were called ealdormen, quasi elder men, signifying the same as senior or senator among the Romans; and also schiremen, because they had each of them the civil government of a several division or shire. On the irruption of the Danes, they changed the name to eorles, which, according to Camden,s signified the same in their language. In Latin they are called comites (a title first used in the empire) from being the king's attendants; "a societate nomen sumpserunt, reges emim tales sibi associant." h After the Norman conquest they were for sometime 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 observed, is now entirely devolved on the sheriff, the earl's deputy, or vice-comes. 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 well beloved cousin:" an appellation as antient as the reign of Henry IV.: who being either by his wife, his mother, or his sisters, actually related or

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9 The ninth edition reads here, "The name of earls or comites."

allied to every earl9 in the kingdom, artfully and constantly acknowleged that connexion in all his letters and other public acts: from whence the usage has descended to his successors, though the reason 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 shadow of office pertaining to it, by Henry the sixth; when, in the eighteenth year of his reign, he created John Beaumont a peer, by the name of viscount Beaumont, which was the first 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 superior rank [399] had also a barony annexed to his other titles. But it hath sometimes happened that, when an antient baron hath been raised to a new degree of peerage, in the course of a few generations the two titles have descended differently; one perhaps to the male descendants, the other to the heirs general; whereby the earldom or other superior title hath subsisted without a barony: and there are also modern instances, where earls and viscounts have been created without annexing a barony to their other honours: so that now the rule doth not hold universally that all peers are barons. The original and antiquity of baronies has occasioned great inquiries among our English antiquaries. The most probable opinion seems to be, that they were the same with our present lords of manors; to which the name of court baron (which is the lord's court, and incident to every manor), gives some countenance. It may be collected from king John's magna carta, that originally all lords of manors, or barons, that held of the king in capite, had seats in the great council or parliament: till about the reign of that i 2 Inst. 5.

k 2 Inst. 5, 6.

1 cap. 14.

9 Ninth edition inserts here, "then."

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