BENEFIT OF CLERGY.
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��was a test which, in those dark ages, when few except clergymen could read, could scarcely fail. If the prisoner could read, he was deemed a clerk at the very- least, and was set at liberty. This was English law for many hundred years, and during all these centuries the crim- inal code was growing more and more bloody, until in Blackstone's time, a hun- dred years ago, the number of" distinct crimes punishable with death was upwards of one hundred and sixty. Very many of them were within Benefit of Clergy. To steal a pocket handkerchief of the value of thirteen pence was a capital crime* — unless the thief could read the command, "Thou shalt not steal!" A hundred years ago a poor old woman was hung for taking one cabbage from a field. If she had been learned in the technicalities of the law [Blackstone, Book IV, Page 231J as established by " a subtilty in the legal notions of our ancestors," she would have pulled up and carried away a growing cabbage. In that case the cab- bage would have "savored of the real- ty," and the act would have been a civil trespass and no crime. But unfortunate- ly she was not aware of this important distinction, and so she carried away a cabbage that had already been pulled , a cabbage that had lost its " savor of the realty," and was lying upon the ground. By so doing she committed grand lar- ceny, " the punishment of which is reg- ularly death," and, as she could not read, she was hung.f The ignorant man, who stole thirteen-pence worth of bread, was hung ; the educated scoundrel walked as free as many a moneyed scoundrel does to-day, not, as now, by evading the law, but by direct command of the law, for the law was gracious and long-suffering
��" in favor of one possessed of so rare and valuable a qualification." This was law in Old England— and in New England, too J — in the good old time, not very long ago.
A long while after the test of ability to read was established, another distincti on was made. Educated criminals, not be- ing punishable, had become so numerous and appeared in court so often, that Par- liament enacted [4 Henry VII., C. 13] that persons who were not clergymen should have Benefit of Clergy only once, and that a mark should be set upon them by branding in the thumb, or otherwise, that they might be known. The statute expressly provided that real clergymen, in holy orders, should not be marked in the hand, and that they should have Ben- efit of Clergy as often as they might com- mit crime. ||
In the reign preceding that in which the last named statute was passed, there was a ruling of court rather inconven- ient for educated criminals, and not alto- gether consistent with their state and dignity. It was that Clergy should not be pleaded until after conviction. Now. on conviction the prisoner's goods and chattels were forfeited to the king, and not only that, but if the prisoner had stolen A's property, A's property was also forfeited to the king, unless A made fresh pursuit and assumed the expense of prosecution. But Benefit of Clergy operated as a full and free pardon. " All this is very true," said a sarcastic law- yer, " but as to your property, the king, you hear, has got it, and when the king has got hold of a man's property, with title or without title, such is his royal no- tion that he cannot bear to part with it ; for ' the king can do no wrong,' § and
��* "The punishment of grand larceny, or the stealing above the value of twelve pence— which su m was the standard in the time of King Athelstan, eight hundred years ago— is at common law regu- larly death— which law continues in force to this day." Blackstone, Book IV, Page 237.
t As late as 1876, in the same town, an old man was sentenced to six months in the house of cor- rection for the very same offense — stealing a single cabbage.
X I am indebted to the research and courtesy of George Ramsdell, Esq., Clerk of Court of Hills- borough County, for a copy which I made of the court records for that county of the trial of Israel Wilkins of Hollis for the murder of his father, in 1772- The following is a part of it : — " It being de- manded of the said Israel Wilkins why sentence of death should not be passed upon him, the said Israel Wilkins prayed the Benefit of Clergy, which was granted."
|| Even if tried, they could seldom be convicted. By the Canon Law the guilt of a Cardinal charged with incontinence could be established by no less than seven e(/e-witnesses; for " the proofs against a clergyman ought to be much clearer than against a layman." Ayliffe, Par. 448.
§ "The king can do no wrong. The law ascribes to the king absolute perfection. * * The king, moreover, is not only incapable of doing wrong, but even of thinking wrong ; he can never mean to do an improper tiling; in him is no folly or weakness." Blackstone, Book I.Page 246,
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