365 CHAPTER XXVIII. OF THE BENEFIT OF CLERGY. Benefit of clergy, was at first granted by the crown to the church as an exemption, and afterwards claimed by the church as a right. [*366] 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, honour, number, and interest, began soon to set up for themselves and that which they obtained by the favour of the civil government, they now claimed as their inherent right; and as a *right of the highest nature, indefeasible, and jure divino (a). By their canons, therefore, and constitutions they endeavoured 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 list became quite universal (b); as in regard to the persons exempted, among whom were at length comprehended not only every little subordinate officer (a) The principal argument, upon anointed, and do my prophets no harm." which they founded this exemption, was (Keilw. 181.) that text of scripture, "touch not mine (b) See vol. III. page 62. 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 endeavoured by the clergy (c): 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 (d): 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 practised, 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 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 (e). 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 miti(c) Keilw. 180. (d) 2 Hal. P. C. 377. (e) 2 Hal. P. C. 372; M. Paris, A. D. 1259; see vol. I. page 24. [*367] [*368] gate 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 no 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 thumb. This distinction between learned laymen, 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 held (e) 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, having place and voice in parliament, may have the benefit of their peerage, equivalent to that of clergy, for the first offence, (although they cannot read, and without being burnt in the hand,) for all offences then clergyable to commoners, and also for the crimes of housebreaking, highway-robbery, horsestealing, and robbing of churches (1). *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 (e) Hob. 294; 2 Hal. P. C. 375. (1) Upon the conviction of the duchess of Kingston for bigamy, it was argued by the attorney general Thurlow, that peeresses were not entitled by 1 Edw. VI. c. 12, like peers, to the privilege of peerage; but it was the unanimous opinion of the judges, that a peeress, convicted of a clergyable felony, ought to be immediately discharged without being burnt in the hand, or without being liable to any imprisonment; 11 How. St. Tr. 264. If the duchess had been admitted, like a commoner, only to the benefit of clergy, burning in the hand at that time could not have been dispensed with. The argument was, that the privi lege of peerage was only an extension of the benefit of clergy, and therefore granted only to those who were or might be entitled to that benefit; but as no female, peeress, or commoner, at that time, was entitled to the benefit of clergy, so it was not the intention of the legislature to grant to any female the privilege of peerage. And, in my opinion, the argument of the attorney general is much more convincing and satisfactory, as a legal demonstration, than the arguments of the counsel on the other side, or the reasons stated for the opinions of the judges.— CH. of the offender by a new canonical trial; although he had been previously convicted by his country, or perhaps by his own confession (ƒ). This trial was held before the bishop in person, or his 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 (g). A learned judge, in the beginning of the last century (h), 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 offence, 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 inno cent 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 *no- [*369] torious 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 : 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; (f) Staundford, P. C. 138, b. (h) Hob. 291. (g) 3 P. Wms. 447; Hob. 289. it became high time, when the reformation was thoroughly Accordingly, the statute 18 Eliz. c. 7, enacts that, for the 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, too severe for the ignorant also. And thereupon, |