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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.

lent lands on a clerk.

Dig. tit.

Against the liberties of holy church] By which it appears that these statutes are but an affirmance of the common law, and in maintenance of the liberties of holy church. 12 Co. 100.

And thereof be duly convict] The party grieved may have an action upon the statute: for when any thing is prohibited by an act, although the act doth not give an action, yet action lieth upon it. 12 Co. 100.

And if an arrest be made contrary to these statutes, and the person arresting doth presently discharge the person arrested upon pretence of ignorance, or the like; this will not excuse the contempt in making the arrest. Wats. ch. 34.

However, if such undue arrest be made, the arrest is good; so that if a rescous be made, and thereby any person killed, the killing is murder. Wats. ch. 34.

And Dr. Watson says, he that doth offend against the aforesaid statutes, may not only be fined in the temporal court, but also may be excommunicated by the ecclesiastical judge, and

condemned in costs. Wats. ch.34. Laying vio- 6. By the statute 13 Ed. 1. st. 4. it is thus enacted: For lay

ing violent hands on a clerk, it hath been granted, that it shall (See Com.

be tried in a spiritual court, when money is not demanded, but a

thing done for punishment of sin. And hereof the spiritual Prohibition (G. 12.)]

* judge shall have power to take knowledge notwithstanding the *[ 199 ]

king's prohibition.

Ånd by the 9 Ed. 2. c. 3. If any lay violent hands on a clerk, amends for the peace broken shall be before the king, and for the excommunication before a prelate, that penance corporal may be enjoined; which if the offender will redeem of his own good will, by giving money to the prelate, or to the party grieved, it shall be required before the prelate, and the king's prohibition shall not lie.

Lay violent hands] A prohibition having been granted, where a clerk libelled against another in the spiritual court, for that he beat him, or at leastwise assaulted him with a bill, and would have stricken him, and called him goose, and woodcock, and many such words; the court held that the prohibition did well lie: for although for the laying violent hands on a clerk, the suit ought to be in the spiritual court [semb. if excommunication is the object] yet for an assault only, the suit ought to be at the common law. Cro. El. 753. (6)

So also where a prohibition was granted to stay process in the spiritual court, against one who seeing an assault made upon his servant by a clerk, came in aid of his servant, and laid his hands peaceably upon the clerk; Gawdy, chief justice, held, that this

(6) Love v. Prin.

case was out of these statutes, because the party had good cause to beat the clerk : and the prohibition stood. Cro. El. 655. (7)

So also, if a clergyman be arrested by process of law, he cannot for this sue in the ecclesiastical court. 2 Inst. 492. The amends

for the peace broken shall be before the king] If the clerk sue in court christian for damages for the battery, he is in case of præmunire ; for in that case the ecclesiastical judge ought to proceed ex officio, only to correct the sin. 2 Inst. 492.620.

And though he do not directly sue for such damages there; yet, if a man is excommunicate for laying violent hands on a clerk, and the spiritual court deny absolution till amends be made to the party for the battery; a prohibition will be granted. Gibs. 9.

And for the excommunication before a prelate] This is the known punishment assigned to that crime by the canon law; to which the practice of the church of England has been conformable, both before and since the reformation. Gibs. 9.

It shall be required before the prelate, and the king's prohibition shall not lie] Or, in case the money for redeeming of penance is sued for in the spiritual court, and a prohibition is granted by the temporal; then a writ of consultation is provided for relief [ 200 ] of the party. Gibs. 9. (8)

7. He that is within orders hath a privilege, that albeit he shall have have had the privilege of his clergy for a felony, he may have the benefit his clergy afterwards again, and so cannot a layman : And he more than that is within orders, and hath his clergy allowed, shall not be once. (See branded in the hand. And these privileges are given by act of tif. Benefit parliament. 2 Inst. 637. 2 H. H. 389.

and notes And although a clergyman in orders shall not be burnt in the there.) hand, yet after his discharge given by the court, he shall have the same privilege, as if he had been burnt in the hand; and therefore shall not be drawn in question in the ecclesiastical court, to deprive him, or inflict any ecclesiastical censure upon him. 2 H. H. 389. 8. Such as be within orders of the ministry, or clergy, cannot Exempted

from servbe empannelled as jurors. Lamb. Just. 396. (e)

ing on 9. It seems to be agreed, that a person in holy orders cannot

juries. be an approver; because it is a rule, that no member of the Cannot be clergy can sue any appeal whatsoever, in a matter or cause of an approdeath. 2 Haw. 205. 10. A clergyman being an appellant, the defendant cannot May coun

terplead the (7) Kelley v. Walker; see 3 Bla. Com. 143. 1 Salk. 199.

waging of (8) Suits were always allowable in spiritual courts for money agreed to be given as a commutation for penance. Art. Cler. 9 Ed. 2. c. 4. F. N. B. 53. 2 Roll. Rep. 384.

(e) Beecher's case, 4 Leon. 190.

ver

battel.

Shall not be amerced after the

benefice.

