not only for serving the cure, and for hospitality; but also for maintaining the house, that the successor also may keep hospitality there: and, if there be no parsonage house, it hath been holden that the incumbent is bound to hire one, in the same or some neigbouring parish, to answer the purposes of residence. For the more effectual promotion of which important duty among the parochial clergy, a provision is made by the statute 17 Geo. III, c. 53, for raising money upon ecclesiastical benefices, to be paid off by annually decreasing instalments, and to be expended in rebuilding or reparing the houses belonging to such benefices. We have seen that there is but one way whereby one may become a parson or vicar: there are many ways by which one may cease to be so. 1. By death. 2. By cession, in taking another benefice. For, by statute 21 Hen. VIII, c. 13, if any one having a benefice of 8l. per annum, or upwards (according to the present valuation in the king's books) (p) accepts any other, the first shall be adjudged void unless he obtains a dispensation which no one is entitled to have, but the chaplains of the king and others therein mentioned, the brethren and sons of lords and knights, and doctors and bachelors of divinity and law admitted by the universities of this realm. And a vacancy thus made, for want of a dispensation, is called cession, (20) 3. By consecration; for, as was mentioned before, when a clerk is promoted to a bishoprick, all his other *pre- [*393] ferments are void the instant that he is consecrated. But there is a method by the favour of the crown, of holding such livings in commendam. Commenda, or ecclesia 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. (21) 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. (q) 4. By resignation. But this is of no avail, till accepted by the ordinary; into whose hands the resignation must be made. (r) 5. By deprivation; either, first by sentence declaratory in the ecclesiastical court, for fit and sufficient causes allowed by the common law; such as attainder of treason or felony, (s) or conviction of other infamous crime in the king's courts; for heresy, infidelity, (t) gross immorality, and the like; or, secondly, in pursuance of divers penal statutes, which declare the benefice void, for some nonfeasance or neglect, or else some malfeasance or crime: as, for simony; (u) for maintaining any doctrine in derogation of the king's supremacy, or of the thirty-nine articles, or the book of common-prayer; (v) for neglecting after institution to read the liturgy and articles in the church, or make the declarations against popery, or take the abjuration oath; (w) for using any other form of prayer than the liturgy of the church of England; (x) or for absenting himself sixty days in one year from a benefice belonging to a popish patron, to which the clerk was presented by either of the universities; (y) in all which, and similar cases, (2) the benefice is ipso facto void, without any formal sentence of deprivation. VI. A curate is the lowest degree in the church; being in the same state that a vicar was formerly, an officiating temporary minister, instead of the proper (p) Cro. Car. 456. (s) Dyer, 108. Jenk. 210. (9) Hob. 144. (r) Cro. Jac. 198. (t) Fitz. Abr. tit. Trial, 54. (u) Stat. 31 Eliz. c. 6. 12 Ann, c. 12. 13 Eliz. c. 12. (w) Stat. 13 Eliz. c. 12. 14 Car. II, c 4. 1 Geo. I, c. 6. (y) Stat. 1 W. and M. c. 26. (z) 6 Rep. 29. 30. (20) By s. 11 of 1 and 2 Vic. c. 106, the acceptance of preferment by any spiritual person holding any other preferment or benefice, vacates the former preferment. In general two livings cannot now be held by the same person, unless the benefices be within ten miles of each other, or, if the population of one such benefice exceed 3000, or their joint yearly value exceed 1000l., unless the yearly value of one be less than 150l. and its population more than 2000, in which case the two may be held jointly. See statutes above mentioned. (21) These commendams are now abolished. Statutes 6 and 7 Wm. IV, c. 77. VOL. I-32 249 incumbent. Though there are what are called perpetual curacies, [*394] where all the tithes are appropriated, and no vicarage endowed, (being for some particular reasons (a) 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 its 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 possession: (b) 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 shall settle his stipend under his hand and seal, not exceeding 50l. per annum, nor less than 201. and on failure of payment may sequester the profits of the benefice. (c) (22) Thus much of the clergy, properly so called. There are also certain inferior ecclesiastical officers of whom the common law takes notice; and that principally to assist the ecclesiastical 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. (d) They are sometimes appointed by the minister, sometimes by the parish, sometimes by both together, as custom directs. (23) 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 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, churchyard, [*395] &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. (24) They are also joined with the overseers in the care and maintenance of the poor. They are to levy (e) a shilling 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 trespass. (f) (25) There are also a multitude of other petty parochial powers committed to their charge by divers acts of parliament. (g) 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.