Benefit of clergy

Last updated

In English law, the benefit of clergy (Law Latin: privilegium clericale) was originally a provision by which clergymen could claim that they were outside the jurisdiction of the secular courts and be tried instead in an ecclesiastical court under canon law. Various reforms limited the scope of this legal arrangement to prevent its abuse, including branding of a thumb upon a first use, to limit number of invocations for some. Eventually the benefit of clergy evolved into a legal fiction in which first-time offenders could receive lesser sentences for some crimes (the so-called "clergyable" ones). The legal mechanism was abolished in 1827 with the passage of the Criminal Law Act 1827



Before the 12th century, traditional English law courts had been jointly presided over by a bishop and a local secular magistrate. In 1166, however, Henry II promulgated the Constitutions of Clarendon which established a new system of courts that rendered decisions wholly by royal authority. The Assizes touched off a power struggle between the king and Thomas Becket, Archbishop of Canterbury. Becket asserted that these secular courts had no jurisdiction over clergymen because it was the privilege of clergy not to be accused or tried for crime except before an ecclesiastical court. After four of Henry's knights murdered Becket in 1170, public sentiment turned against the king and he was forced to make amends with the church. As part of the Compromise of Avranches, Henry was purged of any guilt in Becket's murder but he agreed that the secular courts, with few exceptions (high treason being one of them, and forest law another), had no jurisdiction over the clergy. [1]

The Miserere

At first, in order to plead the benefit of clergy, one had to appear before the court tonsured and otherwise wearing ecclesiastical dress. Over time, this proof of clergy-hood was replaced by a literacy test: defendants demonstrated their clerical status by reading from the Latin Bible. This opened the door to literate lay defendants also claiming the benefit of clergy. In 1351, under Edward III, this loophole was formalised in statute, and the benefit of clergy was officially extended to all who could read. [2] For example, the English dramatist Ben Jonson avoided hanging by pleading benefit of clergy in 1598 when charged with manslaughter. In the new world of the British Colonies, the two soldiers convicted of manslaughter in the 1770 Boston Massacre were spared execution for manslaughter under the benefit of clergy, but underwent branding of their right thumbs to prevent them from invoking the right in any future murder case (see Tudor reforms below). [3]

Unofficially, the loophole was even larger, because the Biblical passage traditionally used for the literacy test was, appropriately, the first verse of Psalm 51 (Psalm 50 according to the Vulgate and Septuagint numbering), Miserere mei, Deus, secundum misericordiam tuam ("O God, have mercy upon me, according to thine heartfelt mercifulness"). Thus, an illiterate person who had memorized the appropriate Psalm could also claim the benefit of clergy, and Psalm 51 became known as the "neck verse" because knowing it could save one's neck by transferring one's case from a secular court, where hanging was a likely sentence, to an ecclesiastical court, where both the methods of trial and the sentences given were more lenient. [2]

The benefit of clergy was commonly applied as a means of judicial mercy: in Elizabethan England, courts might allow more than 90% of clergyable offenders the benefit of clergy, which is extremely high in light of the literacy rate of the period. [4] If the defendant who claimed benefit of clergy was thought to be particularly deserving of death, courts occasionally would ask him to read a different passage from the Bible; if, like most defendants, he was illiterate and simply had memorized Psalm 51, he would be unable to do so and would be put to death.

In the ecclesiastical courts, the most common form of trial was by compurgation. If the defendant swore an oath to his own innocence and found twelve compurgators to swear likewise to their belief that the accused was innocent, he was acquitted. A person convicted by an ecclesiastical court could be defrocked and returned to the secular authorities for punishment; but the English ecclesiastical courts became increasingly lenient, and, by the 15th century, most convictions in these courts led to a sentence of penance.

Tudor-era reforms

As a result of this leniency in the ecclesiastical courts, a number of reforms were undertaken to combat the abuse of the benefit of clergy. In 1488, Henry VII decreed that non-clergymen should be allowed to plead the benefit of clergy only once: those pleading the benefit of clergy, but not able to prove through documentation of their holy orders that they actually were clergymen, were branded on the thumb, and the brand disqualified them from pleading the benefit of clergy in the future. (In 1547, the privilege of claiming benefit of clergy more than once was extended to peers of the realm, even illiterate ones.)

