refusing his clerk, the bishop must assign the cause. If the cause be
of a temporal nature and the fact admitted, (as, for instance,
outlawry) the judges of the king's courts must determine it's
validity, or, whether it be sufficient cause of refusal: but if the
fact be denied, it must be determined by a jury. If the cause be of a
spiritual nature, (as, heresy, particularly alleged) the fact if
denied shall also be determined by a jury; and if the fact be admitted
or found, the court upon consultation and advice of learned divines
shall decide it's sufficiency[f]. If the cause be want of learning,
the bishop need not specify in what points the clerk is deficient, but
only allege that he _is_ deficient[g]: for the statute 9 Edw. II. st.
1. c. 13. is express, that the examination of the fitness of a person
presented to a benefice belongs to the ecclesiastical judge. But
because it would be nugatory in this case to demand the reason of
refusal from the ordinary, if the patron were bound to abide by his
determination, who has already pronounced his clerk unfit; therefore
if the bishop returns the clerk to be _minus sufficiens in
literatura_, the court shall write to the metropolitan, to reexamine
him, and certify his qualifications; which certificate of the
arch-bishop is final[h].
[Footnote f: 2 Inst. 632.]
[Footnote g: 5 Rep. 58. 3 Lev. 313.]
[Footnote h: 2 Inst. 632.]
IF the bishop hath no objections, but admits the patron's
presentation, the clerk so admitted is next to be instituted by him;
which is a kind of investiture of the spiritual part of the benefice:
for by institution the care of the souls of the parish is committed to
the charge of the clerk. When a vicar is instituted, he (besides the
usual forms) takes, if required by the bishop, an oath of perpetual
residence; for the maxim of law is, that _vicarius non habet
vicarium_: and as the non-residence of the appropriators was the cause
of the perpetual establishment of vicarages, the law judges it very
improper for them to defeat the end of their constitution, and by
absence to create the very mischiefs which they were appointed to
remedy: especially as, if any profits are to arise from putting in a
curate and living at a distance from the parish, the appropriator, who
is the real parson, has undoubtedly the elder title to them. When the
ordinary is also the patron, and _confers_ the living, the
presentation and institution are one and the same act, and are called
a collation to a benefice. By institution or collation the church is
full, so that there can be no fresh presentation till another vacancy,
at least in the case of a common patron; but the church is not full
against the king, till induction: nay, even if a clerk is instituted
upon the king's presentation, the crown may revoke it before
induction, and present another clerk[i]. Upon institution also the
clerk may enter on the parsonage house and glebe, and take the tithes;
but he cannot grant or let them, or bring any action for them, till
induction.
[Footnote i: Co. Litt. 344.]
INDUCTION is performed by a mandate from the bishop to the
arch-deacon, who usually issues out a precept to other clergymen to
perform it for him. It is done by giving the clerk corporal possession
of the church, as by holding the ring of the door, tolling a bell, or
the like; and is a form required by law, with intent to give all the
parishioners due notice, and sufficient certainty of their new
minister, to whom their tithes are to be paid. This therefore is the
investiture of the temporal part of the benefice, as institution is of
the spiritual. And when a clerk is thus presented, instituted, and
inducted into a rectory, he is then, and not before, in full and
complete possession, and is called in law _persona impersonata_, or
parson imparsonee[k].
[Footnote k: Co. Litt. 300.]
THE rights of a parson or vicar, in his tithes and ecclesiastical
dues, fall more properly under the second book of these commentaries:
and as to his duties, they are principally of ecclesiastical
cognizance; those only excepted which are laid upon him by statute.
And those are indeed so numerous that it is impracticable to recite
them here with any tolerable conciseness or accuracy. Some of them we
may remark, as they arise in the progress of our enquiries, but for
the rest I must refer myself to such authors as have compiled
treatises expressly upon this subject[l]. I shall only just mention
the article of residence, upon the supposition of which the law doth
stile every parochial minister an incumbent. By statute 21 Hen. VIII.
c. 13. persons wilfully absenting themselves from their benefices, for
one month together, or two months in the year, incur a penalty of
5_l._ to the king, and 5_l._ to any person that will sue for the same:
except chaplains to the king, or others therein mentioned[m], during
their attendance in the houshold of such as retain them: and also
except[n] all heads of houses, magistrates, and professors in the
universities, and all students under forty years of age residing
there, _bona fide_, for study. Legal residence is not only in the
parish, but also in the parsonage house: for it hath been resolved[o],
that the statute intended residence, not only for serving the cure,
and for hospitality; but also for maintaining the house, that the
successor also may keep hospitality there.
