Scott, Austin W.

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Volume 27 Issue 2 Article 2 January 1921 The Legal Status of the Clergyman Austin W. Scott Harvard Law School Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Religion Law Commons Recommended Citation Austin W. Scott, The Legal Status of the Clergyman, 27 W. Va. L. Rev. (1921). Available at: https://researchrepository.wvu.edu/wvlr/vol27/iss2/2 This Article is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. WEST VIRGINIALAW QUARTERLYAnd THE BARVOLtIEm XXVII JANUARY, 1921 NUMBER 2THE LEGAL STATUS OF THE CLERGYMAN*By AuSTIN W. SCOTT**"The people," said Sir William Blackstone, in his famous Com-mentaries on the laws of England,' "are divisible into two kinds;the clergy, and the laity." And as to the clergy he said: "Thisvenerable body of men, being separate and set apart from the restof the people, in order to attend the more closely to the service ofAlmighty God, have thereupon large privileges allowed them byour municipal laws: and had formerly much greater, which wereabridged at the time of the reformation on account of the ill usewhich the popish clergy had endeavored to make of them."The chief privilege to which the clergyman was once entitled wasthe so-called benefit of clergy. By the ancient common law ofEngland an ordained clerk who committed a felony could not betried in a'temporal court. The Church, and the Church alone, hadpower to deal with such offenders. "Touch not mine anointed anddo my prophets no harm" was the Scriptural injunction. 2 Grad-ually this exemption of the clergy was restricted; after a long strug-gle between Church and State it came about that a clergyman couldbe tried and convicted in a temporal court, but upon claiming hisprivilege he was discharged; and an increasing number of offenceswere made felonies without benefit of clergy. At the same timewhere the crime was clergyable the privilege was extended to lay.men who could read,3 on the ground that anyone who could readwas presumptively a clergyman. The whole doctrine of benefit of*This article contains the substance of a lecture delivered In July, 1920, at thesummer session of the Harvard Divinity School.**Professor of Law, Harvard Law School.11 BLACSTONE, COMML'NTARIEs, 376.2 lC~aoNICLaS XVI, 22.1Scott: The Legal Status of the ClergymanPublished by The Research Repository @ WVU, 1921WEST VIRGINIA LAW QUARTERLYclergy was swept away in England by a statute in 1827,4 although iipersisted in a few of the United States until the middle of the 19tbcentury.5At common law the clergy were indeed an especially favoredclass. But there was nothing strange in this. In medieval Eng-land there were many specially privileged classes. The struggle forliberty was largely a fight against encroachments upon, or inter-ferences with, the special privileges of these classes. The nobilitywrung Magna Charta from a reluctant sovereign. The merchantand trade guilds, the municipal and private corporations, the baritself, all possessed and fought for their peculiar privileges andexemptions. Only gradually was evolved the modern ideal ofequality before the law-the abolition of all special privileges. InEngland today although the connection between Church and Statepersists, the personal privileges of the clergymen have largely dis-appeared. And in this country, where federal and state constitu-tions forbid laws respecting an establishment of religion, the clergydo not constitute a separate privileged class.Blackstone's dictum therefore is no longer a correct statement ofthe law. The people are not divisible into two kinds. The clergyand the laity are equally responsible to the temporal courts and thelaw of the land. If a clergyman in the course of a sermon usesviolent language, he may be criminally liable for a breach of thepeace.' If in the course of a sermon he makes a statement whichwould be slanderous if made by anyone else he is liable in damagesto the person defamed,7 although like any other person he is justi-fied if what he says is true or if his words are but a fair commentor criticism upon the acts of public officials. A priest who beingabout to administer the last sacrament to a dying man ejects a thirdperson from the sick-room, may be held liable for battery.8As far as the relation of the clergyman to his church is concerned,that is a matter of contract, express or implied. In the absence ofany express agreement the canons and rules and customs of the par-ticular church prevail. When the church is an established church,3The passage used as a test of ability to read was PSALmS LI, 1. This came to becalled the "neck-verse".'STAT. 7 & 8 GEO. IV, c. 28, § 6.5See WITE, LEGAL ANTiQUITIES, c. VIII.6Delk v. Commonwealth, 166 Ky. 39, 178 S. W. 1129 (1915).71-assett v. Carroll, 85 Conn. 23, 81 Atl. 1013 (1911). Ann. Cas. 1913A 340.