In 1512, Henry VIII further restricted the benefit of clergy by making certain offences "unclergyable" offences; in the words of the statutes, they were "felonies without benefit of clergy." This restriction was condemned by Pope Leo X at the Fifth Lateran Council in 1514, and the resulting controversy (in which both the Lord Chief Justice and the Archbishop of Canterbury became involved) was one of the issues that would lead to Henry VIII splitting the Church of England from the Catholic Church in 1532.

The 1512 statute limited the availability of benefit of the clergy for murders and felonies committed "of and upon malice prepensed". [5] A 1530 statute allowed benefit of the clergy a second time only if the second conviction was for "manslaughter by chance medley, and not murder of malice prepensed" but barred it for "petit treason, murder or felony". [6] [7] By the end of the 16th century, the list of unclergyable offences included murder, rape, poisoning, petty treason, sacrilege, witchcraft, burglary, theft from churches, and pickpocketing. In 1533 benefit of clergy was withdrawn from those who refused to enter a plea.

In 1575, a statute of Elizabeth I radically changed the effect of the benefit of clergy. Whereas before, the benefit was pleaded before a trial to have the case transferred to an ecclesiastical court, under the new system the benefit of clergy was pleaded after conviction but before sentencing, and it did not nullify the conviction, but rather changed the sentence for first-time offenders from probable hanging to branding and up to a year's incarceration.

Later development

By this point, benefit of clergy had been transformed from a privilege of ecclesiastical jurisdiction to a mechanism by which first-time offenders could obtain partial clemency for some crimes. [8] Legislation in the 17th and 18th centuries further increased the number of people who could plead benefit of clergy, but decreased the benefit of doing so.

Women acquired the benefit of clergy in 1624, although it was not until 1691 that they were given equal privileges with men in this matter. (For example, before 1691, women could plead the benefit of clergy if convicted of theft of goods valued less than 10 shillings, while men could plead clergy for thefts up to 40 shillings.)

In 1706, the reading test was abolished, and the benefit became available to all first-time offenders of lesser felonies. [9] Meanwhile, an increasing crime rate prompted Parliament to exclude many seemingly minor property crimes from the benefit of clergy. Eventually, housebreaking, shoplifting goods worth more than 5 shillings, and the theft of sheep and cattle all became felonies without benefit of clergy and earned their perpetrators automatic death sentences under the so-called "Bloody Code." Judges retained the discretion to ask the accused to read a text other than Psalm 51 where they suspected the privilege was being abused. [10]

When the literacy test was abolished in 1706, the lesser sentence given to those who pleaded benefit of clergy was increased to up to 6–24 months' hard labour. Under the Transportation Act of 1718, those who pleaded benefit of clergy could be sentenced to seven years' banishment to North America. The American Revolution (1775–1783) disrupted the application of this punishment (although two of the British soldiers convicted for their roles in the 1770 Boston Massacre made use of benefit of clergy to receive reduced punishments). With the abolition of branding in 1779, benefit of clergy was no longer an option in most cases. Although transportation shifted to Australia, this came to be done using straightforward sentences of transportation for a number of years or life.

Benefit of clergy was abolished in the United Kingdom of Great Britain and Ireland by two acts in 1823, and Parliament formally abolished benefit of clergy with the Criminal Law Act 1827. There was some doubt as to the efficacy of this act, and a final act was passed in 1841, removing all doubt (statute 4th and 5th Vict. c. 22, 2 June 1841).

In the United States, section 31 of the Crimes Act of 1790 eliminated the benefit from federal courts, [11] but it survived well into the mid 19th century in some state courts (for example, South Carolina granted a defendant benefit of clergy in 1855). Many states and counties have abolished the clergy benefit by proclamation, statute or judicial decision; in others, it simply has fallen into disuse without formal abolition.

