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of whom the common law takes notice, and that principally to assist the ecclesiastical jurisdiction, where it is deficient in powers.
Churchwardens are the guardians and 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; and they are taken in favour of the church to be, for some purposes, a kind of corporation at common law ;l that is, they are enabled by that name to have a property in goods and chattels, and bring actions for them, for the use and profit of the parish. Their office is also to repair the church, and make rates and levies for that purpose; but these are recoverable only in the ecclesiastical court.
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 may not be deprived by ecclesiastical censures.2 The parishclerk is generally appointed by the incumbent, but by custom may be chosen by the inhabitants; and if such custom appears, the court of queen's bench will grant a mandamus to swear him in, for the establishment of the custom turns it into a temporal or civil right.3
1 But see Witnell r. Cartham, 6 Term. Rep. 896. Rex t>. Beeston. 3 Term. Rep. 594. 1 2 Roll, Abr. 234.
3 Cro. Car. 589. King t>. Warren, Cowp. 370. As to sextons having a freehold, see Rex v. Churchwardens of Thame Str. 115.
THE CIVIL STATE.
We have just seen what constitutional laws govern the clergy, as such. The laity, comprehending all those who are not included in the former class or order, remain to be considered; and they may be divided into three distinct states: the civil, the military, and the maritime.
That part of the nation which falls under the first and most comprehensive division, the civil state, includes all orders of men, from the highest to the most humble, that are not included under either our former division—the 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, which is the most important classification of the nation in a constitutional point of view. The nobility, strictly speaking, are the peerage only, whether of Great Britain, Scotland, or Ireland; and all persons not members of that order are, whatever may be their rank, included in the class of commoners.1 Of the nobility, considered as a branch of the legislature, together with the bishops, enough has been said; and we will therefore only consider them here according to their several degrees or titles of honour.
1 Co. Litt . 16, b. 2 Inst . 29, 50. The lord Sanchar's case, 9 Rep. 117.
By the laws of England, all degrees of nobility and honour are derived from the crown as the fountain of honour;1 and the crown may institute what new titles it pleases.* Hence it is that all titles of honour are not of equal antiquity. Those now in use are dukes, marquesses, earls, viscounts, and barons.
Of these the most ancient are those of baron and earl. A baron is the most general and universal title of nobility; for originally every one of the peers of superior rank had also a barony annexed to his other titles.3 But, as Blackstone observes, it has sometimes happened that when an ancient baron has been raised to a new degree of peerage, in the course of a few generations the two titles have descended differently; one, perhaps, to the male descendants, the other to the heirs general; whereby the earldom, or other superior dignity, has subsisted without a barony; and there are also modern instances where
1 4 Inst. c. lxxvii. p. 365.
1 Blackst. Com. b. i. c. xii. p. 396. 12 Rep. 81. 2 Salkeld, 509, £10. 2 Inst . 668. Thus it seems that the crown can create an archduke; 4 Inst. c. Lixvii. p. 362; Comyn, Digest . t. Dignity, A. Bnt Coke says that some do hold that the king cannot create another king in any part of his kingdom; 4 Inst . 287. The reason given by Coke is, that there cannot be two kings of the same place in one kingdom. It would seem therefore, that the king may make a king of a place out of his kingdom. It is said by lord Hale, that the king cannot create a dignity mesne between a baron and a baronet; Co. Litt . 16, b. note. That note refers to 12 Coke's Reports, p. 81. It is there resolved by the two chief justices, the chief baron, and the attorney and solicitorgeneral, "that the king cannot create any dignity above the dignity of a baronet, and under the dignity of a baron." But this was only an extrajudicial opinion. It seems questionable whether the king can bind his successor by letters patent, not confirmed in parliament, so as to restrain him in the exercise of an undoubted prerogative, where the common law has not given to the letters patent such an effect. But this question can here only be submitted to the learned reader.
> 2 Inst. 5, 6.
earls and viscounts have been created without annexing a barony to their other honours; so that now the rule does not hold universally that all peers are barons.1 The original nature of baronies is a matter of doubt and difficulty. It is, however, agreed that barons, under our ancient Norman constitution, were tenants in capite, or immediate vassals of the crown; and this is implied by the celebrated passage in king John's Magna Charta, wherein he promises that whenever an aid or scutage shall be required, faciemus summoneri archiepiscopos, episcopos, abbates, comites, et majores barones regni sigillatim per literas nostras. Et prceterea faciemus summoneri in generali, per vicecomites et ballivos nostros, alios qui in capite tenent de nobis. Thus the barons are distinguished from the other tenants in chief, as if the former name were only applicable to a particular class of the king's immediate vassals; but it must have been previously settled by law, how these greater barons should be distinguished from the other tenants in chief. Madox holds, that tenure by barony was always distinct from that by knight's service in capite; but it seems difficult to reconcile that position with the fact that all tenants in capite were summoned and sat in parliament. It seems, on the whole, that the lesser tenants in capite gradually ceased to sit in parliament, partly because attendance there was in those early times held to be rather a burden than a privilege, and partly from the irregular and capricious manner in which writs of summons were issued; and the distinction between the mode of summoning greater and lesser barons, mentioned in Magna Charta, must have facilitated that change. The lesser barons, or tenants in capite, ceasing in process of time to sit in person in parliament, elected some of their number to represent them; and that privilege was subse1 Blackat . Com. b. i. c. xii. p. 398.
quently gradually extended to all the freeholders: hence arose the representation of counties by knights of the shire; but the precise time when the representatives of the lesser tenants in capite began to sit with the citizens and burgesses in their separate house is matter of much doubt. The dignity of a baron thus became confined to the greater barons, who were the only lords of parliament; and they were all summoned to that assembly by writ, in respect of the tenure of their lands, until the reign of Richard II., who created several barons by letters patent.”
The name or title of dignity of comes, or earl, was introduced by the Normans into England at the Conquest. From that time to the end of the reign of Henry III., baron and earl were the only names of dignity, or titles, known in England; for in the second chapter of king Henry III.'s Magna Charta, that prince says, Si aliquis comitum vel baronum nostrorum, sive aliorum de nobis tenentium in capite. And lord Coke observes, that if any other name of dignity had been known at that time, it would have been mentioned.” These magnates existed in the times of the Saxons under the name of earldermen, or shiremen, because they had the civil government of a province or shire; but the Norman dignity of count, countee, comes, or earl, was not so merely official as the Saxon earldermen, though originally annexed to the chief government of a province. The name of comes is clearly derived from their being the king's attendants and companions: a societate nomen sumpserunt, qui etiam dici possunt consules a consulendo, regis enim tales sibi associant ad consulendum et regendum populum Dei, ordinant eos in magno honore et potestate et nomine, quando accin
1 Gibs. Hist. of Exch. c. iii. Selden, Tit. of Hon. 2, 5, 21.
* Co. Litt. 9. Seld. Jan. Angl. ii. § 66. * Cruise on Dign, c. i. § 48. 2 Inst. 5.