1106, between pope Paschal and Henry I, which provided, that the king should give investiture of the temporalities by the sceptre, and that the bishop should do him homage. This seems to have settled the controversy to the satisfaction of both parties. While it lasted, St. Anselm was a warm and powerful advocate of the cause of the English clergy: his piety, integrity, talents and learning cannot be denied. "It is observable *, says Mosheim, "that Anselm was the inventor of that famous argument, vulgarly and erroneously attributed "to Descartes, which demonstrates the existence "of God, from the idea of an infinitely perfect

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being, naturally implanted in the mind of man; "and which is to be found, without exception, in "the breast of every mortal. The solidity of this "argument, was indeed called in question by "Gannito, a French monk: but his objections were "refuted by Anselm, in a treatise, professedly "written for that purpose."

"An Ecclesiastical History, ancient and modern, from the "birth of Christ to the beginning of the present century, in " which the rise, progress and variation of church power are "considered in their connexion with the state of literature "and philosophy, and the political history of Europe, during "that period. By the late John Lawrence Mosheim, D. D. " and chancellor of the university of Gottingen. Translated "from the original Latin and accompanied with notes and "chronological tables, by Archibald Maclaine, D. D. Το "the whole is added an accurate index. A new edition in "1774. 5 vols. 8vo. (see vol. ii. p. 254.)" An edition of this work was published in 1810 in six volumes. Few histories possess greater erudition or method, or are written in a more pleasing manner.

CHAP. IV.

ECCLESIASTICAL IMMUNITIES:

ST. THOMAS À BECKET.

1160.

THIS contest may be properly divided into two stages; that, which preceded, and that, which followed the constitutions of Clarendon.

1. Throughout the first, the principal question was, whether by divine law, or the actual constitution of England, clerks guilty of felony, or any other crime against the king, were triable by the temporal courts. It was admitted that, in all questions arising on the validity of their orders, the integrity of their faith, or the mismanagement of their functions, they were only triable by the spiritual courts.

The general opinion among the clergy, and the prevailing opinion among the laity was, that no crime of the clergy was cognizable by the temporal courts. The canonists contended, that the clergy were entitled to this prerogative by divine right; but its advocates in this country also alleged, that their claim was allowed by the established laws and usages of the realm. It was evidently a question of great moment, as every individual, who had received the tonsure, whether he afterwards was admitted into holy orders or not, was held to be entitled to the clerical privileges.

No person now contends that the clergy are entitled to this exemption, by the divine law. It

seems to the writer, that the imperial or civil law did not confer it on them*: whether it was allowed them by the ancient law of England, is a more difficult question: the better opinion seems to be, that treasons of clergymen, not against the person of the king, such as those, which have since been called petit treason, were cognizable only in the ecclesiastical courts; but that treasons against the king's person, since called high treasons, were subject to the cognizance of the temporal courts t.

In the celebrated dispute between the king and St. Thomas à Becket archbishop of Canterbury, the case was, in some respects, narrowed. The king contended, that clerks guilty of felony, should be first degraded, by the ordinary, and then put into the hands of the magistrate to be tried in the king's courts. The archbishop insisted, that, for

the first crime the clerk should be tried in the

* "Jus ecclesiasticum universum, antiquæ et recentiori disciplinæ, præsertim Belgii, Galliæ, Germaniæ, et vicinarum "provinciarum accommodatum, auctore Zegero Bernardo "Van Espen, J. U. D. Canon. professore in academiâ "Lovaniense, fol. 1753, vol. ii. p. 203. De jurisdictione "criminali: "—a work of extraordinary merit, and the only elementary treatise of jurisprudence, seen by the writer, which, in his opinion, can be put into competition with Mr. Justice Blackstone's Commentaries: it is written with equal elegance, order, and philosophy, and perhaps with greater precision, and a more profound and extensive knowledge of the subject.

+ See "the History of the English Law from the time of the Saxons to the end of the reign of Philip and Mary, by John Reeves, esq. barrister at law, in four volumes 8vo. 2d edit. vol. ii. p. 464;”—a valuable work. The opinion mentioned in the text appears to the writer to be confirmed by the statute of the 25 Edward III, de Clero.

bishop's court; and that, if he were convicted, he should be degraded and punished by spiritual inflictions, either with or without fine, imprisonment or flagellation at the will of the court: but the archbishop admitted that a degraded clerk forfeited the protection of the ecclesiastical law; so that, if after his degradation, he were guilty of felony, he might be prosecuted in the king's courts.

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The king being determined to enforce his claim, summoned all the prelates of England to Westminster, and required from them an acknowledgment, that "the clergy should, in future, be triable "for felonies in his courts of justice." They hesitated he then asked, whether they would promise to abide by the ancient law of the realm. The archbishop, speaking for himself and for the other prelates present, replied, that, "they were willing to be bound by the ancient laws of "the kingdom, so far as the honour of God and "the church, and the privileges of their order "permitted." It is observable that this saving was allowed in the oath of fealty, taken by the bishops. The king required its omission; the archbishop insisted on its retention at first, the other bishops adhered to their primate; but the king brought them over to him; and, after much solicitation, finally prevailed on the archbishop to acquiesce.

To bind them to their promise, the king summoned a convention of the lords spiritual and temporal, at Clarendon, near Salisbury. When they met, he called on the prelates to perform their promise the archbishop, who feared that he had

gone too far in his former concessions, still expressed a wish that the saving clause should be retained; but finding, that his suggestion offended the king, and displeased his brethren, he afterwards promised, on the word of truth, to observe the customs, yet required them to be defined. A committee to ascertain and report them was immediately appointed; and after some consultation exhibited them in sixteen articles, called by the historians of the time," the Constitutions of Clarendon."

By one article, the custody and revenues of the temporalities of every archbishopric, bishopric, abbey and priory of royal foundation, during its vacancy, were declared to belong to the king. This was an absolute innovation: the custody and revenues of ecclesiastical benefices, during their vacancy, were first usurped by William Rufus: his successors, including Henry himself, though they frequently seized and retained them, uniformly disclaimed a right to them.

By another article, it was provided, that civil and criminal suits, though each or either party were a clergyman, should commence in the royal courts ; that the justices in them should decide, whether they ought to be determined there, or in the ecclesiastical courts; that, in the latter case, a civil officer should attend the trial, and report the proceedings; and that, if the clerk were convicted, he should forfeit the privilege of his character and receive judgment accordingly.-This was the great point in dispute between the king and the archbishop; the latter contended that this arrangement