[Footnote l: These are very numerous: but there are only two, which
can be relied on with any degree of certainty; bishop Gibson's
_codex_, and Dr Burn's ecclesiastical law.]
[Footnote m: Stat. 25 Hen. VIII. c. 16. 33 Hen. VIII. c. 28.]
[Footnote n: Stat. 28 Hen. VIII. c. 13.]
[Footnote o: 6 Rep. 21.]
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 8_l._ _per
annum_, or upwards, in the king's books, (according to the present
valuation[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. 3.
By consecration; for, as was mentioned before, when a clerk is
promoted to a bishoprick, all his other 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 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_. 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 by canonical censures, of which I am not to speak; or in
pursuance of divers penal statutes, which declare the benefice void,
for some nonfeasance or neglect, or else some malefeasance or crime.
As, for simony[s]; for maintaining any doctrine in derogation of the
king's supremacy, or of the thirty nine articles, or of the book of
common-prayer[t]; for neglecting after institution to read the
articles in the church, or make the declarations against popery, or
take the abjuration oath[u]; for using any other form of prayer than
the liturgy of the church of England[w]; 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[x]; in
all which and similar cases[y] the benefice is _ipso facto_ void,
without any formal sentence of deprivation.
[Footnote p: Cro. Car. 456.]
[Footnote q: Hob. 144.]
[Footnote r: Cro. Jac. 198.]
[Footnote s: Stat. 31 Eliz. c. 6. and 12 Ann. c. 12.]
[Footnote t: Stat. 1 Eliz. c. 1 & 2. and 13 Eliz. c. 12.]
[Footnote u: Stat. 13 Eliz. c. 12. 14 Car. II. c. 4. and 1 Geo. I. c.
6.]
[Footnote w: Stat. 1 Eliz. c. 2.]
[Footnote x: Stat. 1 W. & M. c. 26.]
[Footnote y: 6 Rep. 29, 30.]
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 real incumbent. Though there are what are called
_perpetual_ curacies, where all the tithes are appropriated, and no
vicarage endowed, (being for some particular reasons[z] 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 possession[a]: and that, if any rector or
vicar nominates a curate to the ordinary to be licenced, 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
sequester the profits of the benefice[b].
[Footnote z: 1 Burn. eccl. law. 427.]
[Footnote a: Stat. 28 Hen. VIII. c. 11.]
[Footnote b: Stat. 12 Ann. st. 2. c. 12.]
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[c]. 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 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-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[d] 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[e]. There are also a multitude of other petty parochial
powers committed to their charge by divers acts of parliament[f].
[Footnote c: In Sweden they have similar officers, whom they call
_kiorckiowariandes_. Stiernhook. l. 3. c. 7.]
[Footnote d: Stat. 1 Eliz. c. 2.]
[Footnote e: 1 Lev. 196.]
[Footnote f: See Lambard of churchwardens, at the end of his
_eirenarcha_; and Dr Burn, tit. _church, churchwardens, visitation_.]
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[g]. The parish clerk was formerly always 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
arch-deacon to swear him in, for the establishment of the custom turns
it into a temporal or civil right[h].
[Footnote g: 2 Roll. Abr. 234.]
[Footnote h: Cro. Car. 589.]
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 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. 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 honour are not of equal antiquity. Those now in
use are dukes, marquesses, earls, viscounts, and barons[b].
[Footnote a: 4 Inst. 363.]
[Footnote 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_.]
1. A _duke_, though it be with us, as a mere title of nobility,
inferior in point of antiquity to many others, yet it is superior to
all of them in rank; 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
[Anglo-Saxon: 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 that title, 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 same 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
afterwards by her successor, who was remarkably prodigal of honours,
in the person of George Villiers duke of Buckingham.
