Page:EB1911 - Volume 22.djvu/295

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281
PREROGATIVE COURTS—PRESBYTER

of parliament. The king, as head of the state, is in supreme command of the army and navy for the defence of the realm. This right, contested by the Long Parliament, was finally declared by 13 Car. II. c. 6 to be in the king alone. The right of command carries with it as an incident the right to build forts and defences, to impress seamen in case of necessity, and to prohibit the importation of munitions of war (39 & 40 Vict. c. 36, s. 43), also the right to the soil of the foreshore and of estuaries of rivers, and the jurisdiction over territorial waters. Other rights which fall under the political branch of the prerogative may be called the commercial rights, including the coining of money, the regulating of weights and measures, the establishing of markets and fairs, and the erecting of beacons lighthouses and sea-marks. As parens patriae he is ex officio guardian of infants, idiots and lunatics. It is scarcely necessary to point out that all these prerogatives (except the conferring of honours and such prerogatives as are purely personal) are exercised through responsible ministers, practically in these days members of the party to which the majority of the House of Commons belongs. Thus the jurisdiction over infants, &c., is exercised in England by the lord chancellor, and over beacons, &c., by the Trinity House, under the general superintendence of the Board of Trade.

Judicial.—The king is the fountain of justice, and the supreme conservator of the peace of the realm. As supreme judge the king has the appointment of all judicial officers (other than those in certain local courts), who act as his deputies. He may constitute legal courts for the administration of the general law of the land, but he cannot erect tribunals not proceeding according to the known and established law of the realm, such as the Star Chamber or the commissions of martial law forbidden by the Petition of Right. Nor can he add to the jurisdiction of courts; thus he cannot give a spiritual court temporal powers. The king was in theory supposed to be present in court. Actions in the king's bench were until modern times said to be coram rege 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 judgment 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 “against the peace of our lord the king, his crown and dignity.” 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 “supreme governor” of the Church by 26 Hen. VIII. c. 1, and 1 Eliz. c. 1. By this prerogative he convenes and dissolves convocation and nominates to vacant bishoprics and other ecclesiastical preferment's. The dean and chapter of a cathedral cannot proceed to the election of a bishop without the king's permission to elect (see Congé d'Élire). 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 hac vice. The king cannot create new ecclesiastical jurisdiction in England or in colonies other than crown colonies. Where a new bishopric is created it is under the powers of an act of parliament.

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 proceedings are commenced in the name of the attorney-general for a public wrong or for injury to crown property).

Prerogative Writs.—Certain writs are called “prerogative writs,” as distinguished from writs of right, because it is within the prerogative to issue or reissue them (see Writ).

Besides the authorities cited, see Allen, Inquiry into the Rise and Growth of the Royal Prerogative in England; Chitty, The Prerogative of the Crown; Staunforde, Exposition of the King's Prerogative; Comyns, Digest, art. “Praerogative”; Broom, Constitutional Law; and the works of W. Bagehot, S. Low, A. V. Dicey and Sir W. Anson, on the Constitution.

PREROGATIVE COURTS, the name given to the English 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 the Probate Court Act, and is now vested in the Probate, Divorce and Admiralty Division of the High Court of Justice by the Judicature Act 1875. In the state of New Jersey, United States, the court having jurisdiction over probate matters is called the Prerogative Court.

PRESBYTER (Gr. πρεσβύτερος, elder, the comparative of πρέσβυς, an old man), the title borne from very early times by certain officers or ministers of the Christian Church intermediate between “bishops ” and “deacons.” The specialized use of the word as implying not only age, but consequently wisdom and authority, is analogous to that of “senate” (from senior), of “gerousia” (from γέρων), and of “elder.” It is the original form of priest (q.v.). The word is not found in pre-Christian writings except in the Septuagint, though as Deissmann has shown it is found on the Papyri as an official title for the village magistrates of Egypt and the members of the γερουσία, or senate, of many towns in Asia Minor. The office is, however, closely analogous to, and perhaps founded on, a similar office in the Jewish synagogue organization among the officials of which were the zekenim, or elders, sometimes identified with the archisynagogues. In the New Testament the Greek word is used both for the ancient Jewish official and for the Christian elder. On Jewish tombstones of the Hellenistic period the title is frequently found, sometimes applied to women. The head official of the English Jews prior to their expulsion bore the title of Presbyter judaeorum; opinions differ as to whether this officer was ecclesiastical or had merely the secular duty of supervising the exchequer of the Jews (see further The Jewish Encyclopedia, 1905, x. 190, 191).

The history of presbyteral government as opposed to episcopacy and pure congregationalism is not known in detail. After the Reformation, however, it was adopted by Calvin and his followers, who created that system which has ever since been known as Presbyterianism (q.v.). There are many theories as to the origin of the office of presbyter in the Christian Church. (1) Some connect it with the appointment of the seven recorded in Acts vi. This is the view taken by Boehmer,[1] Ritschl[2] and Lindsay.[3] It is urged that the traditional view which regards the seven as deacons is untenable because the term “deacon” is never used in the narrative, and there is no reference to the office in the Acts. On the other hand the officials of the Jerusalem church are always called “elders” and when they are first introduced (Acts xi. 30) appear to be discharging the functions for which “the seven” were specially set apart. (2) The view adopted by the majority of English scholars is, while refusing to accept the connexion between the presbyters and the seven, to regard the office as distinctly primitive and say that it was taken over by the earliest Christian community at Jerusalem from the Jewish synagogue.[4] (3) Harnack and a few other modern scholars[5] maintain that the office of presbyter did not come into existence till the 2nd century. During the last quarter of the 1st century, a three-fold organization is found in the Church: (a) a spiritual organization composed of “apostles, prophets and teachers who had been awakened by the spirit and by the spirit endowed”; (b) an administrative organization, “For the care of the poor, for worship, for correspondence, the congregation needed controlling officials. These were the bishop and the deacons, the former for higher, the latter for inferior services”; (c) a patriarchal organization based upon the natural deference of the younger to the older members of the Church. The senior members of the community, by virtue of their age and experience, watched over the conduct and guided the action of the younger and less experienced portion of the Church, though they held no official position and were not appointed for any particular work like the bishops and deacons. In the 2nd century the patriarchal element in the organization was merged in the administrative, and the presbyters


  1. Diss. jur. eccl. p. 373.
  2. Entstehung der altkatholischen Kirche, 2nd ed. p. 355.
  3. The Church and the Ministry, p. 116; cf. also Brown, Apostolical Succession, p. 144.
  4. Lightfoot, Ep. to the Philippians, p. 192.
  5. E.g. Sohm, Kirchenrecht, 92; Weizsäcker, Apostolic Age (Eng. trans. ii. 330); Allen, Christian Institutions, p. 38; A. C. McGiffert, Apostolic Age, p. 663 (1897).