Chapter THE TENTH (1)

OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OR NATIVES.

HAVING, in the eight preceding chapters, treated of persons as they stand in the public relations of _magistrates_, I now proceed to consider such persons as fall under the denomination of the _people_. And herein all the inferior and subordinate magistrates, treated of in the last chapter, are included.

THE first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or _ligamen_, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors. Under the feodal system, every owner of lands held them in subjection to some superior or lord, from whom or whose ancestors the tenant or vasal had received them: and there was a mutual trust or confidence subsisting between the lord and vasal, that the lord should protect the vasal in the enjoyment of the territory he had granted him, and, on the other hand, that the vasal should be faithful to the lord and defend him against all his enemies. This obligation on the part of the vasal was called his _fidelitas_ or fealty; and an oath of fealty was required, by the feodal law, to be taken by all tenants to their landlord, which is couched in almost the same terms as our antient oath of allegiance[a]: except that in the usual oath of fealty there was frequently a saving or exception of the faith due to a superior lord by name, under whom the landlord himself was perhaps only a tenant or vasal. But when the acknowlegement was made to the absolute superior himself, who was vasal to no man, it was no longer called the oath of fealty, but the oath of allegiance; and therein the tenant swore to bear faith to his sovereign lord, in opposition to all men, without any saving or exception: "_contra omnes homines fidelitatem fecit_[b]." Land held by this exalted species of fealty was called _feudum ligium_, a liege fee; the vasals _homines ligii_, or liege men; and the sovereign their _dominus ligius_, or liege lord. And when sovereign princes did homage to each other, for lands held under their respective sovereignties, a distinction was always made between _simple_ homage, which was only an acknowlegement of tenure[c]; and _liege_ homage, which included the fealty before-mentioned, and the services consequent upon it. Thus when Edward III, in 1329, did homage to Philip VI of France, for his ducal dominions on that continent, it was warmly disputed of what species the homage was to be, whether _liege_ or _simple_ homage[d]. With us in England, it becoming a settled principle of tenure, that _all_ lands in the kingdom are holden of the king as their sovereign and lord paramount, no oath but that of fealty could ever be taken to inferior lords, and the oath of allegiance was necessarily confined to the person of the king alone. By an easy analogy the term of allegiance was soon brought to signify all other engagements, which are due from subjects to their prince, as well as those duties which were simply and merely territorial. And the oath of allegiance, as administred for upwards of six hundred years[e], contained a promise "to be true and faithful to the king and his heirs, and truth and faith to bear of life and limb and terrene honour, and not to know or hear of any ill or damage intended him, without defending him therefrom." Upon which sir Matthew Hale[f] makes this remark; that it was short and plain, not entangled with long or intricate clauses or declarations, and yet is comprehensive of the whole duty from the subject to his sovereign. But, at the revolution, the terms of this oath being thought perhaps to favour too much the notion of non-resistance, the present form was introduced by the convention parliament, which is more general and indeterminate than the former; the subject only promising "that he will be faithful and bear _true_ allegiance to the king," without mentioning "his heirs," or specifying in the least wherein that allegiance consists. The oath of supremacy is principally calculated as a renuntiation of the pope's pretended authority: and the oath of abjuration, introduced in the reign of king William[g], very amply supplies the loose and general texture of the oath of allegiance; it recognizing the right of his majesty, derived under the act of settlement; engaging to support him to the utmost of the juror's power; promising to disclose all traiterous conspiracies against him; and expressly renouncing any claim of the pretender, by name, in as clear and explicit terms as the English language can furnish. This oath must be taken by all persons in any office, trust, or employment; and may be tendered by two justices of the peace to any person, whom they shall suspect of disaffection[h]. But the oath of allegiance may be tendered[i] to all persons above the age of twelve years, whether natives, denizens, or aliens, either in the court-leet of the manor, or in the sheriff's tourn, which is the court-leet of the county.

[Footnote a: 2 _Feud._ 5, 6, 7.]

[Footnote b: 2 _Feud._ 99.]

[Footnote c: 7 Rep. Calvin's case. 7.]

[Footnote d: 2 Carte. 401. Mod. Un. Hist. xxiii. 420.]

