BOOK 4, CHAPTER 28 Of the Benefit of Clergy

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AFTER trial and conviction, the judgment of the court regularly follows, unless suspended or arrested by some intervening circumstance; of which the principal is the benefit of clergy: a title of no small curiosity as well as use; and concerning which I shall therefore inquire, 1. Into its original, and the various mutations which this privilege of clergy has sustained. 2. To what persons it is to be allowed at this day. 3. In what cases. 4. The consequences of allowing it.

I. CLERGY, the privilegium clericale, or in common speech the benefit of clergy, had its original from the pious regard paid by Christian princes to the church in its infant state; and the ill use which the popish ecclesiastics soon made of that pious regard. The exemptions, which they granted to the church, were principally of two kinds: 1. Exemption of places, consecrated to religious duties, from criminal arrests, which was the foundation of sanctuaries: 2. Exemption of the persons of clergymen from criminal process before the secular judge in a few particular cases, which was the true original and meaning of the privilegium clericale.

BUT the clergy, increasing in wealth, power, honor, number, and interest, began soon to set up for themselves: and that which they obtained by the favor of the civil government, they now claimed as their inherent right; and as a right of the highest nature, indefeasible, and jure divino [divine right].1 By their canons therefore and constitutions they endeavored at, and where they met with easy princes obtained, a vast extension of these exemptions: as well in regard to the crimes themselves, of which the life became quite universal;2 as in regard to the persons exempted, among whom were at length comprehended not only every little subordinate officer belonging to the church or clergy, but even many that were totally laymen.

IN England however, although the usurpations of the pope were very many and grievous, till Henry the eighth entirely exterminated his supremacy, yet a total exemption of the clergy from secular jurisdiction could never be thoroughly effected, though often endeavored by the clergy:3 and therefore, though the ancient privilegium clericale was in some capital cases, yet it was not universally, allowed. And in those particular cases, the use was for the bishop or ordinary to demand his clerks to be remitted out of the king’s courts, as soon as they were indicted: concerning the allowance of which demand there was for many years a great uncertainty:4 till at length it was finally settled in the reign of Henry the sixth, that the prisoner should first be arraigned; and might either then claim his benefit of clergy, by way of declinatory plea; or, after conviction, by way of arresting judgment. This latter way is most usually practiced, as it is more to the satisfaction of the court to have the crime previously ascertained by confession or the verdict of a jury; and also as it is more advantageous to the prisoner himself, who may possibly be acquitted, and so need not the benefit of his clergy at all.

ORIGINALLY the law was held, that no man should be admitted to the privilege of clergy, but such as had the habitum et tonsuram clericalem [clerical habit and tonsure].5 But in process of time a much wider and more comprehensive criterion was established: every one that could read (a mark of great learning in those days of ignorance and her sister superstition) being accounted a clerk or clericus, and allowed the benefit of clerkship, though neither initiated in holy orders, nor trimmed with the clerical tonsure. But when learning, by means of the invention of printing, and other concurrent causes, began to be more generally disseminated than formerly; and reading was no longer a competent proof of clerkship, or being in holy orders; it was found that as many laymen as divines were admitted to the privilegium clericale: and therefore by statute 4 Hen. VII. c. 13. a distinction was once more drawn between mere lay scholars, and clerks that were really in orders. And though it was thought reasonable still to mitigate the severity of the law with regard to the former, yet they were not put upon the same footing with actual clergy; being subjected to a slight degree of punishment, and not allowed to claim the clerical privilege more than once. Accordingly the statute directs, that no person, once admitted to the benefit of clergy, shall be admitted thereto a second time, unless he produces his orders: and, in order to distinguish their persons, all laymen who are allowed this privilege shall be burnt with a hot iron in the brawn of the left thump. This distinction between learned lawmen, and real clerks in orders, was abolished for a time by the statutes 28 Hen. VIII. c. 1, and 32 Hen. VIII. c. 3. but is held6 to have been virtually restored by statute 1 Edw. VI. c. 12. which statute also enacts that lords of parliament, and peers of the realm, may have the benefit of their peerage, equivalent to that of clergy, for the first offense, (although they cannot read, and without being burnt in the hand) for all offenses then clergyable to commoners, and also for the crimes of housebreaking, highway robbery, horse-stealing, and robbing of churches.

