Preaching in private houses and buildings.-The 71st canon expressly prohibited any minister from preaching or administering the holy communion in any private house except in times of necessity. And this necessity was explained, namely, where any one was so impotent as to be unable to go to church, or was very dangerously sick. And a private house was defined to mean a house wherein no chapel was dedicated and allowed by the ecclesiastical laws of the realm; and even the chaplain was prohibited from preaching except in the chapel of such house. The avowed object of all this was to compel people to go to their parish church, and the punishment was suspension for the first offence, and excommunication for the second. A private house in short was held to mean strictly a dwelling-house, and hence would not include a dissenting or unconsecrated chapel, so as to save a priest who there officiated from committing a breach of Church discipline. Moreover, by the Act of Charles II. no person was allowed to have divine service performed in his house if there were more than five persons present besides the family. This number was, with great difficulty, afterwards extended to twenty, above which number the place was to be certified and registered, and those who permitted such meetings in uncertified places incurred a penalty, not less than 20s. and not greater than 201. All places of religious worship of Protestants, other than those of the Church of England, required to be registered by the same statute of 1812. But in 1855 the necessity of registration of places of religious worship was no longer required when the incumbent of the parish church or his curate, or some one authorised by them, conducted the worship; or when the congregation or assembly met in a private dwelling-house, or on the premises belonging thereto; or when the congregation or assembly met occasionally in any building not usually appropriated to purposes of religious worship.5

Various kinds of punishment of the clergy.-The clergy, besides being liable, both civilly and criminally, in all courts to the same remedies and punishments as the laity, are subject to various punishments peculiar to their

1 Barnes v Shore, 1 Rob. Eccl. 382; 8 Q. B. 640. 3 52 Geo. III. c. 155. The fee was 2s. 6d.

c. 1.

c. 155, § 2. 5 18 & 19 Vic. c. 86.

2 22 Ch. II.

4 52 Geo. III.

own profession. These vary in degree from simple admonition to imprisonment and deprivation. Admonition is a mere caution or warning, but disobedience to it amounts to a contempt of court. Suspension is either from office alone, or from office and benefice. The former indicates that the suspended person is prohibited from discharging spiritual functions: while the latter adds the further prohibition against receiving the fruits of the benefice. And at the end of the term of suspension a certificate signed by three clerks is sometimes ordered to be produced attesting the reformation of the offender. Sequestration of the profits of the benefice is either a punishment per se or added to suspension. Deprivation is the entire dissolution of the connection between the clerk and his benefice and its functions, so that he can neither officiate in it nor enjoy the emoluments. And sometimes to this is added a prohibition to officiate within the limits of the depriving authority. The writ of excommunication was also the mode of enforcing sentences. These punishments require to be noticed in their order.

Excommunication as punishment. The punishment of excommunication, which was so formidable a weapon of priestly influence in the middle ages, has lost all its rigour in modern times, and it has been turned into a mere mode of imprisonment for six months. This writ de excommunicato capiendo was said by Coke to be matter of discretion on the part of the king, though the ecclesiastical lawyers claimed that it was ex debito justitiæ, and that the king could not withhold it. A statute of Elizabeth was passed to make the writ de excommunicato capiendo more strictly enforcible, and to make the sheriff more easily brought to account for neglecting to arrest the offender. And the cause of the excommunication was to be specified in the significavit.5 But after the lapse of about two centuries it was abolished, except to this extent, that when a decree or order of the ecclesiastical court was disobeyed, and that court certified or made a significavit of the same to the Chancery division within ten days thereafter, a writ de contumace capiendo may issue from such division having the same force as the writ de 1 See 2 Pat. Com. (Pers.) 240. 2 53 Geo. III. c. 127. 3 2 Inst. 630. 4 Lind. 351. 5 5 Eliz. c. 23, § 13.

excommunicato capiendo under the statute of Elizabeth, and the sheriff is bound to execute the writ by arresting the contumacious party. This writ may be issued against a person residing anywhere in England or Ireland.2 But if the contumacious person is a peer or member of Parliament, the writ de contumace capiendo is not to be issued, but only a writ of sequestration against the estate or the goods. And a power has been expressly conferred on the Ecclesiastical Court or Judicial Committee of the Privy Council after the imprisonment of the contumacious person to release him at any time with consent of the other parties to the suit.4

Suspension as a punishment. The punishment of suspension is that which usually is most effective, and is a prohibition against the incumbent exercising his spiritual functions. The sentence of itself operates to incapacitate the party from reaping the emoluments of the benefice, whether a sequestration be issued or not.5 The care of the benefice is then devolved on the bishop, so as to provide for the needs of divine worship while the suspension lasts. If the clergyman preaches or performs clerical functions during the suspension, or otherwise disobeys any monition, he is guilty of contempt, and is liable to be suspended ab officio et beneficio. One characteristic of the sentence of suspension is, that before it can be pronounced the offender must have a previous admonition, otherwise it is good cause of appeal.8 There seems to be no defined limit to the period of suspension, but it is usually confined to short periods of a few months, extending to two or three years. One peculiarly barbarous form of suspension was once applicable to the laity as well as the clergy, which consisted in excluding the offender from entering a church at all-called suspension ab ingressu ecclesia. This punishment, like a minor excommunication, was founded apparently on the notion, that the offender was so bad, that he should not have even a chance of hearing anything more for his benefit. It is true the courts seem to have pronounced this sentence only in suits.

