Tuesday, 31 December 2013

Lyttleton's Comments: Constitutions Clause 12

George Lyttelton (1767). The History Of The Life of King Henry the Second,  Notes to the Second and Third Books.  Sandby and Dodsley. pp. 143-.

When an archbishoprick, or bishoprick, or abbey, or priory, of royal foundation, shall he vacant, it ought to he in the hands of our lord the king, and he shall receive all the rents and issues thereof, as of his demesne; and 'when that church is to be supplied, our lord the king ought to send for the principal clergy of that church, and the election ought to he made in. the king's chapel, with the assent of our lord the king, and the advice of  such the prelates of the-kingdom as he shall call for that purpose; and the person elect shall there do homage and fealty to our lord the king, as his liege lord, of' life, limb, and worldly honour (saving his order) before. he be consecrated. 

Of the foundation of the right asserted to the king by this statute enough has been said in the preceding book of this History. I will only add here, that the same practice prevailed in the kingdom of France, in the dutchy of Normandy, and in the Norman kingdom of Sicily. Notice has also been taken of the saving clause at the end of it, which certainly opened a wide door to elude all the obligations contracted by the prelates in the act of homage and oath of fealty; though I find it affirmed by Becket, in a letter to the pope, that the same form was then used by the -whole Christian church. He likewise adds, that, when his Holiness absolved  him from the oath he had taken at Clarendon, that pontiff told him, that not even for the preservation of his life should a bishop lay himself under any obligation without a saving to his order and to the honor of God: which he adhered to pertinaciously in his whole dispute with the king. As for the form of election, which is laid down in this statute, it must be observed, that the vacant church, with the advice of only such of the prelates of the kingdom as he should call for that purpose, seems to have been a practice of no very ancient date, not older, I presume, than the reign of Henry the First, or William Rufus. For Mr. Tyrrel has proved by many authorities, that, during the times of the Saxons, the English prelates had been usually elected in the witenagemote, or great council, and with the advice, or concurrence, of the whole assembly. It likewise appears from the Saxon Chronicle, that the same form was continued under William the First. The 
words are these: "Hoc anno (1070) Lanfrancus,  Cadomensis Abbas, compellente rege Willielm et jubente Papa Alexandro, Angliam venit; et primatum regni Anglorum in ecclesia Cantuariensi suscepit, eligentibus eum senioribus ejusdem ecclesiae cum episcopis, et principibus, clero et populo Angliae in curia regis." But whatever form, or appearance, of more or fewer electors, had been kept up in those times, or was continued in those of which I write, it appears from a passage in a letter of Peter of Blois, which is inserted in the Appendix to the preceding volume of this History, that the thief power in these elections was by the constitution of the kingdom assigned to the king. Speaking of Henry the Second, he says, "Cum autem juxta regni consuetudinem "in electionibus faciendis potissimas et potentissimas habet partes," &c. Indeed the statute here recited requires no more, than that the prelate shall be elected with the assent of the king; but in fact that assent was little different from a real nomination. The pope and clergy were desirous to exclude the king and all the laity from any share in their elections, which was one principal reason of Alexander's condemning this statute,

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