Privileges and restraints, &c.

ceive fecular jurisdiction from laymen, fo as to be named juftices, and to become minifters of juftice, which they cannot adminifter without injury to the canonical difpofi tions and to the clerical order: We defiring to extirpate this horrid vice, do ftrictly injoin all rectors of churches and perpetual vicars and all others whatsoever conftituted in the order of priesthood, that they receive no fecular jurifdiction from a fecular perfon, or prefume to exercise the fame; and if they do, they shall relinquifh the fame within the space of two months, and never refume it; and whofoever shall attempt any thing contrary to the premiffes, fhall be ipfo facto fufpended from his office and benefice; and if he fhall intrude into his office or benefice during fuch fufpenfion, he shall not escape canonical vengeance, which fhall not be relaxed until he shall have made fatisfaction at the difcretion of his diocefan, 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 faving (Mr. Johnson fays) intirely defeated the conftitution. And in the former conftitution there is alfo a faving, for fuch causes as are allowed by law. Johns. Othob. Athon. 91.

But if those favings had not been expreffed; yet it is certain that the constitutions could not have altered the law of the land in this refpect. And it is well known, that the kings of England in all ages have afferted a right to employ what fubjects they pleased, of the clergy as well as laity, in any poft of civil government; and in fact, very many clergymen have been chancellors, treasurers, and even chief juftices of the king's bench, and confequently must have fate judges in cafes of life and death.

And by the ftatute of Articuli cleri, 9 Ed. 2. ft. 1. c. 8. It is complained as followeth: The barons of the king's exchequer claiming by their privilege, that they ought to make anfwer to no complainant out of the fame place, extend the fame privilege unto clerks abiding there, called to orders or unta refidence, and inhibit ordinaries that by no means, or for any saufe, fo long as they be in the exchequer, or in the king's fervice, they shall not call them to judgment. Unto which it is anfwered It pleaseth our lord the king, that fuch clerks as attend in his fervice, if they offend, shall be corrected by their ordinaries, like as other; but fo long as they are occupied about the exchequer, they shall not be bound to keep refidence in their churches. This is added of new by the council: The king and

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Not bound to ferve in war.

Not bound to appear at the tourn or leet.

his ancefors, fince time out of mind bave used, that clerks which are employed in his fervice, during fuch time as they are in fervice, fhall not be compelled to keep refidence in their benefices; and fuch things as be thought neceffary for the king and commonwealth, cught not to be faid 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 fuit dependeth in the court of exchequer for the fame caufe; or where the king's fervice, which is the caufe of the privilege, is hindred by the suit before the ordinary as for non-refidence, during the time that he gave his neceflary attendance in the exchequer for the king's fervice. 2 Inft. 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 fo it is taken in other acts of parliament, and in the preamble to thefe fame Articuli cleri. 2 Int. 624.

That clerks which are employed in his fervice] This branch is general, and not limited (as the former is) to the privilege of the exchequer; but extendeth to any other fervice of the king for the commonwealth: as if he be employed as an ambaflador into any foreign nation, or the like fervice for the king, which is (as it is here faid) for the commonwealth, which ever muft be preferred before the private. 2 Inf. 624.

3. Ecclefiaftical perfons have this privilege, that they. ought not in perfon to ferve in war. 2 Inft. 3. 4. By the ftatute of 52 H. 3. c. 10. For the tourns of fn riffs, it is provided, that archbishops, bishops, nor any religious men, or women, fhall not need to come thither, except their appearance be fpecially required thereat for fome other caufe.

The tourns of Sheriff] Nor confequently are they bound to appear at the leet, or view of frankpledge. 2 Inft. 4.

Nor any religious men] Men of religion, in the proper fenfe, are taken for thofe that are regulars, as being profeffed in fome of the religious orders, as abbots, priors, and the like; but ecclefiaftical perfons that are feculars, that is, who do not live under the rules of any of the religious orders, as bishops, deans, archdeacons, prebends, parfons, vicars, and fuch like, are also within this act. 2 Inft, 121.

Shall

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 parview of this ftatute, he fhall have an action grounded upon the ftatute, for his remedy and relief therein. 2 Inft. 121,

I22.

Except their appearance be specialy required thereat for fome other caufe] As to be a witnefs, or the like. 2 Luft.

121.

divine fervice.

5. By the 50 Ed. 3. c. 5. It is enacted as follows: Not to be arreftBecaufe that complaint is made by the clergy, that as well ed in attending divers priefts, bearing the facrament to fuck people, and their clerks with them, as divers other perfons of holy church, whilst they attend to divine fervices in churches, church-yards, and other places dedicate to God, be fundry 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 fervices aforefaid; the king granteth and defendith, upon grievous forfeiture, that none do the fame from henceforth: fo that collufin or feigned“ caufe be not found in any of the faid perfons of holy church in this behalf.