2 2 & 3 Will. IV. c. 93, § 1. 5 Morris v Ogden, L. R., 4 C. P. 6 Re Thakeham, L. R.,

1 53 Geo. III. c. 127, §§ 1, 2, 3. 3 Ibid. 4 3 & 4 Vic. c. 93. 687; Bunter v Cresswell, 14 Q. B. 825. 12 Eq. 494.

8 Gibs. 1046.

7 Martin v Mackonochie, 4 Q. B. D. 697.

for brawling, which may be presumed to suggest some kind of surety of the peace such as this punishment implied.1 The punishment was expressly authorised by the statute of Edward VI.,2 and no statute has yet expressly repealed the power to inflict such punishment, and which the ecclesiastical court probably still claims.3

4

Sequestration as a punishment. The sentence of sequestration is a mode of appropriating the whole profits of the benefice to other uses than those of the incumbent, but always subject to adequate provision being first made for public worship. The bishop acts in such a case in a manner similar to the sheriff in ordinary cases of debtors in possession of real or personal estate. Sequestration may be made to reach the clergyman's estates out of the jurisdiction.5 But the debts of the clergy are not allowed to interfere with the services of the Church, so that while a clergyman's benefice must answer for his debts, like the estate of a layman, care is always taken first to keep up the ministrations of the Church, and to set apart a sufficient sum out of the emoluments for that primary object. Hence, instead of the sheriff executing writs of common law courts against the benefice, it is for the bishop to nominate a fit person to be the sequestrator. And when an incumbent is made bankrupt, the sequestrator may allow part of the profits to the bankrupt for performing the duties of the parish. The duty of a sequestrator is to gather the tithes, fruits, and profits, and keep a just account; and he publishes his appointment in the church, so that all may know his position. The duties are now regulated to some extent by statute. If the sequestration remains in force for more than six months, the bishop may inhibit the incumbent from performing clerical service within the diocese so long as the sequestration lasts."

8

1 Clinton v Hatchard, 1 Add. 96; Lee v Matthews, 3 Hagg. Ecc. 175. 2 5 & 6 Ed. VI. c. 4.

3 The Council of Laodicea solemnly decided that heretics ought not to be admitted into a church.-Concil. Laod. c. 6. Nevertheless, some churches had the good sense to avoid the rule.-Bing. Chr. Ant. b. xvi. c. 6.

4 Jud. Act 1875, Apx. ; 1 & 2 Vic. c. 106, §§ 54, 99; 12 & 13 Vic. c. 67; 34 & 35 Vic. c. 45. 5 2 & 3 Will. IV. c. 93. 6 32 & 33 Vic. c. 71, § 88. 7 32 & 33 Vic. c. 71, § 88. 8 34 & 35 Vic.

c. 45.

9 Ibid. § 5.

CH. VIII.] CONTEMPT OF ECCLESIASTICAL COURTS.

511

Deprivation as a punishment.-The highest punishment of the same kind is deprivation, which totally deprives the incumbent of all further connection with the benefice, being in effect a perpetual suspension. It is a punishment assigned for disqualification, blasphemy, felony, and the graver moral offences.1 Indeed, conviction for felony or treason ipso facto, if the punishment exceed twelve months' imprisonment, operates as an avoidance of a benefice. This heavy punishment of deprivation can be pronounced by the Dean of the Arches sitting by himself." Deprivation is now always substituted for the old punishment of degradation. But most of the grounds at common law have been displaced by statutory methods which intercept the evil at an earlier stage. Thus, mere illiteracy, want of age, simony, conviction of treason or felony, are disposed of by statutes. It may be decreed for incontinence and drunkenness. Blasphemy, heresy, schism, are also grounds for the punishment. Speaking, or preaching, or using rites or ceremonies in derogation of the Prayer Book is, on a second conviction, made by statute ipso facto a deprivation. And other statutes often prescribed this punishment.

5

There was also the punishment of degradation, which was the stripping from an ecclesiastic the sacred orders, a punishment now never resorted to, simply because the others amount practically to the same thing. It was done solemnly and publicly, and was purposely accompanied with marks of disgrace.8

Punishment for contempt of Ecclesiastical Court.A contempt of an ecclesiastical court is committed in the

1 Noble v Voysey, L. R., 3 Priv. C. 357; Bonwell v Bp. London, 14 Moore, P. C. 395. 2 33 & 34 Vic. c. 23, § 2. 3 Bonwell v Bp. London, 14 Moore, P. C. 395. 4 Claster H., 1 Robertson, 380. 5 1 Brownl. 70; 2 Brownl. 37. 6 29 Ch. II. c. 9. 7 2 & 3 Ed. VI. c. 1, §§ 2, 3; 1 Eliz. c. 2, §§ 2, 3.

8 The ceremony survives in the popular expression-pulling the man's gown over his ears. The canon law added other grounds of degradation. Marriage or concubinage was deemed sufficient; and even a contumacious wearing of an irregular habit.-Lindw. 122, 127, 128.

One serious doubt disturbed the canonists as to this sentence, namely, how many bishops ought to be present and assisting at a degradation. It was agreed, that if the person degraded was a bishop, twelve others should be present; but if he was only a presbyter, then six should suffice.-Ayliffe, Par. 207.