person under twenty-three years of age, and in deacon's orders, should be presented to any benefice with cure; and if he were not ordained priest within one year after his induction, he should be ipso facto deprived; and now, by statute 13 and 14 Car. II, c. 4, no person is capable to be admitted to any benefice, unless he hath been first ordained a priest; (17) and then he is, in the language of the law, a clerk in orders. But if he obtains orders, or a license *to preach, [ *389 ] by money or corrupt practices, (which seems to be the true, though not the common, notion of simony,) the person giving such orders forfeits (y) 401. and the person receiving 107., and is incapable of any ecclesiastical preferment for seven years afterwards.

Any clerk may be presented (z) to a parsonage or vicarage; that is, the patron to whom the advowson of the church belongs, may offer his clerk to the bishop of the diocese to be instituted. Of advowsons, or the right of presentation, being a species of private property, we shall find a more convenient place to treat in the second part of these Commentaries. But when a clerk is presented, the bishop may refuse him upon many accounts. As, 1. If the patron is excommunicated, and remains in contempt forty days. (a) Or, 2. If the clerk be unfit: (b) which unfitness is of several kinds. First, with regard to his person; as if he be a bastard, an outlaw, an excommunicate, an alien, under age, or the like. (c) Next, with regard to his faith or morals; as for any particular heresy, or vice that is malum in se; but if the bishop alleges only in generals, as that he is schismaticus inveteratus, or objects a fault that is malum prohibitum merely, as haunting taverns, playing at unlawful games, or the like; it is not good cause of refusal. (d) Or, lastly, the clerk may be unfit to discharge the pastoral office for want of learning. In any of which cases the bishop may refuse the clerk. In case the refusal is for heresy, schism, inability of learning, or other matter of ecclesiastical cognizance, there the bishop must give notice to the patron of such his cause of refusal, who, being usually a layman, is not supposed to have knowledge of it, else he cannot present by lapse; but, if the cause be temporal, there he is not bound to give notice. (e)

*If an action at law be brought by the patron against the bishop for refusing his clerk, the bishop must assign the cause. If the cause be of [*390] a temporal nature, and the fact admitted, (as, for instance, outlawry,) the judges of the king's courts must determine its 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 its 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 re-examine him, and certify his qualifications; which certificate of the archbishop is final. (h)

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

(y) Stat. 31 Eliz. c. 6.

(2) A layman may also be presented; but he must take priest's orders before his admission. 1 Burn 103. (a) 2 Roll. Abr. 355. (b) Glanv. L. 13. c. 20.

(c) 2 Roll. Abr. 356. 2 Inst. 632. Stat. 3 Ric. II, c. 3. 7 Ric. II, c. 12.

(e) 2 Inst. 632.

(f) 2 Inst. 632.

(g) 5 Rep. 58. 3 Lev. 313.

(d) 5 Rep. 58. (h) 2 Inst. 632.

(17) [By canon 34, no one shall be admitted to the order of a deacon till he be twenty-three years old; and by that canon, and also by 13 Eliz. c. 12, no one can take the order of a priest till he be full four and twenty years old. 3 Burn's Ec. L. 27.]

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; (18) for the maxim of law is, that vicarius non habit 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 [ *391] 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 an action for them, till induction.

Induction is performed by a mandate from the bishop to the archdeacon, 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)

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 inquiries; [*392] but for the rest I must refer myself to such authors as have compiled treatises expressly upon this subject. (1) I shall only just mention the article of residence, upon the supposition of which the law doth style every parochial minister an incumbent. (19) 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 51. to the king, and 57. to any person that will sue for the same, except chaplains to the king, or others therein mentioned, (m) during their attendance in the household 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, if there be one for it hath been resolved, (o) that the statute intended residence,

(i) Co. Litt. 344.

(k) Co. Litt. 300.

(1) These are very numerous; but there are few which can be relied on with certainty. Among these are Bishop Gibson's Codex, Dr. Burn's Ecclesiastical Law, and the earlier editions of the Clergyman's Law, published under the name of Dr. Watson, but compiled by Mr. Place, a barrister. (m) Stat. 25 Hen. VIII, c. 16. 33 Hen. VIII c. 28. (n) Stat. 28 Hen. VIII, c. 13.

(18) This oath is no longer required. See statutes 1 and 2 Vic. c. 106, s. 61. taken is prescribed by the "clerical subscription act, 1865."

(0) 6 Rep. 21. The oath to be

(19) Although an oath of residence is not now required, yet any spiritual person holding a benefice, who absents himself therefrom for any period exceeding three months, forfeits thereby a portion of the annual value, varying from one-third to three-fourths of the whole, according to the time of absence. See statutes 1 and 2 Vic. c. 106, and 13 and 14 Vic. c. 98. In particular cases the bishop may grant licenses for non-residence. See the statutes above cited for the law as to pluralities.

not only for serving the cure, and for hospitality; but also for maintaining the house, that the successor also may keep hospitality there: and, if there be no parsonage house, it hath been holden that the incumbent is bound to hire one, in the same or some neigbouring parish, to answer the purposes of residence. For the more effectual promotion of which important duty among the parochial clergy, a provision is made by the statute 17 Geo. III, c. 53, for raising money upon ecclesiastical benefices, to be paid off by annually decreasing instalments, and to be expended in rebuilding or reparing the houses belonging to such

benefices.

