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 [395] their place. 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 and levies for that purpose: but these are recoverable only in the ecclesiastical court. (18) They are also joined with the overseers in the care and maintenance of the poor. They are to levy 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.

5.

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 . 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

d Stat. 1 Eliz. c. 2.

e 1 Lev.196.

f See Lambard of churchwardens, at

the end of his eirenarcha; and Dr. Burn,
tit. church, churchwardens, visitations.
2 Roll. Abr. 234.

possession; since they may sue for the recovery of such as have been taken away in the time of their predecessors. Hadman v. Ringwood, Cro.

Eliz. 145. 179.

(18) Where the rates in arrear do not exceed 10., and the validity of the rate itself is not disputed, the 53 G. 3. c. 127. gives a summary method of recovering them before two justices. See Vol. III. p. 92. n. (5).

the establishment of the custom turns it into a temporal or civil right". (19)

h Cro. Car. 589.

(19) In the case cited from Cro. Car. no judgment was given, but the case cited from Rolle's Abr. 234. in support of a previous position, for which it is no authority, is directly in point for this last; and in the case of the King v. Warren, Cowp. 370. the court granted a mandamus to the clergyman of a parish to restore a parish clerk, where it was admitted that the appointment was in the clergyman. Lord Mansfield observed that the office was held only during good behaviour, but that though the minister might have a power of removing on a good and sufficient cause, he could never be the sole judge, and remove ad libitum; and the ground of restoration was the want of sufficient cause for removal shown to the court by the clergyman. In the same case another was cited which established the parish clerk to be a temporal officer, and of course not removable by ecclesiastical censures. The same point, was held in two cases in Strange's Reports, pp. 942. & 1108., in the former of which the court overruled its own previous decision to the contrary in Townsend v. Thorpe, Str.776. See also Tarrant v. Haxby, 1 Burr.367.

With respect to sextons it can hardly be said that they are regarded by the common law as having freeholds; because the tenure by which they hold, varies exceedingly, and is as often during pleasure, as for life, or during good behaviour. It should seem that the presumption of law is that they hold by the first; in R. v. Churchwardens of Thame, Str. 115. it was said that a mandamus to restore a sexton ought not to be granted unless there was a certificate that he was chosen for life. And it was decided in an election committee of the house of commons, 2 Peck. 91., that where the office of sexton is not shewn to be held for life, it gives no right to vote.

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 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.

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.

1. A duke, though he be with us, in respect of his title of nobility, 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. 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 Peperozad; 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 afterward raised to the like honour. (1) However, in the reign of queen Elizabeth, A. D. 1572, 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.

2. A marquess, marchio, is the next degree of nobility. His office formerly was (for dignity and duty were never separated

c Camden. Britan. tit. ordines. This is apparently derived from the same root as the German hertzog the antient appellation of dukes in that

country. Seld. tit. hon. 2. 1. 22.

e Camden. Brit. tit. ordines. Spel. man. Gloss. 191.

(1) It has been objected to this passage that the claim to the crown of France was made after the creation of the dukedom of Cornwall. The formal claim undoubtedly was, but it is clear from many acts and existing documents that Edward had meditated the attempt on the French crown from early youth, though the difficulties of his situation delayed his assertion of his supposed right, and indeed compelled him to do many acts inconsistent with it. It is probable, however, that there were better reasons for the creation of the duke of Cornwall, and the bestowing it on a son of such promise as the Black Prince, at a time too, when the expedition to France was in contemplation, than that surmised in the text. With respect to the dukedom of Normandy, I believe Edward the Third had never borne that title; he was duke of Aquitaine however, so that the argument

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 Hen. VIII. c. 26. (2); 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'.

[398] 3. An earl is a title of nobility so ancient, that it's original cannot clearly be traced out. Thus much seems tolerably certain that among the Saxons they were called ealdormen, 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, signified the same in their language. (3) In Latin they are called comites (a title first used in the empire) from being the king's attendants; "a societate "nomen sumpserunt, qui etiam dici possunt consules a consulendo, "reges enim tales sibi associant ad consulendum et regendum popu"lum dei"." After the Norman conquest they were for some time called counts or countees, from the French; but they did not long retain that name themselves, though their shires are from thence called counties to this day. The name of earls

f

2 Inst. 5.

8 Britan. tit. ordines.

h Bracton. l. 1. c. 8. s. 2. Flet. l.1. c. 5.

(2) The statute of H. 8. here mentioned had reference only to Wales. See ante, p. 94. The lords marchers on the Scottish frontiers existed, I believe, till the accession of James the First to the English crown. 4 Inst. 281.

See

(3) It appears clear from the Anglo-Saxon laws, and from charters cited by Mr. Turner that the title of Eorl existed before the Danish invasions commenced; and the term seems to have been used almost synonymously with that of Ealdorman. Mr. Turner however thinks that there was some distinction between them. The Danish term was Jarl, and the Danes seem rather to have melted that into the Anglo-Saxon pronunciation than to have communicated their own. See the learned chapter of Mr. Turner on Anglo-Saxon Dignities. Hist. Angl. Sax. b.viii. c.7.