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.
