VI. Of curates. self 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 (z), 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 incumbent. Though [ *394] *there are what are called perpetual curacies, 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(48) under his hand and seal, not exceeding 50l. per annum, nor less than 207., and on failure of payment may sequester the profits of the benefice (c) (49). (y) Stat. 1 W. & M. c. 26. (a) 1 Burn's Eccl. Law, 427. (48) The salaries of curates are regulated by the 53rd and the immediately following sections of the statute of 57 Geo. III. c. 99. (49) It was provided in 1603, by canon 33, that, if a bishop ordains any person not provided with some ecclesiastical preferment, except a fellow or chaplain of a college, or a master of arts of five years' standing, who lives in the university at his own expense, he shall support him till he shall prefer him to a living. (3 Burn's Ec. L. 28). And the bishops, before they confer orders, require either proof of such a title as is described by the ca (b) Stat. 28 Hen. VIII. c. 11. non, or a certificate from some rector or vicar, promising to employ the candidate for orders bond fide as a curate, and to grant him a certain allowance till he obtains some ecclesiastical preferment, or shall be removed for some fault. And in a case where the rector of St. Ann's, Westminster, gave such a title, and afterwards dismissed his curate without assigning any cause, the curate recovered, in an action of assumpsit, the same salary for the time after his dismission which he had received before. (Cowp. 437). And when the rector had vacated St. Ann's, by accepting the living of Rochdale, the 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. wardens. VII. Churchwardens are the guardians or keepers of the VII. Of churchchurch, 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. They are taken, in favour of the church, to be for some purposes a kind of corporation (50) 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 (51). 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 (d) In Sweden they have similar officers, whom they call kiorckiowariandes, (Stiernhook, 1. 3, c. 7). curate brought another action to recover his salary since 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 those who give them while they continue incumbent in the church for which such curate is appointed. (Doug. 137).-CH. (50) Lord Kenyon, in the case of The King v. Beeston, 3 T. R. 594, says, "I do not mean that churchwardens and overseers are technically a corporation; but, as far as concerns the regulation of the poor of the parish, they stand in pari ratione." And in Withnell v. Gartham, 6 T. R. 396, the same judge says, " for a particular purpose, namely, to take care of the goods of the church, churchwardens may be considered qua a corporation; but, even in that case, actions must be brought against them in their individual names, for they have no corporate name; and damages can only be recovered against them personally, for they have no corporate estate out of which damages can be paid; and if they go out of office before the ac- (51) Churchwardens may bring tres- of calling them to account but by first removing them; for none can legally do it but those who are put in their place. [ *395] *As to lands, or 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 (52) and levies for that purpose: but these are recoverable only in the ecclesiastical court (53). 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). There are also a multitude of other petty parochial powers committed to their charge by divers acts of parliament (g). VIII. Of parish clerks. 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). The parish clerk (e) Stat. 1 Eliz. c. 2. (g) See Lambard of Churchwar- (52) The text would seem to imply But and Dr. Burn, tit. Church, Churchwardens, Visitations. (h) 2 Roll. Abr. 234. cept when a majority of the parish consists of dissenters; and in such cases, it does seem to the present writer, (who is, upon conviction, a member of the established church), rather hard to throw the burthen of repairing the church upon those who attend and support other places of worship. It is not by straining the privileges of any establishment too high, that its permanency will be best secured. (53) When church-rates have been duly made, and their validity is not under dispute in any ecclesiastical court, any sum due in respect of such rates, provided it does not exceed 10., may be recovered from the defaulter before two justices of the peace. (See the statute of 53 Geo. III. c. 127, s. 7). 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). (i) Cro. Car. 589. CHAPTER XII. OF THE CIVIL STATE. The civil state 2. The commonalty. 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 (1). Hence it is that all degrees of nobility (a) 4 Inst. 363. (1) A late annotator doubts the accuracy of the position laid down in the text, because, as he says, there are numerous instances wherein a parliamentary recognition of a patent of peerage was held necessary, previously to the patentee being permitted to sit in the house of lords. For the latter part of this statement, no authority is adduced; and the recognition of dignities granted by the king, by no means disproves Blackstone's assertion, that the king may institute what new titles he pleases. It certainly does appear, from Co. Lit. 16. b., that even a "creation" of nobility by parliament, was a mode of creation not unknown, in theory at any rate, and perhaps not unknown in |