[Footnote e: Mirror. _c._ 3. Sec. 35. Fleta. 3. 16. Britton. _c._ 29. 7 Rep. Calvin's case. 6.]

[Footnote f: 1 Hal. P.C. 63.]

[Footnote g: Stat. 13 W. III. c. 6.]

[Footnote h: Stat. 1 Geo. I. c. 13.]

[Footnote i: 2 Inst. 121. 1 Hal. P.C. 64.]

BUT, besides these express engagements, the law also holds that there is an implied, original, and virtual allegiance, owing from every subject to his sovereign, antecedently to any express promise; and although the subject never swore any faith or allegiance in form. For as the king, by the very descent of the crown, is fully invested with all the rights and bound to all the duties of sovereignty, before his coronation; so the subject is bound to his prince by an intrinsic allegiance, before the superinduction of those outward bonds of oath, homage, and fealty; which were only instituted to remind the subject of this his previous duty, and for the better securing it's performance[k]. The formal profession therefore, or oath of subjection, is nothing more than a declaration in words of what was before implied in law. Which occasions sir Edward Coke very justly to observe[l], that "all subjects are equally bounden to their allegiance, as if they had taken the oath; because it is written by the finger of the law in their hearts, and the taking of the corporal oath is but an outward declaration of the same." The sanction of an oath, it is true, in case of violation of duty, makes the guilt still more accumulated, by superadding perjury to treason; but it does not encrease the civil obligation to loyalty; it only strengthens the _social_ tie by uniting it with that of _religion_.

[Footnote k: 1 Hal. P.C. 61.]

[Footnote l: 2 Inst. 121.]

ALLEGIANCE, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth[m]. For, immediately upon their birth, they are under the king's protection; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature[n]. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law[o], that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due. Indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince.

[Footnote m: 7 Rep. 7.]

[Footnote n: 2 P. Wms. 124.]

[Footnote o: 1 Hal. P.C. 68.]

LOCAL allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king's dominion and protection[p]: and it ceases, the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only: and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. As therefore the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. But, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire. From which considerations sir Matthew Hale[q] deduces this consequence, that, though there be an usurper of the crown, yet it is treason for any subject, while the usurper is in full possession of the sovereignty, to practice any thing against his crown and dignity: wherefore, although the true prince regain the sovereignty, yet such attempts against the usurper (unless in defence or aid of the rightful king) have been afterwards punished with death; because of the breach of that temporary allegiance, which was due to him as king _de facto_. And upon this footing, after Edward IV recovered the crown, which had been long detained from his house by the line of Lancaster, treasons committed against Henry VI were capitally punished, though Henry had been declared an usurper by parliament.

[Footnote p: 7 Rep. 6.]

[Footnote q: 1 Hal. P.C. 60.]

THIS oath of allegiance, or rather the allegiance itself, is held to be applicable not only to the political capacity of the king, or regal office, but to his natural person, and blood-royal: and for the misapplication of their allegiance, viz. to the regal capacity or crown, exclusive of the person of the king, were the Spencers banished in the reign of Edward II[r]. And from hence arose that principle of personal attachment, and affectionate loyalty, which induced our forefathers (and, if occasion required, would doubtless induce their sons) to hazard all that was dear to them, life, fortune, and family, in defence and support of their liege lord and sovereign.

[Footnote r: 1 Hal. P.C. 67.]

THIS allegiance then, both express and implied, is the duty of all the king's subjects, under the distinctions here laid down, of local and temporary, or universal and perpetual. Their rights are also distinguishable by the same criterions of time and locality; natural-born subjects having a great variety of rights, which they acquire by being born within the king's ligeance, and can never forfeit by any distance of place or time, but only by their own misbehaviour: the explanation of which rights is the principal subject of the two first books of these commentaries. The same is also in some degree the case of aliens; though their rights are much more circumscribed, being acquired only by residence here, and lost whenever they remove. I shall however here endeavour to chalk out some of the principal lines, whereby they are distinguished from natives, descending to farther particulars when they come in course.