$Shaffer v. Sawyer, 124 Mass. 294 (1877).2West Virginia Law Review, Vol. 27, Iss. 2 [1921], Art. 2https://researchrepository.wvu.edu/wvlr/vol27/iss2/2THE LEGAL STATUS OF THE CLERGYMANas in England, and formerly in Massachusetts and Virginia andsome other states, these canons and rules and customs are in them-selves law. Where Church and State are separated, the canons,rules and customs are but evidence of the contract between theparties. Of course the different churches differ as to these mattersto such an extent that it is hard to generalize. The hierarchicalgovernment of the Roman Catholic Church is at the opposite ex-treme from that of the churches having a congregational form ofgovernment. The manner of selecting the minister, the tenure ofoffice, the methods of removing him, the amount of his compensa-tion, the character of his duties-all these things are determined bythe contract between him and his church; in other words, in the ab-sence of any express agreement, by the canons, rules and customsof his church.The clergyman, as has been pointed out, is subject like any otherperson to the law of the land. This does not mean however thatthere is a failure to recognize the peculiar function of the clergy-man and his particular contributions to the life of the body politic.The clergyman still enjoys a few special privileges, which are al-lowed however not because he is a member of a privileged class, noton account of favor to him, but for the public good.The clergyman is exempt from jury duty. Several classes of lay-men have the same exemption, teachers, for example, and lawyers,policemen, firemen. This exemption is not based upon any favor tothese classes but is due to the recognition that their callings aresuch that an interference in the performance of their duties isagainst the public interest. If the clergyman is willing to serve asa juror, he may so serve in most states; he is exempted but not dis-qualified.In time of war clergymen are usually exempted from militaryservice. They were so exempted by the Selective Service Law of1917. This does not mean, of course, that the clergyman does notmake a vital contribution to the success of his countryo's arms inwar but his contribution is not necessarily in the direct applicationof force. In Massachusetts statutes expressly provide that a minis-ter of the gospel caimot be compelled to accept the office of con-stable, nor to be enrolled in the militia, nor to keep watch and ward.At common law the sheriff may call upon citizens actively to aidhim in enforcing the law, as members of the posse comitatus, butin England it has been held that clergymen are exempt from this3Scott: The Legal Status of the ClergymanPublished by The Research Repository @ WVU, 1921WEST VIBGINIA LAW QUARTE.LYservice.9 But this exemption was probably the result of the estab-lishment and applied only to the clergy of the established religion.Public service companies, including railroads, street railways,telephone and telegraph companies, water companies, and the like,are forbidden, both by common-law principles and by statutes, tomake discriminations in the rates they charge. An exception hasbeen made, both at common law and by statute, in the case of char-itable institutions and undertakings. Some statutes, including theInterstate Commerce Act, extend the exception to the individualclergyman and allow the giving of reduced rates and even of freeservice to ministers of religion. As far as charities are concerned,the policy is somewhat like that which allows exemption from tax-ation of property owned by charitable institutions. Although itmay be illegal affirmatively to make grants of public funds to aidsuch institutions, yet this indirect aid is allowed as an encourage-ment to charitable undertakings, which are encouraged becausethey are beneficial to the public. In the case of the individual min-ister the benefit to the public is less direct, for ministers, like lay-men, sometimes travel for purposes other than the promotion ofcharitable undertakings; but it is felt that sinee ministers do notcome into competition with business men no injustice is done toanybody by allowing them special rates.10 But it is illegal to chargedifferent rates to members of different denominations.1 ' Sometimesdealers in commodities give special rates to clergymen, but the lawis not concerned with this, for those who are not engaged in publicservice undertakings may make such discriminations as theychoose.The minister stands of course in a peculiarly confidential rela-tionship toward the members of his church and toward any othersfor whom he may act as spiritual adviser. The clergyman mustbe peculiarly careful not to abuse the confidence reposed in him.When for instance property is left by will to the spiritual adviserof the testator or testatrix, the transaction is scrutinized most care-fully. In some states there is a presumption that undue influencewas exerted by the clergyman. But in a majority of states there isno such presumption unless perhaps where the clergyman drewOSee yIN. Aa. SHEnIF (B).2OIn a few states formerly ministers were exempt from taxation. 