Edward I., who thereby, at one and the same time, lot in the inferior clergy to the privileges of forming *ecclesiastical canons, (which before they had not,) and also introduced a method of taxing ecclesiastical benefices, by consent of convocation.(g) [*280 From this prerogative also, of being the head of the church, arises the king's right of nomination to vacant bishoprics, and certain other ecclesiastical preferments; which will more properly be considered when we come to treat of the clergy. I shall only here observe, that this is now done in consequence of the statute 25 Hen. VIII. c. 20. As head of the church, the king is likewise the dernier resort in all ecclesiastical causes: an appeal lying ultimately to him in chancery from the sentence of every ecclesiastical judge: which right was restored to the crown by statute 25 Hen. VIII. c. 19, as will more fully be shown hereafter. () Gilb. Hist. of Exch. c. 4 the kynge hath grantyd to all bysshoppys that twyse in a yere they may curse all men doying against these artycles." The grete Abregement of the Statutys of Englond untyll the xxij. yere of Kyng Henry the VIII. 257. This clause is in effect found in the statute, or rather charter, Statutum de tallagio non concedendo. 34 Edw. I. c. vi.-CHITTY. From the learned commentator's text, the student would perhaps be apt to suppose that there is only one convocation at a time. But the king, before the meeting of every new parliament, directs his writ to each archbishop to summon a convocation in his peculiar province. Godolphin says that the convocation of the province of York constantly corresponds, debates, and concludes the same matters with the provincial synod of Canterbury. God. 99. But they are certainly distinct and independent of each other; and, when they used to tax the clergy, the different convocations sometimes granted different subsidies. In the 22 Hen. VIII. the convocation of Canterbury had granted the king one hundred thousand pounds, in consideration of which an act of parliament was passed, granting a free pardon to the clergy for all spiritual offences, but with a proviso that it should not extend to the province of York, unless its convocation would grant a subsidy in proportion, or unless its clergy would bind themselves individually to contribute as bount fully. This statute is cited at large in Gib. Cod. 77. All deans and archdeacons are members of the convocation of their province. Each chapter sends one proctor or representative, and the parochial clergy in each diocese in Canterbury two proctors; but, on account of the small number of dioceses in the province of York, each archdeaconry elects two proctors. In York, the convocation consists only of one house; but in Canterbury there are two houses, of which the twenty-two bishops form the upper house; and, before the Reformation, abbots, priors, and other mitred prelates sat with the bishops. The lower house of convocation in the province of Canterbury consists of twenty-two deans, fifty-three archdeacons, twenty-four proctors for the chapters, and forty-four proctors for the parochial clergy. By 8 Hen. VI. c. 1, the clergy in their attendance upon the convocation have the same privilege in freedom from arrest as the members of the house of commons in their attendance upon parliament. Burn. Conv. 1 Bac. Abr. 610.-CHRISTIAN. By that statute it is declared, that for the future no appeals from the ecclesiastical courts of this realm should be made to the pope, but that an appeal from the archbishop's courts should lie to the king in chancery; upon which the king, as in appeals from the admiral's court, should by a commission appoint certain judges or delegates finally to determine such appeals. 3 Book, 66.--CHRISTIAN. "No religious test shall ever be required as a qualification to any office or public trust under the United States." Const. U. S. art. 6, s. 3. "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Ibid. Amendments, art. 1.-SHARSWOOD. 215 CHAPTER VIII. OF THE KING'S REVENUE. HAVING, in the preceding chapter, considered at large those branches of the king's prerogative, which contribute to his royal dignity, and constitute the executive power of the government, we proceed now to examine the king's fisca prerogatives, or such as regard his revenue; which the British constitution hath vested in the royal person, in order to support his dignity and maintain his power: being a portion which each subject contributes of his property, in order to secure the remainder. This revenue is either ordinary or extraordinary. The king's ordinary revenue is such, as has either subsisted time out of mind in the crown; or else has been granted by parliament, by way of purchase or exchange for such of the king's inherent hereditary revenues, as were found inconvenient to the subject. When I say that it has subsisted time out of mind in the crown, I do not mean that the king is at present in the actual possession of the whole of this revenue. Much (nay, the greatest part) of it is at this day in the hands of subjects, to whom it has been granted out from time to time by the kings of England: which has rendered the crown in some measure dependent on the people for its ordinary support and subsistence. So that I must be obliged to recount, as part of the royal revenue, what lords of manors and other subjects *282] *frequently look upon to be their own absolute inherent rights; because they are and have been vested in them and their ancestors for ages, though in reality originally derived from