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this kingdom are entitled. The famous Jew bill in the year 1753, was the subject of very high debates, but which was carried,* and enabled all Jews to prefer bills of naturalization in parliament without receiving the sacrament of the Lord's supper according to the rites of the church of England, which had been ordained by the statute passed in their favour by James I. This statute, however, was only in force a few months, and was repealed the following year :

" that the above mentioned act, and the several matters and things therein contained, shall be, and is, and are hereby repealed and made void to all intents and purposes whatsoever.”+


THE PEOPLE, whether aliens, denizens, or natural born subjects, are divisible into two kinds, clergy and laity. Aliens and denizens have been already discussed. The following section will be devoted to the clergy, comprehending all persons in holy orders, and in ecclesiastical offices. The lay part of his majesty's subjects, or such of the people as are not comprehended under the denomination of the clergy, are divided into the distinct states of the civil, the military, and the maritime, have been already described, and we therefore refer to them merely in this place.

This venerable body of men, being separate and set apart from the rest of the people, in order to attend more closely to the service of Almighty God, have in consequence considerable privileges allowed them by the municipal laws of these kingdoms, which formerly were much greater, but which were greatly abridged at the Reformation, on account of the abominable abuses which had crept into the whole body of the Romish clergy. The laws having exempted them from almost every personal duty and obligation, they attempted to relieve themselves from every secular tie. In reflecting on this most absurd abuse of their reasonable privileges, Sir Edward Coke observes, " that as the overflowing of waters doth many times make the river to lose its proper channel, 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 which the Romish clergy enjoyed, still for the most part continue to be enjoyed by their protestant successors. A clergyman in any part of Great Britain, cannot be compelled to serve on a jury, nor to appear at a court leet, or view of Frankpledge in England or

* 26 Geo. II., c. 26.

+ 27 Geo. II., c. 1.-Blackstone's Commentaries, with Professor Christian's Notes, &c. Statutes at Large

| 2 Inst. 4.

Ireland, which almost every other person in these two kingdoms is obliged to do: but if a layman should be summoned on a jury, and before the trial takes place he should take holy orders, he must notwithstanding appear at the trial and be sworn. A clergyman cannot be chosen to any temporal office, such as bailiff, reeve, constable, or the like, in regard of his own continual attendance on his sacred functions. He is privileged from being arrested for civil suits during his performance of divine service, that is for a reasonable time, eundo, redeundo, et morando, in going, returning, and remaining to perform divine service. Also in cases of felony, a clerk in orders, that is a clergyman, could have had the benefit of clergy, without being branded in the hand, and that too more than once; in both which particulars he was distinguished from a layman. This was a peculiar privilege of the clergy of the church of England, that sentence could never be passed on them for any number of manslaughters, bigamies, simple larcenies, or other clergyable offences; but a layman, even a peer, might have been ousted of clergy, and subjected to the sentence of death on a second conviction for a clergyable offence; for if a layman had once been convicted of manslaughter, he might for bigamy, or any other felony within the benefit of clergy afterwards suffer death, on production of the previous conviction, although any of these crimes for the first offence would not subject a man to the punishment of death. But for the honour of that numerous class of his majesty's subjects, there has never almost been an instance in which they have had occasion to claim the benefit of this privilege.

Benefit of clergy, privilegium clericale, being now wholly abolished, * the law on the subject is of little more use now than as a matter of history or curiosity. It had its origin in the pious regard paid by Christian princes to the church in its infant state, and the ill use which the Romish clergy made of that piety. The exemptions which their piety induced them to make, were principally of two kinds : 1. Exemption of places consecrated to religious duties from criminal arrests, which was the foundation of sanctuaries. 2. Exemptions of the persons of the clergy from criminal process before a secular judge, in a few particular cases, which was the true original and meaning of the benefit of clergy. “The wisdom of the English legislature having, in the course of a long and laborious process, extracted by a noble alchymy rich medicines out of poisonous ingredients; and converted by gradual mutations, what was at first an unreasonable exemption of particular popish ecclesiastics, into a merciful mitigation of the general law, with respect to capital punishment." But as the clergy have their privileges, so also they have many disabilities,

* 7 & 8 Geo. IV., c. 28.

on account of their spiritual avocations. The clergy are incapable of sitting in the house of commons, because they sit in the convocation, which is in fact part and parcel of the parliament. A committee of the house of commons in 1785, decided that a gentleman, who had been regularly admitted to deacon's orders, was incapable of being a member of that house. Many of the arguments in that case might with equal force be urged for the admission or exclusion of a person in priest's orders. The chief authorities for the exclusion of the clergy, are certain entries in the journals of the house of commons, where it is urged that persons returned being clerks, they either bave or might have a voice in the house of convocation. Lord Coke says, “ that none of the clergy, though they be of the lowest order, are eligible, because they are of another body, that is, of the convocation;" and he refers* to an entry in the commons' journals. But besides these authorities, there are canons of the church which probibit the clergy from voluntarily relinquishing the office of a deacon or minister, from using themselves in the course of their lives as laymen, and from exercising secular jurisdictions. Mr Woodesdon has observed,† that the arguments from the convocation ought not to be urged against unbeneficed clergymen, as they can neither sit in the convocation, nor vote for the proctors or representatives in convocation.

The same reason for disqualifying the inferior clergy from sitting in the house of commons, were it good, might be applied for the exclusion of the bishops from the house of lords, because they sit of right in, and form the upper house of convocation, to which they are summoned by the king's writ, and are not elected like the members of the lower house of convocation. It frequently happens that a lay peerage descends to a clergyman in priest's orders : but it has never been supposed, even although he should obtain a benefice, that his sacred character would disable him from taking his seat in the house of peers. Until the Reformation, twenty-nine of the regular clergy, abbots and priors, who were dead in law to most other purposes, had seats in the house of lords in consequence of the lands which they held in capite of the crown. In Scotland, the three estates sat and voted together in one chamber. It would have been unaccountable, if by the common law holy orders had excluded one of these estates from parliament, and not the others; but both in Scotland and Ireland, the clergy were declared to be ineligible by statute; by which we may clearly infer, that without the authority of an act of parliament, the clergy would of common right have participated in this privilege with other subjects. Mr Hody very justly calls the argument drawn from the convocation a new pretence, which was resorted to in the time of queen Mary of bloody memory,f in order to exclude some protestant clergy from the house of * 4 Inst. 47.

+ 1 Gibs. Cod. 180. 181, | Wight, 293. Lord Mountm. 50.



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 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.

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 respecting them. If that were the case, the beneficed clergy must have also lost their capacity to sit in convocation; for though the statute makes exceptions 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.t These glebe lands are their * Stat. 21, c. 13.

+ 8 Henry VI., c. 7.

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