34 CYc. 1146,such exemption cannot be justified except where, as formerly in some states, min-Isters were paid out of the public treasury."United States v. Chicago, etc. Ry. Co., 127 Fed. 785. See L. R. A. 1918D 916.4West Virginia Law Review, Vol. 27, Iss. 2 [1921], Art. 2https://researchrepository.wvu.edu/wvlr/vol27/iss2/2THE LEGAL STATUS OF THE CLERGYMANthe will; but the confidential relation is an important element indetermining whether in view of all the circumstances the independ-ent exercise of the will-power of the testator was prevented.At one time in England clergymen were so successful in inducingpersons on the point of death to leave their property to the Church,that Parliament felt it necessary to enact the so-called Statute ofMortmain which, in order to prevent "ilmprovident dispositionsmade by languishing or dying persons, or by other persons, to thedisinherison of their lawful heirs," "provided that devises of landsfor charitable uses should be invalid. In some of our states thereare statutes providing that no devise or bequest for a charitablepurpose shall be good unless the will is executed within a certainperiod (a month, three months, a year) before the death of the tes-tator. In some states also there are statutes, which limit the pro-portion of the testator's estate which can be devised or bequeathedfor charitable purposes (one-third or one-half, usually only in caseswhere he leaves a wife, child or parent). But except for these re-strictions the law is liberal in upholding gifts for charitable pur-poses, including the promotion of religion.Confidential communications by a client to his lawyer are priv-ileged; that is to say, the lawyer is not allowed to go upon the wit-ness stand and testify to what the client told him in his professionalcapacity. Public policy requires that men should be allowed freelyto discuss their affairs with their legal advisers. This privilege didnot at common law extend to communications made by a patient tohis physician nor by a penitent to his priest. But by statute inmore than half the states it has been so extended, the statutes ap-plying not merely to statements made under seal of the confessionalbut to all statements made, according to the discipline enjoined bya church, to a spiritual adviser in his professional capacity. Thesestatutes recognize a policy that men should be allowed freely toconsult their spiritual advisers concerning their spiritual short-comings. The person making the communication may waive theprivilege and allow the clergyman to testify. It may be added thateven in the absence of such a statute very seldom does a wise law-yer ask a clergyman to testify as to confidential communications.Lord Chief Justice Coleridge once said "Practically, while bar-risters and judges are gentlemen, the question can never arise. Iam told it never has arisen in Ireland in the worst times."12"2Letter to Gladstone, cited 5 WIGMORE, EVIDENCE, § 2394.5Scott: The Legal Status of the ClergymanPublished by The Research Repository @ WVU, 1921WEST VIRGINIA LAW QUARTERLYThere is one function of the minister which is of the greatest im-portance in the law. The minister is authorized to perform theceremony of marriage. From the point of view of the law marriageis the creation of a civil status. The minister in peiforming theceremony is acting as a public officer.' 3 In order to perform hisduties properly he must be familiar with the law. He should know,first, who may lawfully marry; secondly, the formalities necessaryto constitute a valid marriage; and thirdly, the formalities which,though not necessary to the validity of the marriage, are requiredby statute, so that a failure to comply with them would render theminister civilly liable or liable to punishment by way of fine orotherwise. Unfortunately as to all these matters the laws of thedifferent states are not uniform. Nevertheless in their broad out-lines they are the same throughout the United States.Marriages are prohibited between ascendants and descendantsby blood or affinity, between brothers and sisters, uncles and nieces,aunts and nephews. In some states the laws go further and forbidmarriages between first cousins. In England until recently mar-riage with a deceased wife's sister was forbidden, but in 1907 byact of Parliament such a marriage was maae lawful, although aclergyman of the Church of England who marries his deceasedwife's sister is liable to ecclesiastical censure; and