was enforced by the Justinian code, against playing at dice, cards or tables.1 Privileges and exemptions of clergy from taxes and duties.--In Rome very early a law was made exempting priests from military duty.2 Coke says, the chapter of Magna Charta, that the Church of England shall be free, and shall have her whole rights and liberties inviolable, meant, that ecclesiastical persons and their possessions should be freed from all unjust exactions and oppressions. And he added, that "ecclesiastical persons had more and greater liberties than other of the king's subjects, wherein to set down all would take up a whole volume of itself." 3 He afterwards mentions, that by the custom of England the clergy ought not in person to serve in war, and ought to be quit of tolls and customs, avirage, pontage, paviage, and the like: and that in times past they, seeking to extend their liberties beyond their true bounds, either lost or enjoyed not that which of right belonged to them.* And when it was a serious thing to be knighted, they were exempted by a statute of Edward I. from that doubtful honour.5 The success with which the clergy escaped capital punishment by the expedient of benefit of clergy has been already described. The peculiar duties of the clergy and their urgent nature led to an early maxim of the common law in aid of the canon law, that they should be exempt from compulsory temporal offices incompatible with making their spiritual duties paramount; and a writ of privilege for the clergyman's discharge was granted in 1 Can. 1603, § 75. Some ancient canons also forbade bishops to read heathen authors.-Conc. Carth. IV. c. 16. 5 1 Ed. II. de 2 Plut. Camill. 3 2 Inst. 3. 4 Ibid. 4. milit.; 1 Pat. Com. (Pers.) 428. 62 Pat. Com. (Pers.) 299. Bishops were in the time of Justinian exempted from taking oaths as witnesses.-Nov. 123, c. 7. And priests were exempted from torture when witnesses-a substantial boon.-Code, 9, 41, De quest. They were also exempted from some of the taxes, when these were in the shape of head-money. They were prohibited from meddling with law, it being matter of reproach that they should show themselves skilled in the decision of law-suits. -Just. Code, 1, 3, 41. The church lands had immunity from taxes in the early centuries, and lay proprietors often turned this rule to their own advantage by granting estates to the church, which they received again by way of fief or lease exempted from public burdens. -Hallam Mid. Ag. c. 7. many cases.1 In course of time the clergy were less and less exempted from ordinary taxation, and Hale, C. J., said, that upon debate before all the judges the clergy were held liable to all public charges imposed by Act of Parliament.2 The clergy, under the description of parsons and vicars, were expressly made liable in respect of their tithe and parsonage and vicarage and glebe to the poor-rate. It is true when the parson lets the tithes to a tithe farmer, the latter, as being the occupier, then becomes exclusively rateable to that extent. And by express statute of recent date, all churches and chapels are exempt, being used exclusively for public religious worship.5 Rectors, however, are also liable for rates founded on the poor-rate, for they are included in the word inhabitant, and in the word parishioner. But the clergy are expressly exempt from acting as overseers of the poors and as jurors.9 The clergy are also expressly exempted from paying turnpike tolls in certain circumstances, that is to say, in going to or returning from visiting any sick parishioner, or on other parochial duty within their parish.10 It has been decided under this enactment, that the clergyman who, as curate, does the duty of the incumbent, is also exempt;" and that the exemption applies though the clergyman's family are with him in the carriage.12 But a clergyman. not licensed by the bishop as a curate, though doing the duty, has no exemption.13 One peculiarity in the law of evidence was long connected with a duty or function of the clergy, namely, the duty to receive confession. As there is nothing expressly enjoined in the canons, articles, or statutes relating to the Church of England which makes confession, either special or general, a duty or practice, either on the part of a lay member to make, or compulsory on the priest to receive, it follows that when such a confession is made to a 1 1 Inst. 96; 2 Inst. 3. But it seems that if the sovereign appointed a clerk to a temporal office, this made the latter his paramount duty.-Artic. Cleri, 9; 2 Ed. II. st. 1, c. 8; 2 Inst. 624. 2 Webb v Bachelor, Vent. 273; 3 Keb. 255, 476. 3 43 Eliz. c. 2, § 1. 4 R. v Lambeth, 1 Str. 525. 5 3 & 4 Will. IV. c. 30, 62 Inst. 704. 7 1 Hawk. P. C. 204. § 1. 8 1 Bott, 9. 9 33 & 34 Vic. c. 77. 10 9 Geo. IV. c. 126, § 32. v Dickenson, 1 E. & E. 34. 415. 11 Temple 12 Layard v Ovey, L. R., 3 Q. B. 13 Brunskill v Watson, L. R., 3 Q. B. 418. priest, it being in no sense a public duty, the priest is not exempted or privileged from giving such confession in evidence, should the interests of justice require it.1 And the same rule is acted on in reference to confessions made to Roman Catholic priests. Whatever may have been deemed the law before the Reformation can be of no authority now, seeing that the powers and duties of priests were greatly curtailed, and in some instances abolished from that time, expressly or impliedly. Offence of disturbing divine service.