commons. In the time of Richard II., there is a remarkable instance of a clergyman, who signalized himself in the house of commons:* he is called Sir Thomas Haxey, clerk. He introduced a bill, which passed the commons, to lessen the king's expenses, and to remove bishops and ladies from his court, for which the commons were obliged to make concessions, and to surrender the author of the bill to the king. He was tried by parliament, and condemned to die as a traitor; but his life was spared by the intercession of the bishops, because he was a clergyman. His boldness, however, shows that he had no suspicion that his title to a seat in parliament could be questioned. As little weight is due to the arguments drawn from the canons as to those from the convocation; for by proving too much they prove nothing; for were these available, the canons would also preclude the clergy from acting in the commission of the peace, a secular jurisdiction which they have long exercised. If the clergy were eligible prior to the enactment of the canons, or independent of their authority, then the validity of those made antecedent to the 25th Henry VIII. may be justly questioned; for eligible persons might in all cases, and may still in some, be compelled to serve in parliament against their own consent; and no set of men ought to be allowed to disable themselves, and deprive their country of their services by any laws of their own making, which are not expressly confirmed by the king's authority. The objection to a clergyman's eligibility does not seem to be much stronger, even when he is beneficed; for from the residence enforced by the spiritual judge, the ninth chapter of the articuli clerici exempts and privileges those who are engaged in the service of the king and commonwealth; nec debet dici tendere in prejudicium ecclesiasticæ libertatis, quod pro rege et republica necessarium invenitur; whatever is found to be necessary for the king and the commonwealth, ought not to be held prejudicial to ecclesiastical liberty a declaration which lord Coke says ought to be written in letters of gold. An attendance in parliament is pre-eminently "pro rege et republica necessarium, necessary for the king and commonwealth," and the presence of the clergy there would prevent many prejudices and false statements regarding the church from going abroad through the medium of the speeches of honourable members, which are made sometimes in ignorance, and not infrequently from malice prepense. The late Mr Canning, for instance, accused the church of England of holding the doctrine of consubstantiation, and there being no one to contradict such a libel on the church, it went abroad to the world as doctrine of that church. Whereas consubstantiation and transubstantiation being substantially the same thing, every member of the house of commons, at the time

* Councils and Convocations, 429.

66

when that memorable speech was made, had taken the oath against it, and sworn that they did not believe one word of any such doctrine. Had a clergyman been eligible to sit in parliament, and been present, his contradiction of this dogmatic assertion would have placed the "bane and antidote" before the public at the same time, and prevented the ill effects of such a speech on the public mind.

With regard to the residence required by the statute of Henry VIII.,* Professor Christian is of opinion that important rights and franchises are not lost or destroyed, merely because they become in some degree inconsistent with the provisions of a new statute, which is entirely silent respect. ing them. If that were the case, the beneficed clergy must have also lost their capacity to sit in convocation; for though the statute makes excep tions in cases of absence, as formerly, on pilgrimages and the king's service abroad, yet there is no exception for attendance on the convocation. But even at the time when the clergy taxed themselves in convocation, that circumstance was not adequate to bar them from electing, or being elected to parliament. Taxation is certainly an important branch of legislation, yet it is far from being the whole concern of that power which superintends and protects our lives, our liberties, and our property. When the clergy ceased to tax themselves, the reason for their sharing in the rights and privileges of representation was strengthened, but not created. After the clergy, in their convocation, granted the last subsidy in 1663, and were afterwards taxed in parliament, as if this alone had precluded them from a share of parliamentary representation, they tendered their votes at county elections in right of their glebes, which have ever since been received with tacit approbation. But the capacity to elect and to be elected being originally the same, when you take away an obstruction from the one, you remove it from the other also, unless some express law has superinduced a further impediment. But the learned professor apprehends that the reason why the clergy, having no other lands than their glebes, never voted nor were elected in ancient times, did not in any degree depend either on taxation or the convocation; but that it was owing entirely to the tenure of their glebe lands, viz. frankalmoign, which exempted them from attendance on the courts of the king, the lords, or the sheriffs; and even if they held other lands, holy orders exempted them by the common law from secular services and temporal offices: this privilege was confirmed by magna charta and the statute of Marlbridge. This was an exemption, but not an exclusion. But what have now become important rights, were originally considered burdensome duties. It is not strange, therefore, that the clergy should avail themselves of this privilege, till the disuse became regarded as an incapacity. These glebe lands are their *Stat. 21, c. 13. 8 Henry VI., c. 7.

