Ecclesial exemption from secular jurisdiction
Benefit of Clergy, the exemption from the jurisdiction of the secular courts, which in England, in the Middle Ages, was accorded to clergymen. This exemption included all who had been tonsured and wore the ecclesiastical dress, and was shared in by monks and nuns. In Saxon days ecclesiastical and civil cases were decided in shire and hundred courts where the bishop sat side by side with the ealdorman or sheriff. From the days of the Conqueror ecclesiastical courts were held distinct from the secular courts. Gratian (cap. xlvii, 110 pars December, Causa XI, ix 1) sums up the privilege of the clergy thus: "From the above it is to be understood that a clergyman is not to be brought before the public courts either in a civil or criminal case, unless perhaps the bishop should not wish to decide the civil case, or unless he should, in a criminal case, degrade him". William forbade his judges and ministers and every layman to meddle with the laws regarding the bishop. These privileges of the clergy were substantially respected by the Norman kings, though their tendency to arbitrariness caused them in special cases to seek to override them. They were at the root of the controversy between Henry II and St. Thomas Becket.
Henry alleged that the old customs of the kingdom required that a criminous clerk should be accused in a lay court, whence he was to be transferred to the ecclesiastical court, and, if found guilty, to be degraded and returned for punishment to the lay court. St. Thomas objected, in the name of the Church law, to the first accusation in the lay court. Fitzstephen (Materials III, 47, quoted in Pollock and Maitland, History of English Law) says of the alleged customs: "They had never been previously written, nor were there any such customs in the Kingdom". The author of the "Leges Henrici" (ibid.) says plainly that no accusation, be it for grave crime, be it for light offense, is to be brought against any ordained clerk save before his bishop. (Leg. Hen. I, 57, § 9.) When a clerk was brought before a lay court, he proved his claim to benefit of clergy by reading, and he was turned over to the ecclesiastical court, as only the clergy were generally able to read. This gave rise to the extension of the benefit of clergy to all who could read. By statute in the reign of Edward III (25 Edw. III, c. 4) it was enacted that all manner of clerks, secular and religious, should enjoy the privilege of Holy Church for all treasons and felonies, except those immediately affecting his Majesty. This provision was applicable also to all who could read. In the reign of Henry VII a distinction was drawn between persons actually in Holy orders and those who in other respects secular, were able to read, by which the latter were allowed the benefit of the clergy only once, and on receiving it were to be branded on the left thumb with a hot iron in order to afford evidence against them on a future occasion. Henry VIII (28 Hen. VIII, c. 1, § 32, Hen. VIII, c. iii, § 8) had even the clergy branded for the first time, but Edward VI abolished this, and excepted atrocious crimes, murder, poisoning, burglary, highway robbery, and sacrilege from benefit of clergy (I Edw. VI, c. xii § 10), but peers of the realm were to be discharged in every case for the first offense, except murder and poisoning, even though unable to read. After a layman was burnt on the hand, a clerk discharged on reading, a peer without either burning or penalty, they were delivered to the ordinary to be dealt with according to the ecclesiastical canons. The clerical authorities instituted a kind of purgation. The party was required to take an oath of innocence, twelve compurgators were called to testify to their belief in the falsehood of the charges. Afterwards he brought forward witnesses to completely establish his innocence. If found guilty, the culprit was degraded if a clerk, and all were compelled to do penance. Many escaped by perjury and leniency; hence steps were taken in the more atrocious crimes to annul the privilege. Later this privilege was allowed only after conviction for men who claimed it because able to read, and then they knelt to the court praying for their clergy and (18 Elizabeth, c. vii, § 2) the party was burnt on the hand, and discharged without any interference of the Church to annul his conviction. The judges were empowered (18 Elizabeth, c. vii) to direct the prisoner to be imprisoned for a year or a shorter period. Women in the reign of William and Mary were admitted to the privileges of men in clergyable felonies, on praying the benefit of the statute (3 and 4 Will. and M. c. ix, § 5). The idle ceremony of reading was abolished by 5 Anne c. vi, and all before entitled were now admitted to its benefit. Branding was abolished and the offenders could be committed to a house of correction for six to twenty-four months. (Geo. IV, c. xi; 6 Geo. I, c. xxiii provides for felonious thefts the transportation of offenders to America for seven years.) The privilege of benefit of clergy was entirely abolished in England in 1827, by Statutes 7 and 8 Geo. IV, c. xxviii, § 6. In the colonies it had been recognized, but by Act of Congress of April 30, 1790, it was taken away in the federal courts of the United States.
Traces of it are found in some courts of different states, but it has been practically outlawed by statute or by adjudication. It is now universally obsolete in English and American law.
R. L. BURTSELL