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rors and other fovereigns of the respective kingdoms of Europe took the appointment in fome degree into their own hands; by referving to themfelves the right of confirming thefe elections, and of granting inveftiture of the temporalties, which now began almost universally to be annexed to this fpiritual dignity; without which confirmation and inveftiture, the elected bishop could neither be consecrated nor receive any fecular profits. This right was acknowleged in the emperor Charlemagne, A. D. 773, by pope Hadrian I, and the council of Lateran, and univerfally exercised by other chriftian princes: but the policy of the court of Rome at the fame time began by degrees to exclude the laity from any fhare in thefe elections, and to confine them wholly to the clergy, which at length was completely effected; the mere form of election appearing to the people to be a thing of lit tle confequence, while the crown was in poffeffion of an ab folute negative, which was almost equivalent to a direct right of nomination. Hence the right of appointing to bishop ricks is faid to have been in the crown of England (as well as other kingdoms in Europe) even in the Saxon times; because the rights of confirmation and inveftiture were in effect (though not in form) a right of complete donation'. But when, by length of time, the custom of making elec tions by the clergy only was fully established, the popes began to except to the ufual method of granting thefe inveftitures, which was per annulum et baculum, by the prince's delivering to the prelate a ring, and pastoral staff or crofier; pretending, that this was an encroachment on the church's authority, and an attempt by these symbols to confer a fpiritual jurisdiction: and pope Gregory VII, towards the close of the eleventh century, published a bulle of excommunication against all princes who fhould dare to confer investi tures, and all prelates who fhould venture to receive them. This was a bold step towards effecting the plan then adopted

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by the Roman fee, of rendering the clergy entirely independent of the civil authority: and long and eager were the contefts occafioned by this papal claim. But at length, when the emperor Henry V agreed to remove all fufpicion of encroachment on the fpiritual character, by conferring inveftitures for the future per fceptrum and not per annulum et baculum; and when the kings of England and France confented also to alter the form in their kingdoms, and receive only homage from the bishops for their temporalties, inftead of investing them by the ring and crofier; the court of Rome found it prudent to fufpend for a while it's other pretenfions ".

THIS Conceffion was obtained from king Henry the first in England, by means of that obftinate and arrogant prelate, arch-bishop Anfelm: but king John (about a century afterwards) in order to obtain the protection of the pope against his discontented barons, was alfo prevailed upon to give up by a charter, to all the monafteries and cathedrals in the kingdom, the free right of electing their prelates, whether abbots or bishops: referving only to the crown the cuftody of the temporalties during the vacancy; the form of granting a licence to elect, (which is the original of our conge d' flire) on refufal whereof the electors might proceed without it; and the right of approbation afterwards, which was not to be denied without a reasonable and lawful caufe P. This grant was exprefsly recognized and confirmed in king John's magna carta, and was again established by ftatute 25 Edw. III. ft. 6. §. 3.

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

n Mod. Un. Hift. xxv. 363. xxix. 115. • M. Paris. A. D. 1107,

5

P M.Paris. A.D.1214.1 Rym. Foed.198. 4 sap. 1. edit. Oxon. 1759.

tion

tion fhall devolve to the king, who may by letters patent appoint fuch perfon as he pleases. This election or nomina→ tion, if it be of a bishop, must be fignified by the king's letters patent to the arch-bishop of the province; if it be of an arch-bishop, to the other arch-bishop and two bishops, or to four bishops; requiring them to confirm, inveft, and con fecrate the perfon fo elected: which they are bound to perform immediately, without any application to the fee of Rome. After which the bifhop elect fhall fue to the king for his temporalties, fhall make oath to the king and none other, and shall take restitution of his fecular poffeffions out of the king's hands only. And if fuch dean and chapter do not elect in the manner by this act appointed, or if fuch arch-bifhop or bifhop do refufe to confirm, inveft, and confecrate 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 infpection of the bifhops of that province, as well as of the inferior clergy, and may deprive them on notorious caufe. The arch-bifhop has also his own diocefe, wherein he exercises epifcopal jurisdiction; as in his province he exercifes archiepifcopal. As arch-bishop, he, upon receipt of the king's writ, calls the bishops and clergy of his province to meet in convocation: but without the king's writ he cannot affemble them. To him all appeals are made from inferior jurisdictions within his province; and, as an appeal lies from the bishops in perfon to him in perfon, fo it also lics from the confiftory courts of each diocefe to his archiepifcopal court. During the vacancy of any fee in his province, he is guardian of the spiritualties thereof, as the king is of the temporaltics; and he executes all ecclefiaftical jurifdiction therein. If an archiepifcopal fee be vacant, the dean and chapter are the fpiritual guardians, ever fince the office of prior of Canterbury was abolished at the reformation. The arch-bifhop is entitled to prefent by lapfe to all the ecclefiaftical livings in the difpofal of his

