the pope, were not chargeable with the temporal tenths or fifteenths granted to the king in parliament, lest they should be doubly charged; but their possessions acquired after that taxation were liable to the temporal tenths or fifteenths, because they were not charged to the other (r). Newly purchased.]-In which the temporal lords had a right of distraining, which right they ought not to lose, by the possessions coming into the hands of ecclesiastical sons. For where any burden real lies upon any land or place, the thing itself passes with its burden (s). per Purchased.]-Either to their own use, or to the use of church (t). If any ecclesiastical person acknowledge a statute mer- Shall not be chant or statute staple, or a recognizance in the nature of taken on a a statute staple; his body shall not be taken by force of chant or staple. any process thereupon (u). SECT. 4.-Freedom from Tolls, &c. Amongst the Saxons, the lands of the clergy (x) were charged to castles, bridges and expeditions (y). But after the introduction of the Romish canon law, they obtained exemptions. And Lord Coke says, that ecclesiastical persons ought to be quit and discharged of tolls and customs, avirage, pontage, paviage, and the like, for their ecclesiastical goods; and if they be molested therefore, they may have a writ for their discharge (z). Which writ they may have out of the Chancery, made of course without petition or motion, directed to the party that distrains or disturbs them for any of these things, commanding them to desist; and if such writ be not obeyed, the cursitor of course used to make out an alias and pluries, and if none of these were obeyed, an attachment to arrest the party, and detain him till he obey (a). But this and the like are always to be understood with this exception, viz. provided that no act of parliament has ordered otherwise. (r) 2 Inst. 627. (8) Lind. 268. (t) Lind. 261. (u) 2 Inst. 4. (x) The clergy of Scotland are not liable to be assessed or rated for the relief of the poor in respect of their manses or glebes. (y) Wake's State of the Ch. 2. (a) Degge, p. 1, c. 11. statute mer Free from tolls and other common law. charges by the Not freed from general charges by act of parliament. Anciently, indeed, it was holden, that clergymen are not to be burdened in the general charges with the laity of this realm, neither to be troubled or incumbered, unless they be specially named and expressly charged by some statute (b). Thus Dr. Godolphin observes, that the statute of hue and cry charges the inhabitants and resiants, but it has never been taken, says he, that parsons and vicars are included, or shall be contributory in robberies. In the same statute are watchings, yet the clergy thereby are never charged. The statute for highways charged every householder, yet this has never been taken by usage to charge the clergy. Also, the charge of gaols, the act says all resiants shall pay; yet have the clergy never been charged. Thus, where the bridge act says, all inhabitants shall be assessed, it must mean only all such only as are chargeable to pontage (c). But now the contrary doctrine prevails, that clergymen are liable to all charges by act of parliament, unless they are specially exempted. Thus they are, both in respect of their tithes and glebes, liable to contribute to watch and ward and to the repair of the highways, and may be rated or taxed by the commissioners of sewers; they, as well as laymen, are chargeable to the poor maimed soldiers or poor prisoners, and county rates, and shall contribute towards satisfying for a robbery committed within the hundred, and all other public charges imposed by act of parliament. And this has been resolved upon debate, as Hale, Chief Justice, said, before all the judges (27 Car. 2), in the case of Webb v. Batchelor (d). And particularly in the case of bridges, the statute 22 Hen. 8, c. 5, says, the justices of the peace shall assess every inhabitant towards their repair; by which words, every inhabitant, Lord Coke says, all privileges of exemptions or discharges whatsoever from contribution (if any were) are taken away, although the exemption were by act of parliament (e). And in respect of the highways, where the statutes direct that the parishioners of every parish shall repair, Mr. Hawkins observes thereupon, that persons in holy orders are within the purview of these statutes in respect of their spiritual possessions, as much as any other persons whatsoever, in respect of any other possessions, for the words (b) God. Rep. 194. Wats. ch. 40; 3 Keb. 255, 476; 1 Ventr. 273; 2 Lev. 139. (e) 2 Inst. 704. are general, and there is no kind of intimation that any particular persons shall be exempted more than others (f). The clergy are exempted from paying toll at turnpike Turnpikes. gates when on parochial duty (g). SECT. 5.-As to Sermons. The degree of protection which the law affords to clergymen with respect to the preaching, not the publishing, of sermons, and the administration of private, not parochial, charities within their parish, was much discussed in the year 1846 in the case of Gathercole v. Miall (h). With re- Gathercole v. spect to the latter point, the Barons of the Exchequer were Miall. all of opinion, to use the language of Chief Baron Pollock, "That a parochial charity, with the vicar at the head of it, among other persons in the parish, not for parochial purposes, but for some exclusive purpose, with reference either to religious opinion or to anything else, is a private matter, and is not open to what may be called licentious comment as opposed to a comment that must be based in truth" (i). And Baron Alderson said: "That even if preached sermons were within the limits of the ordinary rule which governs the criticism upon public acts of individuals, that position would not affect his administration of a private charity within his parish. "It is no part," said the learned Baron, " of his peculiar ministerial duty to have a clothing club, though it is a very proper thing for him or any other charitable man to do. I am at a loss to see how his case differs from that