are, with respect to Jews P in particular, was the subject of very high debates about the time of the famous Jew-bill; which enables all Jews to prefer bills of naturalization in parliament, without receiving the facrament, as ordained by ftatute 7 Jac. I. It is not my intention to revive this controversy again; for the act lived only a few months, and was then repealed: therefore peace be now to it's manes.

PA pretty accurate account of the Jews till their banishment in 8 Edw. I. may be found in Prynne's demurrer, and

in Molloy de jure maritime. b. 3. c. 6. 9 Stat. 26 Geo. II. c. 26.

Stat. 27 Geo. II. c. I.

CHAPTER THE ELEVENTH.

OF THE CLERGY.

THE

HE people, whether aliens, denizens, or naturalborn subjects, are divisible into two kinds; the clergy and laity the clergy comprehending all perfons in holy orders, and in ecclefiaftical offices, will be the subject of the following chapter.

THIS venerable body of men, being feparate and fet apart from the rest of the people, in order to attend the more closely to the fervices 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 ufe 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 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, seeking 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 clegyman 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: 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

42 Inft. 4.

F. N. B. 160. 2 Inft. 4.

4 Leon. 190. chofen

chofen to any temporal office; as bailiff, reeve, constable, or the like, in regard of his own continual attendance on the facred function". During his attendance on divine fervice he is privileged from arrefts in civil fuits (1). In cafes also of felony, a clerk in orders fhall 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 diftinguished from a layman. But as they have their privi leges, fo also they have their disabilities, on account of their fpiritual avocations. Clergymen, we have feen, are incapable of fitting in the houfe 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 leafe (4); nor upon like

(1) That is, for a reasonable time, eundo, redeundo, et morando, to perform divine service. 12 Co. 100.

(2) This is a peculiar privilege of the clergy, that fentence 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 manflaughter, 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 of 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 confumption 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 fubject to the penalties of the 21 Hen. VIII.

VOL. I.

LI

pain

pain to keep any tanhouse or brewhoufe (5); nor fhall 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 conftitution 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 conftitutions, 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 ceafe.

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 fovereigns of the refpective kingdoms of Eu[378 rope took the appointment in fome degree into their own hands; by referving to themfelves the right of confirming thefe elections, and of granting inveftiture of the temporaltics, which now began almoft univerfally to be annexed to this fpiritual dignity; without which confirmation and inveftiture, the elected bishop could neither be confecrated nor

clerum et populum. Palm. 25. 2 Roll. Rep. 102. M. 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.

receive

receive any fecular profits. This right was acknowleged in the emperor Charlemagne, A. D. 773, by Pope Hadrian I., and the council of Lateran', and univerfally exercifed 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 bishopricks 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 inveftiture 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 investitures, which was per annulum et baculum, by the prince's de livering to the prelate a ring, and paftoral ftaff or crofier: pretending, that this was an encroachment on the church's authority, and an attempt by these fymbols to confer a spiritual jurisdiction: and pope Gregory VII., towards the close of the eleventh century, publifhed a bulle of excommunication against all princes who fhould dare to confer inveftitures, and all prelates who fhould venture to receive them ". This was a bold ftep towards effe&ing the plan then adopted by the Roman see, of rendering the clergy entirely independent 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 inveftitures for

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