Lord Raym. 541. 9 4 Inft. 322, 323. I

tz Roll. Abr. 22.

diocefan

diocefan bishops, if not filled within fix months. And the arch-bishop has a customary prerogative, when a bishop is confecrated by him, to name a clerk or chaplain of his own to be provided for by fuch fuffragan bishop; in lieu of which it is now usual for the bishop to make over by deed to the arch-bishop, his executors and affigns, the next presentation of fuch dignity or benefice in the bishop's difpofal within that fee, as the arch-bishop himself fhall choose; which is therefore called his option": which options are only binding on the bishop himself who grants them, and not on his fucceffors. The prerogative itself feems 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 moft others of that encroaching fee) was probably fet up in imitation of the imperial prerogative called primae ot primariae preces; whereby the emperor exercifes, and hath immemorially exercifed, a right of naming to the first prebend that becomes vacant after his acceffion in every church of the empire. A right, that was also exercifed by the crown of England in the reign of Edward I; and which probably gave rise to the royal corodics which were mentioned in a former chapter. It is likewise the privilege, by custom, of the arch-bishop of Canterbury, to crown the kings and queens of this kingdom. And he hath alfo by the ftatute 25 Hen. VIII. c. 21. the power of granting difpenfations in any cafe, 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 fpecial licences, to marry at any place or time, to hold two livings, and the like: and on this alfo is founded the right he exercifes of conferring degrees, in prejudice of the two universities ».

Cowel's interp. tit. option.

Sherlock of options. 1.

berto conceffit, de caetero folvat; et de proxima ecclefia vacatura de collatione

x Goldalt. conftit. imper. tom. 3. page praedicti epifcopi, quam ipfe Robertus ac

406.

ceptaverit, refpiciat. Brev. 11 Edw. I.

y Dufresne. V. So6. Mod. Univ. 3 Pryn. 1264.

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THE power and authority of a bishop, befides the adminifration of certain holy ordinances peculiar to that facred order, confift principally in infpecting the manners of the people and clergy, and punishing them in order to reformation, by ecclefiaftical cenfures. To this purpose he has feveral courts under him, and may vifit at pleasure every part 'of his diocefe. His chancellor is appointed to hold his courts for him, and to aflift him in matters of ecclefiaftical law; who, as well as all other ecclefiaftical officers, if lay or married, must be a doctor of the civil law, fo created in fome university. It is also the business of a bishop to institute, and to direct induction, to all ecclefiaftical livings in his diocefe.

ARCHBISHOPRICKS and bishopricks may become void by death, deprivation for any very grofs and notorious crime, and also by refignation. All refignations must be made to fome fuperior. Therefore a bishop muft refign to his me tropolitan; but the arch-bishop can resign to none but the king himself.

II. A DEAN and chapter are the council of the bishop, to affift him with their advice in affairs of religion, and also in the temporal concerns of his fee. When the rest of the clergy were fettled in the feveral parishes of each diocefe (as hath formerly been mentioned) these were reserved for the celebration of divine fervice in the bishop's own cathedral; and the chief of them, who prefided over the reft, obtained the name of decanus or dean, being probably at first appointed to fuperintend ten canons or prebendaries.

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ALL antient deans are elected by the chapter, by conge eflire from the king, and letters miffive of recommendation; in the fame manner as bishops: but in thofe chapters, that were founded by Henry VIII out of the spoils of the diffolved monafteries, the deanery is donative, and the inftallation

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