This famous "Tale of a Tub" is the ancient story of the three invisible rings which a father bequeathed to his three children. These three rings were the Jewish, the Christian, and the Mahometan religions. It is still more an imitation of the history of Mero and Enégu by Fontenelle. Mero is the anagram of Rome; Enégu of Geneva, and they are two sisters who aspire to the succession of the kingdom of their father. Mero reigns the first, and Fontenelle represents her as a sorceress, who plays tricks with bread and effects conjuration with dead bodies. This is precisely the Lord Peter of Swift, who presents a piece of bread to his two brothers, and says to them, "Here is some excellent Burgundy, my friends; this partridge is of a delicious flavor." Lord Peter in Swift performs the same part with the Mero of Fontenelle.
Thus almost all is imitation. The idea of the "Persian Letters" was taken from that of the "Turkish Spy." Boyardo imitated Pulci; Ariosto, Boyardo; the most original wits borrow from one another. Cervantes makes a madman of his Don Quixote, but is Orlando anything else? It would be difficult to decide by which of the two knight-errantry is more ridiculed, the grotesque portraiture of Cervantes, or the fertile imagination of Ariosto. Metastasia has borrowed the greater part of his operas from our French tragedies; and many English authors have copied us and said nothing about it. It is with books as with the fires in our grates; everybody borrows a light from his neighbor to kindle his own, which in its turn is communicated to others, and each partakes of all.
PRIVILEGE—PRIVILEGED CASES.
Custom, which almost always prevails against reason, would have the offences of ecclesiastics and monks against civil orders, which are very frequent, called privileged offences; and those offences common which regard only ecclesiastical discipline, cases that are abandoned to the sacerdotal hierarchy, and with which the civil power does not interfere.
The Church having no jurisdiction but that which sovereigns have granted it, and the judges of the Church being thus only judges privileged by the sovereign, those cases should be called privileged which it is their province to judge, and those common offences which are punishable by the prince's officers. But the canonists, who are very rarely exact in their expressions, particularly when treating of regal jurisprudence, having regarded a priest called the official, as being of right the sole judge of the clergy, they have entitled that privilege, which in common law belongs to lay tribunals, and the ordinances of the monarch have adopted this expression in France.
To conform himself to this custom, the judge of the Church takes cognizance only of common crime; in respect to privileged cases he can act only concurrently with the regal judge, who repairs to the episcopal court, where, however, he is but the assessor of the judge of the Church. Both are assisted by their register; each separately, but in one another's presence, takes notes of the course of the proceedings. The official who presides alone interrogates the accused; and if the royal judge has questions to put to him, he must have permission of the ecclesiastical judge to propose them.
This procedure is composed of formalities, and produces delays which should not be admitted in criminal jurisprudence. Judges of the Church who have not made a study of laws and formalities are seldom able to conduct criminal proceedings without giving place to appeals, which ruin the accused in expense, make him languish in chains, or retard his punishment if he is guilty.
Besides, the French have no precise law to determine which are privileged cases. A criminal often groans in a dungeon for a whole year, without knowing what tribunal will judge him. Priests and monks are in the state and subjects of it. It is very strange that when they trouble society they are not to be judged, like other citizens, by the officers of the sovereign.
Among the Jews, even the high priest had not the privilege which our laws grant to simple parish priests. Solomon deposed the high priest Abiathar, without referring him to the synagogue to take his trial. Jesus Christ, accused before a secular and pagan judge, challenged not his jurisdiction. St. Paul, translated to the tribunal of Felix and Festus, declined not their judgment. The Emperor Constantine first granted this privilege to bishops. Honorius and Theodosius the younger extended it to all the clergy, and Justinian confirmed it.