freeholds. When they were admitted to vote in right of these freeholds. it followed as a consequence, that they were also eligible to represent, unless some better authority can be produced for their exclusion, than merely disuse, or their having a voice in the convocation, where they no longer tax themselves, or their being prohibited by canons which in other instances are disregarded, and which probably could never be esteemed obligatory on parliament.

Mr Horne Tooke, a gentleman who had taken priest's orders early in life, but who had long ceased to officiate, or even to appear as a clergyman, was returned for Old Sarum. No petition having been presented within the time limited by Grenville's act, one of the members moved for the appointment of a committee to search for precedents respecting the eligibility of the clergy to sit in the house of commons. This committee afterwards reported, that there are few instances with particular additions till the 8th of Henry IV., for then the practice of returning citizens and burgesses by indentures annexed to the writ first prevailed, yet they find five, with the addition of clericus. The committee state also, that no such name as Sir Thomas Haxey, formerly mentioned, exists in the returns of the 20th Richard II., which are perfect and extant in the Tower. It appears, however, by a record in Rymer's Fœdera,* that Sir Thomas Haxey was not a member of the house of commons, but the earl of Nottingham's proxy in the house of lords. At that period, namely, in the reign of Richard II., commoners might act in the absence of peers, as their proxies. Although it is manifest from this record, that Haxey was not a member of the house of commons, yet the inference from the case is plain, that if any prohibition in the canon law would have prevented him from representing a county or borough in the house of commons, the same obstacle would have prevented him from exercising the lay functions of a temporal peer in the house of lords.

When the question of the eligibility of the clergy to sit in the lower house of parliament was discussed in the commons, the prime minister proposed that a bill should be brought in to declare the clergy ineligible, by which means all doubts and questions might for the future be removed. The debate in both houses went chiefly on the point, whether this statute would be declaratory of what was already the law, or introductory of a Those who maintained the clergy's ineligibility, argued chiefly from the canon law; but the opposite party, particularly lord chancellor Thurlow, adopted most of the arguments which we have just enumerated as the sentiments of the learned editor of Sir William Blackstone's commentaries. By an act to remove doubts respecting the eligibility of

new one.

*Tom. VII. p. 844.

f 41 Geo. III., c. 73.

persons in holy orders to sit in the house of commons, it was declared and enacted, that no person having been ordained to the office of a priest or deacon, is or shall be capable of being elected to serve in parliament as a nember of the house of commons; and if any such person shall sit in the house, he shall forfeit £500 a-day, and be incapable of holding any pre-e ferment or office under his majesty. But the statute was not to extend to the members of the house during the continuance of that parliament. Formerly the clergy were excluded from the parliaments of Scotland and Ireland, and now by this statute they are excluded from the commons' house of the imperial parliament of Great Britain.

Although the clergy have some privileges peculiar to their sacred office, yet they are not without their disabilities also, on account of their spiritual functions. From what we have said above, they are incapable of sitting in the house of commons,* and they are not in general allowed to take any lands or tenements to farm, under a penalty of ten pounds a-month, and a total avoidance of the lease; but by a subsequent act+ passed for the purpose of consolidating and amending the existing laws relative to spiritual persons, this clause has been repealed. The second section of the act forbids all spiritual persons from occupying and cultivating any lands exceeding in the whole eighty acres, without his bishop's consent, under a penalty of £40 per acre. By the third clause they are equally forbidden to engage in any trade or dealing for gain, under the penalty of forfeiting the goods thus trafficked in. All spiritual persons engaged in keeping schools, and giving instruction for profit and reward, are however exempted from the operation of this clause; neither does it extend to goods bought or resold for domestic purposes, provided the same were originally purchased bona fide for absolute use. But they are not to sell their produce in any market or place of public sale. They cannot keep any tanhouse or brewhouse, under a penalty of ten pounds per month. This singular prohibition against a tanhouse, probably originated in some practice peculiar to the times when the act was passed. A clergyman cannot engage in any manner of trade, nor sell any merchandise whatever, under the penalty of forfeiting treble the value. But though a clergyman is subject to penalties for trading, yet his contracts are valid, and he is liable to be made a bankrupt.

