Benefit of Clergy. Common 1. THE privilege of clergy took its root from a constitution Benefit of of the pope, that no man should accuse the priests of holy Clergy by the church before a secular judge; which, being contrary to the Law. crown and dignity of the king and the common law, bound not here till it was confirmed by parliament (u). The first of these epistles is attributed by some to Alexander III. who was consecrated in 1159; by others to Lucius III. who filled the see of Rome in 1181. The second and third authorities are taken from epistles of Celestinus III. who flourished ten years after Lucius. But the fourth authority is said to be a decree of the council of Paris, which was holden under Engenius II. in the beginning of the ninth century. It appears from a passage of Bracton, cited in 2 Inst. 633, as also from the statute West. 1, c. 2, that the clergy introduced the same law here at a very early period. Lindwood (x) says, "a clerk cannot be said to be convicted before a lay judge, so at least as to be condemned by such a conviction." And the constitution of Boniface, of which he there treats, excommunicates those who detain clerks against the requisition of the ordinary. This prelate was Archbishop of Canterbury, and published constitutions in 1260, which Lord Coke reprobates as usurping and incroaching upon many matters which belonged to the common law (y). In one of these it is enacted, that every bishop shall have one or two prisons in his diocese, in which he shall incarcerate for life those clerks who by the secular law would have suffered death (z). But Lord Coke says, that when one of the clergy was indicted of felony, and the ordinary demanded him, yet to the end that it might be known what sort of a person was delivered to the ordinary, an inquest was charged to inquire whether he were guilty or no. And though he was found guilty by this inquest of office, yet was he delivered to the ordinary, and his chattels seized, and his lands taken into the king's hands. In truth, this demand of the clergy was watched with a jealous eye, and considered to be an usurpation by the laity (a). There are accordingly some instances of clerks being executed, and others, owing to convictions of felony, were forced to abjure the realm; but the 9 Edw. 2, c. 15, commonly called Articuli Cleri, restored and confirmed the ancient custom of the realm, as stated by Lord Coke, provided the clerk submitted himself to the law of the kingdom. Since then this privilege, which the clergy grounded on the text, "Touch not Mine anointed and do My prophets no harm," has been regulated by various acts. of parliament; " and we now," says Mr. Justice Foster, "con (u) 2 Inst. 636; X. 2, 1, 8; 2, 1, 10; 2, 1, 17; 2, 2, 2. (r) De Foro Competenti, p. 93. (y) 2 Inst. 599. (z) See his constitutions at the end of Lindw. edit. Ox. p. 21. (a) Reeves' Hist. of the Eng. Law, part 2, ch. 10. thereof by the sider the benefit of clergy, or rather the benefit of the statutes as a relaxation of the rigour of the law, a condescension to the infirmities of human nature (b). The only exception to the rule of the canon law, that a clerk was not to be tried by a secular judge, was against those who after three monitions committed crimes in a secular dress and tonsure; "alleging," says the text," the privilege of a clerical trial with their lips, although they had shortly before denied their clergy by their actions (c)." [186] 2. Concerning which, it is enacted as follows: "When a Confirmation clerk is taken for guilty of felony, and is demanded by the orStatute Law. dinary, he shall be delivered to him according to the privilege of holy church. And they which be indicted of such offences by solemn inquest of lawful men in the king's court, in no manner shall be delivered without due purgation (d)." When a Clerk.] For the scarcity of clergy in the realm of England, to be disposed of in religious houses, or for priests, deacons, and clerks of parishes, there was a prerogative allowed to the clergy, that if any man that could read as a clerk were to be condemned to death, the bishop of the diocese might, if he would, claim him as a clerk; and he was to see him tried in the face of the court, whether he could read or not: the book was prepared and brought by the bishop, and the judge was to turn to some place as he should choose, and if the prisoner could read, then the bishop was to have him delivered over unto him, to dispose of in some places of the clergy, as he should think meet; but if either the bishop would not demand him, or the prisoner could not read, then was he to be put to death (e). The usual test of the prisoner's learning was the verse Miserere mei Deus, which, on that account, was called the neck verse (ƒ). A Clerk.] And by a favourable interpretation of the statutes relating to the clergy, not only those actually admitted into some inferior order of the clergy, but also