-Nor was it to be wondered, that the canons should specially mark out for censure those who behaved rudely and were disorderly in church, and by noise hindered the minister or preacher.2 The jurisdiction of the Ecclesiastical Courts in the matter of defamation and brawling had become so oppressive and vexatious, that it was wholly abolished in very recent times; and so much of the law as protected the clergy, whether of the Church of England or as Nonconformists, from interruption in their sacred functions was treated as a general common law offence, and punished with fine and imprisonment in a summary manner by justices of the peace.3 A statute of Richard II. prohibited priests being arrested during divine service. In 1812 it was made a penal offence for any congregation of persons for religious worship (whether dissenters or not) to have the door of the church. or chapel locked during divine service.5 And at the same time it was made still more penal to disturb the congregation or the person officiating. To arrest, or molest, or distract a clergyman or other minister during divine service. is now a misdemeanour. And to make a riotous, violent, or indecent disturbance in any place of religious worship is punishable by fine or by a short imprisonment.8 Resignation of office of priest.-Another singular doctrine embodied in the canons was, that whoever once became a deacon or minister of the Church of England could not thereafter divest himself of that character, so 1 R. v Gilham, 1 Mood. 186, 452. See also 6 Cox, C. C. 219; 2 F. & F. 4. Can. 1603, No. 111. 23 & 24 Vic. c. 32. 2 4 1 Rich. II. c. 15. 3 18 & 19 Vic. c. 41; 5 52 Geo. III. c. 155, 8 23 & 24 100, § 36. 3 that the maxim prevailed-once a priest always a priest. Lord Eldon said that the canon law as to the indelibility of holy orders had been part of the common law, and was so treated by Hale, Holt, and Hardwicke. Hence when a priest became a dissenter and preached in a dissenting chapel, it was found that he could be punished for the breach of discipline. It was not till the year 1870 that an Act of Parliament passed to relax this rule and permit these persons, like the rest of their fellow-citizens, to follow any occupation they pleased, and to change it as often as they thought fit. In order, however, to divest himself, he must execute a formal deed of relinquishment, and give notice to the bishop and archbishop six months before he can be free. If the clergyman do not wish wholly to relinquish the clerical character and become a layman, he may merely resign his incumbency on terms. When an incumbent is incapacitated by permanent mental or bodily illness, a mode now provided by the statute for his resigning is pointed out, and a pension, not exceeding one-third of the value, is allowed to him, which is made a charge on the benefice. The merits of the case are investigated by five commissioners appointed by the bishop after notice to all interested parties. It is true that after resignation the clerk may, nevertheless, be prosecuted for any offence which would have involved suspension or forfeiture. The patron may, after such resignation, present a successor as if the resigning incumbent had died. And the benefice is never to be charged with more than one pension at a time, and the pension is not assignable. 1 Can. 1603, § 76. LUTHER said, that the doctrine of indelibility of holy orders was altogether indefensible. He said the priest was an office-holder and nothing more.-1 Geffcken's Ch. & State, 296. The Bishop of Rochester in 1756 wished to resign, but was toli he could not do so, as the peerage was inalienable.-3 Walpole Lett. 307. 235 Parl. Hist. 1545. 4 33 & 34 Vic. c. 91. CHAPTER VIII. OFFENCES AND PUNISHMENTS OF THE CLERGY. Jurisdiction of Ecclesiastical Courts generally.-The remedies against clergymen are divided into those of a civil and of a criminal nature; but there has been a difficulty in a few instances in determining to which class a particular proceeding belongs. Thus it has been decided that civil suits include a proceeding to recover penalties for nonresidence for preaching without a licence; for compelling removal of unlawful ornaments :3 to pay over to the churchwardens the offertory moneys. One characteristic of a civil suit is, that none but a parishioner is allowed to be the plaintiff, for some interest in the subject-matter is essential.5 When the Ecclesiastical Courts first took shape, all courts, ancient and mediæval, had been acting on the notion, that law and courts must exist for the purpose of enforcing all the virtues; and it was easy to excuse the ecclesiastics from gliding by an easy transition into the kindred notion, that Ecclesiastical Law and Ecclesiastical Courts must exist for the sole purpose of enforcing the Christian virtues, of which they were the chief expounders. Hence they set vigorously to work at this as a labour of love, and it was natural that in course of time they would begin to see, that everything of human concernment resolved itself more or less into an affair of Christian conduct. Hence the Church interfered, and exercised its jurisdiction in a great variety of matters of worldly business for the health 1 Bluck Rackham, 5 Moore, P. C. 305. 1 Hagg. Cons. 157. 2 D. Portland v Bingham, Fagg, L. R. 6 Priv. C. 38. 5 Turner Meyers, 3 Lee Liddell v Rainsford, 38 L. J. Eccl. 15. 1 Hagg. Cons. 415. |