pointed by the minister, sometimes by the parish, sometimes by both together, as custom directs. 45 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 [395] other real property, as the church, churchyard, &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. 46 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. (ƒ) 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 very frequently in holy orders, d Stat. 1 Eliz. c. 2. f See Lambard of churchwardens, at the end dens, visitations. e 1 Lev. 196. (1 Saund. 13. S. C.) of his eirenarcha; and Dr. Burn, tit. church, churchwarg 2 Roll. Abr. 254. respect to who are exempt from serving the office, all peers of the realm are, Gibs. 215.; so are all clergymen, 6 Mod. 140.; members of parliament, Gibs. Cod. 215.; practising barristers and attornies, Com. Dig. tit. Attorney (B. 16.): clerks in court, 1 Ro. Rep. 368., but see Mar. 30. ; physicians, surgeons, apothecaries, aldermen, dissenting teachers, prosecutors of felons, militiamen, ante 355, as to constables. No person living out of the parish can be chosen churchwarden, Gibs. 215. 1 Hagg. Rep. 10.; but semble a non-resident partner in a house of trade is not exempt, if the house of business be in the parish. Hagg. Rep. 379. 1 B. & Cres. 178. 123. 2 B. & C. 322. Aliens, Papists, Jews, infants, and persons convicted of felony, are disqualified. 1 Hagg. Rep. 10. Chitty. (45) 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 questmen in every parish shall be chosen by the joint consent of the minisfer 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 Stra. 1246. If the parson or vicar who has by custom a right to choose one churchwarden be under sentence of deprivation, the right of choosing both results to the parishioners. Carth. 118. The parson cannot intermeddle in the choice of that churchwarden which it is right of the parishioners by custom to elect. 2 Stra. 1045. Under the word parson a curate is included. 2 Stra. 1246. Chitty. (46) They are appointed overseers by 43 Eliz. c. 2. They are anciently the sole overseers of the poor. 1 Nol. 4 ed. 2. note. The 55 Geo. III. c. 137. s. 6. prohibits churchwardens, overseers, and persons having the management of the poor, from being concerned in contracts, &c. for the supplying for their own profits goods, &c. for the use of the poor or workhouse, &c. under the heavy penalty of 100%., unless a certificate of two justices be obtained, &c. See the cases on this act, 2 Moore, 186. 8 Taunt. 239. S. C. 5 B. & A. 328. 1 B. & C. 77. S. C. 3 B. & A. 145. As to contracts by the churchwardens and overseers, for lodging or employing of the poor, see 45 Geo. III. c. 54, s. 1, 2. By 9 Geo. III. c. 37. churchwardens, for paying the poor otherwise than in lawful money, are to forfeit to the poor not less than 10s. nor more than 20s. Chitty. 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. (h) 47 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. 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. 2 Hence it (47) By 59 Geo. III. c. 134. s. 29. the clerk in every (new) church and chapel, built under the 58 Geo. III. c. 45. 59 Geo. III. c. 134, &c., shall be annually appointed by the minister. In general the office is for life, if he conducts himself properly, though the term for which he shall have it is not mentioned in his nomination. 2 Ld. Raym. 1507. 2 Salk. 536. The office is a temporal oue, and though appointed by the minister, if removed by him without sufficient cause, a mandamus will lie to restore him. Cowp. 370. See 2 Stra. 942. 1108. 1 Burr. 367. By can. 91, the clerk must be twenty years of age, known to the parson, vicar, or minister to be of honest conversation, and sufficient for his reading, writing, and also for his competent skill in singing, if it may be. Parish clerks, after having been duly chosen and appointed, are usually licensed by the ordinary, Johns. 204; and when they are licensed, they are sworn to obey the minister, Johns. 205. A mandamus will lie to compel the ordinary to admit and swear him. 2 Rol. Ab. 234. 3 Bac. Ab 531. As to the clerk's salary, see 3 Burn. E. L. tit. Parish Clerk. The parish clerk ought to be deprived by him that placed him in his office; and if he is unjustly deprived, a mandamus will lie to the churchwardens to restore him. 1 Vent. 148. The sexton is usually appointed by the minister, and receives his salary according to the custom of each parish. A woman may be a sexton, and may vote for one. Stra. 1114. A mandamus will lie to restore a sexton. 1 Vent. 153. 143 2 Lev. 18 And sextons, as parish clerks, are regarded by the common law as persons who have freeholds in their offices (but see 1 Stra. 115. 2 Peckw. 91); and therefore, though they may be punished, they cannot be deprived by ecclesiastical censures. 2 Roll. Ab. 234. See Cowp. 413. 1 T. R. 20. (1) See in general Com Dig. tit. Dignity, and Chitty Junior's Prerog. Cr. 108 to 118. (2) Com. Dig. Dignity, A. 12. Co. 81. Chitty. is that all degrees of nobility are not of equal antiquity. Those now in use are dukes, marquesses, earls, viscounts, and barons. (b) 3 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, among the Romans, the commanders or leaders of their armies, whom in their own language they called hepezoga; (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 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, (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. 4 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 Henry 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. (ƒ) 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 [398] the Saxons they are called caldormen, 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 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 hertzog, the ancient appellation of dukes in that country. Seld. tit. hon. 2. 1. 12. f 2 Inst. 5. h Bracton. 1. 1. c. 2. Flet. l. 1. c. 5. e Camden. Britan. tit. ordines. Spelman. Gloss. 191. (3) A superior degree of nobility does not extinguish the inferior. 2 Inst. 6 Com. Dig. Dignity, B. 6. (4) 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 ardour 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 Westminister, March 17, A. D. 1337." Hen. Hist. 8 vol, 135. 8vo. edition. Chitty. long retain that name themselves, though their shires are from thence called counties to this day. The name of earl or comites is now become a mere title, they having nothing to do with the government of the country; which, as has been more than once observed, is now entirely devolved on the sheriff, the earl's deputy, or vice-comes. 5 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 origi i 2 Inst. 5. (5) Ante 339. (6) Com. Dig. Dignity, B. 5. (7) Mr. Christian gives the following interesting note :-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 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 mediately 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 sys tem, 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 Honour, 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 hold 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, abbates, comites et majores barones regni sigillatim per literas nostras, et præterea faciemus summoneri in generali per vicecomites et ballivos nostros omnes alios, qui in capite tenent de nolis ad certum diem, &c. See Bl. Mag. Ch. Job. p. 14. 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 honour 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 Rich. II, when the practice of creating peers by letters patent first commenced. In that year John de Beauchamp, steward of the household to Rich. 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. The king's prerogative of creating peers by patent, may seem a great innovation, or a violation of the original principles of the system; yet it is one of those great changes which are pro nally 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 [399] ancient 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 have 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. It may be collected from king John's magna charta, (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 to 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) Having made this short inquiry 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, honours, castles, manors, and the like, the pro[400] prietors 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 ancient 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 its 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 him or his ancestors was admitted as a sufficient evidence of the tenure. 1 k 2 Inst. 5, 6. duced at the first by a gentle deviation from the former practice. For though this prerogative was not granted to the king by the express authority of parliament, yet it was obtained by its acquiescence: for I have been assured by Mr. Townshend, the Windsor herald, a gentleman well acquainted with this subject, that patents of nobility in ancient times generally stated, either that the patent was granted by the assent of parliament, or, if granted in the vacation, they stated such special reasons why the peer was created, as it might be presumed would afterwards meet with the approbation of the parliament. See further Comyn's Dig. Dignity, C. 4. (8) See in general Com. Dig. Dignity, C. Sullivan's Lectures, 190. & al. seq. Chitty Junior's Prerogatives of Crown, 109. |