AN alien born may purchase lands, or other estates: but not for his own use; for the king is thereupon entitled to them[s]. If an alien could acquire a permanent property in lands, he must owe an allegiance, equally permanent with that property, to the king of England; which would probably be inconsistent with that, which he owes to his own natural liege lord: besides that thereby the nation might in time be subject to foreign influence, and feel many other inconveniences. Wherefore by the civil law such contracts were also made void[t]: but the prince had no such advantage of escheat thereby, as with us in England. Among other reasons, which might be given for our constitution, it seems to be intended by way of punishment for the alien's presumption, in attempting to acquire any landed property: for the vendor is not affected by it, he having resigned his right, and received an equivalent in exchange. Yet an alien may acquire a property in goods, money, and other personal estate, or may hire a house for his habitation[u]: for personal estate is of a transitory and moveable nature; and, besides, this indulgence to strangers is necessary for the advancement of trade. Aliens also may trade as freely as other people; only they are subject to certain higher duties at the custom-house: and there are also some obsolete statutes of Henry VIII, prohibiting alien artificers to work for themselves in this kingdom; but it is generally held they were virtually repealed by statute 5 Eliz. c. 7. Also an alien may bring an action concerning personal property, and may make a will, and dispose of his personal estate[w]: not as it is in France, where the king at the death of an alien is entitled to all he is worth, by the _droit d'aubaine_ or _jus albinatus_[x], unless he has a peculiar exemption. When I mention these rights of an alien, I must be understood of alien-friends only, or such whose countries are in peace with ours; for alien-enemies have no rights, no privileges, unless by the king's special favour, during the time of war.

[Footnote s: Co. Litt. 2.]

[Footnote t: _Cod._ _l._ 11. _tit._ 55.]

[Footnote u: 7 Rep. 17.]

[Footnote w: Lutw. 34.]

[Footnote x: The word is derived from _alibi natus_; Spelm. Gl. 24.]

WHEN I say, that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration[y], for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king's embassadors born abroad were always held to be natural subjects[z]: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of _postliminium_) to be born under the king of England's allegiance, represented by his father, the embassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided _both_ their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants[a]. But by several more modern statutes[b] these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose _fathers_ were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

[Footnote y: Stat. 29 Car. II. c. 6.]

[Footnote z: 7 Rep. 18.]

[Footnote a: Cro. Car. 601. Mar. 91. Jenk. Cent. 3.]

[Footnote b: 7 Ann. c. 5. and 4 Geo. II. c. 21.]

THE children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their _jus albinatus_, if a child be born of foreign parents, it is an alien[c].

[Footnote c: Jenk. Cent. 3. cites _treasure francois_, 312.]

A DENIZEN is an alien born, but who has obtained _ex donatione regis_ letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative[d]. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. He may take lands by purchase or devise, which an alien may not; but cannot take by inheritance[e]: for his parent, through whom he must claim, being an alien had no inheritable blood, and therefore could convey none to the son. And, upon a like defect of hereditary blood, the issue of a denizen, born _before_ denization, cannot inherit to him; but his issue born _after_, may[f]. A denizen is not excused[g] from paying the alien's duty, and some other mercantile burthens. And no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant from the crown[h].

[Footnote d: 7 Rep. Calvin's case. 25.]

[Footnote e: 11 Rep. 67.]

[Footnote f: Co. Litt. 8. Vaugh. 285.]

[Footnote g: Stat. 22 Hen. VIII. c. 8.]

[Footnote h: Stat. 12 W. III. c. 2.]

NATURALIZATION cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c[i]. No bill for naturalization can be received in either house of parliament, without such disabling clause in it[k]. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord's supper within one month before the bringing in of the bill; and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament[l].

[Footnote i: _Ibid._]

[Footnote k: Stat. 1 Geo. I. c. 4.]

[Footnote l: Stat. 7 Jac. I. c. 2.]

THESE are the principal distinctions between aliens, denizens, and natives: distinctions, which endeavors have been frequently used since the commencement of this century to lay almost totally aside, by one general naturalization-act for all foreign protestants. An attempt which was once carried into execution by the statute 7 Ann. c. 5. but this, after three years experience of it, was repealed by the statute 10 Ann. c. 5. except one clause, which was just now mentioned, for naturalizing the children of English parents born abroad. However, every foreign seaman who in time of war serves two years on board an English ship is _ipso facto_ naturalized[m]; and all foreign protestants, and Jews, upon their residing seven years in any of the American colonies, without being absent above two months at a time, are upon taking the oaths naturalized to all intents and purposes, as if they had been born in this kingdom[n]; and therefore are admissible to all such privileges, and no other, as protestants or Jews born in this kingdom are entitled to. What those privileges are[o], was the subject of very high debates about the time of the famous Jew-bill[p]; which enabled all Jews to prefer bills of naturalization in parliament, without receiving the sacrament, as ordained by statute 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[q]: therefore peace be now to it's _manes_.

