22nd September 1598. Benefit of Clergy.
The years 1827-28 saw the criminal law ‘Peel Acts’ finally and formally abolish ‘Benefit of Clergy’ in Great Britain and Ireland.
Today in 1598 Ben Jonson the playwright and friend of Shakespeare, fought a duel at Hogsden Fields, London, but ended up killing his opponent a fellow actor Gabriel Spencer and being charged with manslaughter.
However after pleading guilty he was released by what was known as ‘Benefit of Clergy’ (privilegium clericale), whereby all that was required was an ability to read some Latin ‘like a clerk’, as it was assumed that only clergy could read at the time.
The ‘Benefit’ had become a ‘legal ploy or fiction’ by which ‘clergy’ gained leniency, if they could recite a brief Bible verse (Neck Verse) which stopped in many cases their execution.
The issue of criminous clerks was a major point of issue stemming from 12th century Canon Law where priests couldn’t be tried in both ecclesiastical and secular courts, and it was Henry II who accepted eventually that clergy would be tried solely in Ecclesiastical Courts, which gave immunity even for capital offences.
The problem was that in the Catholic Church there were so many Orders of clergy who could claim Benefit of Clergy, from the doorkeeper, reader, exorcist, acolyte, sub deacon, deacon, priest, before one looks at the higher clergy.(1)
Initially clergy had to appear tonsured and in ecclesiastical dress, but by 1351, Edward III formalised into statute the ability to read aloud usually the Miserere Mei of Psalm 51, for one to be absolved from crimes.
However anyone taking advantage of this bizarre loop-hole did forfeit goods and chattels and suffered branding on the right thumb with an ‘M’ for man-slayer, by the time of Henry VII.(2)
By the time of Elizabeth I many were caught out by changing the required text to be read, and so suffered the appropriate punishment.
By 1624 even women, who couldn’t be priests, might take advantage of the legal fiction, and in 1706 ‘the reading’ was abolished and the ‘Benefit’ became available to all first offenders.
Benefit of Clergy became obsolete in 1823 with the Judgement of Death Act which gave judges discretion to pass lesser sentences for first offenders at a time when 200 offences carried the death sentence.
‘Benefit’ was officially abolished in 1827, but owing to doubt in that Act, not until 1841 was it completely cast into history, proving how the ‘Mills of the Law’ grind slowly but surely.(3)
(1) The age one was bestowed the various Offices depended on Canonical Age: the Council of Trent determined 22 for Sub-deacon, 23 for deacon and 25 for priest.
(2) That age branded many: The 1547 Act saw vagabonds and gypsies branded with a V on the breast; brawlers with an F (Fraymaker), and runaway slaves with an S on cheek or forehead.
(3) 2nd June 1841. Vict c 22. Act.