In the frame and constitution of ecclesiastical polity there are several ranks and degrees, which shall be considered in their respective order, merely as they are taken notice of in the secular laws of England, without intermeddling with the canons and constitutions, in this place at least, by which the clergy have bound themselves. When we come to treat of the convo

* 21 Henry VIII., c. 13.

57 Geo. III., c. 99.

cation of the church of England, and the general assembly of the church of Scotland, we will add such farther particulars regarding each as do not fall within the scope of this article. Meantime we will consider each division of this important portion of the people, in three points of view? 1. The method of their appointinent; 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 license from the crown. In very early times, election was the usual mode of elevation to the episcopal chair, throughout all Christendom, which was promiscuously performed by the laity as well as the clergy, till in time it became tumultuous, and 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 soon began to be universally annexed to this spiritual dignity. The elected bishop could neither be consecrated, nor receive any secular profits, without having previous confirmation and investiture. Pope Adrian I., and the council of Lateran, in the year 773, acknowledged this right to be vested in the emperor Charlemagne, and it was universally exercised by all other Christian princes: but the policy of Rome began by degrees to exclude the laity from any share in these elections, and to confine them wholly to the clergy, and which at length they completely effected. The laity yielded their privilege the more readily, that they soon practically discovered that it was a right of very little consequence, so long as the crown or the pope was in possession of an absolute negative, which was in fact equivalent to a direct right of nomination. Hence the right of appointing to bishoprics is said to have been in the crown of England, as well as the other kingdoms of Europe, even in the Saxon times; because the rights of confirmation and investiture were in effect, though not formally, a right of complete donation.* But when by length of time the custom of making elections by the clergy alone was fully established, the popes began to except against the usual method of granting these investitures, which was per annulum et baculum, by the prince delivering to the prelate elect a ring and pastoral staff, or crosier. Pretending that this was an encroachment on the church's authority, and an attempt to confer a spiritual jurisdiction by these symbols, pope Hildebrand, commonly called Gregory VII., towards the close of the eleventh century, published a bull of excommunication against all princes who should dare to confer investitures, and all prelates who should venture to receive them. This was a bold and effectual step towards effecting the plan then adopted by the Roman see, of rendering the clergy entirely independent of the civil authority; and long and eager were the contests occasioned by this unjustifiable claim of the pope. But at length, when the emperor Henry V. agreed to remove all suspicion of encroachment on the spiritual character, by conferring investitures in his dominions for the future per sceptrum, and not as formerly, per annulum et baculum; and when the kings of England and France consented to alter the forms in their kingdoms, and receive only homage from the bishops for their temporalities, instead of investing them with the ring and crosier, the court of Rome found it prudent to suspend its other pretensions till a more convenient

season.

This concession was obtained from Henry I. of England, glad to compound his rights with that obstinate and arrogant prelate, archbishop Anselm, in the year 1107; but about a century afterwards, in order to obtain the protection of the pope against the rebellion of his discontented barons, king John was also prevailed on to concede to all the monasteries and cathedral churches in the kingdom, the free right of electing their prelates, whether they were abbots or bishops, reserving to the crown only the custody of the temporalities during the vacancy. On the refusal of the form of granting a license to elect, (which is the original of the conge d'elire,) the electors might proceed without it; the crown claiming the

* Selden.