[Footnote m: Stat. 13 Geo. II. c. 3.]

[Footnote n: Stat. 13 Geo. II. c. 7. 20 Geo. II. c. 24. 2 Geo. III. c. 25.]

[Footnote o: A pretty accurate account of the Jews, till their banishment in 8 Edw. I. may be found in Molloy _de jure maritimo_, b. 3. c. 6.]

[Footnote p: Stat. 26 Geo. II. c. 26.]

[Footnote q: Stat. 27 Geo. II. c. 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 10_l._ _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.

[Footnote a: 2 Inst. 4.]

[Footnote b: F.N.B. 160. 2 Inst. 4.]

[Footnote c: 4 Leon. 190.]

[Footnote d: Finch. L. 88.]

[Footnote e: Stat. 50 Edw. III. c. 5. 1 Ric. II. c. 16.]

[Footnote f: 2 Inst. 637. Stat. 4 Hen. VII. c. 13. & 1 Edw. VI. c. 12.]

[Footnote g: page 169.]

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.

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 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 rendering 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_ 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].

[Footnote h: _per clerum et populum._ Palm. 25. 2 Roll. Rep. 102. M. Paris. _A.D._ 1095.]

[Footnote i: _Decret._ 1. _dist._ 63. _c._ 22.]

[Footnote k: Palm. 28.]

[Footnote l: "_Nulla electio praelatorum (sunt verba Ingulphi) erat mere libera et canonica; sed omnes dignitates tam episcoporum, quam abbatum, per annulum et baculum regis curia pro sua complacentia conferebat._" _Penes clericos et monachos fuit electio, sed electum a rege postulabant._ Selden. _Jan. Angl._ l. 1. Sec. 39.]

[Footnote m: _Decret._ 2. _caus._ 16. _qu._ 7. _c._ 12 & 13.]

[Footnote n: Mod. Un. Hist. xxv. 363. xxix. 115.]

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_) on refusal whereof the electors 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. Sec. 3.

[Footnote o: M. Paris. _A.D._ 1107.]

[Footnote p: M. Paris. _A.D._ 1214. 1 Rym. _Foed._ 198.]

[Footnote q: _cap._ 1. _edit. Oxon._ 1759.]

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. 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].

[Footnote r: Lord Raym. 541.]

[Footnote s: 4 Inst. 322, 323.]

[Footnote t: 2 Roll. Abr. 223.]

[Footnote u: Cowel's interpr. tit. option.]

[Footnote w: Sherlock of options. 1.]

[Footnote x: Goldast. _constit. imper._ _tom._ 3. _pag._ 406.]

[Footnote y: Dufresne. V. 806. Mod. Un. Hist. xxix. 5.]

[Footnote z: _Rex, &c, salutem. Scribatis episcopo Karl. quod--Roberto de Icard pensionem suam, quam ad preces regis praedicto Roberto concessit, de caetero solvat; et de proxima ecclesia vacatura de collatione praedicti episcopi, quam ipse Robertus acceptaverit, respiciat._ _Brev._ 11 Edw. I. 3 Pryn. 1264.]

[Footnote a: ch. 8. pag. 273.]

[Footnote b: See the bishop of Chester's case. Oxon. 1721.]

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.

[Footnote c: Stat. 37 Hen. VIII. c. 17.]

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.

[Footnote d: Gibs. cod. 822.]

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 prebendaries.

[Footnote e: 3 Rep. 75. Co. Litt. 103, 300.]

[Footnote f: pag. 108, 109.]

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.

[Footnote g: Gibs. cod. 173.]

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].

[Footnote h: Co. Litt. 103.]

