Page:Encyclopædia Britannica, Ninth Edition, v. 19.djvu/698

Rh 674 P R E P R E powers. In parly times the kings sat in person in the curia rcgis. The growth of a permanent judicature seems to be due to the increase of judicial business, making it impossible for the king to hear all the suits in the curia rcgis in person. Appeals from the colonies, the Channel Islands, and the Isle of Man still lie to the crown in council, a jurisdiction now practically exercised by the judicial committee of the privy council. The king is still (or was until very recently) in theory present in court. Actions in the Queen s Bench were until modern times said to be coram rcgc ipso, and the king could not be non-suited, for a non-suit implied the non-appearance of the plaintiff in court. The king enforces judg ment by means of the sheriff, who represents the executive authority. As supreme conservator of the peace, the king, through the lord- lieutenant in counties and through the lord chancellor in cities and boroughs, appoints justices of the peace. In the same capacity he is the prosecutor of crimes. All indictments still conclude with the words &quot;against the peace of our lady the Queen, her crown and dignity.&quot; As it is the king s peace that is broken by the commission of a crime, the king has, as the offended party, the power of remission. The king cannot be sued by ordinary action. He may sue by ordinary action, but he has the advantage of being able to use prerogative process (see below). He has the right of intervention in all litigation where his rights are concerned, or in the interests of public justice, as where collusion is alleged between the decree nisi and the decree absolute in divorce. Crown debts have priority in administration and bankruptcy. Ecclesiastical. The king is recognized as head of the church by 26 Hen. VIII. c. 1 and 1 Eliz. c. 1. By this prerogative he con venes and dissolves convocation and nominates to vacant bishop rics and other ecclesiastical preferments. He is also guardian of the temporalities during the vacancy of a see, but this is now merely a nominal prerogative. The dean and chapter of a cathedral can not proceed to the election of a bishop without the king s per mission to elect (conge d elire). When any benefice is vacant by the promotion of the incumbent to a bishopric other than a colonial bishopric the king has the patronage pro hoc vice. He is the supreme court of appeal in ecclesiastical cases. This appellate jurisdiction is now vested in the judicial committee of the privy council, with the assistance of archbishops and bishops as assessors (39 and 40 Viet. c. 59, s. 14). The king cannot create new ecclesi astical jurisdiction in England or in colonies other than crown colonies. (See BISHOP.) Where a new bishopric is created it is under the powers of an Act of parliament. It seems to be as head of .the church that the king grants licences to hold in mortmain, though the right now extends to lay as well as ecclesiastical corpora tions. The right is acknowledged by 7 and 8 Will. III. c. 37. Fiscal. The theory of the constitution is that the king, being entrusted with the defence of the realm and the administration of justice, must have sufficient means given him for the purpose. The bulk of the revenue of the Norman and Plantagenet kings was derived from crown lands and feudal dues. At the present day the rents of crown lands form a very small part of the revenue, and the feudal dues do not exist except in the pecuniarily unimportant cases of escheat, royal fish, wrecks, treasure-trove, waifs and strays, &c. Of the revenue a comparatively small part (the civil list) is paid to the king in person, the rest (the consolidated fund) is applied to public purposes. Prerogative Process. This is the name given to certain methods of procedure which the crown alone has the right of using ; such are inquest of office (an inquiry by jury concerning the right of the crown to land or goods), extent (a mode of execution), scire facias (for the resumption of a grant), and information (by which pro ceedings are commenced in the name of the attorney-general for a public wrong or for injury to crown property). Prerogative IVrits. Certain writs are called &quot;prerogative writs,&quot; as distinguished from writs of right, because it is within the pre rogative to issue or reissue them. In order to induce the court to issue them a primn facie case must be made out by the applicant. Writs of right, on the other hand, are ex dcbito justitien, and cannot be refused. Examples of prerogative writs are ccrtiorari, habeas corpus, mandamus, proccdcmJ.o, prohibition, quo ivarranto. Prerogative Courts. This was the name given to the provincial courts of Canterbury and York, as far as regarded their jurisdiction over the estates of deceased persons. They had jurisdiction to grant probate or administration where the diocesan courts could not entertain the case owing to the deceased having died possessed of goods above