AFTER this burning the laity, and before it the real clergy, were discharged from the sentence of the law in the king’s courts, and delivered over to the ordinary, to be dealt with according to the ecclesiastical canons. Whereupon the ordinary, not satisfied with the proofs adduced in the profane secular court, set himself formally to work to make a purgation of the offender by a new canonical trial; although he had been previously convicted by his country, or perhaps by his own confession. This trial was held before the bishop in person, or hid deputy; and by a jury of twelve clerks: and there, first, the party himself was required to make oath of his own innocence; next, there was to be the oath of twelve compurgators, who swore they believed he spoke the truth; then, witnesses were to be examined upon oath, but on behalf of the prisoner only and, lastly, the jury were to bring in their verdict upon oath, which usually acquitted the prisoner: otherwise, if a clerk, he was degraded, or put to penance.7 A learned judge, in the beginning of the last century,8 remarks with much indignation the vast complication of perjury and subornation of perjury, in this solemn farce of a mock trial; the witnesses, the compurgators, and the jury, being all of them partakers in the guilt: the delinquent party also, though convicted before on the clearest evidence, and conscious of his own offense, yet was permitted evidence, and conscious of his own offense, yet was permitted and almost compelled to swear himself not guilty: nor was the good bishop himself, under whose countenance this scene of wickedness was daily transacted, by any means exempt from a share of it. and yet by this purgation the party was restored to his credit, his liberty, his lands, and his capacity of purchasing afresh, and was entirely made a new and an innocent man.

THIS scandalous prostitution of oaths, and the forms of justice, in the almost constant acquittal of felonious clerks by purgation, was the occasion, that, upon very heinous and notorious circumstances of guilt, the temporal courts would not trust the ordinary with the trial of the offender, but delivered over to him the convicted clerk, absque purgatione facienda [without making purgation]: in which situation the clerk convict could not make purgation; but was to continue in prison during life, and was incapable of acquiring any personal property, or receiving the profits of his lands, unless the king should please to pardon him. Both these courses were in some degree exceptionable; the latter being perhaps too rigid, as the former was productive of the most abandoned perjury. As therefore these mock trials took their rise from factious and popish tenets, tending to exempt one part of the nation from the general municipal law; it became high time, when the reformation was thoroughly established, to abolish so vain and impious a ceremony.

ACCORDINGLY the statute 18. Eliz. c. 7. enacts, that, for the avoiding of such perjuries and abuses, after the offender has been allowed his clergy, he shall not be delivered to the ordinary, as formerly; but, upon such allowance and burning in the hand, he shall forthwith be enlarged and delivered out of prison; with proviso, that the judge may, if he thinks fit, continue the offender in jail for any time not exceeding a year. And thus the law continued, for above a century, unaltered; except only that the statute 21 Jac. I. c. 6. allowed, that women convicted of simple larcenies under the value of ten shillings should, (not properly have the benefit of clergy, for they were not called upon to read; but) be burned in the hand, and whipped, stocked, or imprisoned for any time not exceeding a year. And a similar indulgence, by the statutes 3 & 4 W. & M. c. 9. and 4 & 5 W. & M. c. 24. was extended to women, guilty of any clergyable felony whatsoever; who were allowed to claim the benefit of the statute, in like manner as men might claim the benefit of clergy, and to be discharged upon being burned in the hand, and imprisoned for any time not exceeding a year. All women, all peers, and all commoners who cloud read, were therefore discharged in such felonies; absolutely, if clerks in orders; and for the first offense, upon burning in the hand, if lay: yet all liable (excepting peers) if the judge saw occasion, to imprisonment not exceeding a year. And those men, who could not read, if under the degree of peerage, were hanged.

AFTERWARDS indeed it was considered, that education and learning were no extenuations of guilt, but quite the reverse: and that, if the punishment of death for simple felony was too severe for those who had been liberally instructed, it was, a fortiori [consequently], too severe for the ignorant also. And thereupon by statute 5 Ann. c. 6. it was enacted, that the benefit of clergy should be granted to all those who were entitled to ask it, without requiring them to read by way of conditional merit.