DEANERIES and prebends may become void, like a bishoprick, by death, by deprivation, or by resignation to either the king or the bishop[j]. 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].

[Footnote j: Plowd. 498.]

[Footnote i: 2 Roll. Abr. 352. Salk. 137. [Transcriber's Note: Footnotes j and i are in this order in the original.]]

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.

[Footnote k: 1 Burn. eccl. law. 68, 69.]

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 authority[m].

[Footnote l: Kennet. par. antiq. 633.]

[Footnote m: Gibs. cod. 972.]

V. THE next, and indeed the most numerous order of men in the system of ecclesiastical polity, are the parsons and vicars of parishes: in treating of whom I shall first mark out the distinction between them; shall next observe the method by which one may become a parson or vicar; shall then briefly touch upon their rights and duties; and shall, lastly, shew how one may cease to be either.

A PARSON, _persona ecclesiae_, is one that hath full possession of all the rights of a parochial church. He is called parson, _persona_, because by his person the church, which is an invisible body, is represented; and he is in himself a body corporate, in order to protect and defend the rights of the church (which he personates) by a perpetual succession[n]. He is sometimes called the rector, or governor, of the church: but the appellation of _parson_, (however it may be depreciated by familiar, clownish, and indiscriminate use) is the most legal, most beneficial, and most honourable title that a parish priest can enjoy; because such a one, (sir Edward Coke observes) and he only, is said _vicem seu personam ecclesiae gerere_. A parson has, during his life, the freehold in himself of the parsonage house, the glebe, the tithes, and other dues. But these are sometimes _appropriated_; that is to say, the benefice is perpetually annexed to some spiritual corporation, either sole or aggregate, being the patron of the living; whom the law esteems equally capable of providing for the service of the church, as any single private clergyman. This contrivance seems to have sprung from the policy of the monastic orders, who have never been deficient in subtle inventions for the increase of their own power and emoluments. At the first establishment of parochial clergy, the tithes of the parish were distributed in a fourfold division; one for the use of the bishop, another for maintaining the fabrick of the church, a third for the poor, and the fourth to provide for the incumbent. When the sees of the bishops became otherwise amply endowed, they were prohibited from demanding their usual share of these tithes, and the division was into three parts only. And hence it was inferred by the monasteries, that a small part was sufficient for the officiating priest, and that the remainder might well be applied to the use of their own fraternities, (the endowment of which was construed to be a work of the most exalted piety) subject to the burthen of repairing the church and providing for it's constant supply. And therefore they begged and bought, for masses and obits, and sometimes even for money, all the advowsons within their reach, and then appropriated the benefices to the use of their own corporation. But, in order to complete such appropriation effectually, the king's licence, and consent of the bishop, must first be obtained; because both the king and the bishop may sometime or other have an interest, by lapse, in the presentation to the benefice; which can never happen if it be appropriated to the use of a corporation, which never dies: and also because the law reposes a confidence in them, that they will not consent to any thing that shall be to the prejudice of the church. The consent of the patron also is necessarily implied, because (as was before observed) the appropriation can be originally made to none, but to such spiritual corporation, as is also the patron of the church; the whole being indeed nothing else, but an allowance for the patrons to retain the tithes and glebe in their own hands, without presenting any clerk, they themselves undertaking to provide for the service of the church[o]. When the appropriation is thus made, the appropriators and their successors are perpetual parsons of the church; and must sue and be sued, in all matters concerning the rights of the church, by the name of parsons[p].

[Footnote n: Co. Litt. 300.]

[Footnote o: Plowd. 496-500.]

[Footnote p: Hob. 307.]

THIS appropriation may be severed, and the church become disappropriate, two ways: as, first, if the patron or appropriator presents a clerk, who is instituted and inducted to the parsonage: for the incumbent so instituted and inducted is to all intents and purposes complete parson; and the appropriation, being once severed, can never be re-united again, unless by a repetition of the same solemnities[q]. And when the clerk so presented is distinct from the vicar, the rectory thus vested in him becomes what is called a _sine-cure_; because he hath no cure of souls, having a vicar under him to whom that cure is committed[r]. Also, if the corporation which has the appropriation is dissolved, the parsonage becomes disappropriate at common law; because the perpetuity of person is gone, which is necessary to support the appropriation.