The term is sometimes misapplied to mean "without absolution by a priest". For example, in Walter M. Miller Jr.'s novel A Canticle for Leibowitz , the investigation of the nature of an unknown device that suddenly explodes, killing the investigators, is said to end the matter "without benefit of clergy."

Related Research Articles

The term felony originated from English common law, to describe an offense that resulted in the confiscation of a convicted person's land and goods, to which additional punishments including capital punishment could be added. Other crimes were called misdemeanors. A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. A felon is a person who has committed a felony. Following conviction of a felony in a court of law, a person may be described as a convicted felon.

In many common law jurisdictions, an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury. In the United States, a crime of similar severity and rules is called a felony, which also requires an indictment. In Scotland, which is a hybrid common law jurisdiction, the Procurator fiscal will commence Solemn proceedings for serious crimes to be prosecuted on indictment before a jury.

A misdemeanor is any "lesser" criminal act in some common law legal systems. Misdemeanors are generally punished less severely than felonies, but theoretically more so than administrative infractions and regulatory offences. Many misdemeanors are punished with monetary fines.

Larceny is a crime involving the unlawful taking or theft of the personal property of another person or business. It was an offence under the common law of England and became an offence in jurisdictions which incorporated the common law of England into their own law, where in many cases it remains in force.

High treason in the United Kingdom

Under the law of the United Kingdom, high treason is the crime of disloyalty to the Crown. Offences constituting high treason include plotting the murder of the sovereign; committing adultery with the sovereign's consort, with the sovereign's eldest unmarried daughter, or with the wife of the heir to the throne; levying war against the sovereign and adhering to the sovereign's enemies, giving them aid or comfort; and attempting to undermine the lawfully established line of succession. Several other crimes have historically been categorised as high treason, including counterfeiting money and being a Catholic priest.

Vehicular homicide is a crime that involves the death of a person other than the driver as a result of either criminally negligent or murderous operation of a motor vehicle.

The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder: when an offender kills in the commission of a dangerous or enumerated crime, the offender, and also the offender's accomplices or co-conspirators, may be found guilty of murder.

Constitutions of Clarendon

The Constitutions of Clarendon were a set of legislative procedures passed by Henry II of England in 1164. The Constitutions were composed of 16 articles and represent an attempt to restrict ecclesiastical privileges and curb the power of the Church courts and the extent of papal authority in England. In the anarchic conditions of Henry II's predecessor, Stephen, the church had extended its jurisdiction by taking advantage of the weakness of royal authority. The Constitutions were claimed to restore the judicial customs observed during the reign of Henry I (1100–35) and in predecessor English law prior to the Catholicism-based Norman Conquest. Predecessor English law was being contemporaneously compiled in the Tractatus of Glanvil.

A hybrid offence, dual offence, Crown option offence, dual procedure offence, offence triable either way, or wobbler is one of the special class offences in the common law jurisdictions where the case may be prosecuted either summarily or as indictment. In the United States, an alternative misdemeanor/felony offense lists both county jail and state prison as possible punishment. Similarly, a wobblette is a crime that can be charged either as a misdemeanor or an infraction.

Mandatory sentencing requires that offenders serve a predefined term for certain crimes, commonly serious and violent offenses. Judges are bound by law; these sentences are produced through the legislature, not the judicial system. They are instituted to expedite the sentencing process and limit the possibility of irregularity of outcomes due to judicial discretion. Mandatory sentences are typically given to people who are convicted of certain serious and/or violent crimes, and require a prison sentence. Mandatory sentencing laws vary across nations; they are more prevalent in common law jurisdictions because civil law jurisdictions usually prescribe minimum and maximum sentences for every type of crime in explicit laws.

Malice aforethought is the "premeditation" or "predetermination" required as an element of some crimes in some jurisdictions and a unique element for first-degree or aggravated murder in a few. Insofar as the term is still in use, it has a technical meaning that has changed substantially over time.

