CHAP by the refusal of many persons to pay tithes. This VII firming practice grew to such a head as to necessitate an Act Act con- of Parliament on the subject. As this was passed payment of in the same year, 1535, in which the King began to Tithes make his assault upon the monasteries, there can be A. D. 1535 little doubt that the people at large were encouraged by his measures to think that Church property in general was to be abolished: but however this might be, the preamble of the Act [27 Hen. VIII. cap. 20] shows that many were trying to confiscate it on their own account. "Forasmuch," it alleges, "as divers numbers of evil-disposed persons inhabited in sundry counties, cities, towns, and places of this realm, having no respect to their duties to Almighty God, but against right and good conscience, have attempted to subtract and withhold, in some places the whole, and in some places great parts of their tithes and oblations, as well personal as predial, due unto God and Holy Church; and, pursuing such their detestable enormities and injuries, have attempted in late times past to disobey, contemn, and despise the process, laws, and decrees of the ecclesiastical court of this realm in more temerous and large manner than before this time hath been seen;" that, therefore, it is enacted that any member of the privy council, or any two justices of the peace, shall have power on proof of such contempt of the ecclesiastical court to commit the offender to prison. without bail until he obey the decree of that court.” 7 In an Irish Act to the same purport, but passed seven years later [A.D. 1542], the preamble goes on to say that the tithe-payers have been encouraged in their conduct by the fact that lay titheholders could not as the law had hitherto stood recover in a court of law. This is a significant indication of the feeling of the day: since lay tithe-holders only came into existence with the dissolution of the monasteries. Till familiar, they must have seemed monstrosities. VII Such an act in support of the rights of the clergy CHAP (for lay tithe-holders were not yet known) must be balanced against others of the same period, which seem to the superficial reader of history to prove extortionate habits on their part. It shows how great difficulty they had in asserting their just rights, and how some of the laity were endeavouring to defraud them of their very livelihood for their own profit. spirit of not proved In short, we may conclude that this charge of General extortion brought against the clergy of the sixteenth extortion and preceding centuries is founded on very insuf- against ficient data. Here and there a single black sheep clergy among them has been taken as a type of the whole flock; and if one priest caused the velvet cloak of a deceased person to be seized as his mortuary fee, prejudiced historians have written as if all the clergy were laying violent hands upon all the velvet cloaks of all deceased laymen. It was a time of discontent, a time too when all were suffering from the taxation rendered necessary by the selfish wars and extravagance of the Crown. Men were easily irritated; the clergy are always a good mark, and a comparatively easy prey. The King had set an example of making all that could be made out of them, and the subject was only too ready to follow the royal lead. Thus Their men willingly laid hold of every pretext they could money to stint the clergy of their just and reasonable rights, and the more unprincipled of men exaggerated all the faults that they could find in their priests for the sake of justifying their own injustice. It was not the last time that such a course of conduct was exhibited by a large class of half-hearted churchmen: and until the clergy can live on air, money rights an easy prey to the laity CHAP they will always have to suffer this kind of annoyance in time of any great ecclesiastical crisis. VII Principle of the system Its expan sion and § 2. THE BENEFIT OF CLERGY A constitutional change of great importance was, however, made at this time in regard to Church discipline, and one which was of advantage to the clergy, by abolishing, to a certain extent, a legal fiction which had often brought an unnecessary and unjust odium upon them as a class. This was the modification of the law respecting "Benefit of Clergy." It had been a principle of English law, time out of mind, that the persons of the clergy were sacred, and (so long as they remained clergy) punishable only by ecclesiastical law. If they were to suffer death they must previously be degraded from their orders and suffer as laymen; and under no circumstances were they to go without just punishment for any offences of which they were convicted.8 This principle was extended in the Middle Ages, perversion so as to be brought to bear on a large number of persons who were not in holy orders, nor even in any of the minor orders, such as those of sub-deacon, reader, &c. At first this extension took place by permitting persons accused of crime (perhaps very unjustly) to come under the shield of the Church by taking minor orders, thus making these orders answer the purpose of a city of refuge. Eventually the walls of this city of refuge were so extended as to embrace all who, being able to read Latin (a sign • Gibson's Codex, Tit. xlix. cap. 5. VII provision benefit of of clerical or "clerkly" accomplishment), were claimed CHAP by the Church as clerks." It was a custom not unlike that of "sanctuary," by which every criminal was safe from death at the hand of the law so long A merciful as he continued in a consecrated place. There were for the times in history when such ecclesiastical privileges the laity were a great bulwark of liberty for the laity as well as for the clergy; and when, if the keys of mercy had not been held by the Church, few would ever have found the door opened to them. But it was a system capable of very ready abuse. Laymen gradually enlarged their claims to the Benefit of Clergy, and as the ability to read a verse or two of the Latin Scriptures became more common, so the number of criminals who claimed to be clerks was vastly increased. Hence arose three great evils to the clergy and to the Church at large. (1) First, Too great The ecclesiastical courts exercised too great leniency ecclesiastowards those who were brought before them, partly because of their naturally merciful rule, and partly because they were overburdened and encumbered This privilege of escape from civil punishment by "reading" was only entirely disused and abolished by a statute originated by Sir Robert Peel. The following is a note on the subject by the learned Bishop Gibson. "At the common law at first (saith Hobart) the Benefit of Clergy was not allowed but to clerks in orders: but afterwards (as appears from 4 Hen. VII. cap. 13, which speaks of it as commonly allowed to others) it was extended to all that could read; and therefore Hobart calls it a 'refuge provided by common law in favour of learning to save the life of an offender literate, in certain cases.' And Keyling, in the case of Lisle, adds, "That in those days, when few were bred to liter- leniency of tical courts from con CHAP with cases in which full investigation was beyond the VII power of the legal machinery that was placed in Escape of the hands of ecclesiastical judges. (2) Secondly, criminals Criminals escaped too easily, in many cases simply viction because the bishops had neither sufficient prison room in which to confine their prisoners, nor sufficient funds with which to maintain them. For all who received the Benefit of Clergy were to be imprisoned -perhaps for life-at the cost of the bishop instead of at the public charge, an extravagant burden to throw upon a judge, and one likely to lead to the easy "purgation" or acquittal condemned in statutes relating to the subject. (3) Great scandal was scandal on brought upon the Church by this easy escape of criminals, and it seemed as if crime was thus encouraged by the clergy. Still further scandal was caused by the unjust assumption (made to some extent by contemporaries, and to a much greater extent by historians) that the great body of criminal " clerks," under this system, were clergymen, the fact being that they were laymen. Which brought Church Restraint of Benefit This custom was first really regulated by statute of Clergy in the year 1350, although it had been confirmed by A.D. 1350 several previous Acts. In that year an Act was passed [25 Edw. III. St. iii. cap. 4] which enacted that (with the exception of those convicted of treasons and felonies which concern the Crown) all convicted clerks shall be delivered up on demand to their ordinaries. Thus the privilege could not be pleaded in bar of trial, but only in bar of secular punishment, that is, after conviction. In the year 1488 another Act was passed [4 Hen. VII. cap. 13], which re 1 52 Hen. III. c. 27 [A.D. 1267], 3 Edw. I. c. 2 [s.D. 1275], 9 Edw. II. c. 16 [A.D. 1315], 18 Edw. III. c. 1, 2 [A.D. 1344]. |