376

CHAPTER XI.

OF THE CLERGY.

visible into clergy and laity. The clergy who.

The people di- THE people, whether aliens, denizens, or natural-born subjects, are divisible into two kinds; the clergy and laity: the clergy, comprehending all persons in holy orders, and in ecclesiastical offices, will be the subject of the following chapter.

Their privileges.

This venerable body of men, being separate and set apart from the rest of the people, in order to attend the more closely to the service of Almighty God, have there

upon large privileges allowed them by our municipal laws: Formerly much and had formerly much greater, which were abridged at greater, but abridged from the time of the reformation on account of the ill use which the popish clergy had endeavoured to make of them. For, the laws having exempted them from almost every personal duty, they attempted a total exemption from every secular tie. But it is observed by Sir Edward Coke (a), that, as the overflowing of waters doth many times make the river to lose its proper channel, so in times past ecclesiastical persons, seeking to extend their liberties beyond their true bounds, either lost or enjoyed not those which of right belonged to them. The personal exemptions do indeed for Their personal the most part continue. A clergyman cannot be compelled to serve on a jury, nor to appear at a court-leet or view of frank-pledge; which almost every other person is obliged to do (b): but if a layman is *summoned on a jury, [*377] and before the trial takes orders, he shall notwithstanding appear and be sworn (c). Neither can he be chosen to any temporal office; as bailiff, reeve, constable, or the like: in regard of his own continual attendance on the sacred function (d) (1). During his attendance on divine service he is privileged from arrests in civil suits (e), (2). 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 (3): in both which particulars he is distinguished from a layman (f). But as they have their privileges, so also they have their disabilities, on account of their spiritual avocations. Clergymen, we have seen (g), are incapable of sitting in Their disabilithe 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 (4); nor upon like pain to keep any

(b) F. N. B. 160. 2 Inst. 4.

(c) 4 Leon. 190.

(d) Finch. L. 88.

(e) Stat. 50 Edw. III. c. 5. 1 Ric.

(1) And yet the clergyman too often procures himself to be clothed with the troublesome, although sometimes profitable, power, conferred by the dedimus. But see note 31, p. 353, ante. The highest office known in the law was filled by a cardinal, and Sir Thomas More was a priest.

(2) That is, for a reasonable time, eundo, redeundo, et morando, to perform divine service. 12 Co. 100.-CH. (3) See vol. 4, notes to c. 28. -CH. (4) By stat. 57 G. III. c. 99, § 2, all beneficed or dignified clergymen, and all curates or lecturers, are restrained from taking to farm more than eighty acres without the written con

11, с. 16.

(f) 2 Inst. 637, stat. 4 Hen. VII.
c. 13, and 1 Edw. VI. c. 12.
(g) Page 175.

sent of the bishop; and which consent,
it also thereby appears, must specify
the number of years for which it was
taken, and which may not exceed
seven, for which the certificate was
granted. The penalty is 40s. per acre
for every acre above eighty acres.

And some very gross cases of trading
by clergymen having reached the ears
of the framers of this statute, a prohi-
bitory clause was therein inserted, § 3,
by which carrying on trade, or buying
and selling for lucre, incurs a forfeiture
of the goods bought or sold, and the
contracts entered into in any such
trade or dealing are declared void.
The avoidance of the contracts, and

ties.

As to the ranks

ecclesiastical

tanhouse or brewhouse (5); nor shall engage in any manner of trade, nor sell any merchandize, under forfeiture of the treble value (6): which prohibition is consonant to the canon law.

In the frame and constitution of ecclesiastical polity and degrees in there are divers ranks and degrees; which I shall consider polity. 1. Me- in their respective order, merely as they are taken notice thod of ment. 2. Rights Points of by the secular laws of England; without intermeddling and duties. 3. with the canons and constitutions, by which the clergy How their character and office have bound themselves. And under each division I shall

may cease.

consider, 1, The method of their appointment. 2, Their rights and duties: and 3, The manner wherein their character or office may cease.

I. An archbishop or bishop is elected by the chapter of his cathedral church, by virtue of a licence from the crown. elected. For- 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 (h): till at length it becoming tumultuous, [*378] the*emperors and other sovereigns of the respective kingdoms of Europe 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 temporalities, 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 (i),

cluded from electing.

and universally exercised by other Christian princes: but the policy of the court of Rome at the same time began by Laity, when exdegrees 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 The right of to have been in the crown of England (k) (as well as other appointing bishops in the kingdoms in Europe) even in the Saxon times; because crown, in Saxon the rights of confirmation and investiture were in effect, times. though not in form, a right of complete donation (1). 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 investitures, which was per annulum et baculum, by the prince's 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. The pope's bull towards the close of the eleventh century, published a bull excommunicating princes conof excommunication against all princes who should dare ferring investito confer investitures, and all prelates who should venture

to receive them (m). This was a bold step towards effect

tures.

ing the plan then adopted by *the Roman see, of rendering [*379] the clergy entirely independent 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

(k) Palm. 28.

(1) "Nulla electio prælatorum (sunt verba Ingulphi) erat mere libera et canonica; sed omnes dignitates tam episcoporum, quam abbatum, per annulum et baculum regis curia pro sua complacentia conferebat." Penes clericos et monachos fuit electio, sed electum a rege postulabant. Selden, Jan. Ang. L. 1, § 39.- "No election of prelates (are the words of Ingulph)

took place, freely and canonically,
only; but all dignities, whether of
bishops or of abbots, were conferred by
the king's court at pleasure by the
ring and staff. The right of election
lay with the priests and monks, but
they required them to be chosen by
the king."

(m) Decret. 2 caus. 16. qu. 7.
c. 12 and 13.

to remove all suspicion of encroachment on the spiritual character, by conferring investitures for the future per The prince'and sceptrum and not per annulum et baculum; and when the the pope's for- kings of England and France consented also to alter the form in their kingdoms, and receive only homage from the bishops for their temporalities, instead of investing them by the ring and crosier; the court of Rome found it prudent to suspend for a while its other pretensions (n).

bearance.

to concessions

This concession was obtained from King Henry the first in England, by means of that obstinate and arrogant King John adds prelate, Archbishop Anselm (o): but King John, about a already made, century afterwards, in order to obtain the protection of the reserving what pope against his discontented barons, was also prevailed rights. 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 John's magna carta (q), and was again established by statute 25 Edw. III. st. 6, § 3.

But the ancient But by statute 25 Hen. VIII. c. 20, the ancient right of right of nomination restored nomination was, in effect, restored to the crown (7); it

(n) Mod. Un. Hist. xxv. 363, xxix. 115.

(0) M. Paris, A. D. 1107.

(7) This statute was afterwards repealed by 1 Edw. VI. c. 2, which enacted that all bishopricks should be donative as formerly. It states in the preamble that these elections are in very deed no elections; but only by a writ of conge d'elire have colours,

(p) M. Paris, A. D. 1214. 1 Rym.

Foed. 198.

(q) Cap. 1. Edit. Oxon. 1759.