BISHOPS AND THEIR PRECEDENCE.
(Vol. ii., p. 254.)
Arun is not right, in reference to this Query, in saying that the precedence of bishops over the temporal barons is regulated by the statute of 31 Hen. VIII. The precedence of bishops over the temporal lords is not regulated by the Act of 31 Hen. VIII. for placing the lords. They may have originally been summoned to sit in parliament in right of their succession to certain baronial lands annexed to, or supposed to be annexed to their episcopal sees; but as some of the temporal peers were also summoned in right of lands held of the king per baroniam, that is not a satisfactory reason why they should take precedence of temporal barons.
The precedency must have been regulated by some other laws, rules, or usage than are presented by the Act of 31 Hen. VIII. The Archbishop of Canterbury precedes the Lord Chancellor; the Archbishop of York the Lord President of the Council and the Lord Privy Seal; and all bishops precede barons. This precedency, however, is not given by the statute. The Act provides only, in reference to the spiritual peers, that the Vicegerent for good and due ministration of justice, to be had in all causes and cases touching the ecclesiastical jurisdiction, and for the godly reformation and redress of all errors, heresies, and abuses in the Church (and all other persons having grant of the said office), shall sit and be placed in all parliaments on the right side of the parliament chamber, and upon the same form that the Archbishop of Canterbury sitteth on, and above the same archbishop and his successors; and next to the said Vicegerent shall sit the Archbishop of Canterbury; and then, next to him, on the same form and side, shall sit the Archbishop of York; and next to him, on the same form and side, the Bishop of London; and next to him, on the same side and form, the Bishop of Durham; and next to him, on the same side and form, the Bishop of Winchester; and then all the other bishops of both provinces of Canterbury and York shall sit and be placed on the same side, after their ancienties, as it hath been accustomed.
There is nothing here to show in what order they are to rank among the great officers, or other temporal peers; nor is the precedency given to the Lord Chancellor over the Archbishop of York.
By the Act of Union of Great Britain and Ireland, the archbishops of that kingdom have rank immediately after the Archbishop of York, and therefore before the great officers (excepting only the Lord Chancellor), as well as above dukes; and the Irish bishops immediately after those of England.
It may be rightly stated that the high spiritual rank of the bishops is a reason for giving them precedence over the temporal lords sitting as barons; but has that reason been assigned by any writer of authority, or even any writer upon precedence?—the Query suggested by E. (Vol. ii., p. 9.) Lord Coke does not assign that reason, but says, because they hold their bishopricks of the king per baroniam. But the holding per baroniam, as before observed, would equally apply to the temporal lords holding lands by similar tenures, and sitting by writ, and receiving summons in ancient times in virtue of such their tenure.
The precedence of bishops over barons was clearly disputed in the reign of King Henry VI., when Baker says in his Chronicle (p. 204.), judgment was given for the lords temporal; but where the judgment, or any account of the dispute for precedence, is to be found I cannot say. That is what your correspondent G. inquired for (Vol. ii., p. 76.).
C.G.
Your correspondent ARUN (Vol. ii., p. 254.) states, on the authority of Stephen's Blackstone, that—
"Bishops are temporal barons, and sit in the House of Peers in right of succession to certain ancient baronies annexed or supposed to be annexed to their episcopal lands."
This position, though supported by Lord Coke in more places than one (see Coke upon Littleton, 134. a, b; 3 Inst. 30.; 4 Inst. 44.), and adopted by most other legal text-writers on his authority, cannot, it is conceived, be supported. It seems to be clearly ascertained that bishops sat in the great councils of this and other kingdoms not ratione baroniarum but jure ecclesiarum, by custom, long before the tenure per baroniam was known. In the preambles to the laws of Ina (Wilkins' Leges Ang.-Sax. f. 14.), of Athelstan (ib. 54.), of Edmund (ib. 72.), the bishops are mentioned along with others of the great council, whilst the tenure per baroniam was not known until after the Conquest. The truth seems to be that
"The bishops of the Conqueror's age were entitled to sit in his councils by the general custom of Europe and by the common law of England, which the conquest did not overturn."—Hallam's Mid. Ag. 137-8, 9th ed.
Can any of your readers throw any light on the much disputed tenure per baroniam? What was its essential character, what its incidents, and in what way did it differ from the ordinary tenure in capite?
BARO.