the value of 5 (bona notabilia) in each of two or more dioceses. The jurisdiction of the prerogative courts was transferred to the Court of Probate in 1857 by 20 and 21 Viet. c. 77, and is now vested in the Probate, Divorce, and Admiralty Division of the High Court of Justice by the Judicature Act, 1873 (36 and 37 Viet c. 66, s. 34). In the State of Xew Jersey, United States, the court having juris diction over probate matters is called the Prerogative Court (Kent s C omm., vol. ii. p. 427). Besides the authorities cited and the writers on constitutional history, the reader is referred to Allen, Inquiry into the llise and Growth, of the Royal Pre rogative in England ; Chitty, The Prerogative of the Crown ; Staunfordo, Exposi tion of the King s Prerogative; Coniyns, Digest, art. &quot; Trujrogative &quot; ; Broom, Constitutional IMI&amp;lt;. (J. Wt.) PRESBYTER. Towards the end of the 2d century the organization of the Christian congregations throughout the Roman empire, at least of all the greater ones, was identical. At the head of each was the bishop, whose function it was to conduct public worship, control the church funds, and keep watch over the manners of his flock. The free prophets and teachers having almost everywhere died out, the duty of religious instruction and edification also fell on him. In conducting the worship and in ministering to the wants of the poor he was assisted by the deacons as his subordinates. The presbyters formed a college, whose business was that of advising the bishop. Of this college he was the president, and as such he was himself a presbyter, and conversely the presbytery, in clusive of the bishop, formed the governing body of the community. 1 Outside of -the presbytery the individual presbyter as such had no definite official duties. If he baptized, celebrated the eucharist, preached, or the like, this was only as commissioned and deputed by the bishop.- Such deputation was frequently necessary, and therefore the presbyter behoved as far as possible to be qualified to teach. As member of the college, which before everything had to do with jurisdiction and discipline, it was required of him that he should be of blameless life, that he should administer just judgment without respect of persons, and that in private life also he should as occasion offered exhort and admonish the faithful and set before them the law of God. The presbyters, who as a rule were expected to be men of advanced years, were, like the bishop and the deacons, chosen by the congregation. Their number was unrestricted, but there were small communities in which they did not exceed three or even two. In rank they were above the deacons, but below the bishop, yet in such a way that the bishop could call them his &quot; co-presbyters.&quot; 3 As the bishop was not unfrequently chosen from among the deacons, even although in many congregations it may have been the case that the office was invariably bestowed on presbyters, and as the deacons stood in closer personal relation with the bishop than the presbyters, cases of invasion of the rights of the latter by the former began to occur from an early period. There can be no doubt that at the end of the 2d century all presbyters were elected office-bearers, but the way in which Irenams speaks makes it quite clear that at an earlier date &quot; presbyter &quot; was also a title of honour borne by worthy and prominent persons in the congregations, who, in virtue of their advanced years, were witnesses for the purity of tradition. Iremuus, frequently speaking (as he does) of bishops simply as &quot;presbyters,&quot; also proves that there must have been a time in which the bishop as member of the &quot;synedrium&quot; of the church cannot have held a higher position than the other members of this college. Tracing the history upwards from Irenoeus, we find in the Epistles of Ignatius, which may be assigned perhaps to about 140, the presbyters holding essentially the same 1 Tertull., Apol.,Z9: &quot; President probati quique seniores, houorem istum noil pretio sed testimonio adepti.&quot; 2 Tertull., De Bapt., 17 :&quot; Baptism! dandi habet jus summus sacer- dos, qui est episcopus ; dehinc presbyter! . . . nou tainen sine episcopi auctoritate.&quot; In the oldest constitution of the Catholic Church which has come down to us relating to presbyters a regular service of some presbyters in public worship is indeed presupposed (Kavoves AwcXif- aiao-r. r. ay. diroo-T6wv, c. 18), but this fact is unique of its kind. 3 Compare the regulations laid down in the Arabic text of the Canones Hippohjti (c. 4) : &quot;At the ordination of a presbyter every thing is to be done as in the case of a bishop, save that he does not seat himself upon the throne. The same prayer also shall be said as for a bishop, the name of bishop only being left out. The presbyter shall in all things be equal with the bishop save in the matters of pre siding and ordaining, for the power to ordain is not given him.&quot;