Friday, May 30, 2008

Blackstone ss39

"Section 39. Part 1 of Chapter 11 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 11, Part 1"

Chapter the eleventh.

Of the CLERGY.

The people, whether aliens, denizens, or natural-born subjects,
are divisible into two kinds; the clergy and laity:
the clergy, comprehending all persons in holy orders, and in ecclesiastical
offices, will be the subject of the following chapter.

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 service 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 personal duty, they attempted a total exemption from
every secular tie. But it is observed by sir Edward Coke[a], that, as
the overflowing of waters doth many times make the river to lose
it's proper chanel, so in times past ecclesiastical persons, seeking to
extend their liberties beyond their true bounds, either lost or enjoyed
not those which of right belonged to them. The personal 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 person is obliged
to do[b]: but, if a layman is summoned on a jury, and before the
trial takes orders, he shall notwithstanding appear and be sworn[c].
Neither can he be chosen to any temporal office; as bailiff, reeve,
constable, or the like: in regard of his own continual attendance
on the sacred function[d]. During his attendance on divine service
he is privileged from arrests in civil suits[e]. In cases 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: in both which particulars he is distinguished from a layman[f].
But as they have their privileges, so also they have their
disabilities, on account of their spiritual avocations. Clergymen,
we have seen[g], are incapable of sitting in the house of commons;
and by statute 21 Hen. VIII. c. 13. are not allowed to take any
lands or tenements to farm, upon pain of 10l. per month, and
total avoidance of the lease; nor shall engage in any manner of
trade, nor sell any merchandize, under forfeiture of the treble
value. Which prohibition is consonant to the canon law.

In the frame and constitution of ecclesiastical polity there are
divers ranks and degrees: which I shall consider in their respective
order, merely as they are taken notice of by the secular laws
of England; without intermeddling with the canons and constitutions,
by which they have bound themselves. And under each
division I shall consider, 1. The method of their appointment;
2. Their rights and duties; and 3. The manner wherein their
character or office may cease.

1. 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 usual mode of elevation to the
episcopal chair throughout all christendom; and this was promiscuously
performed by the laity as well as the clergy[h]: till at
length, it becoming tumultuous, the emperors and other sovereigns
of the respective kingdoms of Europe took the election in some
degree into their own hands; by reserving to themselves the right
of confirming these elections, and of granting investiture of the
temporalties, which now began almost universally to be annexed
to this spiritual dignity; without which confirmation and investiture,
the elected bishop could neither be consecrated, nor receive
any secular profits. This right was acknowleged in the emperor
Charlemagne, A. D. 773, by pope Hadrian I, and the council of
Lateran[i], and universally exercised by other christian princes: but
the policy of the court of Rome at the same 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 consequence, while the crown was in possession of
an absolute negative, which was almost equivalent to a direct right
of nomination. Hence the right of appointing to bishopricks
is said to have been in the crown of England[k] (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[l]. 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 delivering to the prelate a ring, and a pastoral staff or
crosier; pretending, that this was an encroachment on the church's
authority, and an attempt by these symbols to confer a spiritual
jurisdiction: and pope Gregory VII, towards the close of the
eleventh century, published a bulle of excommunication against
all princes who should dare to confer investitures, and all prelates
who should venture to receive them[m]. This was a bold step towards
effecting the plan then adopted by the Roman see, of ren-
dering the clergy intirely independent of the civil authority: and
long and eager were the contests occasioned by this dispute. But
at length when the emperor Henry V agreed to remove all suspicion
of encroachment on the spiritual character, by conferring investitures
for the future per sceptrum[**May be capital - originally OCR'd as f] and not per annulum et baculum;
and when the kings of England and France consented also
to alter the form in their kingdoms, and receive only homage
from the bishops for their temporalties, instead of investing them
by the ring and crosier; the court of Rome found it prudent to
suspend for a while it's other pretensions[n].

This concession was obtained from king Henry the first in
England, by means of that obstinate and arrogant prelate, arch-*bishop
Anselm[o]: but king John (about a century afterwards)
in order to obtain the protection of the pope against his discontented
barons, was prevailed upon to give up by a charter, to all
the monasteries and cathedrals in the kingdom, the free right
of electing their prelates, whether abbots or bishops: reserving
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' eslire)[**googled - only a commentary of this book has "eflire", 51 including reference sites for "conge d'eslire"] on refusal whereof the electors
[**Wikipedia has an entry "Congé d'élire" and says Norman French spelling was "congé d'éslire"][**P3: join to make d'eslire?]
might proceed without it; and the right of approbation afterwards,
which was not to be denied without a reasonable and
lawful cause[p]. This grant was expressly recognized and confirmed
in king John's magna carta[q], and was again established by statute
25 Edw. III. st. 6. §. 3.[**Is it "st"?]

