This section is from the book "A Library Of Wonders And Curiosities Found In Nature And Art, Science And Literature", by I. Platt. Also available from Amazon: A library of wonders and curiosities.
The following learned dissertation is extracted from 'Chit-ty's Practical Treatise on the Criminal Law.'
"By far the most important circumstance intervening between conviction and judgment, is the claim and allowance of the Benefit of Clergy, in those cases where it is by law to be granted. It is of course claimed immediately before judgment at the assizes. This is one of the most singular relics of old superstition, and certainly the most important. That, by a mere form, without the shadow of existing reason to support it, the severity of the common law should be tempered, may seem strange to those who have been accustomed to regard our criminal law as a regular fabric, not only attaining great practical benefit, but built upon solid and consistent principles. The Benefit of Clergy is, no doubt, of great practical advantage, compared to the dreadful list of offences which would otherwise be punished as capital; but it would be well worthy of an enlightened age to forsake such a subterfuge, and at once, without resorting to it, to apportion the degree of suffering to the atrocity and the danger of the crimes.
"The history of this singular mode of pardon, if so it can be termed, is both curious and instructive. In the early periods of European civilization, after the final destruction of the Roman empire, the church obtained an influence in the political affairs of nations, which threw a peculiar colouring over their original institutions. Monarchs who were desirous of atoning for atrocious offences, or of obtaining the sanction of heaven to their projects of ambition, were easily persuaded to confer immunities on the clergy, whom they regarded as the vicegerents of God. Presuming on these favours, that aspiring body soon began to claim as a right what had been originally conferred as a boon, and to found their demand to civil exemptions on a divine and indefeasible charter, derived from the text of scripture, "Touch not mine anointed, and do my prophets no harm." It need exceed no surprise that they were anxious to take advantage of their dominion over the conscience, to exempt themselves from the usual consequences of crime. To the priests, impunity was a privilege of no in-considerable value. And so successful was the pious zeal to shield those who were dedicated to religion from the consequences of any breach of temporal enactments, that in several countries they obtained complete exemption from all civil liabilities, and declared themselves responsible only to the pope and his ecclesiastical ministers. They erected themselves into an independent community, and even laid the temporal authorities under subjection. Nobles were intimidated into vast pecuniary benefactions, and princes trembled at the terrors of spiritual denunciation. In England, however, this authority was always comparatively feeble. The complete exemption of the clergy from secular punishments, though often claimed, was never universally admitted: for repeated objections were made to the demand of the bishop and ordinary to have the clerks remitted to them as soon as they were indicted. At length, however, it was finally settled in the reign of Henry VI. that the prisoner should first be arraigned, and might then claim the Benefit of the Clergy as an excuse for pleading, or migh-t demand it after conviction: and the latter of these courses has been almost invariably adopted, to allow the prisoner the chance of a verdict of acquittal.
"But if the privileges of the church were less dangerous in England than on the continent, they soon became more extensive. They not only embraced every order of clergymen, but were claimed for every subordinate officer of religious houses, with the numerous classes of their retainers. And so liberal was the application of these dangerous benefits, that, at length, every one who in those days of ignorance was able to read, though not even initiated in holy orders, began to demand them, such reading being deemed evidence of his clerical profession. The privileges of the clergy were recognized and confirmed by statute in the reign of Edward the Third. It was then enacted, that all manner of clerks, secular as well as religious, should enjoy the privileges of holy church for all treasons or felonies except those immediately affecting his majesty. To the advantage of this provision, all who could read were admitted. But as learning became more common, this extensive interpretation was found so injurious to the security of social life, that the legislature, notwithstanding the opposition of the church, were compelled to afford a partial remedy.
"In the reign of Henry the Seventh, 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 only allowed the benefit of their learning once, and, on receiving it, to be branded in the left thumb with a hot iron, in order to afford evidence against them on any future occasion. The church seems to have lost ground in the succeeding reign, probably in consequence of the separation of England from the sway of the Roman pontiff; for all persons, though actually in orders, were rendered liable to be branded, in the same way as the learned class of laymen. But, in the time of Edward the Sixth, the clergy were restored to all the rights of which they were deprived by his predecessor, except as to certain atrocious crimes, which it became necessarv more uniformly to punish. At the same time, some of the more enormous evils attendant on this general impunity were done away. Murder, poisoning, burglary, highway-robbery, and sacrilege, were excepted from all that privilege which was confirmed as to inferior offences. But peers of the realm, for the first offence were to be discharged, in every case, except murder and poisoning, even though unable to read.
"But here we must pause, before we proceed to follow the gradual improvement of this privilege, to inquire what was originally done with an offender to whom it was allowed by those ecclesiastical authorities who claimed the right of judging him, and in what manner the power of the church in this respect was ultimately destroyed. It appears, that after a layman was burnt in the hand, a clerk discharged on reading, or a peer without either burning or penalty, he was delivered to the ordinary, to be dealt with according to the ecclesiastical canons. Upon this, the clerical authorities instituted a kind of purgation, the real object of which was to make him appear innocent, who had already been shown to be guilty, and to restore him to all those capacities of which his conviction had deprived him. To effect this, the party himself was required to make oath of his innocence, though before he might have confessed himself guilty. Then twelve compurgators were called to testify their belief in the falsehood of the charges. Afterwards he brought forward witnesses completely to establish that innocence, of which he had induced so weighty a presumption. Finally, it was the office of the jury to acquit him; and they seldom failed in their duty. If, however, from any singular circumstance, they agreed in the justice ot the conviction, the culprit was degraded, and compelled to do penance. As this seldom occurred, and the most daring perjuries were thus perpetually committed, the courts of common law were soon aroused to abridge the power of these clerical tribunals. They, therefore, sometimes delivered ever the privileged of felony, when his guilt was very atrocious, without allowing him to make purgation; the effect of which proceedings was, his perpetual imprisonment, and incapacity to acquire personal or to enjoy real estate, unless released by his majesty's pardon. But the severity of this proceeding almost rendered it useless; and it became absolutely necessary for the legislature to interfere, in order to prevent the contemptible perjuries which this absurd ceremony produced under the sanction and pretence of religion. This desirable object was effected in the reign of Elizabeth; and the party, after being allowed his clergy, and burnt in the hand, was to be discharged without any interference of the church to annul his conviction.