1911 Encyclopædia Britannica/Clergy, Benefit of

CLERGY, BENEFIT OF, an obsolete but once very important feature in English criminal law. Benefit of clergy began with the claim on the part of the ecclesiastical authorities in the 12th century that every clericus should be exempt from the jurisdiction of the temporal courts and be subject to the spiritual courts alone. The issue of the conflict was that the common law courts abandoned the extreme punishment of death assigned to some offences when the person convicted was a clericus, and the church was obliged to accept the compromise and let a secondary punishment be inflicted. The term “clerk” or clericus always included a large number of persons in what were called minor orders, and in 1350 the privilege was extended to secular as well as to religious clerks; and, finally, the test of being a clerk was the ability to read the opening words of verse 1 of Psalm li., hence generally known as the “neck-verse.” Even this requirement was abolished in 1705. In 1487 it was enacted that every layman, when convicted of a clergyable felony, should be branded on the thumb, and disabled from claiming the benefit a second time. The privilege was extended to peers, even if they could not read, in 1547, and to women, partially in 1622 and fully in 1692. The partial exemption claimed by the Church did not apply to the more atrocious crimes, and hence offences came to be divided into clergyable and unclergyable. According to the common practice in England of working out modern improvements through antiquated forms, this exemption was made the means of modifying the severity of the criminal law. It became the practice to claim and be allowed the benefit of clergy; and when it was the intention by statute to make a crime really punishable with death, it was awarded “without benefit of clergy.” The benefit of clergy was abolished by a statute of 1827, but as this statute did not repeal that of 1547, under which peers were given the privilege, a further statute was passed in 1841 putting peers on the same footing as commons and clergy.

For a full account of benefit of clergy see Pollock and Maitland, History of English Law, vol. i. 424-440; also Stephen, History of the Criminal Law of England, vol. i.; E. Friedberg, Corpus juris canonici (Leipzig, 1879–1881).