the grants of our ancient princes. I. The first of the king's ordinary revenues, which I shall take notice of, is of an ecclesiastical kind; (as are also the three succeeding ones) viz. the custody of the temporalties of bishops: by which are meant all the lay revenues, lands, and tenements, (in which is included his barony,) which belong to an archbishop's or bishop's see. And these upon the vacancy of the bishopric are immediately the right of the king, as a consequence of his prerogative in church matters; whereby he is considered as the founder of all archbishoprics and bishoprics, to whom during the vacancy they revert. And for the same reason, before the dissolution of abbeys, the king had the custody of the temporalties of all such abbeys and priories as were of royal foundation (but not of those founded by subjects) on the death of the abbot or prior. (a) Another reason may also be given, why the policy of the law hath vested this custody in the king; because as the successor is not known, the lands and possessions of the see would be liable to spoil and devastation, if no one had a property therein. Therefore the law has given the king, not the temporalties themselves, but the custody of the temporalties, till such time as a successor is appointed; with power of taking to himself all the intermediate profits, without any account of the successor; and with the right of presenting (which the crown very frequently exercises) to such benefices and other preferments as fall within the time of vacation.(b) This revenue is of so high a nature, that it could not be granted out to a subject, before, or even after, it accrued: but now by the statute 15 Edw. III. st. 4, c. 4 and 5, the king may, after the va cancy, lease the temporalties to the dean and chapter; saving to himself all advowsons, escheats, and the like. Our ancient kings, and particularly William Rufus, were not only remarkable for keeping the bishoprics a long time *283] *vacant, for the sake of enjoying the temporalties, but also committed horrible waste on the woods and other parts of the estate; and to crown all, would never, when the see was filled up, restore to the bishop his temporalties again, unless he purchased them at an exorbitant price. To remedy which, king Henry the First(c) granted a charter at the beginning of his reign, pro () Matt. Paris. mising neither to sell, nor let to farm, nor take any thing from, tl e domains of the church, till the successor was installed. And it was made one of the articles of the great charter,(d) that no waste should be committed in the temporalties of bishoprics, neither should the custody of them be sold. The same is ordained by the statute of Westminster the 1st; (e) and the statute 14 Edw. III. st. 4, c. 4, (which permits, as we have seen, a lease to the dean and chapter,) is still more explicit in prohibiting the other exactions. It was also a frequent abuse, that the king would for trifling, or no causes, seize the temporalties of bishops, even during their lives, into his own hands: but this is guarded against by statute 1 Edw. III. st. 2, c. 2. This revenue of the king, which was formerly very considerable, is now by a customary indulgence almost reduced to nothing: for, at present, as soon as the new bishop is consecrated and confirmed, he usually receives the restitution of his temporalties quite entire, and untouched, from the king; and at the same time does homage to his sovereign: and then, and not sooner, he has a fee simple in his bishopric, and may maintain an action for the profits.(f) II. The king is entitled to a corody, as the law calls it, out of every bishopric, that is, to send one of his chaplains to be maintained by the bishop, or to have a pension allowed him till the bishop promotes him to a benefice (g) This is also in the nature of an acknowledgment to the king, as founder of the see, since he had formerly the same corody or pension from every abbey or priory of royal foundation. It is, I *apprehend, now fallen into total disuse; though Sir Matthew Hale says(h) that it is due of common right,' and that no prescription will discharge it. [*284 III. The king also, as was formerly observed,(i) is entitled to all the tithes arising in extra-parochial places :(k) though perhaps it may be doubted how far this article, as well as the last, can be properly reckoned a part of the king's own royal revenue; since a corody supports only his chaplains, and these extraparochial tithes are held under an implied trust, that the king will distribute them for the good of the clergy in general. IV. The next branch consists in the first-fruits, and tenths, of all spiritual preferments in the kingdom; both of which I shall consider together. These were originally a part of the papal usurpations over the clergy of this kingdom; first introduced by Pandulph, the pope's legate, during the reigns of king John and Henry the Third, in the see of Norwich; and afterwards attempted to be made universal by the popes Clement V. and John XXII., about the beginning of the fourteenth century. The first-fruits, primitia, or annates, were the first year's whole profits of the spiritual preferment, according to a rate or valor made under the direction of pope Innocent IV. by Walter, bishop of Norwich, in 38 Hen. III., and afterwards advanced in value by commission from pope Nicholas III., A.D. 1292, 20 Edw. I.;(1) which valuation of popo Nicholas is still preserved in the exchequer.(m) The tenths, or decima, were 1 But queen Elizabeth kept the see of Eli vacant nineteen years, in order to retain the revenue. Strype, vol. iv. 351.