authority of the commissioners, be deemed most conducive to the efficiency of the Established Church: provided that in making any such additional provision out of any tithes, or any lands, or other hereditaments allotted or assigned in lieu of tithes so vested in the commissioners, or out of the rents and profits thereof, due consideration shall be had of the wants and circumstances of the places in which such tithes now arise or have heretofore arisen."

Bounty.

But, as a considerable time might have elapsed before Commissioners the commissioners, under the above provisions, might have to borrow of acquired a sufficient disposable fund, it has been enacted Queen Anne's that the commissioners shall forthwith borrow, and the governor of Queen Anne's Bounty with the Archbishop of Canterbury shall forthwith lend, the sum of £600,000, three per cent., part of a sum standing in their names: and the commissioners are further empowered to borrow, and the governors of Queen Anne's bounty are further empowered to lend, if they think fit, any further sums of stock. Upon the transfer of any such stock into their names in the books of the governor and company of the Bank of England, the commissioners are to pay to the governors, by half-yearly payments, on the 10th of April and the 14th of October in each year, a sum equal to the amount of the dividends which such stock, or so much thereof as shall on such days respectively remain unreplaced, would produce; the commissioners being at any time allowed to replace the whole or any part of such

stock.c

this loan.

All monies in the hands of the commissioners, and all Provisions for the lands, tithes, and other hereditaments, which, under security and for the provisions mentioned above, are in any way vested in repayment of the commissioners, are charged with and made a security for such half-yearly payments, and for the repayment and replacing the whole of the capital stock so lent: and the governors, upon proof of default being made, are to have all such remedies as they would have had, if the commissioners had duly executed a deed under their common seal, covenanting for such repayment.d

After the expiration of thirty years from the date of the lending such sum, or after the expiration of a like number of years from the date of lending such further sum, the governors may give notice in writing to the commissioners, requiring them to replace the sum borrowed; upon which the commissioners are to proceed to replace the sum by yearly instalments, amounting at least to one-twelfth part of such sums of stock respectively; and, in default of their c 6 & 7 Vict. c. 37, ss. 1, 2, 3.

b Sect. 67.

d Sect. 4.

Commissioners to have rights of ownership notwithstand

ing in the lands vested in them.

Meaning of the "authority of

the commissioners."

so doing, the governors are to have their remedy in the same manner as for the half-yearly payment.

Notwithstanding the charge thus created, the commissioners are to exercise all the full rights of ownership over all money and all property vested in them under any of the provisions mentioned above, the consent of the governors not being necessary to the exercise of any of their rights and powers; but every sum of money received as the consideration or purchase-money for the sale, transfer, or conveyance by the commissioners of any of such lands, tithes, tenements, or other hereditaments, or of any estate or interest therein, and also every sum of money received by them as the fine for the granting or renewing of any lease, shall, unless it be deemed expedient by the commissioners to apply any such sum, or any part thereof, in replacing any stock so lent and transferred as aforesaid, which they are empowered to do, be applied by them, so soon as conveniently may be after the receipt thereof, in the purchase of lands, tithes, rent-charges, tenements, or other hereditaments, or of some estate or interest therein, and shall in the meantime be invested in some government or parliamentary stock, or other public securities in England, the commissioners being at liberty to apply the interest and dividends of such stock or securities, &c.f

But no part of the capital of such stock shall be so applied, nor shall any such lands, tithes, tenements, or other hereditaments, be sold, transferred, or conveyed, except by the authority of a scheme prepared by the commissioners, and an order in council ratifying such scheme."

The several arrangements and rules for the application of this fund, and the various other occasions in which the authority of the ecclesiastical commissioners is required, either by direct interference, or indirectly by their sanction, will be found in other parts of this work. And it will be remembered, that in every case in which the authority of the ecclesiastical commissioners is mentioned, the authority of a scheme proposed by them and confirmed by an order in council is to be understood.i

e Sect. 5. f Sect. 6, 7. g Sect. 8. See post, Book 3, Chap. 1. It will be seen from this chapter, that the powers and authorities hitherto conferred upon the ecclesiastical commissioners are in respect of ecclesiastical property, and in the allotment of ecclesiastical revenues only, in which cases parliament has in effect delegated to them its authority. It appears to be well worthy of consideration, whether a similar power might not also be delegated to them of making regulations, which, when confirmed by order in council, should be binding on the clergy generally in matters of ecclesiastical discipline, and the observance of forms, rites, habits, &c. Some such power of making regu lations in these matters, as was formerly exercised, or attempted to be exercised by the convocation, is required to be vested somewhere. The houses of par

CHAPTER VI.

OF THE POWERS, PRIVILEGES and RESTRICTIONS

OF ECCLESIASTICAL PERSONS GENERALLY.

clergy.

THIS Venerable body of men, being separate and set apart Ancient privifrom the rest of the people, in order to attend the more leges of the 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," 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. "

b

The power and extended privileges of the clergy alluded Era of their to by Blackstone in the above sentence, appear to have greatest power. attained their greatest height about the twelfth century of our era. At that time they had acquired extensive jurisdiction in temporal as well as ecclesiastical matters, the greater number of causes of every kind being then referable to their tribunals.c

d

ecclesiastics.

