or the like, in regard of his own continual attendance on the sacred function . During his attendance on divine service he is privileged from arrests in civil suits. In cases also of felony, a clerk in orders shall have the benefit of his clergy, without being branded in the hand; and may likewise have it more than once: in both which particulars he is distinguished from a layman'. (1) But as they have their privileges, so also they have their disabilities, on account of their spiritual avocations. Clergymen, we have seen, are incapable of sitting in the house of commons; and by statute 21 Hen. VIII. c. 13. are not (in general) allowed to take any lands or tenements to farm, upon pain of 10l. per month, and total avoidance of the lease; nor upon like pain to keep any tanhouse or brewhouse; nor shall engage in any manner of trade, nor sell any merchandize, under forfeiture of the treble value. (3) Which prohibition is consonant to the canon law. IN the frame and constitution of ecclesiastical polity there are divers ranks and degrees which I shall consider in their respective order, merely as they are taken notice of by the secular laws of England; without intermeddling with the canons and constitutions by which the clergy have bound themselves. And under each division I shall consider, 1. The method of their appointment; 2. Their rights and d Finch. L.88. f 2 Inst. 637. Stat. 4 Hen. VII. e Stat. 50 Ed. III. c.5. 1 Ric. II. c. 13. & 1 Edw. VI. c. 12. c. 15. page 175. (2) (1) See Vol. IV. p.373. n. (7). (2) See note (24). (3) The 21 H.8. c.13. so far as regards the occupation of farms by clergymen, and their buying and selling, was repealed by the 57 G. 3. c.99.; which by s.2. restrains all beneficed or dignified clergymen, and all curates or lecturers from taking to farm more than eighty acres without the written consent of the bishop specifying the number of years, not exceeding seven, for which it is granted. The penalty for renting more than eighty acres without such permission is 40s. annually for every acre exceeding that number. By s. 3. the same persons are prohibited from carrying on any trade, or buying and selling for lucre, upon pain of forfeiting the value of the goods so bought or sold; and the contracts entered into by them in any such trade or dealing are made utterly void. duties; and, 3. The manner wherein their character or office may cease. I. AN arch-bishop or bishop is elected by the chapter of his cathedral church, by virtue of a licence from the crown. Election was, in very early times, the usual mode of elevation to the episcopal chair throughout all Christendom; and this was promiscuously performed by the laity as well as the clergy: till at length it becoming tumultuous, the empe rors and other sovereigns of the respective kingdoms of Eu- [378] rope took the appointment in some degree into their own hands; by reserving to themselves the right of confirming these elections, and of granting investiture of the temporalties, which now began almost universally to be annexed to this spiritual dignity; without which confirmation and investiture, the elected bishop could neither be consecrated nor receive any secular profits. This right was acknowledged in the emperor Charlemagne, A. D. 773, by pope Hadrian I., and the council of Lateran', and universally exercised by other christian princes: but the policy of the court of Rome at the same time began by degrees to exclude the laity from any share in these elections, and to confine them wholly to the clergy, which at length was completely effected; the mere form of election appearing to the people to be a thing of little consequence, while the crown was in possession of an absolute negative, which was almost equivalent to a direct right of nomination. Hence the right of appointing to bishopricks is said to have been in the crown of England (as well as other kingdoms in Europe) even in the Saxon times; because the rights of confirmation and investiture were in effect (though not in form) a right of complete donation'. But when, by length of time the custom of making elections by the clergy only was fully established, the popes began to except to the usual method of granting these inves k "canonica; sed omnes dignitates, tam titures, which was per annulum et baculum, by the prince delivering to the prelate a ring, and pastoral staff or crosier: pretending that this was an encroachment on the church's authority, and an attempt by these symbols to confer a spiritual jurisdiction; and pope Gregory VII. towards the close of the eleventh century, published a bull of excommunication against all princes who should dare to confer investitures, and all prelates who should venture to receive them m This was a bold step towards effecting the plan then adopted [ 379 ] by the Roman see, of rendering the clergy entirely independ ent of the civil authority : and long and eager were the contests occasioned by this papal claim. But at length, when the emperor Henry V. agreed to remove all suspicion of encroachment on the spiritual character, by conferring investitures for the future per sceptrum and not per annulum et baculum; and when the kings of England and France consented also to alter the form in their kingdoms, and receive only homage from the bishops for their temporalties, instead of investing them by the ring and crosier; the court of Rome found it prudent to suspend for a while it's other pretensions". (4) THIS Concession was obtained from king Henry the first in England, by means of that obstinate and arrogant prelate, arch-bishop Anselm ° : but king John (about a century afterwards), in order to obtain the protection of the pope against his discontented barons, was also prevailed upon to give up by a charter, to all the monasteries and cathedrals in the kingdom, the free right of electing their prelates, whether abbots or bishops: reserving only to the crown the custody of the temporalties during the vacancy; the form of granting a licence to elect (which is the original of our conge d'eslire), on refusal whereof the electors might proceed without it; and the right of approbation afterwards, which was not to be denied without a reasonable and lawful cause P. This grant was expressly recognized and confirmed in king m Decret. 