those who were never qualified to be admitted into orders, have been taken to have a right to this privilege as much as persons in holy orders, whether they were persons lawfully born or bastards, aliens, or denizens, in the communion of the church or excommunicate, within the common benefit of the law or outlaws; so that they were not heretics convict, nor Jews, Mahometans, nor pagans, nor under perpetual disability of going into orders admitting of no dispensation, as blind and maimed persons formerly were, and women still are; nor liable to the objection of bigamy, which, by a constitution of the council of Lyons received in this kingdom, was a bar to the demand of the privilege of the clergy (g). (b) See Keilway, 181; and Foster, Rep. 305. (c) X. 5, 39, 45. (d) 3 Edw. 1, c. 2. (e) Bacon's Use of the Law, 122. (f) Foster, Rep. 306. (g) 2 Hawkins' Pleas of the Crown, 338. And by the 3 Will. c. 9, s. 6, where a man being convicted of any felony for which he may demand the benefit of his clergy, if a woman be convicted for a like offence, upon her prayer to have the benefit of this statute, judgment of death shall not be given against her, but she shall suffer the same punishment as a man should suffer, that has the benefit of clergy allowed. Is taken for guilty of Felony.] This statute, and the custom of the realm, restrained the benefit of clergy only to felony; so as they were to answer to high treason, and all offences under felony (h). And is demanded by the Ordinary.] Yet a man might wave the privilege of his clergy if he would, and put himself upon his country (i). By solemn Inquest of lawful Men.] Before this statute, if any clerk had been arrested for the death of a man, or any other felony, and the ordinary did demand him before the secular judge, he was delivered without any inquisition to be made of the crime; but after this statute, to the end that the ordinary might have more care of purgation to be duly done according to the provision of this act, when any clerk was indicted of any felony, and refused to answer to the felony, but claimed the privilege of the clergy, and was demanded by his ordinary, yet he was not delivered to the ordinary before he had been first indicted and arraigned, and his offence had been inquired of and found by an inquest of office; which was done, both to the end that if the prisoner were found guilty, he might absolutely forfeit his goods, which anciently were saved by a purgation, and also that the court might be apprised, whether it were proper from the circumstances of the case, disclosed upon such an inquiry, to deliver the clerk to the ordinary generally, in which case he was allowed to make his purgation; or specially, withont purgation to be made. But this practice being found inconvenient to prisoners, because they lost their goods, if found guilty by such inquiry, and yet could take no challenge to any of the jury, it being but an inquest of office, it hath been the general practice ever since the reign of Hen. [188] VI. to oblige those who demand the benefit of clergy, to plead and put themselves upon their trial, under pain of being dealt with as those that stand mute, whereby they forfeit their goods without any inquiry concerning their crime (k). In no Manner shall be delivered without due Purgation.] When a person was delivered to the ordinary, he was to remain in the ordinary's prison: if committed generally, then he might make his purgation; which was a trial before the ordinary by a jury of twelve clerks, wherein if he was acquit, he was discharged; if found guilty, he was degraded, and delivered over to the secular power. And when he had made (k) 2 Inst. 164; 2 Hawk. 358. (h) 2 Inst. 636. (i) 2 Inst. 638. How far and in what re the Statute his purgation, he had always restitution of his lands seized, unless he were attaint. And as touching his goods, the difference was thus:-If before conviction, upon his arraignment, the prisoner had his clergy (as was used commonly before the time of Hen. VI.), then if he made his purgation, he had restitution of his goods, unless he had fled. But if he had pleaded to inquest, and were convict, then the goods were forfeited by the conviction, and he should not have restitution upon his purgation (l). But if the clerk were delivered to the ordinary without purgation to be made, there he continued prisoner during his life, unless pardoned by the king; and the king had not only his goods as absolutely forfeited, but also the profits of his lands during his life (m). Without due Purgation.] Lord Coke says, before this statute, purgations were unduly made, more for favour than for furtherance of justice; whereby malefactors were encouraged to offend. And the evil was not remedied by this act, but the abuses in making purgation still continued, and in the end became so intolerable, that Queen Elizabeth by consent of parliament took it quite away (n). 