-CHRISTIAN. 2 'So where the foundation was not royal, it was usual for the founders to give their heirs a corody,-viz., a charge upon the particular monastery or abbey sufficient to prevent them from starving. And those persons, disinherited of the lands by their relations, were there subsisted during life. See a form of corody, Barr. stat. 80, n. (9.) Sparke's Coll. 157.—CHITTY. The right to a corody does not seem peculiar to the prerogative, and it might be not only for life and years, but in fee, (2 Inst. 630;) assize lay for it, (stat. Westm. 2, c. 25.) The text would appear to indicate that only persons ecclesiastical could enjoy corody; but, by the older books, any servant of the king may be entitled to corody. A pension is proper to an ecclesiastic. See F. N. B. 250; also the previous note.-CHITTY. There are several errors in the text, which Mr. Justice Coleridge has pointed out. The correct account is as follows. In 125?, pope Innocent IV. granted all the first-fruita the tenth part of the annual profit of each living by the same valuation; which was also claimed by the holy see, under no better pretence than a strange misapplication of that precept of the Levitical law, which directs,(n) that the Levites "should offer the tenth part of their tithes as a heave-offering to the Lord, *285] and give it to Aaron the high priest." But *this claim of the pope met with a vigorous resistance from the English parliament; and a variety of acts were passed to prevent and restrain it, particularly the statute 6 Hen. IV. c. 1, which calls it a horrible mischief and damnable custom. But the popish clergy, blindly devoted to the will of a foreign master, still kept it on foot; sometimes more secretly, sometimes more openly and avowedly: so that in the reign of Henry VIII. it was computed, that in the compass of fifty years 800,000 ducats had been sent to Rome for first-fruits only. And, as the clergy expressed this willingness to contribute so much of their income to the head of the church, it was thought proper (when in the same reign the papal power was abolished, and the king was declared the head of the church of England) to annex this revenue to the crown; which was done by statute 26 Hen. VIII. c. 3, (confirmed by statute 1 Eliz. c. 4,) and a new valor beneficiorum was then made, by which the clergy are at present rated. By these last-mentioned statutes all vicarages under ten pounds a year, and all rectories under ten marks, are discharged from the payment of first-fruits; and if, in such livings as continue chargeable with this payment, the incumbent lives but half a year, he shall pay only one quarter of his first-fruits; if but one whole year, then half of them; if a year and a half, three quarters; and if two years, then the whole; and not otherwise. Likewise by the statute 27 Hen. VIII. c. 8, no tenths are to be paid for the first year, for then the first-fruits are due: and by other statutes of queen Anne, in the fifth and sixth years of her reign, if a benefice be under fifty pounds per annum clear yearly value, it shall be discharged of the payment of first-fruits and tenths." Thus the richer clergy, being, by the criminal bigotry of their popish predecessors, subjected at first to a foreign exaction, were afterwards, when that yoke was shaken off, liable to a like misapplication of their revenues, through the rapacious disposition of the then reigning monarch: till at length the piety (*) Numb. xviii. 26. and tenths to Henry III. for three years, which occasioned a taxation in the following year, sometimes called the Norwich taxation and sometimes Innocent's valuation. In 1288, Nicholas IV. (not III., as in the text) granted the tenths to Edward I. for six years; and a new valuation was commenced in the same year by the king's precept, which valuation was, so far as it extended over the province of Canterbury, finished in 1291, and, as to York, also in the following year: the whole being under the direction of John, bishop of Winton, and Oliver, bishop of Lincoln. In 1318, a third taxation, entitled Nova Taxatio, was made, but this only extended over some part of the province of York. It became necessary chiefly in consequence of the Scottish invasion of the border counties, which rendered the clergy of those districts unable to pay tenths and first-fruits according to the higher valuation. It was made by virtue of royal mandate directed to the bishop of Carlisle.-HARGrave. When the first-fruits and tenths were transferred to the crown of England, by 26 Hen. VIII. c. 3, at the same time it was enacted, that commissioners should be appointed in every diocese, who should certify the value of every ecclesiastical benefice and preferment in the respective dioceses; and according to this valuation the first-fruits and tenths were to be collected and paid in future. This valor beneficiorum is what is com. monly called the King's Books; a transcript of which is given in Ecton's Thesaurus, and Bacon's Liber Regis.-CHRISTIAN. The archbishops and bishops have four years allowed for the payment, and shall pay one quarter every year, if they live so long upon the bishopric; but other dignitaries in the church pay theirs in the same manner as rectors and vicars.-CHRISTIAN. 