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· Prebendary. THE law concerning prebendaries, canons, and other members
of the chapter in cathedral and collegiate churches, falleth in under the title Deans and chapters.
THE prerogative court of the archbishop, is that court wherein
all testaments are proved, and all administrations granted, where the party dying within the province hath bona notabilia in some other diocese than where he dieth ; and is so called from the archbishop's having a prerogative throughout his whole province for the said purposes. 4 Inst. 335.
From this court the appeal lieth to the king in chancery. Id.
Presentation. PRESENTATION, or collation, to a living, is treated of un
der the title Benefice. Presentation to popish livings is treated of under the title Dopery.
Priest. See Drdination.
Primate. See Bishops,
Privileges and restraints of the
1. THE common law, to the intent that ecclesiastical persons Not bound + might the better discharge their duty in celebration of di- to serve
a temporal vine service, and not to be intangled with temporal business, office.
(3) See Com. Dig. tit. Ecclesiastical Persons (D).
Not re. strained from serving in a temporal office.
hath provided that they shall not be bound to serve in any temporal office. 1 Inst. 96.
And although a man holdeth lands or tenements, by reason whereof he ought to serve in a temporal office, yet if this man be made an ecclesiastical person within holy orders, he ought not to be elected to any such office; and if he be, he may have the king's writ for his discharge. 2 Inst. 3.
And this, although it be an office which he may execute by deputy: Thus in the case of the vicar of Dartford, H. 12. G. 2. the court granted to him a writ of privilege, against serving the office of expenditor to the commissioners of sewers; though it was insisted, that this was an office which might be executed by deputy. Str. 1107. . 2. The popish foreign canon law forbids secular offices and employments to persons in holy orders. So do the following constitutions:
Othob. No clergyman shall be an advocate in the secular court in a cause of blood, or in any other cause but such as are allowed by law. And if any shall do otherwise, if it be in a cause of blood, he shall be ipso facto suspended from his office; and if in any other cause, he shall be punished by his diocesan according to his discretion. And in causes of blood which shall extend to life or member, we do strictly injoin, that no clergyman presume to be a judge or an assessor; and he who shall act contrary hereunto, besides the suspension from his office which he shall ipso facto incur, shall be otherwise punished according to the discretion of his superior: From which sentence of suspension he shall by no means be absolved by his diocesan, until he shall have made competent satisfaction. Athon. 91.
And, more particularly, by another constitution of the same legate: Whereas it is unbecoming for clergymen employed in heavenly offices, to minister in secular affairs; we think it sordid and base, that certain clerks greedily pursuing earthly gain and temporal jurisdictions, do receive secular jurisdiction from laymen, so as to be named justices, and to become ministers of justice, which they cannot administer without injury to the canonical dispositions and to the clerical order; We desiring to extirpate this horrid vice, do strictly injoin all rectors of churches and perpetual vicars and all others whatsoever constituted in the order of priesthood, that they receive no secular jurisdiction from a secular person, or presume to exercise the same; and if they do, they shall relinquish the same within the space of two months, and never resume it; and whosoever shall attempt any thing contrary to the premises, shall be ipso facto suspended from his office and benefice; and if he shall intrude into his office or benefice during such suspension, he shall not escape canonical vengeance, which shall not be relaxed until he shall have made satis
faction at the discretion of his diocesan, and taken an oath that he will not do the like again. Saving the privileges of our lord the king in this behalf. Athon. 89.
Which saving (Mr. Johnson says) intirely defeated the constitution. And in the former constitution there is also a saving, for such causes as are allowed by law. Johns. Othob. Athon. 91.
But if those savings had not been expressed; yet it is certain that the constitution could not have altered the law of the land in this respect. And it is well known that the kings of England in all ages have asserted a right to employ what subjects they pleased, of the clergy as well as laity, in any post of civil government; and in fact, very many clergymen have been chancellors, treasurers, and even chief justices of the king's bench, and consequently must have sate judges in cases of life and death. (4)
And by the statute of Articuli cleri, 9 Ed. 2. st. 1. c.8. It is complained as followeth: The barons of the king's exchequer claiming by their privilege, that they ought to make answer to no complainant out of the same place, extend the same privilege unto clerks abiding there, called to orders or unto residence, and inhibit ordinaries that by no means, or for any cause, so long as they be in the exchequer, or in the king's service, they shall not call them to judgment. Unto which it is answered; It pleaseth our lord the king, that such clerks as attend in his service, if they offend, shall be corrected by their ordinaries, like as other; but so long as they are occupied about the exchequer, they shall not be bound to keep residence in their churches. This is added of new by the council. The king and his ancestors, since time out of mind [ 196 ] have used, that clerks which are employed in his service, during such time as they are in service, shall not be compelled to keep residence in their benefices; and such things as be thought necessary for the king and commonwealth, ought not to be said to be prejudicial to the liberty of the church.