(h) (26) The par (b) Stat. 28 Hen. VIII, c. 11. (c) Stat. 12 Ann. st. 2, c. 12. (a) 1 Burn's Eccl. Law, 427. (d) In Sweden they have similar officers, whom they call kiorckiowariandes. Stiernhook, L. 3, c. 7. (e) Stat. 1 Eliz. c. 2. (f) 1 Lev. 196. (g) See Lambard of Churchwardens, at the end of his Eirenarcha; and Dr. Burn, tit. Church, Churchwardens, Visitations. (h) 2 Roll. Abr. 234. (22) Upon this general subject see statutes 1 and 2 Vic. c. 106, and 31 and 32 Vic. c. 117. (23) [2 Atk. 650; 2 Stra. 1246; 1 Vent. 267. But where there is no such custom, the election must be according to the directions of the canons of the church (can. 89, 90), which direct that all churchwardens or quest men in every parish shall be chosen by the joint consent of the minister and the parishioners, if it may be; but if they cannot agree upon such choice, then the minister is to choose one, and the parishioners another; and without such joint or several choice, none shall take upon themselves to be churchwardens. Gibs. Cod. 241; 1 Stra. 145; 2 id. 1246.] (24) The payment of these is no longer compulsory. Statutes 31 and 32 Vic. c. 109. (25) See Hawe v. Planner, 1 Saund. 13; Burton v. Henson, 10 M. and W. 105. (26) These are removable for wilful neglect or misbehaviour under statute 7 and 8 Vic. c. 59. The parish clerk, if in orders, is licensed and removable in like manner as a stipendiary curate. Ibid. A woman may hold the office of sexton. Str. 1114. ish 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. (i) CHAPTER XII 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 nobleman 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. (1) 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: (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) (2) *1. A duke, though he be with us, in respect of his title of nobility, [397] 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. (c) 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 henecoza; (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 (i) Cro. Car. 589. (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. (c) Camden, Britan. tit. Ordines. (d) This is apparently derived from the same root as the German hertzogen. the ancient appellation of dukes in that country. Seld. tit. Hon. 2, 1, 12. (1) A decided jealousy of titles, as inconsistent with our institutions and dangerous to lib erty, has always appeared in America. By the constitution of the United States, both the national and state governments are forbidden to grant titles of nobility. Art. 1, §§ 9 and 10. And no person holding any office of profit or trust under the United States, can accept an office or title of any kind, from any king, prince or foreign state, unless by the consent of congress. Art. 1, § 9. Any alien possessing a foreign title, or belonging to an order of nobility, is required to renounce the same before being admitted to citizenship. Act of Congress of April 14, 1802, 1 Story's Laws, 850. Perhaps the jealousy spoken of was never more forcibly illustrated than in the debates in congress at the time the government was first put in operation, respecting the proper formula of address to the president. See 4 Hildreth's U. S. 59; Annals of Congress, vol. 1, pp. 247, 318; Benton's Abridgement of Debates, vol. 1, p. 11, et seq. (2) See further upon this subject Hallam's Middle Ages, ch. 2, part 1. 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, (3) 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, (e) the whole order became utterly extinct; but it was revived about fifty years aftewards by her successor, who was remarkably prodigal of honours, in the person of George Villers, 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: such as, in particular, were the marches of Wales and Scotland, while each continued to be an enemy's country. 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. (f) [ *398] *3. An earl is a title of nobility so ancient, that its 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, (g) 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 enim tales sibi associant." (h) After the Norman conquest, they were for some time 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. The name of earls or comites 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 styles him "trusty and well-beloved cousin," an appellation as ancient as the reign of Henry IV, who being either by his wife, his mother, or his sisters, actually related or allied to every earl then in the kingdom, artfully and constantly acknowledged 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. (i) 5. A baron's is the most general and universal title of nobility; for originally every one of the peers of superior rank *had also a barony annexed to his [*399] other titles.(k) (4) But it hath sometimes happened that, when an an (e) Camden, Britan. tit. Ordines. Spelman, Gloss. 