ecclesiastical courts, for fit and sufficient causes allowed by the common law; such as attainder of treason or felony, or conviction of other infamous crime in the king's courts; for heresy, infidelity, 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 malefeasance or crime; as, for simony v; for maintaining any doctrine in derogation of the king's supremacy, or of the thirty-nine articles, or of the book of common prayer"; 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 *; 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; in all which, and similar cases 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. [394] Though there are what are called perpetual curacies, where all the tithes are appropriated, and no vicarage endowed, (being for some particular reasonsa 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

s Dyer. 108. Jenk. 210.

t Fitz. Abr. t. Trial. 54.

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

u Stat. 1 Eliz. c. 1 and 2. 13 Eliz, c. 12.

w Stat. 13 Eliz. c. 12. 14 Car. II. c. 4.

1 Geo. I. c. 6.

x Stat. 1 Eliz, c. 2.

y Stat. 1 W. and M. c. 26.

z 6 Rep. 29, 30.

a 1 Burn. eccl. law. 427.

days after he takes possession a: 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 b (40).

a Stat. 28 Hen. VIII. c. 11.

b Stat. 12 Ann. st. 2. c. 12.

(40) 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. Ec. L. 28. And the bishops, before they confer orders, require either proof of such a title as is described by the canon, or a certificate from some rector or vicar, promising to employ the candidate for orders bona 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 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.

The 36 Geo. III. c. 83. has given a power to the bishop or ordinary to grant an allowance not exceeding 751. to any curate, who shall 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 perpetual curacy, although it has not been so augmented.

And where a rector or vicar does not reside four months in the year at least, the bishop or ordinary may grant the use of the rectory or vicarage house with the garden and stable for one year to the curate for his actual residence in it. Or he may grant him 157. a year in lieu

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. They are sometimes appointed by the minister, sometimes by the parish, sometimes by both together, as custom directs. They are taken, in favor 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. [395] 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: c In Sweden they have similar officers, whom they call kiorckiowariandes. Stiernhook. 1. 3. c. 7.

of the rectory or vicarage house. The grant of the house he has power to renew, and at any time he may revoke it, and he may annex to it such conditions as he shall think reasonable. If the curate refuses to give up possession at the determination of the grant, he shall forfeit to his rector or vicar all the stipend, which shall be or become due to him, and 50%. besides. And the ordinary has power to license any curate, who shall be employed by any rector, vicar, or other incumbent of a parish church or chapel, although no nomination shall have been made to him for that purpose; or he may revoke his license, or remove any curate for a reasonable cause, but subject to an appeal to the archbishop of the province, to be determined in a summary manner.

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 trespasse. There are also a multitude of other petty parochial powers committed to their charge by divers acts of parliament.

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 8. The parish 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 righth.

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 honor.

ALL degrees of nobility and honor are derived from the king as their fountaina: 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.

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 honor.