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preferments are void the inftant that he is confecrated. But there is a method, by the favour of the crown, of holding fuch livings in commendam. Commenda, or ecclefia commendata, is a living commended by the crown to the care of a clerk, to hold till a proper paftor is provided for it. This may be temporary for one, two, or three years; or perpetual: being a kind of difpenfation 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 fome other patron confenting to the fame; and this is the fame to him as inftitution and induction are to another clerk 9. 4. By refignation. But this is of no avail, till accepted by the ordinary; into whofe hands the refignation must be made. By deprivation; either, first, by fentence declaratory in the ecclefiaftical courts, for fit and fufficient caufes allowed by the common law; fuch as attainder of treafon or felony f, or conviction of other infa mous crime in the king's courts; for herefy, infidelity, grofs immorality, and the like: or, fecondly, in purfuance of divers penal ftatutes, which declare the benefice void, for fome nonfeafance or neglect, or else fome malefcafance 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 inftitution 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; or for abfenting himself sixty days in one year from a benefice belonging to a popifh patron, to which the clerk was prefented by either of the univerfities; in all which and fimilar cafes 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 ftate that a vicar was formerly, an officiating tem

q Hob. 144.

Cro. Jac. 198.

f Dyer. 108. Jenk. 210.

• Fitz. Abr. t. Trial. 54.

Stat. 31 Eliz. c. 6. 12 Ann. c. 12.

y Stat. 1 Eliz. e. 1.& 3. 13 Eliz 6.12.

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

c. 4. 1 Geo. I. c. 6.

w Stat. 1 Eliz. c. 2.

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

y 6 Rep. 29, 30.

porary

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porary minifter, inftead 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, instead thereof, such perpetual curate is appointed by the appropriator. With regard to the other species of curates, they are the objects of fome particular ftatutes, which ordain, that such as ferve a church during it's vacancy shall 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 shall fettle his ftipend under his hand and feal, not exceeding 50l. per annum, nor lefs than 20. and on failure of payment may fequefter the profits of the benefice".

THUS much of the clergy, properly fo called. There are also certain inferior ecclefiaftical officers of whom the common law takes notice; and that, principally, to aflift the ecclefiaftical jurisdiction, 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 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 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

21 Burn. eccl. law. 427.

a Stat. 28 Hen. VIII. c. 11. b Stat. 12 Ann. it. 2. c. 12.

In Sweden they have fimilar offi. cers, whom they call kiorekiowariandes. Stiernhook. 1. 3. c. 7.

yard,

yard, &c, they have no fort of intereft therein; but if any damage is done thereto, the parfon only or vicar fhall 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 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 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 affault or trefpafs. There are alfo a multitude of other petty parochial powers committed to their charge by divers acts of parliament §.

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 chofen by the inhabitants; and if such custom appears, the court of king's bench will grant a mondamus to the arch-deacon to fwear him in, for the establishment of the custom turns it into a temporal or civil right .

d Stat. Eliz. c. 2.

• 1 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.

OF

CHAPTER THE TWELFTH.

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 moft 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 ftates: 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 fpoken: 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: and he may inftitute what new titles he pleases. Hence it is that all degrees of nobility are not of equal antiquity. Those now in use are dukes, marqueffes, earls, viscounts and barons b.

a 4 Inft. 363.

For the original of thefe titles on the continent of Europe, and their fub13

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

I. A duke

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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 fuperior 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 perezogad; 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 themfelves continuing for many generations dukes of Normandy, they would not honour any fubjects 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 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 Elizabeth, 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 perfon of George Villiers duke of Buckingham.

2. A marquefs, marchio, is the next degree of nobility. His office formerly was (for dignity and duty were never separatedby our ancestors) to guard the frontiers and limits of the kingdom; which were called the marches, from the teutonic word, marche, a limit: fuch as, in particular, were the marches of Wales and Scotland, while each continued to be an encmy'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 marquefs of Dublin, by Richard II in the eighth year of his reign f.

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