CHAPTER THE ELEVENTH. OF THE CLERGY. THE 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 services of Almighty God, have thereupon large privileges allowed them by our municipal laws: and had formerly much greater, which were abridged at 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 perfonal duty, they attempted a total exemption from every fecular tie. But it is obferved by fir Edward Coke, that, as the overflowing of waters doth many times make the river to lofe its proper channel, fo in times paft ecclefiaftical perfons, feeking to extend their liberties beyond their true bounds, either loft or enjoyed not those which of right belonged to them. The perfonal exemptions do indeed for 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 perfon is obliged to do: but if a layman is [377] fummoned on a jury, and before the trial takes orders, he shall notwithstanding appear and be fworn. Neither can he be e chofen to any temporal office; as bailiff, reeve, constable, or the like, in regard of his own continual attendance on the facred function d. During his attendance on divine fervice he is privileged from arrests in civil suits (1). In cafes 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 (2): in both which particulars he is distinguished from a layman. But as they have their privileges, so also they have their disabilities, on account of their spiritual avocations. Clergymen, we have seens, are incapable of fitting in the house of commons (3); 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 f 2 Inft. 637. Stat. 4 Hen. VII. c. 13. & I Edw. VI. c. 12. d Finch. L. 88. Stat. 50 Edw. III. c. 5. I Ric. II. (1) That is, for a reasonable time, eundo, redeundo, et morando, to perform divine fervice. 12 Co. 100. (2) This is a peculiar privilege of the clergy, that sentence of death can never be paffed upon them for any number of manflaughters, bigamies, fimple larcenies, or other clergyable offences; but a layman, even a peer, may be oufted of clergy, and will be fubject to the judgment of death upon a fecond conviction of a clergyable offence; for if a layman has once been convicted of manslaughter, upon production of the conviction he may afterwards fuffer death for bigamy, or any other felony, within clergy, or which would not be a capital crime to another person not so circumftanced. But for the honour of the clergy, there are few or no inftances in which they have had occafion to claim the benefit of this privilege. See 4 vol. c. 28. (3) See P. 175. n. 37. ante. (4) But if they have not fufficient glebe, they may take a farm for the neceffary expences and consumption of their households, 21 Hen. VIII. c. 13. f. 8. but now, by the 43 Geo. III. c. 84. they are not allowed to hold any farm without the confent of the bishop, but with his confent they are not subject to the penalties of the 21 Hen. VIII. VOL. I. LI pain 1 pain to keep any tanhouse or brewhouse (5); nor shall engage in any manner of trade, nor fell any merchandize, under forfeiture of the treble value (6). Which prohibition is confonant to the canon law. In the frame and constitution of ecclefiaftical polity there are divers ranks and degrees: which I fhall confider in their refpective order, merely as they are taken notice of by the fecular laws of England; without intermeddling with the canons and constitutions by which the clergy have bound themselves. And under each divifion I fhall confider, 1. The method of their appointment; 2. Their rights and 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 ufual mode of elevation to the epifcopal chair throughout all Christendom; and this was promifcuously performed by the laity as well as the clergy: till at length it becoming tumultuous, the emperors and other sovereigns of the respective kingdoms of Eu378 rope took the appointment in fome degree into their own. hands; by reserving to themselves the right of confirming thefe elections, and of granting inveftiture of the temporalties, which now began almost universally to be annexed to this fpiritual dignity; without which confirmation and inveftiture, the elected bishop could neither be confecrated nor per clerum et populum. Palm. 25. 2 Roll. Rep. 102. Mat. Paris. A.D. 1095. (5) The fingular prohibition to keep a tanhouse probably originated from a practice peculiar to the time. (6) Though a clergyman is fubject to this penalty for trading, yet his contracts are valid, and he is liable to be made a bankrupt. Cooke, Bankr. 33. By the 43 Geo. III. c. 84. f. 6. the clergy may buy and fell corn and cattle, the produce of their farms, or fuch as are neceffary for their cultivation, provided they do not buy or fell in perfon in any fair, market, or public fale. k receive any fecular profits. This right was acknowledged in the emperor Charlemagne, A. D. 773, by Pope Hadrian I., and the council of Lateran', and univerfally exercised by other chriftian princes: but the policy of the court of Rome at the fame 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 confequence, while the crown was in poffeffion of an abfolute negative, which was almoft equivalent to a direct right of nomination. Hence the right of appointing to bifhopricks is faid 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 titures, which was per annulum et baculum, by the prince delivering to the prelate a ring, and paftoral staff or crofier: pretending that this was an encroachment on the church's authority, and an attempt by these fymbols to confer a fpiritual jurisdiction: and pope Gregory VII., towards the clofe of the eleventh century, published a bull of excommunication against all princes who should dare to confer invesțitures, and all prelates who should venture to receive them. This was a bold ftep towards effecting the plan then adopted by the Roman fee, of rendering the clergy entirely indepen- [379] dent of the civil authority: and long and eager were the contefts occafioned by this papal claim. But at length, when the emperor Henry V. agreed to remove all fufpicion of encroachment on the spiritual character, by conferring investi tures for the future per fceptrum and not per annulum et baculum; and when the kings of England and France confented allo to alter the form in their kingdoms, and receive only hoinage from the bishops for their temporalties, instead of invcfting them by the ring and crofier; the court of Rome found it prudent to fufpend for a while it's other pretenfions. " THIS Conceffion was obtained from king Henry the first in England, by means of that obftinate and arrogant prelate, arch-bishop Anfelm°: 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 monafteries and cathedrals in the kingdom, the free right of electing their prelates, whether abbots or bishops: referving 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' eflire) 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. This grant was expressly recognized and confirmed in king John's magna charta 1, and was again eftablished by statute 25 Edw. III. ft. 6. §3. But by ftatute 25 Hen. VIII. c. 20. the antient right of nomination was, in effect, restored in effect, restored to the crown (7): it being a Mod. Un. Hift. xxv. 363. xxix. P M. Paris. A. D. 1214. 1 Rym. 115. Food. 198. • M. Paris. A.D. 1107. 9 cap. 1. edit. Ozor. 1759. (7) This statute was afterwards repealed by 1 Edw. VI. c. 2· which enacted that all bishopricks fhould be donative as formerly. It ftates in the preamble that these elections are in very deed no elections; but only by a writ of conge d'elire have colours, fhadows, or pretences of election, 1 Burn. Ec. L. 183. This is certainly good fenfe. For the permiffion to elect where there is no power to reject can hardly be reconciled with the freedom of election. But this statute was afterwards repealed by 1 Ma. ft. 2. c. 20. and other ftatutes. 12 Co. 7. But the bishopricks of the new founda |