1 After queen Anne had appropriated the revenue arising from the payment of firstfruits and tenths to the augmentation of small livings, it was considered a proper exension of this principle to exempt the smaller livings from the encumbrance of those demands; and, for that end, the bishops of every diocese were directed to inquire and certify into the exchequer what livings did not exceed 501. a year, according to the improved value at that time; and it was further provided, that such livings should be dis charged from those dues in future.-CHRISTIAN. [*286 of queen Anne restored to the church what had been *thus indirectly taken from it. This she did, not by remitting the tenths and first-fruits entirely; but, in a spirit of the truest equity, by applying these superfluities of the larger benefices to make up the deficiencies of the smaller. And to this end she granted her royal charter, which was confirmed by the statute 2 Anne, c. 11, whereby all the revenue of first-fruits and tenths is vested in trustees for. ever, to form a perpetual fund for the augmentation of poor livings. This is usually called queen Anne's bounty, which has been still further regulated by subsequent statutes.(o) V. The next branch of the king's ordinary revenue (which, as well as the subsequent branches, is of a lay or temporal nature) consists in the rents and profits of the demesne lands of the crown. These demesne lands, terræ dominicales regis, being either the share reserved to the crown at the original distribution of landed property, or such as came to it afterwards by forfeitures or other means, were anciently very large and extensive; comprising divers manors, honours, and lordships: the tenants of which had very peculiar pri (°) 5 Anne, c. 24. 6 Anne, c. 27. 1 Geo. I. st. 2, c. 10. 3 Geo. I. c. 10. These trustees were erected into a corporation, and have authority to make rules and orders for the distribution of this fund. The principal rules they have established are, that the sum to be allowed for each augmentation shall be 2007., to be laid out in land, which shall be annexed forever to the living; and they shall make this donation, first, to all livings not exceeding 107. a year; then to all livings not above 201.; and so in order, whilst any remain under 50l. a year. But when any private benefactor will ad vance 2007., the trustees will give another 2007. for the advancement of any living not above 457. a year, though it should not belong to that class of livings which are then augmenting. 2 Burn, Ec. L. 260. Though this was a splendid instance of royal munificence, yet its operation is slow and inconsiderable; for the number of livings certified to be under 50l. a year was no less than 5597, of which 2538 did not exceed 201. a year each, and 1933 between 30%. and 50l. a year, and the rest between 201. and 301.; so that there were 5597 benefices in this country, which had less than 231. a year each, upon an average. Dr. Burn calculates that, from the fund alone, it will require 339 years from the year 1714, when it commenced, before all these livings can be raised to 50l. And if private benefactors should contribute half as much as the fund, (which is very improbable,) it will require 226 years. But even taking this supposition to have been true ever since the establishment, it will follow, that the wretched pittance from each of 5597 livings, both from the royal bounty and private benefaction, cannot, upon an average, have yet been augmented 91. a year. 2 Burn, E. L. 268. Dr. Burn, in this calculation, computes the clear amount of the bounty to make fifty-five augmentations daily, that is, at 11,000l. a year; but Sir John Sinclair (Hist. Rev. 3 part, 198) says that "this branch of the revenue amounted to about 14,000l. per annum; and on the 1st of January, 1735, the governors of that charity possessed, besides from savings and private benefactions, the sum of 152,500. of old South Sea annuities, and 48571. of cash, in the hands of their treasurer. The state of that fund has of late years been carefully concealed; but it probably yields, at present, from forty to fifty thousand pounds per annum.' "This conjecture must certainly be very wide of the truth of the case; for the source of this fund is fixed and perma nent, except the variation depending upon the contingency of vacancies, which will be more or fewer in different years. And what object can the commissioners have in the accumulation of this fund? For that accumulation can only arise by depriving the poor clergy of the assistance which was intended them, and to enrich the successor at the expense of the wretched incumbent of the present day. The condition of the poor clergy in this country certainly requires some further national provision. Neither learning, religion, nor good morals, can secure poverty from contempt in the minds of the valgar. The immense inequality in the revenues of the ministers of the gospel, not always resulting from piety and merit, naturally excites discontent and prejudices against the present establishment of the church. If the whole of the profits and emoluments of every benefice for one year were appropriated to this purpose, an effect would be produced in twenty or thirty years which will require 300 by the present plan. This was what was originally understood by the first-iruits, and what actually, within the last 300 years, was paid and carried out of the kingdom to support the superstition and folly of popery. If upon any promotion to a benefice it was provided that there should be no vacancy or cession of former preferment till the end of the year, who could complain? It would certainly soon yield a supply which would communicate both comfort and re spectability to the indigent clergy.-CHRISTIAN. |