of any other individual who chooses to institute a private charity within particular limits. If so, then the criticism and observations which are to be made upon him are the criticism and observations which are to be made upon any other private individual, and are to be judged by the same rules and subject to the same limits." But with respect to sermons preached and not published the opinion of Baron Parke (Lord Wensleydale) was thus expressed to the jury, and he appears to have retained the opinion when the matter was discussed in Banc, that a Brunskill v. Watson, 3 L. R., Q. B. 418. (f) 1 Haw. 204, and post. (g) The Turnpike Acts are, 3 Geo. 4, c. 126; 1 & 2 Will. 4, c. 25. See Temple v. Dickinson, 1 El. & El. 34; 5 Jur., N. S. 363; p. 583, supra. But see also sermon preached by a clergyman to his parishioners, unless he published it and thereby offered it as a subject for general criticism like any other literary work, could not be considered as the public act of a public servant on which every one had a right to comment. C. B. Pollock agreed with this view, and said: "My opinion goes entirely along with the intimation of opinion that fell from my Brother Parke at the trial. I think a sermon preached to a congregation may undoubtedly be made the subject of a comment, but you must not put into the mouth of the pastor language that he did not use, or make any comment upon what he did use, or was supposed to use, that does not fairly arise out of the truth. I think you are fettered, with respect to a sermon preached to a congregation, just as you would be fettered with respect to any other matter on which you have a right to comment, but on which you must comment with truth and with justice." Baron Alderson doubted, and Baron Rolfe (Lord Cranworth) was of a contrary opinion, and thought that comments on sermons would come within the category of public acts. It appears to me that this is the opinion which would probably prevail if this question was to undergo a fresh discussion. May not sit in SECT. 6.-Miscellaneous Points. Ineligibility to the House of Commons (h) is perhaps not a privilege; but I will mention here that it was a much controverted question whether before the passing of 41 Geo. 3, c. 63, s. 4, clerks in holy orders were eligible for a seat in the House of Commons. It is remarkable that Coke (i), Chief Baron Gilbert (k), and Blackstone (1), pronounced them ineligible because they (h) Vide post, Convocation. (k) A Treatise on the Court (2) 1 Comm. 175. "Next, as to the qualification of persons to be elected members of the House of Commons. Some of these depend upon the law and custom of parliament declared by the House of Commons, others upon certain statutes. And from these * Comm. Journ., 9th Nov. 1605. it appears, (1) that they must not be aliens born or minors; (2) that they must not be of the twelve judges, because they sit in the lords' house; nor of the clergy, for they sit in the convocation." Mr. (afterwards judge) Coleridge makes this note to his edition of Blackstone: "There is great reason to doubt whether this was correctly laid down at the time it was written, and at all events + Comm. Journ., 13th Oct..1553, 8th Feb. 1620, 17th Jan. 1661. sat in convocation. This reason is certainly not satisfactory; nevertheless both houses of Parliament in Henry the Eighth's time, by a joint committee, appear to have given this reason for the ineligibility of clerks in holy orders to be members of the House of Commons (m). But in 1801 the statute was passed "to remove all 41 Geo. 3, c. 63. doubts relative to the eligibility of persons in holy orders to sit in the Commons House of Parliament," and thereby not only Horne Tooke, who being in priest's orders had been returned for Old Sarum, and was a candidate for Westminster in the next Parliament, was rendered ineligible; but deacons, one of which order then sat in the house (n), were put in the same category. This statute was the 41 Geo. 3, c. 63. It was entitled "An Act to remove doubts respecting the eligibility of persons in holy orders to sit in the House of Com mons. Church of a member of the House of The preamble recites: "Whereas it is expedient to re- No person, move doubts which have arisen respecting the eligibility of ordained a priest or persons in holy orders to sit in the House of Commons, deacon, or and also to make effectual provision for excluding them being a minisfrom sitting therein ;" and proceeds to enact as follows:-ter of the Sect. 1. "No person having been ordained to the office Scotland, shall of priest or deacon, or being a minister of the Church of be capable of Scotland, is or shall be capable of being elected to serve being elected in parliament as a member of the House of Commons." Sect. 2. "If any person, having been ordained to the Commons. office of priest or deacon, or being a minister of the Church The election of Scotland, shall hereafter be elected to serve in parlia- of such person ment as aforesaid, such election and return shall be void; and if any and that if any person, being elected to serve in parlia- person after ment as a member of the House of Commons, shall, after his election, be ordained to the office of priest or deacon, dained a priest, or become a minister of the Church of Scotland, then and &c. he shall in such case the seat of such person shall immediately become void; and if any such person shall, in any of the Penalty for aforesaid cases, presume to sit or vote as a member of sitting or the House of Commons, he shall forfeit the sum of five voting in either hundred pounds for every day in which he shall sit or vote this reason is a very unsatisfactory one-it would not apply to unbeneficed clergymen, and might be used with equal force to exclude bishops from the House of Lords." (m) The Rights of an Eng. Convoc. Atterbury, p. 71. (n) He had been pronounced eligible by a committee Feb. 24, 1785 (40 Journ. 561). See 2 Luder's Election Cases, case of the Borough of Newport, 269, and the learned notes of the editor. This case exhausts the law before the statute. his election shall be or vacate his seat. case. |