a 2 Inft. 4.

ELEVENTH.

OF THE CLERGY.

T

HE people, whether aliens, denizens, or natural-born fubjects, are divisible into two kinds; the clergy and laity : the clergy, comprehending all perfons in holy orders, and in ecclefiaftical offices, will be the fubject 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 fervice 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 popifh 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 feculiar tie. But it is obferved by fir Edward Coke', that, as the overflowing of waters doth many times make the river to lofe it's proper chanel, fo in times paft ecclefiaftical perfons, seeking to extend their liberties beyond their true bounds, either lost or enjoyed not thofe which of right belonged to them. The perfonal exemptions do indeed for the most part continue. A clergyman cannot be compelled to ferve on a jury, nor to appear at a court-lcet or view of frank pledge; which almoft every other perfon is obliged to do': but, if a layman is fummond on a jury, and before the trial

trial takes orders, he shall notwithstanding appear and be fworn: Neither can he be 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 service he is privileged from arrects in civil fuits. In cases 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: in both which particulars he is diftinguifted from a layman. But as they have their privileges, fo also they have their disabilities, on account of their spiritual avocations. Clergymen, we have seen, are incapable of fitting 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 leafe; nor fhall engage in any manner of trade, nor fell any merchandize, under forfeiture of the treble value. 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 respective 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 cease.

I. AN arch-bifhop or bifhop 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 chriftendom; and this was promifcuously performed by the laity as well as the clergy": till at length, it becoming tumultuous, the emperors and other sovereigns

Z z

of

c 4 Leon. 190.

d Finch. L. 88.

e Stat. 5o Edw. III. c. 5. 1 Ric. II. c. 16.

f Inft. 637. Stat. 4 Hen. VII. &

13.

&

1 Edw. VI. c. 12.

g page 175.

h per clerum et populum. Palm. 25. Roll, Rep. 102. M. Paris. A. D. 1095.

of the respective kingdoms of Europe took the appointment in some degree into their own hands; by referving to themselves the right of confirining 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 investi ture, the elected bishop could neither be confecrated, nor 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 christian princes: but the policy of the court of Rome at the fame time began by degrees to exclude the laity from any fhare in thefe elections, and to confine them wholly to the clergy, which at length was completely eflected; 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 almost 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 confirination and inveftiture were in effect (though not in form) a right of complete donation'. But when, by length of time, the cuftom of making elections by the clergy only was fully established, the popes began to except to the usual method of granting thefe inveftitures, which was per annulum et baculum, by the prince's delivering to the prelate a ring, and a pastoral staff or crofier; pretending, that this was an encroachment on the church's authority, and an attempt by these symbols to confer a spiritual jurifdiction: and pope Gregory VII, towards the clofe of the eleventh century, published 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 to wards effecting the plan then adopted by the Roman see, of ren

dering

dering the clergy intirely 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 the future per fceptrum and not per annulum et baculum; and when the kings of England and France confented alfo to alter the form in their kingdoms, and receive only homage from the bifhops for their temporalties, inftead of investing 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, archbishop Anfelm, but king John (about a century afterwards) in order to obtain the protection of the pope againft his difcontented barons, was alfo 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 bithops: referving only to the crown the cuftody of the temporalties during the vacancy; the form of granting a licence to elect, (which is the original of the conge d' eflire) on refufal whereof the electors might proceed without it; and the right of approbation afterwards, which was not to be denied without a reafonable and lawful caufe". This grant was exprefsly recognized and confirmed in king John's magna carte", and was again established by ftatute 25 Edw. III. ft. 6. §. 3.

BUT by ftatute 25 Hen. VIII. c. 20. the antient right of nomination was, in effect, reftored to the crown: it being enacted that, at every future avoidance of a bishoprick, the king may fend the dean and chapter his ufual licence to proceed to clection. which is always to be accompanied with a letter miflive from the king, containing the name of the perfon whom he would have them elect: and, if the dean and chapter delay their clection above twelve

Zz2

n Mod. Un. Hil. xxv. 363. xxix. 115. M. Paris. A. D. 116.

P M. Paris. A. D. 1214. 1 Rvm. Ford 195. yuf. 1. cod. Oxon. 1759.

twelve days, the nomination fhall devolve to the king, who may by letters patent appoint fuch perfons 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, inveft, and confecrate the perfon fo elected: which they are bound to perform immediately, without any application to the fee of Rome. After which the bishop elect fball fue to the king for his temporalties, fhall make oath to the king and none other, and shall take restitution of his fecular poffeffions out of the king's hands only. And if fuch dean and chapter do not elect in the manner by this act appointed, or if fuch arch-bifhop or bishop do refufe to confirm, inveft, and confecrate fuch bishop elect, they fhall incur all the penalties of praemunire.

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 caufe'. The arch-bishop has also his own dioccfe, wherein he exercises epifcopal jurifdiction; as in his province he exercises archiepifcopal. 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 affemble them. To him all appeals are made from inferior jurifdictions within his province; and, as an appeal lies from the bishops in perfon to him in person, so it also lies from the confiftory courts of each diocese of any to his archiepifcopal court. During the vacancy fee in his province, he is guardian of the spiritualties thereof, as the king is of the temporalties; and he executes all ecclefiaftical jurifdiction therein. If an archiepifcopal fee be vacant, the dean and chapter are the fpiritual guardians, ever fince the office of prior of Canterbury was abolished at the reformation'. The arch-bishop is entitled to prefent by lapfe to all ecclefiaftical livings in the

difpofal

Lord Ram. 54). 4 Init. 322. 323.

12 KoN. Abr. 223.