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 (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 donation1. 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 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 ". This was a bold step towards effecting the plan then adopted by the Roman see, of rendering the clergy entirely indepen- [379] dent of the civil authority: and long and eager were the contests occasioned by this papal claim. 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

k Palm. 28.

1 "Nulla electio praelatorum (sunt verba Ingulphi) erat mere libera et canonica; sed "omanes 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. Ang. 1. 1. sec. 39.

m Decret. 2. caus, 16, qu. 7. c. 12 and 13.

investing them by the ring and crosier; the court of Rome found it prudent to suspend for a while its other pretensions".

THIS Concession was obtained from king Henry the first in England, by means of that obstinate and arrogant prelate, arch-bishop Anselm°: but king John (about a century afterwards) in order to obtain the protection of the pope against his discontented barons, was also 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 license 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 causeP. This grant was expressly recognised and confirmed in king John's magna carta¶, and was again established by statute 25 Edw. III. st. 6. § 3.

BUT by statute 25 Hen. VIII. c. 20. the ancient right of nomination was, in effect, restored to the crown (7): it being enacted that, at every future avoidance of a bishoprick, the king may send the dean and chapter his usual license to proceed to election; which is always to be accompanied with a

n Mod. Un. Hist. xxv. 363. xxix. 115. o M. Paris. A. D. 1107.

p M. Paris. A. D. 1214. 1 Rym. Foed. 198. q Cap. 1. edit. Oxon. 1759.

(7) This statute was afterwards repealed by 1 Edw. VI. c. 2. which enacted that all bishopricks should be donative as formerly. It states in the preamble that these elections are in very deed no elections; but only by a writ of conge d'elire have colors, shadows, or pretences of election, 1 Burn. Ec. L. 183. This is certainly good sense. For the permission to elect where there is no power to reject can hardly be reconciled with the freedom of election. But this statute was afterwards repealed by 1 Ma. st. 2. c. 20. and other statutes. 12 Co. 7. But the bishopricks of the new foundation were always donative. Harg. Co. Litt. 134. As also are all the Irish bishopricks by the 2 Eliz. c. 4. Lish Statutes.

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 (8). 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 (9).

(8) It is a prevailing vulgar error, that every bishop, before he accepts the bishoprick which is offered him, affects a maiden coyness and answers nolo episcopari. The origin of these words and this notion I have not been able to discover; the bishops certainly give no such refusal at present, and I am inclined to think they never did at any time in this country.

(9) It is directed in the form of consecrating bishops, confirmed by various statutes since the reformation, that a bishop when consecrated must be full thirty years of age. There seems to have been no restriction of this kind in ancient times; for bishop Godwin informs us, that George Nevile, the brother of the earl of Warwick the king-maker, was chancellor of Oxford, et in episcopum Exoniensem consecratus est anno 1455, nondum annus natus viginti. Anno deinde 1460 (id quod jure mirere) summus Angliæ factus est cancellarius. A few years afterwards he was translated to the arch-bishoprick of York. Hoc sedente episcopus Sancti Andreæ in Scotiâ, archiepiscopus per Sixtum quartum creatus est, jussis illi duodecim episcopis illius gentis subesse, qui hactenus archiepiscopi Eboracensis suffraganei censebantur. Reclamante quidem Eboracensi, sed frustra; asserente pontifice, minimè convenire, ut ille Scotia sit metropoli

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 causer (10). 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 them3. 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. The arch-bishop is entitled to present by lapse

to all the ecclesiastical livings in the disposal of his [381] 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 prer Lord Raym. 541.

s 4 Inst. 322, 323.

t 2 Roll. Abr. 22.

tanus, qui propter crebra inter Scotos ac Anglos bella Scotis plerumque hostis sit capitalis. Godw. Comm. de Præsul. 693.

(10) In the 11 W. III. the bishop of St. David's was deprived for simony, and other offences, in a court held at Lambeth before the archbishop, who called to his assistance six other bishops. The bishop of St. David's appealed to the delegates, who affirmed the sentence of the arch-bishop; and after several fruitless applications to the court of king's bench and the house of lords, he was at last obliged to submit to the judgment. Lord Raym. 541. 1 Burn. Ec. L. 212.

sentation 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"; which options are only binding on the bishop himself who grants them, and not on his successors (11). The prerogative itself seems to be derived from the legatine power formerly annexed by the popes to the . metropolitan of Canterbury". 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 exercisedx, a right of naming to the first prebend that becomes vacant after his accession in every church of the empirey. A right, that was also exercised by the crown of England in the reign of Edward I2; and which probably gave rise to the royal corodies which were mentioned in a former chaptera. It is likewise the privilege, by custom, of the arch-bishop of Canter.

u Cowel's interp. tit. option.

w Sherlock of options. 1.

x Goldast. constit. Imper. tom. 3. p. 406. y Dufresne. V. 806. Mąd. Univ. Hist. xxix. 5. z Rex, etc. salutem. Scribatis episcopo Karl quod-Roberto de Icard pensionein suam, quam ad preces regis praedicto Ro

berto concessit, de caetero solvat; et de proxima ecclesia vacatura de collatione praedicti episcopi, quam ipse Robertus ac ceptaverit, respiciat. Brev. 11 Edw. I

3 Pryn. 1264.

a Ch. 8. page 284.

(11) The consequence is, that the arch-bishop never can have more than one option at once from the same diocese. These options become the private patronage of the arch-bishop, and upon his death are trans. mitted to his personal representatives; or the arch-bishop may direct by his will, whom, upon a vacancy, his executor shall present; which direction, according to a decision in the house of lords, his executor is compellable to observe. 1 Burn. Ec. L. 226. If a bishop dies during the vacancy of any benefice within his patronage, the presentation devolves to the crown; so likewise if a bishop dies after an option becomes vacant, and before the arch-bishop or his representative has presented, and the clerk is instituted, the crown pro hac vice will be entitled to present to that dignity or benefice. Amb. 101. For the grant of the option by the bishop to the arch-bishop has no efficacy beyond the life of the bishop.