3. Again; the benefit of clergy is further confirmed, by the spects Clergy statute of the 25 Edw. 3, st. 3, c. 4, by which it is enacted, is allowed by that "All manner of clerks, which shall be convicted before the secular judges, for any treasons or felonies, touching other [189] persons than the king himself, shall freely have and enjoy the privileges of holy church." Law. In all cases of high treason, clergy was never allowed in this kingdom (o). But by the common law, in all cases of felony or petit treason, clergy was allowable, excepting two, viz.: 1. Insidiatores viarum et depopulatores agrorum. 2. Wilful burning of houses. And the cause why these were excepted was, because by interpretation of law they are hostile acts. And therefore sometimes these words, insidiatores viarum et depopulatores agrorum, were put in the indictments of clerks, on purpose to oust them of the benefit of clergy; which caused the act of the 4 Hen. 4, c. 2, to be made, to put these clauses out of indictments, and to allow clergy if they were in them (p). And by this statute clergy is allowed in all treasons or felonies (except treasons against the king); so that after this statute there was clergy in all other felonies (q). Consequently, wheresoever clergy is not allowable in any other cases, it is taken away by some subsequent act of parliament (r). (7) 2 Hale's Hist. Pl. Cr. 314; 2 Inst. 638; 23 Hen. 8, c. 1, ss. 5, 6. (m) 2 H. H. 384. (n) 2 Inst. 165. On the subject of purgations, see Hob. 290, and 4 Bl. Com. 368, (0) 2 H. H. 330. (p) 2 H. H. 328, 330, 333. Ibid. By the civil law clergy was never allowed, so that pirates on By Civil Law. the high seas had not the benefit of it (v). lished by 7 c. 27. [The foregoing remarks on the subject of benefit of the clergy Benefit of have been left as matters of historical curiosity, for by 7 & 8 Clergy ab Geo. 4, c. 27, all preceding statutes relative to benefit of clergy & Geo. 4, are repealed, and by 7 & 8 Geo. 4, c. 28, " An Act for improving the Administration of Justice in Criminal Cases in England,' passed on the 21st of June, 1827, it is again declared that the benefit of clergy was altogether abolished with respect to "persons convicted of felony." Still some doubt remained as And as to the to whether this act extended to the peerage (p), and therefore Peerage, De after the trial of the Earl of Cardigan in 1841, was passed of the declaratory statute of the 4 & 5 Vict. c. 22, which enacted, that claratory Act c. 22. c. 28. 1 Edw. 6, c. 12, s. 13. ["Whereas doubts have been entertained whether, notwithstand- 4 & 5 Vict. ing the provisions of an act passed in the seventh and eighth year of the reign of his late majesty King George the Fourth, intituled, An 7 & 8 Geo. 4, Act for further improving the Administration of Justice in Criminal Cases in England, so much of an act passed in the first year of the reign of his majesty King Edward the Sixth, intituled, An Act for the Repeal of certain Statutes concerning Treasons and Felonies, as enacts "that in all and every case and cases where any of the king's majesty's subjects shall and may, upon his prayer, have the privilege of clergy as a clerk convict that may make purgation, in all those cases and every of them, and also in all and every case and cases of felony wherein the privilege and benefit of clergy is restrained, excepted, or taken away by this statute or act, (wilful murder and poisoning of malice prepensed only excepted,) the lord or lords of the parliament, and peer and peers of the realm having place and voice in parliament, shall, by virtue of this present act, of common grace upon his or their request or prayer alleging that he is a lord or peer of this realm, and claiming the benefit of this act, though he cannot read, without any burning in the hand, loss of inheritance, or corruption of his blood, be adjudged, deemed, taken, and used, for the first time only, to all intents, constructions, and purposos, as a clerk convict, and shall be in case of a clerk convict which may make purgation, without any further or other benefit or privilege of clergy to any such lord or peer from thenceforth, at any time after, for any clause to be allowed, adjudged or admitted, any law, statute, usage, custom or any other thing to the contrary notwithstanding," may not, for some purposes, still remain in force,' Be it therefore enacted, etc., That so much of the said Part of relast-mentioned act as is hereinbefore recited shall from henceforth cited Act repealed. be repealed and utterly void, and no longer of any effect; and that Peers conevery lord of parliament or peer of this realm having place and victed of Fevoice in parliament, against whom any indictment for felony may same Punishbe found, shall plead to such indictment, and shall upon conviction ment as other (o) Moore, 756. (p) [See the Duchess of Kingston's VOL. I. case, 11 H. State Trials, 264.] $ 6 lony liable to Subjects. |