2. caus. 16. gu.7. c. 12,13. 115. • M. Paris, A.D. 1107. P M. Paris, A, D. 1214, 1 Rym. Foed.198. (4) See Vol. IV. p.108. n. (3). John's magna charta, and was again established by statute 25 Edw. III. st. 6. § 3. BUT by statute 25 Hen. VIII. c. 20. the ancient right of nomination was, in effect, restored to the crown: it being enacted that, at every future avoidance of a bishoprick, the king may send the dean and chapter his usual licence to proceed to election; which is always to be accompanied with a letter missive from the king, containing the name of the person whom he would have them elect: and, if the dean and chapter delay their election above twelve days, the nomin ́ation shall devolve to the king, who may by letters patent ap- [380 ] point such person as he pleases. This election or nomination, if it be of a bishop, must be signified by the king's letters patent to the arch-bishop of the province: if it be of an arch-bishop, to the other arch-bishop and two bishops, or to four bishops; requiring them to confirm, invest, and consecrate the person so elected: which they are bound to perform immediately, without any application to the see of Rome. After which the bishop elect shall sue to the king for his temporalties, shall make oath to the king and none other, and shall take restitution of his secular possessions out of the king's hands only. And if such dean and chapter do not elect in the manner by this act appointed, or if such arch-bishop or bishop do refuse to confirm, invest, and consecrate such bishop elect, they shall incur all the penalties of a praemunire. (5) AN arch-bishop is the chief of the clergy in a whole province; and has the inspection of the bishops of that province, as well as of the inferior clergy, and may deprive them on notorious cause ". The arch-bishop has also his own diocese, wherein he exercises episcopal jurisdiction; as q cap. 1. edit. Oxon. 1759. Lord Raym. 541. (5) This statute, which was repealed by Edward the Sixth, but is held to have been constructively revived, and to be still in force, does not apply to the five bishopricks created by H. 8. subsequently to its passing; these are Bristol, Gloucester, Chester, Peterborough, and Oxford, which have always been pure donatives in form as well as substance. in his province he exercises archiepiscopal. As arch-bishop he, upon receipt of the king's writ, calls the bishops and clergy of his province to meet in convocation; but without the king's writ he cannot assemble them. To him all appeals are made from inferior jurisdictions within his province; and, as an appeal lies from the bishops in person to him in person, so it also lies from the consistory courts of each diocese to his archiepiscopal court. During the vacancy of any see in his province, he is guardian of the spiritualties thereof, as the king is of the temporalties; and he executes all ecclesiastical jurisdiction therein. If an archiepiscopal see be vacant, the dean and chapter are the spiritual guardians, ever since the office of prior of Canterbury was abolished at the reformation. The arch-bishop is intitled to present by lapse to all the ecclesiastical livings in the disposal of his [381] diocesan bishops, if not filled within six months. And the arch-bishop has a customary prerogative, when a bishop is consecrated by him, to name a clerk or chaplain of his own to be provided for by such suffragan bishop; in lieu of which it is now usual for the bishop to make over by deed to the arch-bishop, his executors and assigns, the next presentation of such dignity or benefice in the bishop's disposal within that see, as the arch-bishop himself shall choose; which is therefore called his option ": which options are only binding on the bishop himself who grants them, and not on his successors. The prerogative itself seems to be derived from the legatine power formerly annexed by the popes to the metropolitan of Canterbury". And we may add, that the papal claim itself (like most others of that encroaching see) was probably set up in imitation of the imperial prerogative called primae or primariae preces; whereby the emperor exercises, and hath immemorially exercised, a right of naming to the first prebend that becomes vacant after his accession in every church of the empire. A right that was also exercised by the crown of England in the reign of Edward I. 2; s 4 Inst. 322, 323. t 2 Roll. Abr. 223. " Cowel's interp. tit. option. w Sherlock of options, 1. x Goldast. const. Imper. tom. 3. Dufresne, V. 806. Mod. Univ. z Rex, &c. salutem. Scribatis episcopo Karl. quod Roberto de Icard pensionem suam, quam ad preces regis praedicto Roberto concessit, de caetero solvat ; et de proxima ecclesia vacatura de collatione praedicti episcopi, quam ipse Robertus acceptaverit, respiciat. Brev. 11 Edw. I. 3 Pryn, 1264. |