Šo long as they are occupied about the exchequer] And the court of exchequer may grant a prohibition to the ordinary, for any that ought to have the privilege of the exchequer, where the court may give the party remedy, or where a suit dependeth in the court of exchequer for the same cause; or where the king's service, which is the cause of the privilege, is hindered by the suit before the ordinary: as for non-residence, during the time
(4) Nullus clericus nisi causidicus, is the character given of them soon after the conquest by William of Malmesbury. The judges therefore were usually created out of the sacred order, as was likewise the case among the Normans, and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated clerks to this day. (1 Bla. C. 17.)
to appear a
that he gave his necessary attendance in the exchequer for the king's service. 2 Inst. 624.
Added of new by the king's council] That is, by the common council of the realm, as it is termed in original writs, and in other legal records, and so it is taken in other acts of parliament, and in the preamble to these same Articuli cleri. 2 Inst. 624.
That clerks which are employed in his service] This branch is general, and not limited (as the former is) to the privilege of the exchequer; but extendeth to any other service of the king for the commonwealth : as if he be employed as an ambassador into any foreign nation, or the like service for the king, which is (as it is here said) for the commonwealth, which ever must be pre
ferred before the private. 2 Inst. 624. Not bound 3. Ecclesiastical persons have this privilege, that they ought to serve in not in person to serve in war. 2 Inst. 3.
4. By the statute of 52 H. 3. c. 10. For the tourns of sheriffs, Not bound
Dear at it is provided, that archbishops, bishops, nor any religious men, the tourn or or women, shall not need to come thither, except their appearance
be specially required thereat for some other cause.
The tourns of sheriffs] Nor consequently are they bound to appear at the leet, or view of frankpledge. 2 Inst. 4.
Nor any religious men] Men of religion, in the proper sense, are taken for those that are regulars, as being professed in some of the religious orders, as abbots, priors, and the like; but ecclesiastical persons that are seculars, that is, who do not live under the rules of any of the religious orders, as bishops, deans, archdeacons, prebends, parsons, vicars, and such like, are also within
this act. 2 Inst. 121. [ 197] Shall not need to come thither] That is, they are not compel
lable to come, but left to their own liberty. And if any man be grieved in any thing contrary to the purview of this statute, he shall have an action grounded upon the statute, for his remedy and relief therein. z Inst. 121, 122.
Except their appearance be specially required thereat for some
other cause] As to be a witness or the like. 2 Inst. 121. Not to be 5. By the 50 Ed. 3. c.5. It is enacted as follows: Because arrested in attending
in that complaint is made by the clergy, that as well divers priests, divine ser- bearing the sacrament to sick people, and their clerks with them, vice. as divers other persons of holy church, whilst they attend to divine
services in churches, church-yards, and other places dedicate to God, be sundry times taken and arrested by authority royal, and commandment of other temporal lords, in offence of God, and of the liberties of holy church, and in disturbance of divine services aforesaid; the king granteth and defendeth, upon grievous forfeiture, that none do the same from henceforth : so that collusion or feigned cause be not found in any of the said persons of holy church in this behalf.
Excelet thereinion groundey to the
· And by the 1 R. 2. c. 15. It is thus further enacted : Because that prelates do complain themselves, that as well beneficed people of holy church, as other be arrested and drawn out as well of cathedral churches, as of other churches and their churchyards, and sometimes whilst they be intended to divine services, and also in other places, although they be bearing the body of our Lord Jesus Christ to sick persons, and so arrested and drawn out, be bound and brought to prison, against the liberty of holy church ; it is ordained, that if any minister of the king or other, do arrest any person of holy church by such manner, and thereof be duly convict, he shall have imprisonment, and then be ransomed at the king's will, and make gree to the parties so arrested: provided, that the said people of holy church shall not hold them within the churches or sanctuaries by fraud or collusion in any manner.
And their clerks with them] By this it appears, that the clerk who is assistant may have this privilege. Degge, p. 1. c. 11.
Whilst they attend to divine services] It hath been adjudged upon this, that in going, continuing, and returning, to celebrate divine service, the priest ought not to be arrested, nor any who aid him in it. 12 Co. 100. (5)
By authority royal] But this extendeth only to cases betwixt party and party, and not to cases wherein the public peace is concerned, which are between the king and the party; and there- [ 198 ] fore a person may be apprehended going to or returning from divine service, by a warrant from a justice of the peace, it being for a breach of the peace, and for the king; and so in like cases. Wats. ch.34.
Thus, in the case of Pitt and Webley, E. 11 J. Pitt had a warrant from a justice of the peace, and served it upon Webley, as he was coming from church from sermon upon a week day. Whereupon Webley libelled against him in the spiritual court; and Pit moved for a prohibition, and framed the suggestion upon these statutes, which prohibit arrests in time of divine service, and in going and returning to and from the church. But it was said that those statutes are where the matters are betwixt one common person and another, but not where it concerns the king and a common person, as here it did, this arrest being made at the king's suit. And to this opinion the court seemed to incline, and that there was just cause for a prohibition. But further day being given, the parties in the mean while agreed. Cro. Ja. 321.
(5) Though it be through ignorance and he is afterwards discharged; so one may be sued for it in the ecclesiastical court, and shall pay costs, 2 Bulst. 72.