And by the R. 2. c. 15. It is thus further enacted: Because that prelates do complain themfelves, 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 church-yards, and fometimes whilst they be intended to divine Services, and alfo in other places, although they be bearing the body of our Lord Jefus Christ to fick perfons, and fo arrested and drawn out, be bound and brought to prifn, against the liberty of holy church; it is ordained, that if any min fter of the king or other, do arreft any perfon of holy church by Juch manner, and thereaf be duly convict, he shall have inprifmment, and then be ranfamed at the king's will, and make gree to the parties fo arrfted: provided, that the faid people of holy church fhall not hold them within the churches or fanctuaries by fraud or collufin in any manner.

And their clerks with them] By this it appears, that the clerk who is affiftant may have this privilege. Degge, p. [.

c. 11.

Whilst they attend to divine fervices] It hath been adjudged upon this, that in going, continuing, and returning, to celebrate divine fervice, the prieft ought not to be arrested, nor any who aid him in it. 12 Co. 100.

By authority royal] But this extendeth only to cafes betwixt party and party, and not to cafes wherein the pub

03

lick

lick peace is concerned, which are between the king and the party; and therefore a perfon may be apprehended going to or returning from divine fervice, by a warrant from a juftice of the peace, it being for a breach of the peace, and for the king; and fo in like cafes. Watf. cb. 34.

.

Thus, in the cafe of Pit and Webley, E. 11 7. Pit had a warrant from a justice of the peace, and ferved it upon Webley, as he was coming from church from sermon, upon a week day. Whereupon Webley libelled against him in the fpiritual court; and Pit moved for a probibition, and framed the fuggeftion upon these statutes, which prohibit arrefts in time of divine fervice, and in going and returning to and from the church. But it was faid that those ftatutes are where the matters are betwixt one common perfon and another, but not where it concerns the king and a common perfon, as here it did, this arreft being made at the king's fuit. And to this opinion the court feemed to incline, and that there was just cause for a prohibition. But further day being given, the parties in the mean while agreed. Cro. a. 321.

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

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

And if an arreft be made contrary to thefe ftatutes, and the perfon arresting doth presently difcharge the perfon arrested upon pretence of ignorance, or the like; this will not excufe the contempt in making the arreft. Watf ch. 34.

However, if fuch undue arreft be made, the arreft is good; fo that if a refcous be made, and thereby any perfon killed, the killing is murder. Watf. ch. 34.

And Dr. Watson fays, he that doth offend against the aforefaid ftatutes, may not only be fined in the temporal court, but also may be excommunicated by the ecclefiaftical judge, and condemned in cofts. Watf. ch. 34.

6. By the ftatute 13 Ed. 1. ft. 4. it is thus enacted: For laying violent hands on a clerk, it hath been granted, that it fhall be tried in a spiritual court, when money is not demanded, but a thing done for punishment of fin. And hereof the 6

Spiritual

Spiritual judge fhall have power to take knowledge notwithflanding the king's prohibition.

And by the 9 Ed. 2. c. 3. If any lay violent hands on a clerk, amends for the peace broken fhall 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 griev-. ed, it fhall be required before the prelate, and the king's prom bibition fhall not lie.

Lay violent hands] A prohibition having been granted, where a clerk libelled against another in the fpiritual court, for that he beat him, or at least wife affaulted him with a bill, and would have ftricken him, and called him goose, and woodcock, and many fuch words; the court held, the the prohibition did well lie: for altho' for the laying vivient hands on a clerk, the suit ought to be in the fpiritual court, yet for an affault only, the fuit ought to be at the common law. Cro. El. 753.

So also where a prohibition was granted to ftay process in the spiritual court, against one who feeing an affault made upon his fervant by a clerk, came in aid of his fervant, and laid his hands peaceably upon the clerk; Gawdy, chief juftice, held, that this cafe was out of thefe ftatutes, because the party had good caufe to beat the clerk; and the prohibition ftood. Cro. El. 655.

So alfo, if a clergyman be arrested by procefs of law, he cannot for this fue in the ecclefiaftical court. 2 Inft. 492.

The amends for the peace broken shall be before the king] If the clerk fue in court christian for damages for the battery, he is in cafe of præmunire; for in that cafe the ecclefiaftical judge ought to proceed ex officio, only to correct the fin. 2 Inft. 492.

And tho' he do not directly fue for fuch damages there; yet, if a man is excommunicate for laying violent hands on a clerk, and the fpiritual court deny abfolution till amends be made to the party for the battery; a prohibition will be granted. Gibf. 9.

And for the excommunication before á prelate] This is the known punishment affigned to that crime by the canon law; to which the practice of the church of England hath been conformable, both before and fince the reformation. Gibf. 9.

It shall be required before the prelate, and the king's prohibition fhall not lie] Or, in cafe the money for redeeming of penance is fued for in the fpiritual court, and a prohibition