and is called a commenda retinere (38). There is alfo 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 1. 4. By refignation. But this is of no avail, till accepted by the ordinary; into whofe hands the refignation must be made' (39). 5 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, or conviction of other infa mous crime in the king's courts; for herefy, infidelity, grofs immorality, and the like: or, fecondly, in pursuance of divers penal statutes, which declare the benefice void, for fome nonfeafance or neglect, or else some malefeafance or crime; as, for fimony'; for maintaining any doctrine in derogation s Fitz. Abr. t. Trial. 54.

q Hob. 144.

Cro. Jac. 198.

f Dyer. 108. Jenk. 210.

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

(38) Thefe commendams are now feldom or never granted to any but bishops; and in that cafe, the bishop is made commen. datory of the benefice, while he continues bishop of fuch a diocese, as the object is to make it an addition to a small bifhoprick; and it would be unreasonable to grant it to a bishop for his life, who might be tranflated afterwards to one of the richest fees. See an account of the proceedings in the great cafe of commendams, Hob. 140. and Collier's Ec. Hift. 2 vol. p. 710.

(39) It seems to be clear, that the bishop may refuse to accept a refignation, upon a fufficient caufe for his refufal; but whether he can merely at his will and pleasure refuse to accept a refignation without any caufe, and who fhall finally judge of the fufficiency of the cause, and by what mode he may be compelled to accept, are questions undecided. In the cafe of the bishop of London and Fytche, the judges in general declined to anfwer whether a bishop was compellable to accept a refignation: one thought he was com pellable by mandamus, if he did not fhew fufficient caufe; and another obferved, if he could not be compelled, he might prevent any incumbent from accepting an Irish bishoprick, as no one can accept a bishoprick in Ireland till he has refigned all his benefices in England. But ford Thurlow feemed to be of opinion that he could not be compelled, particularly by mandamus, from which there is no appeal or writ of error. See 3 Burn, 304. and the opinions of the judges in Cunningham's Law of Simony, though ill reported.

of

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 against popery, or take the abjuration oath "; for using any other form of prayer than the liturgy of the church of England"; or for absenting himself sixty days in one year from a benefice belonging to a popish patron, to which the clerk was prefented by either of the universities *; 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 state that a vicar was formerly, an officiating temporary minifter, inftead of the proper incumbent. Though there are what are called perpetual curacies, where all the [394] tithes are appropriated, and no vicarage endowed, (being for fome particular reafons exempted from the statute of Hen. IV.) but, instead thereof, fuch perpetual curate is appointed by the appropriator. With regard to the other fpecies of curates, they are the objects of fome particular ftatutes, which ordain, that fuch as ferve a church during it's vacancy fhall be paid fuch stipend 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 2: and that, if any rector or vicar nominates a curate to the ordinary to be licensed to ferve the cure in his abfence, the ordinary fhall fettle his ftipend under his hand and feal, not exceeding 50l. per annum, nor lefs than 207. and on failure of payment may fequefter the profits of the benefice ( 40).

v Stat. 1 Eliz. c. 1 & 2. 13 Eliz. c. 12. Stat. 13 Eliz. c. 12. 14 Car. II.

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

w Stat. 1 Eliz. c. 2.

* Stat. W. & M. c. 26.

y 6 Rep. 29, 30.

z 1 Burn. eccl. law. 427.

a Stat. 28 Hen. VIII. c. II.
b Stat. 12 Ann. ft. 2. c. 12.

(40) It was provided in 1603, by canon 33, that if a bishop ordains any perfon not provided with fome ecclefiaftical preferment, except a fellow or chaplain of a college, or a mafter of arts of five years ftanding, who lives in the univerfity at his own expence, he fhall fupport him till he fhall prefer him to a living. 3 Burn. Ec. L. 28. And the bifhops, before they confer orders, require either proof of such a title as is defcribed by the canon, or a cer

L14

tificate

7

THUS much of the clergy, properly fo called. There are alfo certain inferior ecclefiaftical officers of whom the common law takes notice; and that, principally, to affift the ec clefiaftical jurifdiction, 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 minister, fometimes by

c In Sweden they have fimilar officers, whom they call kiorekiowariandes, Stiernhook. . 3. c. 7.

tificate from fome rector or vicar, promifing to employ the candi date 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, Weltminster, 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 difmiffion 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 these titles are only binding upon thofe who give them, while they continue incumbents in the church for which fuch curate is appointed. Doug. 137.

The 36 Geo. III. c. 83. has given a power to the bishop or ordinary to grant an allowance not exceeding 75. to any curate, who fhall be employed by any rector or vicar, or by any curate or incumbent of any church or chapel, which has been augmented by queen Ann's bounty, or by the curate or incumbent of any per petual curacy, although it has not been fo augmented.

And where a rector or vicar does not refide four months in the year at leaft, the bifhop or ordinary may grant the use of the rectory or vicarage houfe with the garden and ftable for one year to the curate for his actual refidence in it. Or he may grant him 157. a year in lieu of the rectory or vicarage houfe. The grant of the house he has power to renew, and at any time he may revoke it, and he may annex to it fuch conditions as he fhall think reasonable. If the curate refufes to give up poffeffion at the determination of the grant, he fhall forfeit to his rector or vicar all the ftipend, which fhall be or become due to him, and 50l. befides. And the ordinary has power to licence any curate, who fhall be employed by any rector, vicar, or other incumbent of a parish church or chapel, although no nomination fhall have been made to him for that purpofe; or he may revoke his licence, or remove any curate for a reafonable caufe, but fubject to an appeal to the archbishop of the province, to be determined in a fummary manner.

the

the parish, fometimes by both together, as custom 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 parifh. 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 thofe 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 interest therein; but if any damage is done thereto, the parfon only or vicar fhall have the action. Their office 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 alfo 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 trespass. There are alfo a multitude of other petty parochial powers committed to their charge by divers acts of parliament f.

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 so 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 fwear him in, for the establishment of the custom turns it into a temporal or civil right ".

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 diftinct ftates, the civil, the military, and the maritime.

THAT part of the nation which falls under our first and most comprehenfive divifion, the civil ftate, includes all or ders 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 states: 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 soldier, or a feaman.

THE Civil state 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 spoken: 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. Those now in ufe are dukes, marqueffes, earls, viscounts, and barons ".

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

а 4

Inft. 363.

b For the original of thefe titles on the continent of Europe, and their fub.