A habitual offender, repeat offender, or career criminal is a person convicted of a new crime who was previously convicted of crimes. Various state and jurisdictions may have laws targeting habitual offenders, and specifically providing for enhanced or exemplary punishments or other sanctions. They are designed to counter criminal recidivism by physical incapacitation via imprisonment.

Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another with the intention to cause either death or serious injury unlawfully.The element of intentionality was originally termed malice aforethought, although it required neither malice nor premeditation. Baker, chapter 14 states that many killings done with a high degree of subjective recklessness were treated as murder from the 12th century right through until the 1974 decision in DPP v Hyam.

The doctrine of priest–penitent privilege does not apply in the UK. Before the Reformation, England was a Roman Catholic country and the Seal of the Confessional had great authority in the English courts. However, the Reformation was followed by a period of, often fierce, persecution of Catholics.

Ewing v. California, 538 U.S. 11 (2003), is one of two cases upholding a sentence imposed under California's three strikes law against a challenge that it constituted cruel and unusual punishment in violation of the Eighth Amendment. As in its prior decision in Harmelin v. Michigan, the United States Supreme Court could not agree on the precise reasoning to uphold the sentence. But, with the decision in Ewing and the companion case Lockyer v. Andrade, the Court effectively foreclosed criminal defendants from arguing that their non-capital sentences were disproportional to the crime they had committed.

Criminal Law Act 1967 United Kingdom legislation

The Criminal Law Act 1967 (c.58) is an Act of the Parliament of the United Kingdom that made some major changes to English criminal law. Most of it is still in force.

English criminal law

English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act and a guilty mental state. The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act.

In the United States, the law regarding murder varies by jurisdiction. In most US jurisdictions there is a hierarchy of acts, known collectively as homicide, of which first degree murder and felony murder are the most serious, followed by second degree murder, followed by voluntary manslaughter and involuntary manslaughter which are not as serious, and ending finally in justifiable homicide, which is not a crime. However, because there are at least 52 relevant jurisdictions, each with its own criminal code, this is a considerable simplification.

Common law offences are crimes under English criminal law and the related criminal law of other Commonwealth countries. They are offences under the common law, developed entirely by the law courts, and therefore have no specific bases in statute.

Criminal Law Act 1827 United Kingdom legislation

The Criminal Law Act 1827 was an Act of the Parliament of the United Kingdom, applicable only to England and Wales. It abolished many obsolete procedural devices in English criminal law, particularly the benefit of clergy. It was repealed by the Criminal Law Act 1967.


  1. Duggan, Anne J. (2017). "Clerical Exemption in Canon Law from Gratian to the Decretals". Medieval Worlds. medieval worlds (Volume 6. 2017): 78–100, at p. 89. doi: 10.1553/medievalworlds_no6_2017s78 . ISSN   2412-3196.
  2. 1 2 See Mullaney v. Wilbur, 421 U.S. 684, 692-93, 44 L.Ed.2d 508, 515-16, 95 S.Ct. 1881, 1886; (1975).
  3. Benefit of Clergy, Boston Massacre
  4. Wrightson, Keith E. (2009). "Early Modern England: Politics, Religion, and Society under the Tudors and Stuarts: Lecture 15 — Crime and the Law". Open Yale Courses. ... it is perfectly clear that the magistrates and the judges were permitting any kind of stumbling through the neck verse—often from memory, probably—in order to allow them to have this means of escaping the death penalty. Ca. 38:37.
  5. 4 Hen. 7
  6. 4 Hen. 8
  7. Jeremy Horder, Provocation and Responsibility (1992), p.12
  8. See Furman v. Georgia, 408 U.S. 238, 337 fn 47, 33 L.Ed.2d 346, 404, 92 S.Ct. 2726, 2775 (1972) and references cited therein.
  9. Briggs, John (1996). Crime and punishment in England: an introductory history. New York: St. Martin's Press. p. 74. ISBN   0-312-16331-2.
  10. R. v Cavenagh (1689 )12 State Trials 629
  11. Crimes Act of 1790, ch. 9, § 31, 1 Stat. 112, 119.

Further reading

See also