[Footnote c: Camden. Britan. _tit. ordines_.]
[Footnote d: This is apparently derived from the same root as the
German [Fraktur: hertzogen], the antient appellation of dukes in that
country. Seld. tit. hon. 2. 1. 22.]
[Footnote e: Camden. Britan. _tit. ordines_. Spelman. _Gloss._ 191.]
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:
as, in particular, were the marches of Wales and Scotland, while 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[f].
[Footnote f: 2 Inst. 5.]
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[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. 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 all writs, and commissions, and other formal
instruments, the king, when he mentions any peer of the degree of an
earl, always 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 allied to
every earl 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.
[Footnote g: _Ibid._]
[Footnote h: Bracton. _l._ 1. _c._ 8. Fleta. _l._ i. _c._ 5.]
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].
[Footnote i: 2 Inst. 5.]
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 other titles[k]. 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 does not hold universally,
that all peers are barons. The original and antiquity of baronies has
occasioned great enquiries among our English antiquarians. 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_[l], 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
honor, by conferring it on divers persons by his letters patent[n].
[Footnote k: 2 Inst. 5, 6.]
[Footnote l: _cap._ 14.]
[Footnote m: Gilb. hist. exch. c. 3. Seld. tit. of hon. 2. 5. 21.]
[Footnote n: 1 Inst. 9. Seld. _Jan. Angl._ 2. Sec. 66.]
HAVING made this short enquiry into the original of our several
degrees of nobility, I shall next consider the manner in which they
may be created. The right of peerage seems to have been originally
territorial; that is, annexed to lands, honors, castles, manors, and
the like, the proprietors and possessors of which were (in right of
those estates) allowed to be peers of the realm, and were summoned to
parliament to do suit and service to their sovereign: and, when the
land was alienated, the dignity passed with it as appendant. Thus the
bishops still sit in the house of lords in right of succession to
certain antient baronies annexed, or supposed to be annexed, to their
episcopal lands[o]: and thus, in 11 Hen. VI, the possession of the
castle of Arundel was adjudged to confer an earldom on it's
possessor[p]. But afterwards, when alienations grew to be frequent,
the dignity of peerage was confined to the lineage of the party
ennobled, and instead of territorial became personal. Actual proof of
a tenure by barony became no longer necessary to constitute a lord of
parliament; but the record of the writ of summons to them or their
ancestors was admitted as a sufficient evidence of the tenure.
[Footnote o: Glanv. _l._ 7. _c._ 1.]
[Footnote p: Seld. tit. of hon. b. 2. c. 9. Sec. 5.]
PEERS are now created either by writ, or by patent: for those who
claim by prescription must suppose either a writ or patent made to
their ancestors; though by length of time it is lost. The creation by
writ, or the king's letter, is a summons to attend the house of peers,
by the stile and title of that barony, which the king is pleased to
confer: that by patent is a royal grant to a subject of any dignity
and degree of peerage. The creation by writ is the more antient way;
but a man is not ennobled thereby, unless he actually takes his seat
in the house of lords: and therefore the most usual, because the
surest, way is to grant the dignity by patent, which enures to a man
and his heirs according to the limitations thereof, though he never
himself makes use of it[q]. Yet it is frequent to call up the eldest
son of a peer to the house of lords by writ of summons, in the name of
his father's barony: because in that case there is no danger of his
children's losing the nobility in case he never takes his seat; for
they will succeed to their grand-father. Creation by writ has also one
advantage over that by patent: for a person created by writ holds the
dignity to him _and his heirs_, without any words to that purport in
the writ; but in letters patent there must be words to direct the
inheritance, else the dignity enures only to the grantee for life[r].
For a man or woman may be created noble for their own lives, and the
dignity not descend to their heirs at all, or descend only to some
particular heirs: as where a peerage is limited to a man, and the
heirs male of his body by Elizabeth his present lady, and not to such
heirs by any former or future wife.
[Footnote q: Co. Litt. 16.]
[Footnote r: Co. Litt. 9. 16.]