the church, and representatives of the body of the parish.m 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 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. As to lands, or other real property, as the church, churchyard, &c., they have no sort of interest [ 395 ] 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. Although where the validity of the rate is not disputed, and the rate in arrear does not exceed 10., a summary method of recovering them is given by the 53 Geo. III. c. 127. They were also, before the recent alteration in the law,o joined with the overseers in the care and maintenance of the poor. They are to levy P 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. There are also a multitude of other petty parochial powers committed to their charge by divers acts of parliament." rish clerks. VIII. Parish clerks and sextons are also regarded by the VIII. Pa common law; as persons who have freeholds in their offices; and therefore though they may be punished, yet they cannot m In Sweden they have similar officers, whom they call kiorckiowariandes. Stiernhook, l. 3, c. 7. "But see the opinion of Lord Kenyon, contra, Witnell v. Gartham, 6 T. R. 396; Rex v. Beeston, 3 T. R. 594. See ante, p. 387. P Stat. 1 Eliz. c. 2. 1 Lev. 196. See Lambard of churchwardens, at the end of his eirenarcha; and Dr. Burn, tit. church, churchwardens, visitations. be deprived, by ecclesiastical censures. The parish clerk was formerly very frequently in holy orders, and some are so, says Blackstone, 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.t 2 Roll. Abr. 234. Cro. Car. 589. King v. Warren, Cowp. 370. As to sextons having a freehold. See Rex v. Churchwardens of Thame, Str. 115. The laity THE lay part of his majesty's subjects, or such of the [ 396 ] people as are not comprehended under the denomination of clergy, may be divided into three distinct states, the civil, divided into 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. military, and the maritime. The civil state the nobility common The civil state consists of the nobility and the com- consists of monalty. Of the nobility, the peerage of Great Britain, and the or lords temporal, as forming (together with the bishops,) aity. 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 The nobility, 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 * 4 Inst. 363 . b For the original of these titles on the continent of Europe, and their sub sequent introduction into this island, [397] 1. Duke. 2. Marquess. [ 398 ] 3. Earl. 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 Depetogad; 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 afterwards raised to the like honour. However, in the reign of queen Elizabeth, A. D. 1572,e 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 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. 27, so far as Wales was concerned: 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.f 3. An earl is a title of nobility so ancient, that its original Camden. Britan. tit. ordines. This is apparently derived from the same root as the German herzog, the appellation of dukes in that coun try. Seld. tit. hon. 2, i. 12. Camden. Britan. tit. ordines. Spelman, Gloss. 191. f 2 Inst. 5. 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. In Latin they are called comites (a title first used in the empire) from being the king's attendants: "a societate nomen sumpferunt, reges enim tales sibi "associant." 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 or comites is now become a mere title, they have nothing to do with the government of the county; which, as has been more than once observed, is now entirely devolved on the sheriff, the earl's deputy, or vice-comes. In writs, and commissions, and other formal instruments, the king, when he mentions any peer of the degree of an earl, usually styles him "trusty and well-beloved cousin :" an appellation as ancient as the reign of Henry IV.: who being either by his wife, his mother, or his sisters, actually related or allied to every earl then in the kingdom, artfully and constantly acknowledged that connexion in all his letters and other public acts: from whence the usage has descended to his successors, though the reason has long ago failed. 4. The name of vice-comes or viscount was afterwards made use of as an arbitrary title of honour, without any shadow of office pertaining to it by Henry the sixth; when, in the eighteenth year of his reign, he created John Beaumont a peer, by the name of viscount Beaumont, which was the first instance of the kind.i 4. Viscount. 5. A baron's is the most general and universal title of no- 5. Baron. bility; for originally every one of the peers of superior rank had also a barony annexed to his other titles. But it hath [399] sometimes happened that, when an ancient baron hath been raised to a new degree of peerage, in the course of a few |