[Footnote q: Co. Litt. 46.]

[Footnote r: Sine-cures might also be created by other means. 2 Burn. eccl. law. 347.]

IN this manner, and subject to these conditions, may appropriations be made at this day: and thus were most, if not all, of the appropriations at present existing originally made; being annexed to bishopricks, prebends, religious houses, nay, even to nunneries, and certain military orders, all of which were spiritual corporations. At the dissolution of monasteries by statutes 27 Hen. VIII. c. 28. and 31 Hen. VIII. c. 13. the appropriations of the several parsonages, which belonged to those respective religious houses, (amounting to more than one third of all the parishes in England[s]) would have been by the rules of the common law disappropriated; had not a clause in those statutes intervened, to give them to the king in as ample a manner as the abbots, &c, formerly held the same, at the time of their dissolution. This, though perhaps scarcely defensible, was not without example; for the same was done in former reigns, when the alien priories, (that is, such as were filled by foreigners only) were dissolved and given to the crown[t]. And from these two roots have sprung all the lay appropriations or secular parsonages, which we now see in the kingdom; they having been afterwards granted out from time to time by the crown[u].

[Footnote s: Seld. review of tith. c. 9. Spelm. Apology. 35.]

[Footnote t: 2 Inst. 584.]

[Footnote u: Sir H. Spelman (of tythes, c. 29.) says these are now called impropriations, as being _improperly_ in the hands of laymen.]

THESE appropriating corporations, or religious houses, were wont to depute one of their own body to perform divine service, and administer the sacraments, in those parishes of which the society was thus the parson. This officiating minister was in reality no more than a curate, deputy, or vicegerent of the appropriator, and therefore called _vicarius_, or _vicar_. His stipend was at the discretion of the appropriator, who was however bound of common right to find somebody, _qui illi de temporalibus, episcopo de spiritualibus, debeat respondere_[w]. But this was done in so scandalous a manner, and the parishes suffered so much by the neglect of the appropriators, that the legislature was forced to interpose: and accordingly it is enacted by statute 15 Ric. II. c. 6. that in all appropriations of churches, the diocesan bishop shall ordain (in proportion to the value of the church) a competent sum to be distributed among the poor parishioners annually; and that the vicarage shall be _sufficiently_ endowed. It seems the parish were frequently sufferers, not only by the want of divine service, but also by withholding those alms, for which, among other purposes, the payment of tithes was originally imposed: and therefore in this act a pension is directed to be distributed among the poor parochians, as well as a sufficient stipend to the vicar. But he, being liable to be removed at the pleasure of the appropriator, was not likely to insist too rigidly on the legal sufficiency of the stipend: and therefore by statute 4 Hen. IV. c. 12. it is ordained, that the vicar shall be a secular person, not a member of any religious house; that he shall be vicar perpetual, not removeable at the caprice of the monastery; and that he shall be canonically instituted and inducted, and be sufficiently endowed, at the discretion of the ordinary, for these three express purposes, to do divine service, to inform the people, and to keep hospitality. The endowments in consequence of these statutes have usually been by a portion of the glebe, or land, belonging to the parsonage, and a particular share of the tithes, which the appropriators found it most troublesome to collect, and which are therefore generally called privy, small, or vicarial, tithes; the greater, or predial, tithes being still referred to their own use. But one and the same rule was not observed in the endowment of all vicarages. Hence some are more liberally, and some more scantily, endowed; and hence many things, as wood in particular, is in some countries a predial, and in some a vicarial tithe.

[Footnote w: Seld. tith. c. 11. 1.]

THE distinction therefore of a parson and vicar is this; that the parson has for the most part the whole right to all the ecclesiastical dues in his parish; but a vicar has generally an appropriator over him, entitled to the best part of the profits, to whom he is in effect perpetual curate, with a standing salary. Though in some places the vicarage has been considerably augmented by a large share of the great tithes; which augmentations were greatly assisted by the statute 29 Car. II. c. 8. enacted in favour of poor vicars and curates, which rendered such temporary augmentations (when made by the appropriators) perpetual.