BUT a few years experience having shown, that this universal lenity was frequently inconvenient, and an encouragement to commit the lower degrees of felony; and that, though capital punishments were too rigorous for these inferior offenses, yet no punishment at all (or next to none, as branding or whipping) was as much too gentle; it was enacted by statutes 4 Geo. I. c. 11. and 6 Geo. I. c. 23. that when any persons shall be convicted of any larceny, either grand or petit, and shall be entitled to the benefit of clergy, or9 liable only to the penalties of burning in the hand or whipping, the court in their discretion, instead of such burning in the hand or whipping, may direct such offenders to be transported to America for seven years: and, if they return within that time, it shall be felony without benefit of clergy.

IN this state does the benefit of clergy at present stand; very considerably different from its original institution: the wisdom of the English legislature having, in the course of a long and laborious process, extracted by a noble alchemy rich medicines out of poisonous ingredients; and converted, by gradual mutations, what was at first an unreasonable exemption of particular popish ecclesiastics, into a merciful mitigation of the general law, with respect to capital punishment.

FROM the whole of this detail we may collect, that, however in times of ignorance and superstition that monster in true policy may for a while subsist, of a body of men, residing in the bowels of a state, and yet independent of its laws; yet, when learning and rational religion have a little enlightened mens minds, society can no longer endure an absurdity so gross, as must destroy its very fundamentals. For, by the original contract of government, the price of protection by the united force of individuals is that of obedience to the united will of the community. This united will is declared in the laws of the land: and that united force in exerted in their due, and universal, execution.

II. I AM next to inquire, to what persons the benefit of clergy is to be allowed at this day: and this must be chiefly collected from what has been observed in the preceding article. For, upon the whole, we may pronounce, that all clerks in orders are, without any branding, and of course without nay transportation, (for that is only substituted in lieu of the other) to be admitted to this privilege, and immediately discharged, or at most only confined for one year: and this as often as they offend.10 Again, all lords of parliament and peers of the realm, by the statute 1 Edw. VI. c. 12. shall be discharged in all clergyable and other felonies, provided for by the act, without any burning in the hand, in the same manner, as real clerks convict: but this is only for the first offense. Lastly, all the commons of the realm, not in orders, whether male or female,11 shall for the first offense be discharged of the punishment for felonies, within the benefit of clergy; upon being burnt in the hand, imprisoned for a year, or less; or, in case of larceny, being transported for seven years, if the court shall thing proper. If has been said, that Jews, and other infidels and heretics, were not capable of the benefit of clergy, till after the statute 5 Ann. c. 6. as being under a legal incapacity for orders.12 But, with deference to such respectable authority, I much question whether this was ever ruled for law, since the re-introduction of the Jews into England, in the time of Oliver Cromwell. For, if that were the case, the Jews are still in the same predicament, which every day’s experience will contradict: the statute of queen Anne having certainly made no alteration in this respect; it only dispensing with the necessity of reading in those persons, who, in case they could read, were before the act entitled to the benefit of their clergy.

III. THE third point to be considered is, for what crimes the privilegium clericale, or benefit of clergy, is to be allowed. And, it is to be observed, that neither in high treason, nor in petit larceny, nor in any mere misdemeanors, it was indulged at the common law; and therefore we may lay it down for a rule, that it was allowable only in petit treason and felonies: which for the most part became legally entitled to this indulgence by the statute de clero [of clergy], 25 Edw. III. St. 3. c. 4. which provides, that clerks convict for treasons or felonies, touching other persons than the king himself or his royal majesty, shall have the privilege of holy church. But yet it was not allowable in all felonies whatsoever: for in some it was denied even by the common law, viz. insidiatio viarum, or lying in wait for one on the highway; depopulatio agrorum, or destroying and ravaging a country;13 and combustio domorum, or arson, that is, the burning of houses;14 all which are kind of hostile acts, and in some degree border upon treason. And farther, all these identical crimes, together with petit treason, and very many other acts of felony, are ousted of clergy by particular acts of parliament; which have in general been mentioned under the particular offenses to which they belong, and therefore need not be here recapitulated. Of all which statutes for excluding clergy I shall only observe, that they are nothing else but the restoring of the law to the same rigor of capital punishment in the first offense, that in exerted before the privilegium clericale was at all indulged; and which it still exerts upon a second offense in almost all kinds of felonies, unless committed by clerks actually in orders. We may also remark, that by the marine law, as declared in statute 28 Hen. VIII. c. 15. the benefit of clergy is not allowed in any case whatsoever. And therefore when offenses are committed within the admiralty-jurisdiction, which would be clergyable if committed by land, the constant course is to acquit and discharge the prisoner.15 And lastly, under this head of inquiry, we may observe the following rules: 1. That in all felonies, whether new created or by common law, clergy is now allowable, unless taken away by express words of an act of parliament.16 2. That, where clergy is taken away from the principal, it is not of course taken away from the accessory, unless he be also particularly included in the words of the statute.17 3. That, when the benefit of clergy is taken away from the offense, (as in case of murder, buggery, robbery, rape, and burglary) a principal in the second degree, aiding and abetting the crime, is as well excluded from his clergy as he that is principal in the first degree: but, 4. That, where it is only taken away from the person committing the offense, (as in the case of stabbing, or committing larceny in a dwelling house, or privately from the person) his aiders and abetters are not excluded; through the tenderness of the law, which has determined that such statutes shall be taken literally.18

