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preferments are void the instant that he is consecrated. But there is a method, by the favour of the crown, of holding such livings in commendan. Commenda, or ecclefia 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 consenting to the same; and this is the same to him as institution and induction are to another clerk 9. 4. By resignation. But this is of no avail, till accepted by the ordinary; into whose hands the resignation must be made'. By deprivation; either, first, by sentence declaratory in the ecclesiastical courts, for fit and fulficient causes allowed by the common law; such as attainder of treason or felony s, or conviction of other infae mous crime in the king's courts; for herefy, infidelity', gross immorality, and the like: or, fecondly, in pursuance of die vers penal statutes, which declare the benefice void, for some nonfeasance or neglect, or else foine malefearance 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 articles in the church, or make the declarations againit popery, or take the abjuration oath • ; for using any other form of prayer than the liturgy of the church of England w; or for absenting himself fixty days in one year from a benefice belonging to a popith patron, to which the clerk was presented by either of the universities *; in all which and similar cases y the benefice is ipfo facto void!, without any formal sentence of deprivation.

VI. A CURATE is the lowest degree in the church; being in the fame itate that a vicar was formerly, an officiating tem4 Hob. 144.

w Stat. 13 Eliz. c. 12. 14. Car. II, i Cro. Jac. 108.

6. 4. : Geo. I. 6. 6. Dyer. 108. Jenk. 210.

w Stat. 1 Eliz. c. 2. • Fitz. Alr. f. Trial. 54.

* Staf. 1 W. & M. c. 26. e Stat. 31 Eliz. c.6. 12 Ann.c. 12. y 6 Rep. 29, 30. Sca. 1 Eliz. c. . 2. s3 Eliz ... 2.

porary

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 some particular reasons 2 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 it's vacancy shall be paid such 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 poffessiona: and that, if any rector or vicar nominates a curate to the ordinary to be licenced to serve the cure in his absence, the ordinary shall settle his stipend under his hand and seal, not exceeding 50 l. per annum, nor less than 20 l. and on failure of payment may sequefter 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 assist the ecclefiaftical jurisdiction, 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 sometimes 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 some 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 acion 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

2 1 Burn. eccl. law. 427.
a Stat. 28 Hen. VIII. C. II.

Stat. 12 Arn. it. 2. c. 12.

c In Sweden they have fimilar offi. cers, whom they call kiorckiowariandes. Stiernhook, 1.3.6.7.

yard,

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 levy " a fhilling forfeiture on all such 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 assault or trespasso. 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 man

damus to the arch-deacon to swear him in, for the establish· ment of the custom turns it into a temporal or civil right .

d Stat. 1 Eliz. c. 2. e 1 Lev. 196.

f See Lambard of churchwardens, at the end of his cironarcba; and Dr

Burn, tit. church, churckwardens, vie
fitations.

g 2 Roll. Abr. 234.
A Cro. Car. 589.

CHAPTER THE TWELFTH.

OF THE CIVIL STATE.

T HE lay part of his majesty's subjects, or such of the

I 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 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 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 fupreme branches of the legislature, I have before sufficiently spoken : we are here to consider them according to their feveral degrees, or titles of honour.

,

All degrees of nobility and honour 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, marquesses, earls, viscounts and barons b.

a 4 Inft. 363.

For the original of these titles on the contincnt of Europe, and their sub.

13

sequent introduction into this island, see
Mr Selden's titles of bonour.

J. A duke

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· 1. A duke, though he be with us, in respect 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 o. Among the Saxons the Latin name of dukes, duces, is very frequent, and sige gified, as among the Romans, the commanders or leaders of their armies, whom in their own language they called pererogad; 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 revired 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, inarche, a limit: such as, in particular, were the marches of Wales and Scotland, while each continued to be an encmy's country. The persons, who had command there, were, called lords marchers, or marqueses; 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 f.

c Camden. Britan. rit. ordires. country. Seld. tit. hon. 2, 1. 12.

This is apparently derived from e Camden. Britan, tir, Grdires. Spolo tbe same root as the German bertzog, man. Gl. 191, the antient appellation of dukes in that 2 Init. 5. VOL. I,

Cc

3. An

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