Benefit of clergy

In English law, the benefit of clergy (Law Latin: privilegium clericale) was originally a provision by which clergymen accused of a crime could claim that they were outside the jurisdiction of the secular courts and be tried instead in an ecclesiastical court under canon law. The ecclesiastical courts were generally seen as being more lenient in their prosecutions and punishments, and defendants made many efforts to claim clergy status, often on questionable or fraudulent grounds.

Various reforms limited the scope of this legal arrangement to prevent its abuse, including branding of a thumb upon first use, to limit the 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 the United Kingdom in 1827 with the passage of the Criminal Law Act 1827.

When the Roman Empire converted to Christianity, its emperors issued legal privileges to clerics, particularly bishops, granting them immunity from civic prosecution. In the early Middle Ages, canon law tended to extend the degree of this privilege, even including criminal matters. In England, this tradition was only partially accepted. Before the 12th century, traditional English law courts had been jointly presided over by a bishop and a local secular magistrate.

In 1164, 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 clergy members 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, forcing him to make amends with the church. As part of the Compromise of Avranches, Henry was purged of any guilt in Becket's murder. Still, 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.

At first, to plead the benefit of clergy, one had to appear before the court tonsured and otherwise wear an ecclesiastical dress. Over time, this proof of clergyhood 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. For example, the English dramatist Ben Jonson avoided hanging by pleading benefit of clergy in 1598 when charged with manslaughter. In the British colony of Massachusetts, the two soldiers convicted of manslaughter in the 1770 Boston Massacre were spared execution under the benefit of clergy. Still, they underwent branding of their right thumbs to prevent them from invoking the right in any future murder case (see Tudor reforms below).

Unofficially, the loophole was even larger because the Biblical passage traditionally used for the literacy test was, appropriately, the third verse of Psalm 51 (Psalm 50 according to the Vulgate and Septuagint numbering), Miserere mei, Deus, secundum magnam 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. Psalm 51:3 became known as the "neck verse" because knowing it could "save one's neck" (an idiom for "save one's life") by transferring the 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.

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 was far higher than the literacy rate of the period. If a defendant who claimed the benefit of clergy were 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 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. Still, the English ecclesiastical courts became increasingly lenient, and by the 15th century, most convictions in these courts led to a sentence of penance.