IV. LASTLY, we are to inquire what the consequences are to the party, of allowing him this benefit of clergy. I speak not of the branding, imprisonment, or transportation; which are rather concomitant conditions, than consequences of receiving this indulgence. The consequences are such as affect his present interest, and future credit and capacity: as having been once a felon, but now purged from that guilt by the privilege of clergy; which operates as a kind of statute pardon.

AND, we may observe, 1. That by his conviction be forfeits all his goods to the king; which, being once vested in the crown, shall not afterwards be restored to the offender.19 2. That, after conviction, and till he receives the judgment of the law, by branding or the like, or else is pardoned by the king, he is to all intents and purposes a felon, and subject to all the disabilities and other incidents of a felon.20 3. That, after burning or pardon, he is discharged forever of that, and all other felonies before committed, within the benefit of clergy; but not of felonies from which such benefit is excluded: and this by statutes 8 Eliz. c. 4. and 18 Eliz. c. 7. 4. That by the burning, or pardon of it, he is restored to all capacities and credits, and the possession of his lands, as if he had never been convicted.21 5. That what is said with regard to the advantages of commoners and laymen, subsequent to the burning in the hand, is equally applicable to all peers and clergymen, although never branded at all. For they have the same privileges, without any burning, which others are entitled to after it.22

NOTES

     1.    The principal argument, upon which they founded this exemption, was that text of scripture; “touch not mine anointed, and do my prophets no harm.” (Keilw. 181.)

     2.    See Vol. III. pag. 62.

     3.    Keilw. 180.

     4.    2 Hal. P. C. 377.

     5.    2 Hal. P. C. 372. M. Paris. A. D. 1259. See Vol. I. pag. 24.

     6.    Hob. 294.

     7.    3 P. Wms. 447. Hob. 289.

     8.    hon. 291

     9.    The printed statute book reads and instead of or: and, if that be the true reading, it may be doubted, and, as the consequence may in some cases be capital, it deserves to be explained by the legislature, whether women, and persons convicted of petit larceny, are strictly within these statutes of George the first; for the statutes, as printed, seem to extend only to such convicts as are entitled to the benefit of clergy, which no woman, or petit larcener, properly is. For, with regard to the female sex, the statutes of William and Mary (before referred to) very anxiously distinguish between the benefit of clergy, which extends only to men, and the benefit of the statute 3 & 4 W. & M. which is allowed to be claimed by women: and the statute of Anne (as is hereafter observed) does not entitle any one to the benefit of clergy but such as were entitled before; as its whole operation is merely to dispense with their reading.

   10.    2 Hal. P. C. 375.

   11.    See note i. [ note 9.]    12.    2 Hal. P. C. 373. 2 Hawk. P. C. 338. Fost. 306.

   13.    2 Hal. P. C. 333.

   14.    1 Hal. P. C. 346.

   15.    Moor. 756. Fost. 288.

   16.    2 Hal. P. C. 330.

   17.    2 Hawk. P. C. 342.

   18.    1 Hal. P. C. 529. Foster. 356.

   19.    2 Hal. P. C. 388.

   20.    2 P. Wms 487.

   21.    2 Hal. P. C. 389. 5 Rep. 110.

   22.    2 Hal. P. C. 389, 390.

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