But by statute 25 Hen. VIII. c. 20. the antient right of nomination
was, in effect, restored to the crown: it being enacted
that, at every future avoidance of a bishoprick, the king may
send the dean and chapter his usual licence to proceed to election;
which is always to be accompanied with a letter missive from the
king, containing the name of the person whom he would have
them elect: and, if the dean and chapter delay their election above
twelve days, the nomination shall devolve to the king, who may
by letters patent appoint such person 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, invest, and consecrate the
person so elected: which they are bound to perform immediately,
without any application to the see of Rome. After which the
bishop elect shall sue to the king for his temporalties, shall make
oath to the king and none other, and shall take restitution of his
secular possessions out of the king's hands only. And if such dean
and chapter do not elect in the manner by this act appointed, or
if such arch-bishop or bishop do refuse to confirm, invest, and
consecrate such bishop elect, they shall incur all the penalties of
a 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 cause[r].
The arch-bishop has also his own diocese, wherein he exercises
episcopal jurisdiction; as in his province he exercises archiepiscopal.
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 assemble them[s]. To him
all appeals are made from inferior jurisdictions within his province;
and, as an appeal lies from the bishops in person to him
in person, so it also lies from the consistory courts of each diocese
to his archiepiscopal court. During the vacancy of any see in his
province, he is guardian of the spiritualties thereof, as the king
is of the temporalties; and he executes all ecclesiastical jurisdiction
therein. If an archiepiscopal see be vacant, the dean and
chapter are the spiritual guardians, ever since the office of prior
of Canterbury was abolished at the reformation[t]. The arch-bishop
is entitled to present by lapse to all the ecclesiastical livings in the
disposal of his diocesan bishops, if not filled within six months.
And the arch-bishop has a customary prerogative, when a bishop
is consecrated by him, to name a clerk or chaplain of his own to
be provided for by such suffragan bishop; in lieu of which it is
now usual for the bishop to make over by deed to the arch-bishop,
his executors and assigns, the next presentation of such dignity or
benefice in the bishop's disposal within that see, as the arch-bishop
himself shall choose; which is therefore called his option[u]: which
options are only binding on the bishop himself who grants them,
and not his successors. The prerogative itself seems to be derived
from the legatine power formerly annexed by the popes to the
metropolitan of Canterbury[w]. And we may add, that the papal
claim itself (like most others of that encroaching see) was probably
set up in imitation of the imperial prerogative called primae
or primariae preces; whereby the emperor exercises, and hath immemorially
exercised[x], a right of naming to the first prebend that
becomes vacant after his accession in every church of the empire[y].
A right, that was also exercised by the crown of England in the
reign of Edward I[z]; and which probably gave rise to the royal
corodies, which were mentioned in a former chapter[a]. It is also
the privilege, by custom, of the arch-bishop of Canterbury, to
crown the kings and queens of this kingdom. And he hath also
by the statute 25 Hen. VIII. c. 21.[**could be c. 2. 1.?] the power of granting dispensations
in any case, not contrary to the holy scriptures and the law
of God, where the pope used formerly to grant them: which is
the foundation of his granting special licences, to marry at any
place or time, to hold two livings, and the like: and on this
also is founded the right he exercises of conferring degrees, in
prejudice of the two universities[b].

The power and authority of a bishop, besides the administration
of certain holy ordinances peculiar to that sacred order, consists
principally in inspecting the manners of the people and clergy,
and punishing them, in order to reformation, by ecclesiastical censures.
To this purpose he has several courts under him, and may
visit at pleasure every part of his diocese. His chancellor is appointed
to hold his courts for him, and to assist him in matters of
ecclesiastical law; who, as well as all other ecclesiastical officers,
if lay or married, must be a doctor of the civil law, so created in
some university[c]. It is also the business of a bishop to institute
and to direct induction to all ecclesiastical livings in his diocese.

Archbishopricks and bishopricks may become void by
death, deprivation for any very gross and notorious crime, and
also by resignation. All resignations must be made to some superior[d].
Therefore a bishop must resign to his metropolitan; but
the arch-bishop can resign to none but the king himself.

II. A dean and chapter are the council of the bishop, to
assist him with their advice in affairs of religion, and also in the
temporal concerns of his see[e]. When the rest of the clergy were
settled in the several parishes of each diocese (as hath formerly[f]
been mentioned) these were reserved for the celebration of divine
service in the bishop's own cathedral; and the chief of them,
who presided over the rest, obtained the name of decanus or dean,
being probably at first appointed to superintend ten canons or

All antient deans are elected by the chapter, by conge d'eslire
from the king, and letters missive of recommendation; in the
same manner as bishops: but in those chapters, that were founded
by Henry VIII out of the spoils of the dissolved monasteries,
the deanery is donative, and the installation merely by the king's
letters patent[g]. The chapter, consisting of canons or prebendaries,
are sometimes appointed by the king, sometimes by the
bishop, and sometimes elected by each other.

The dean and chapter are, as was before observed, the nominal
electors of a bishop. The bishop is their ordinary and immediate
superior; and has, generally speaking, the power of visiting
them, and correcting their excesses and enormities. They
had also a check on the bishop at common law: for till the statute
32 Hen. VIII. c. 28. his grant or lease would not have bound his
successors, unless confirmed by the dean and chapter[h].

Deaneries and prebends may become void, like a bishoprick,
by death, by deprivation, or by resignation to either the
king or the bishop[j[**out of order]]. Also I may here mention, once for all, that
if a dean, prebendary, or other spiritual person be made a bishop,
all the preferments he was before possessed of are void; and the
king may present to them in right of his prerogative royal. But
they are not void by the election, but only by the consecration[i[** out of order]].

III. An arch-deacon hath an ecclesiastical jurisdiction, immediately
subordinate to the bishop, throughout the whole of his
diocese, or in some particular part of it. He is usually appointed
by the bishop himself; and hath a kind of episcopal authority,
originally derived from the bishop, but now independent and distinct
from his[k]. He therefore visits the clergy; and has his separate
court for punishment of offenders by spiritual censures, and
for hearing all other causes of ecclesiastical cognizance.

IV. The rural deans are very antient officers of the church[l],
but almost grown out of use; though their deaneries still subsist
as an ecclesiastical division of the diocese, or archdeaconry. They
seem to have been deputies of the bishop, planted all round his
diocese, the better to inspect the conduct of the parochial clergy,
and therefore armed with an inferior degree of judicial and coercive

End of section 39