take a similar oath before the sheriff-depute, or two justices of the peace, for the county where they reside, may hold, enjoy, alien, &c. real or personal property, as any other person or persons whatsoever, any thing in the act of the 8th & 9th session of the first parliament of Scotland of king William, or any other act or acts notwithstanding. But the act does not authorize Roman catholics to be governors, tutors, curators, or factors to the children of protestant parents, or to be otherwise employed in their education, or the trust or management of their affairs, or to be schoolmasters, professors, or public teachers of any science to to any person or persons whomsoever within that part of the kingdom.] Portion of tithes. See Tithes. [Practice. IT may be well here to transcribe the masterly sketch of the practice of the ecclesiastical courts given by Blackstone. Their ordinary course of proceeding is, First, by citation, to call the injuring party before them. Then by libel, libellus, a little book, or by articles drawn out in a formal allegation to set forth the complainant's ground of complaint. To this succeeds the defendant's answer upon oath, when if he denies or extenuates the charge, they proceed to proofs by witnesses examined, and their depositions taken down in writing by an officer of the court. If defendant has any circumstances to offer in his defence, he must also propound them in what is called his defensive allegation, to which he is entitled in his turn to plaintiff's answer on oath, and may from thence proceed to proofs as well as his antagonist. The canonical doctrine of purgation, whereby the parties were obliged to answer on oath to any matter however criminal that might be objected against them, was overturned by 13 C. 2. c. 12. § 4. (See Durgation.) When all the pleadings and proofs are concluded they are referred to the consideration, not of a jury, but of a single judge, who takes information by hearing advocates on both sides, and thereupon forms his interlocutory decree or definitive sentence at his own discretion; from which there generally lies an appeal (see Appeal), though if the same be not appealed from in 15 days it is final by the statute 13 H. 8. c. 19. See 3 Bla. C. p. 100.] Praemonstratenses. See Monasteries. 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. Prerogative Court. 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 under the title Benefice. Presentation to popish livings is treated of under the title Priest. See Drdination. 193 Privileges and restraints of the clergy. (3) 1. THE common law, to the intent that ecclesiastical persons might the better discharge their duty in celebration of divine service, and not to be intangled with temporal business, (3) See Com. Dig. tit. Ecclesiastical Persons (D). [194] Not bound to serve in office. a temporal Not restrained from serving in a temporal office. hath provided that they shall not be bound to serve in any tem- 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 [195] 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. stitution. Which saving (Mr. Johnson says) intirely defeated the conAnd 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. So 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.) Not bound to serve in war. Not bound to appear at 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 preferred before the private. 2 Inst. 624. 3. Ecclesiastical persons have this privilege, that they ought 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, 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. leet. [197] Not to be attending divine ser vice. 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. Shall not need to come thither] That is, they are not compellable 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. 2 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. 5. By the 50 Ed. 3. c. 5. It is enacted as follows: Because arrested in that complaint is made by the clergy, that as well divers priests, bearing the sacrament to sick people, and their clerks with them, 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. |