191. (f) 2 Inst. 5. (h) Bracton, l. 1, c. 8. Flet. l. 1, c. 5. (i) 2 Inst. 5. (k) 2 Inst. 5, 6. (g) Britan. tit. Ordines. (3) [Com. Dig. Dignity, B. 2; 9 Co. 49, a. This order of nobility was created before Edward assumed the title of king of France. Dr. Henry, in his excellent history of England, informs us, that "about a year before Edward III assumed the title of king of France, he introduced a new order of nobility, to inflame the military ardor and ambition of his earls and barons, by creating his eldest son, Prince Edward, duke of Cornwall. This was done with great solemnity in full parliament at Westminster, March 17. A. D. 1337."] (4) [At the time of the conquest, the temporal nobility consisted only of earls and barons; and by whatever right the earls and the mitred clergy before that time might have attended the great council of the nation, it abundantly appears that they afterwards sat in the feudal parliament in the character of barons. It has been truly said, that, for some time after the cient 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. (5) It may be collected from King John's magna carta, (1) 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 prince the conflux of them became so large and troublesome, that the king was obliged to divide them, and summon only the greater barons in person; leaving the small ones to be summoned by the sheriff, and, as it is said, to sit by representation in another house; which gave rise to the separation of the two houses of parliament. (m) By degrees the title came to be confined to the greater barons, or lords of parliament only; and there were no other barons among the peerage but such as were summoned by writ, in respect of the tenure of their lands or baronies, till Richard the Second first made it a mere title of honour, by conferring it on divers persons by his letters patent. (n) Cap. 14 (m) Gilb. Hist. of Exch. c. 3. Seld. Tit. of Hon. 2, 5. 21. (n) 1 Inst. 9. Seld. Jan. Angl. 2, § 66. conquest, wealth was the only nobility, as there was little personal property at that time, and a right to a seat in parliament was entirely territorial, or depended upon the tenure of landed property. Ever since the conquest, it is true that all land is held either immediately or mmediately of the king; that is, either of the king himself, or of a tenant of the king, or it might be after two or more subinfeudations. And it was also a general principle in the feudal system, that every tenant of land, or land owner, had both a right and obligation to attend the court of his immediate superior. Hence every tenant in capite, i. e., the tenant of the king, was at the same time entitled and bound to attend the king's court or parliament, being the great court baron of the nation. It will not be necessary here to enlarge farther upon the original principles of the feudal system, and upon the origin of peerage; but we will briefly abridge the account which Selden has given in the second part of his Titles of Honor, c. 5, beginning at the 17th section, being perhaps the clearest and most satisfactory that can be found. He divides the time from the conquest into three periods: 1. From the conquest to the latter end of the reign of King John. 2. From that time to the 11th of Richard II. 3. From that period to the time he is writing, which may now be extended to the present time. In the first period, all who held any quantity of land of the king had, without distinction, a right to be summoned to parliament; and this right being confined solely to the king's tenants, of consequence all the peers of parliament during that period sat by virtue of tenure and a writ of summons. In the beginning of the second period, that is, in the last year of the reign of King John, a distinction, very important in its consequences (for it eventually produced the lower house of parliament), was introduced, viz.: a division of these tenants into greater and lesser barons : for King John, in his magna charta, declares faciemus summoneri archiepiscopos, episcopos, abates, comites et majores barones regni sigillatim perliteras nostras, et præterea faciemus summoneri in generali per vicecomites et ballivos nostros omnes alios, qui in capite tenent de nobis ad certum diem, &c. It does not appear that it ever was ascertained what constituted a greater baron, and it probably was left to the king's discretion to determine; and no great inconvenience could have resulted from its remaining indefinite, for those who had not the honor of the king's letter would have, what in effect was equivalent, a general summons from the sheriff. But in this second period, tenure began to be disregarded, and persons were summoned to the parliament by writ, who held no lands of the king. This continued to be the case till the 11th of Richard II, when the practice of creating peers by letters patent first commenced. In that year John de Beauchamp, steward of the household to Richard II, was created by patent Lord Beauchamp, baron of Kidderminster in tail male; and since that time peerages have been created both by writ and patent, without any regard to tenure or estate. ] (5) [Lords of manors, who had granted to others, by subinfeudation, part of that estate which they held of the king, would necessarily be barons; but it does not follow conversely that a baron was of necessity a lord of a manor, for the king's tenant, who retained all the estate granted him, and alienated no part of it, would certainly be as complete a baron as a lord of a manor. |