How far

wage

his battel; but the clerk being appellant may counterplead the wager of battel; and compel the appellee to put himself upon his country. 2 Haw. 427. (9)

11. By the 9 H. 3. c. 14. No man of the church shall be

amerced after the quantity of his spiritual benefice, but after his quantity of lay tenement and after the quantity of his offence. his spiritual

Amerced] Here appeareth a privilege of the church, that if an ecclesiastical person be amerced (though amerciaments belong to the king) yet he shall not be amerced in respect of his ecclesiastical promotion or benefice, but in respect of his lay fee, and according to the quantity of his fault; which is to be affeered. 2 Inst. 29.

Benefice] Benefice is a large word, and is taken for any ecclesiastical promotion, or spiritual living whatsoever. 2 Inst. 29.

Lay-tenement] And if a spiritual person be amerced above the quantity of his lay-tenement, he shall have a writ to prohibit the levying of it. Gibs. 13. (g)

12. By the 1 Ed. 3. st. 2. c.10. Whereas archbishops, bishops, subject to pension or

abbots, priors, abbesses, and prioresses have been sore grieved services to by the requests of the king and his progenitors, which have the king.

* desired them by great threats, for their clerks and other servants, *[ 201 ] for great pensions, prebends, churches, and corrodies, so that

they could nothing give nor do to such as had done them service, nor to their friends, to their great charge and damage; the king granteth, that from henceforth he will no more such things desire, but where he ought.

But where he ought] For, of common right, the king, as founder of archbishopricks, bishopricks, and many religious houses, had a corrody, or a pension, in the several foundations; a corrody, for his vadelets, who attend them; and a pension, for a chaplain, such as he should specially recommend, till the respective possessor should promote him to a competent benefice. Gibs. 16.

If any ecclesiastical person shall be in fear or doubt, that his goods, or chattels, or beasts, or the goods of his farmer, should be taken by the ministers of the king, for the business of the king, he may purchase a protection. 2 Inst. 4. No demean or proper cart for the necessary use of any

ecclesiastical person, ought to be taken for the king's carriage; but they are exempted by the ancient law of England from any such carriage: and this was an ancient privilege belonging to holy church. 2 Inst. 35.

But there is no special exemption in the yearly mutiny acts, for clergymen, in respect of the soldiers' carriages.

(9) Appeal and wager of battel abolished, 59 G. 3. C. 46.
(g) Mag. Cart. c. 14. Reg. f. 184. b.

13. If a person be bound in a recognizance in the chancery or The sheriff other court, and he pay not the sum at the day; by the common

cannot levy

of his eclaw, if the person had nothing but ecclesiastical goods, the recog- clesiastical nizee could not have had a levari facias to the sheriff to levy the goods. same of these goods, but the writ ought to be directed to the bishop of the diocese to levy the same of his ecclesiastical goods. 2 Inst. 4. (h)

In an action brought against a person, wherein a capias lieth (for example, an account) the sheriff returns that he is a clergyman beneficed having no lay fee, in which he may be summoned; in this case the plaintiff cannot have a capias to the sheriff to take the body of the person, but he shall have a writ to the bishop, to cause the person to come and appear. But if he had returned, that he is a clergyman having no lay fee, then is a capias to be granted to the sheriff; for that it appeared not by the return that he had a benefice, so as he might be warned by the bishop his diocesan; and no man can be exempt from justice. 2 Inst. 4.

M. 9. W. Mosely and Warburton. On a fieri facias against [ 202 ] Warburton, a fellow of Winchester college, the sheriff returned, that he is a clergyman beneficed having no lay fee. Hereupon a fieri facias was issued to the bishop, to levy the same of his eccle siastical goods. The bishop sent his mandate to the warden and fellows of the college to sequester his salary. They answer that they have not power to do it. The bishop moved the court to know, whether he might compel them by ecclesiastical censures. By Holt, chief justice; if a prebendary hath a sole body, the bishop upon a levari facias of his ecclesiastical goods may sequester it; but if he hath but a body aggregate with the dean and chapter, he cannot sequester it. In this case, the profits of the fellowship are but casual dividends, in which before division Warburton hath no interest, so that they do not make an estate; and it seems in this case Warburton is not a clerk beneficed, and the bishop may return that he hath no ecclesiastical goods, Ld. Ray. 265. i Salk. 320.

14. Articuli cleri, 9 Ed. 2. st. 1. c. 9. It is complained, that Distresses the king's officers, as sheriffs and other, do enter into the fees of not to be

(h) Languit v. Jones, Stra. 87. And an attachment will go against the chancellor for not returning it. The King v. The Bishop of St. Asaph, 1 Wils. 332. It has been decided, that the assignees under an insolvent act are not entitled to demand and receive the profits of an ecclesiastical benefice, which have accrued subsequent to the assignment, nor can they maintain an action for the same, though included in the schedule of the insolvent. Arbuckle v. Cowtan, 3 Bos. & Pul. 321.

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