The arbitrative authority of ecclesiastical pastors, if not Origin of the coeval with Christianity, grew up very early in the Church, legal power and and was natural, or even necessary, to an insulated and jurisdiction of persecuted society. Accustomed to feel a strong aversion to the imperial tribunals, and even to consider a recurrence to them as hardly consistent with their professions, the early Christians retained somewhat of a similar prejudice even after the establishment of their religion. The arbitration of their bishop still seemed a less objectionable mode of settling differences; and this arbitrative jurisdiction was powerfully supported by a law of Constantine, liament are certainly unfitted for the purpose; and the ecclesiastical commission, composed as it is of all the bishops and archbishops, of the most eminent of the judges, and of the most responsible ministers of the crown, would appear to be precisely such a tribunal as might be safely trusted with this authority. b1 Black. Com. 376.

■ 2 Inst. 4.

See Hallam's Middle Ages.

See 1 Corinthians, chap. 6, the first seven verses. The passage seems an authority for our proposition.

Especially in causes where any of their

body were concerned.

From the character of the

which directed the civil magistrate to enforce the execution of episcopal awards. Another edict, ascribed to the same emperor, and annexed to the Theodosian code, extended the jurisdiction of the bishops to all causes which either party chose to refer to it, even where they had already commenced their suit in a secular court, and declared the bishop's sentence not subject to appeal. This edict, although subsequently acted upon, is said to have been clearly proved to be a forgery.

e

If it was considered almost as a general obligation upon the primitive Christians to decide their civil disputes by internal arbitration, much more would this be incumbent upon the clergy. The canons of several councils, in the fourth and fifth centuries, sentence a bishop or priest to deposition who should bring any suit, civil or even criminal, before a secular magistrate. This must, it should appear, be confined to causes where the defendant was a clerk, since the Ecclesiastical Court had hitherto no coercive jurisdiction over the laity. It was not so easy to induce laymen, in their suits against clerks, to prefer the episcopal tribunal. The emperors were not at all disposed to favour this species of encroachment till the reign of Justinian, who ordered civil suits against ecclesiastics to be carried only before the bishops; yet this was accompanied by a provision, that a party dissatisfied with the sentence might apply to the secular magistrate, not as an appellant, but as a co-ordinate jurisdiction; for if different judgments were given in the two courts, the process was ultimately referred to the emperor.f

But again, the character of a cause, as well as of the parties engaged, might bring it within the limits of ecclecause or crime. siastical jurisdiction. In all questions simply religious, the Church had an original right of decision; but, under some pretence, many temporal causes also were considered as falling within its jurisdiction; for, according to the interpretation of those times, the Church was bound to prevent and chastise the commission of sin. Thus the differences of individuals, which often involve some charge of wilful injury, fell into their hands: cases of breaches of contract where an oath had been pledged. They also took into their hands the execution of testaments, on account of the legacies to pious uses, which testators were advised to bequeath: a jurisdiction which they have ever since retained. Perjury, sacrilege, usury, incest and adultery, and offences of a criminal nature, they had such

* See 2 Hallam's Middle Ages, 211.

f Ibid.; and Fleury, Hist. Eccles. t. vii.

P. 292.

8 Lex Arcadii et Honorii, apud Mem. de l'Académie, t. 39, p. 574.

complete jurisdiction over, that the secular magistrates usually refrained from the punishment of them."

But the clergy possessed besides more direct means of Other powers acquiring temporal power. They were entitled to the of the clergy. privilege of assisting in the deliberative assemblies of the nation. Councils of bishops, such as had been convoked by Constantine and his successors, were limited in their functions to decisions of faith, or canons of ecclesiastical discipline. But the northern nations did not so well preserve the distinction between secular and spiritual legislation. The laity seldom, perhaps, gave their suffrage to the canons of the Church; but the Church was not so scrupulous as to trespassing upon the province of the laity. Many provisions are found in the canons of national and even provincial councils, which relate to the temporal constitution of the state. Thus one held at Calcluith (an unknown place in England) in 787, enacted that none but legitimate princes should be raised to the throne, and not such as were engendered in adultery or incest.i

clergy.

Into these questions of historical rather than of legal Benefit of interest, the limits of our present work will not permit us to enter more fully; but there is one other of the former privileges of the clergy, which is too important not to be particularly mentioned, and which at one time had reached to such a point as almost to render impossible the administration of temporal justice. This privilege, which, as Dr. Burn observes, one would almost imagine to be calculated to bring disgrace upon the order, rather than to confer any real benefit upon it, was in fact little else than immunity from the punishments which, in every organized society, even in its rudest form, are appointed for certain

crimes.

The privilege has been called benefit of clergy, and had Origin of. its origin in an old constitution of the pope, that no man should accuse the priests of holy church before a secular judge; and it is said to have been founded on the text "Touch not mine anointed, and do my prophets no harm." And if it had been thus limited, and the Church had been prepared to inflict due punishment on her ministers, such a privilege, in the ruder ages, would appear not unreasonable; and, as Mr. Barrington observes, we are not to judge of the propriety of the benefit of clergy by the Propriety of, in present state of the country; and he points out that, while its origin.

b See Hallam's Middle Ages, chap. 7.

Ibid., where the powers mentioned in the text will be found very fully discussed.