THUS much of the clergy, properly so called. There are alfo certain inferior ecclefiaftical officers of whom the common law takes notice; and that, principally, to affift the ecclesiastical 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 custom directs. They are taken, in favour of the church, to be for fome purpofes 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 e In Sweden they have fimilar officers, whom they call kiorckiowariandes. Stiernhook. l. 3. c. 7. he fhall fupport him till he fhall 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 defcribed by the canon, or a certificate from fome rector or vicar, promifing to employ the candidate for orders bona 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 caufe, the curate recovered, in an action of affumpfit, the fame falary for the time after his difmif fion 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 thefe titles are only binding upon those who give them, while they continue incumbents in the church for which fuch curate is appointed. Doug. 137. No curate or minifter ought to perform the duties of any church before he has obtained a licence from the bishop. 2 Burn, 58. The bishop cannot increase the falary of the curate, where there is a fpecific agreement between the incumbent and the curate. Freem. 70. 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- [395] 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 oflice 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 allo 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 juftify 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 also 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 fuch custom appears, the court of king's bench will grant a mandamus to the arch-deacon to swear him in, for the establishment of the custom turns it into a temporal or civil right ". d Stat. 1 Eliz. c. 2. e I Lev. 196. f See Lambard of churchwardens, at the end of his eirenartba; and Dr Burn, tit. church, churchwardens, vis 82 Roll. Abr. 234. b Cro. Car. 589. CHAPTER THE TWELFTH. OF THE CIVIL STATE. THE 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 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 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 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 inftitute 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 fub fequent introduction into this island, fee Mr. Selden's titles of bonour. . 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 fignified, as among the Romans, the commanders or leaders of their armies, whom in their own language they called peperozad; 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 themfelves 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 (1), in the eleventh year of his reign created his fon, Edward the black prince, duke of Cornwall: and many, of the royal family efpecially, 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 person 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 feparated Camden. Britan. tit. erdines. This is apparently derived from the fame root as the German hertzog, the antient appellation of dukes in that country. Seld. tit. hon. 2. f. 12. e Camdep. Britan. tit. ordines. Speka man, Gloff. 191. (1) This reafon is not very fatisfactory, and, in fact, this order of nobility was created before Edward affumed the title of king of France. Dr. Henry, in his excellent History of England, informs us, that "about a year before Edward III. affumed the title of king of France, he introduced a new order of nobility, "to inflame the military ardour and ambition of his earls and "barons, by creating his eldeft fon prince Edward duke of "Cornwall. This was done with great folemnity in full parlia"ment at Westminster, March 17, A. D. 1337." Hen. Hift. 8 vol, 135. 8vo. edition. See ante, p. 224, note 10. Book I. by 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 ene my's country. The perfons, who had command there, were called lords marchers, or marqueffes; whose 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'. [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, 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 corles, which, according to Camden, fignified the fame in their Janguage. In Latin they are called comites (a title first 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 fometime called counts of 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 be come a mere title, they having nothing to do with the govern ment of the county; which, as has been more than once obferved, is now entirely devolved on the sheriff, 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, " trufty and well beloved cousin !” an appellation as antient as the reign of Henry IV: who be ing either by his wife, his mother, or his fifters, 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 ufage has defcended to his fucceffors, though the reafon has long ago failed. f 2 Inft. 5. g Britan. tit. ordines. 13 h Bracton. !. 1, c. 8. Flẹt. /. 1. c. §. 4. THE |