Benefit of clergy was the legally enshrined right of any clergyman facing prosecution for a felony in a royal court to have the case heard instead in an ecclesiastical court. As those church courts were usually more lenient in the sentences they passed down, had only limited powers to imprison and could not impose fines or the death penalty, the advantages of such a switch could be significant. Initially the benefit only applied to men, but it was extended by the Benefit of Clergy Act 1691 (3 Will. & Mar. c. 9) to include women as well.
Ecclesiastical courts were established under the reign of William the Conqueror, and were at the heart of a dispute between St Thomas Becket and King Henry II. Henry claimed that ancient custom demanded that all charges against a member of the clergy should first be brought to a secular court, after which the accused would be transferred to a church court for the case to be heard and guilt or innocence established, but should then be returned to the secular court for sentencing.
There were several ways in which an accused person could satisfy the court that he was a member of the clergy: having a tonsure, wearing clerical garb, or producing a certificate of ordination. But the most common method was proof of literacy, as generally only the clergy were able to read. It was sufficient for the accused to be able read out loud a passage from the Bible, usually Psalm 51.[a]Psalm 51 begins in the King James version of the Bible with “Have mercy upon me, O God, according to thy lovingkindness: according unto the multitude of thy tender mercies blot out my transgressions. In time the benefit of clergy was extended to anyone who could read, but as the numbers of those able to claim it increased so did the suspicion with which it was viewed. In 1352 King Edward III issued a statute that aimed to place limits on the application of benefit of clergy, a process that was to continue under his successors as they attempted to wrest control of the laws of England from the church.
Several statutes were enacted particularly during the Tudor period to restrict the right of felons to be tried in a church court.The Benefit of Clergy Act 1575Act of Parliament that removed the right of those charged with rape or burglary to claim benefit of clergy, and so to be tried in an ecclesiastical court. , passed in the reign of Queen Elizabeth I for instance, removed the right to benefit of clergy to those charged with rape, burglary, or having sexual relations with a female under the age of ten. By the mid-18th century 160 felonies had been declared by Acts of Parliament to be without benefit of clergy, and it was finally abolished in 1827.
Stephen, James Fitzjames. A General View of the Criminal Law of England. Lawbook Exchange, 2005.
Wagner, John A., and Susan Walters Schmid. “Benefit of Clergy.” Encyclopedia of Tudor England, Ebook, vol. 1, ABC-CLIO, 2011, pp. 109–10.
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