on the otherhand, a clergyman is not liable to censure for refusing to performa ceremony of marriage between a man and his deceased wife'ssister. By some oversight the law as to other persons related bymarriage, e. g., a deceased husband's brother or deceased wife'sniece,14 was left unchanged. Bigamous marriages are of coursevoid. So are marriages under the age of consent, if the parties sep-arate before reaching the age of consent. In most states the age formales is eighteen, for females sixteen. Between the age of consentand majority (twenty-one years in the case of males, eighteen forthis purpose in most states in the case of females), the consent ofthe parent or guardian of the minor is required. Marriages oflunatics or idiots are usually not void, but are voidable, that is, theymay be set aside by legal proceedings. Marriages induced by fraudare sometimes likewise voidable. In some of the states marriagesbetween white persons and negroes (or in California Mongolians)are void. In some states marriages are voidable for impotency."sGoshen v. Stonlngton. 4 Conn. 209 (1821)."4Charter v. Ferguson, [1919] 1 Ch. 128.6West Virginia Law Review, Vol. 27, Iss. 2 [1921], Art. 2https://researchrepository.wvu.edu/wvlr/vol27/iss2/2THE LEGAL STATUS OF THE CLERGYMANThere has been an attempt to avoid confusion by inducing statesto adopt uniform statutes as to marriage and divorce. A NationalCongress on Uniform Divorce Laws met in 1906 and drafted a Uni-form Annulment of Marriage and Divorce Act which has beenadopted in Delaware, New Jersey and Wisconsin. This providesfor annulments for impotency, consanquinity or affinity, formermarriage to a living person, fraud, force or coercion, insanity, andnon-age. It provides for divorce a vinculo matrimonii for adultery,bigamy, conviction for crime (involving imprisonment for twoyears), extreme cruelty, willful desertion for two years, and hab-itual drunkenness for two years. For the same causes andfor hopeless insanity of the husband the libellant may obtain a di-vorce a mensa et thoro. Five states have adopted a Uniform Mar-riage Evasion Act invalidating marriages contracted in states otherthan that of the residence of the parties for the purpose of evadingthe law of their state of residence.The validity of the marriage depends primarily upon the consentof the parties. In this it is like a contract although in fact it ismore than a contract, for it is the creation of a legal status. A mockmarriage, one not intended by either party as a marriage, is not le-gally binding because of the absence of consent. Is anything morethan consent required? In some states common-law marriages are al-lowed, that is, marriages resting wholly upon the consent of theparties, no formal cermony being performed. Where common-lawmarriages are not allowed a marriage is valid only when solemnizedin accordance with the statutory provisions. The statutes usuallyprovide that marriages shall be solemnized by a clergyman or bya magistrate. At common law a marriage was not valid if the per-son performing the ceremony was not in fact a clergyman or magis-trate; but by statute in some jurisdictions a marriage solemnizedby a person who professes to be a clergyman or magistrateis valid if consummated with a full belief of either of the personsso married that they have been lawfully married. Of course a per-son who without authority undertakes to perform a marriage cer-emony commits a criminal offense for which he may be punished.In every state there are statutes providing for certain formali-ties, the omission of which does not in any way affect the validityof the marriage but subjects either the parties to the marriage orthe person performing the ceremony to certain punishments. Thereare usually provisions for the procuring of a marriage license prior7Scott: The Legal Status of the ClergymanPublished by The Research Repository @ WVU, 1921112 WEST FIBGINIA LAW QUATEBLYto the celebration of the marriage, and the filing of a certificate thatthe marriage has been performed.In conclusion then it may be said that although there are rulesof law especially affecting clergymen, giving them certain exemp-tions and certain privileges and imposing certain burdens uponthem, yet in the United States today the clergy do not constitute aseparate privileged class. It may be said that the clergyman inthe United States has no peculiar legal status except in so far as,in performing the cermony of marriage, he is a public officerand has the status which public office confers.8West Virginia Law Review, Vol. 27, Iss. 2 [1921], Art. 2https://researchrepository.wvu.edu/wvlr/vol27/iss2/2

The Legal Status of the Clergyman

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The Legal Status of the Clergyman

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