THE method of becoming a parson or vicar is much the same. To both there are four requisites necessary: holy orders; presentation; institution; and induction. The method of conferring the holy orders of deacon and priest, according to the liturgy and canons[x], is foreign to the purpose of these commentaries; any farther than as they are necessary requisites to make a complete parson or vicar. By common law a deacon, of any age, might be instituted and inducted to a parsonage or vicarage: but it was ordained by statute 13 Eliz. c. 12. that no person under twenty three years of age, and in deacon's orders, should be presented to any benefice with cure; and if he were not ordained priest within one year after his induction, he should be _ipso facto_ deprived: and now, by statute 13 & 14 Car. II. c. 4. no person is capable to be admitted to any benefice, unless he hath been first ordained a priest; and then he is, in the language of the law, a clerk in orders. But if he obtains orders, or a licence to preach, by money or corrupt practices (which seems to be the true, though not the common notion of simony) the person giving such orders forfeits[y] 40_l._ and the person receiving 10_l._ and is incapable of any ecclesiastical preferment for seven years afterwards.

[Footnote x: See 2 Burn. eccl. law. 103.]

[Footnote y: Stat. 31 Eliz. c. 6.]

ANY clerk may be presented[z] to a parsonage or vicarage; that is, the patron, to whom the advowson of the church belongs, may offer his clerk to the bishop of the diocese to be instituted. Of advowsons, or the right of presentation, being a species of private property, we shall find a more convenient place to treat in the second part of these commentaries. But when a clerk is presented, the bishop may refuse him upon many accounts. As, 1. If the patron is excommunicated, and remains in contempt forty days[a]. Or, 2. If the clerk be unfit[b]: which unfitness is of several kinds. First, with regard to his person; as if he be a bastard, an outlaw, an excommunicate, an alien, under age, or the like[c]. Next, with regard to his faith or morals; as for any particular heresy, or vice that is _malum in se_: but if the bishop alleges only in generals, as that he is _schismaticus inveteratus_, or objects a fault that is _malum prohibitum_ merely, as haunting taverns, playing at unlawful games, or the like; it is not good cause of refusal[d]. Or, lastly, the clerk may be unfit to discharge the pastoral office for want of learning. In any of which cases the bishop may refuse the clerk. In case the refusal is for heresy, schism, inability of learning, or other matter of ecclesiastical cognizance, there the bishop must give notice to the patron of such his cause of refusal, who, being usually a layman, is not supposed to have knowlege of it; else he cannot present by lapse: but if the cause be temporal, there he is not bound to give notice[e].

[Footnote z: A layman may also be presented; but he must take priests orders before his admission. 1 Burn. 103.]

[Footnote a: 2 Roll. Abr. 355.]

[Footnote b: Glanv. _l._ 13. _c._ 20.]

[Footnote c: 2 Roll. Abr. 356. 2 Inst. 632. Stat. 3 Ric. II. c. 3. 7 Ric. II. c. 12.]

[Footnote d: 5 Rep. 58.]

[Footnote e: 2 Inst. 632.]

IF an action at law be brought by the patron against the bishop, for refusing his clerk, the bishop must assign the cause. If the cause be of a temporal nature and the fact admitted, (as, for instance, outlawry) the judges of the king's courts must determine it's validity, or, whether it be sufficient cause of refusal: but if the fact be denied, it must be determined by a jury. If the cause be of a spiritual nature, (as, heresy, particularly alleged) the fact if denied shall also be determined by a jury; and if the fact be admitted or found, the court upon consultation and advice of learned divines shall decide it's sufficiency[f]. If the cause be want of learning, the bishop need not specify in what points the clerk is deficient, but only allege that he _is_ deficient[g]: for the statute 9 Edw. II. st. 1. c. 13. is express, that the examination of the fitness of a person presented to a benefice belongs to the ecclesiastical judge. But because it would be nugatory in this case to demand the reason of refusal from the ordinary, if the patron were bound to abide by his determination, who has already pronounced his clerk unfit; therefore if the bishop returns the clerk to be _minus sufficiens in literatura_, the court shall write to the metropolitan, to reexamine him, and certify his qualifications; which certificate of the arch-bishop is final[h].

[Footnote f: 2 Inst. 632.]

[Footnote g: 5 Rep. 58. 3 Lev. 313.]

[Footnote h: 2 Inst. 632.]