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 81. per annum, or upwards (according to the present valuation in the king's books) (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, (20) 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 [*393] 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. (21) 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, first by sentence declaratory in the ecclesiastical court, for fit and sufficient causes allowed by the common law; such as attainder of treason or felony, (s) or conviction of other infamous crime in the king's courts; for heresy, infidelity, (t) 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 malfeasance or crime: as, for simony; (u) for maintaining any doctrine in derogation of the king's supremacy, or of the thirty-nine articles, or the book of common-prayer; (v) 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; (x) 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; (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

(p) Cro. Car. 456.

(8) Dyer, 108. Jenk. 210. (v) Stat. 1 Eliz. c. 1 and 2. (c) Stat. 1 Eliz. c. 2.

(q) Hob. 144.

(r) Cro. Jac. 198. (t) Fitz. Abr. tit. Trial, 54. (u) Stat. 31 Eliz. c. 6. 12 Ann. c. 12. 13 Eliz. c. 12. (w) Stat. 13 Eliz. c. 12. 14 Car. II, c 4. 1 Geo. I, c. 6. (y) Stat. 1 W. and M. c. 26. (2) 6 Rep. 29. 30.

(20) By s. 11 of 1 and 2 Vic. c. 106, the acceptance of preferment by any spiritual person holding any other preferment or benefice, vacates the former preferment. In general two livings cannot now be held by the same person, unless the benefices be within ten miles of each other, or, if the population of one such benefice exceed 3000, or their joint yearly value exceed 10001., unless the yearly value of one be less than 150l. and its population more than 2000, in which case the two may be held jointly. See statutes above mentioned.

(21) These commendams are now abolished. Statutes 6 and 7 Wm. IV, c. 77.

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[*394] incumbent. Though 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 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. (c) (22)

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. (d) They are sometimes appointed by the minister, sometimes by the parish, sometimes by both together, as custom directs. (23) 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 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, churchyard, [*395] &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. (24) 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) (25) There are also a multitude of other petty parochial powers committed to their charge by divers acts of parliament. (g)

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) (26) The par

(b) Stat. 28 Hen. VIII, c. 11.

(c) Stat. 12 Ann. st. 2, c. 12.

(a) 1 Burn's Eccl. Law, 427. (d) In Sweden they have similar officers, whom they call kiorckiowariandes. Stiernhook, L. 3, c. 7. (e) Stat. 1 Eliz. c. 2.

(f) 1 Lev. 196.

(g) See Lambard of Churchwardens, at the end of his Eirenarcha; and Dr. Burn, tit. Church, Churchwardens, Visitations.

(h) 2 Roll. Abr. 234.

(22) Upon this general subject see statutes 1 and 2 Vic. c. 106, and 31 and 32 Vic. c. 117. (23) [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 quest men in every parish shall be chosen by the joint consent of the minister 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 id. 1246.]

(24) The payment of these is no longer compulsory. Statutes 31 and 32 Vic. c. 109. (25) See Hawe v. Planner, 1 Saund. 13; Burton v. Henson, 10 M. and W. 105.

(26) These are removable for wilful neglect or misbehaviour under statute 7 and 8 Vic. c. 59. The parish clerk, if in orders, is licensed and removable in like manner as a stipendiary curate. Ibid. A woman may hold the office of sexton. Str. 1114.

ish 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 right. (i)

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. (1) 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 nobility are not of equal antiquity. Those now in use are dukes, marquesses, earls viscounts and barons. (b) (2)

*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, as among the Romans, the commanders or leaders of their armies, whom, in their own language, they called henecoza; (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

(i) Cro. Car. 589.

(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 Honour.

(c) Camden, Britan. tit. Ordines.

(d) This is apparently derived from the same root as the German hertzogen, the ancient appellation of dukes in that country. Seld. tit. Hon. 2, 1, 12.

(1) A decided jealousy of titles, as inconsistent with our institutions and dangerous to lib erty, has always appeared in America. By the constitution of the United States, both the national and state governments are forbidden to grant titles of nobility. Art. 1, §§ 9 and 10. And no person holding any office of profit or trust under the United States, can accept an office or title of any kind, from any king, prince or foreign state, unless by the consent of congress. Art. 1, § 9. Any alien possessing a foreign title, or belonging to an order of nobility, is required to renounce the same before being admitted to citizenship. Act of Congress of April 14, 1802, 1 Story's Laws, 850.

Perhaps the jealousy spoken of was never more forcibly illustrated than in the debates in congress at the time the government was first put in operation, respecting the proper formula of address to the president. See 4 Hildreth's U. S. 59; Annals of Congress, vol. 1, pp. 247, 318; Benton's Abridgement of Debates, vol. 1, p. 11, et seq.

(2) See further upon this subject Hallam's Middle Ages, ch. 2, part 1.