The Legal Status of the Clergyman

Inspiration, counsel, and caution.

By M.C. Taft

Sir William Blackstone, in his famous "Commentaries on the Laws of England," said: "The people ... are divisible into two kinds; the clergy and laity." As to the clergy, he said:

"This venerable body of men, being separate and set apart from the rest of the people, in order to attend the more closely to the service of Almighty God, have thereupon large privi­leges allowed them by our municipal laws; and had formerly much greater, which were abridged at the time of the Reformation on ac­count of the ill use which the popish clergy had endeavored to make of them."

Former Benefit of Clergy

The laws at that time exempted the clergy from almost every public duty, and they them­selves attempted a total exemption from every secular tie. It is the same in the United States in some respects at the present time, but it was observed by Sir Edward Coke that, "as the overflowing of waters doth many times make the river to lose its proper channel, so in times past ecclesiastical persons seeking to extend their liberties beyond their true bounds either lost or enjoyed in these which of right belong to them."

The personal exemptions do indeed for the most part continue. The chief privilege under which the clergymen were once entitled was the so-called "benefit of clergy." By the ancient common law of England, an "ordained clerk" (clergyman) who committed a felony could not be tried in a temporal court. The church, and the church alone, had power to deal with such offenses. "Touch not Mine anointed, and do My prophets no harm," was cited as the Scriptural injunction.

As time went on, this exemption of the clergy was restricted, and after a long struggle be­tween church and state it came about that a clergyman could be tried and convicted in a temporal court, unless he claimed his privilege. After a time a large number of offenses were made felonies, if committed by the clergy, and they were denied the "benefit of the clergy." It is interesting to note that when the crime was clergyable (entitling to the benefit of clergy), the privileges were extended to laymen who could read, on the ground that anyone who could read was presumptuously a clergyman.'

The doctrine of benefit of clergy in England was abolished in the eighteenth century.2 This doctrine was, however, recognized in the United States in early cases in a few of the States.3 In capital crimes against the United States, benefit of clergy was abolished by Section 30 of the Act of Congress, April 30, 1790. At com­mon law the rights and privileges granted them made them indeed an especially favored class. This might be expected, for in medieval Eng­land there were many especially privileged classes. The struggle for liberty was largely a struggle against encroachment upon these priv­ileged persons. Although today in England the connection between the church and the state persists, the personal privilege of the clergy­man has largely disappeared. In this country, where Federal and State constitutions prohibit laws respecting the establishment of religion or prohibiting the free exercise thereof, the minis­ters do not constitute a special, privileged class.

Present Liability of Clergy

The minister's responsibility for his acts is recognized under the codes of civil and crimi­nal law in nearly all matters. Thus at this time it cannot be claimed as heretofore that the people are divisible into two classes. Black-stone's dictum is no longer a correct statement of the law. The clergy today are equally re­sponsible to the temporal powers and courts and the laws of the land. A minister today is not protected in his language, but is responsible for the words he speaks the same as a layman. Therefore, if a minister uses defamatory or slanderous language in the course of his ser­mon, he may be criminally liable for a breach of the peace.4

Ministers sometimes express themselves dur­ing their sermons relative to certain matters or persons in such a way as to make them liable.

A statement made by a minister that would be slanderous if made by anyone else is as liable as for the layman.5 Like any other person, he is justified if what he says is true, or if his words are but a fair comment or crit­icism upon the actions of public officials. In Massachusetts some years ago, a priest who was about to administer the last sacrament to a dying man, ejected a third person from the sick room, and it was held by the court that he was liable for assault and battery.6 The minister also stands in a peculiarly confidential rela­tionship to the members of his church as their spiritual adviser. It is in this respect that the minister must be extremely guarded in his ad­vice to his parishioners, especially if it pertains to a disposition of property, whether real or personal, in which the minister may be a bene­ficiary.

Confidential Relations of Clergy

Clergymen must be particularly careful not to abuse the confidence reposed in them. When, for instance, property is left by will to the spiritual adviser of the testator or testatrix (the person making the will), the transaction is scrutinized most carefully. In some States there is a presumption that undue influence is exercised by clergymen, but in the majority of States there is no such presumption unless the minister draws (or writes) the will for the tes­tator; but the confidential relation is an impor­tant element in determining whether in view of all the circumstances the independent exercise of the will power of the testator was prevented. At one time in England, clergymen were so suc­cessful in inducing persons on the point of death to leave their property to the church that Parliament felt it necessary to enact the so-called Statute of Mortmain, which, in order to prevent improvident dispositions (the giving of property by wills and testaments) made by lan­guishing or dying persons to the disinheriting of their lawful heirs, "provided that devises [bequests] of land for charitable uses should be invalid."

In some of the States there are statutes today that provide that no devise or bequeath (gifts by will of real estate or personal property) for a charitable institution or for charity of any kind is valid unless the will is executed within a certain period (a month, three months, or a year) before the death of the testator. There are also statutes in many of the States which limit the proportion of the testator's estate that can be devised or bequeathed for charitable pur­poses. In some States it is one third, and in others, one half. This is usually provided for in cases where there is left a surviving wife, a child, or a parent; but except for these re­strictions, the law today is quite liberal in up­holding gifts for charitable purposes, including the promotion of religion.

(To be continued)

1 The passage used as a test of ability to read was Psalms 51 :1. This came to be called the "neck verse." Statutes 7 and 8 of George 4, c 28, Section 6. 12 Cyc., p. 778, Note 68.

2 Delk vs. Commonwealth, 166 Ky., 39, 178 S. W. 1129 (1915) .

3 Hassett vs. Carroll, 85 Conn., 23, 81 Atl. 1013 (1911.)

4 Shaffer vs. Sawyer, 124 Mass., 294 (1877).

Washington, D. C.

* The author. our General Conference attorney, will discuss in several articles to follow problems pertain­ing to the minister's rights, privileges, and limita­tions before the law, both civil and criminal, his lia­bility for public utterances, his relation to wills and testaments made by the sick and dying, and similar questions that have to do with the discharge of his duties as a minister.—Editors.

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By M.C. Taft

November 1933

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