Benefit Of Clergy, in English criminal law, the privilegium clericale, exemption of the clergy from penalties imposed by law for certain crimes. This privilege was for many centuries an important element in the administration of criminal law. It had its origin in the claim made by the ecclesiastics for the entire exemption of their order from the jurisdiction of the common law courts. Before the Norman conquest the greater part of the civil business of the kingdom was transacted in the county courts, and the bishop of the diocese presided in them with the sheriff of the county; and these courts thus possessed both civil and ecclesiastical jurisdiction. But the foreign clergy who came over with the Normans obtained from William the Conqueror a separation of the ecclesiastical from the civil courts. In the reign of Stephen sole jurisdiction was given to the bishop over ecclesiastical persons and causes. This gave rise to a contest between the spiritual and temporal courts. The claim of exclusive jurisdiction was not successfully maintained, except in respect to ecclesiastical causes, but the persons of the clergy-were exempted from penalties for certain crimes in cases specifically provided for by common law or statute.
The exemption was not allowed in high treason, nor in petit larceny, nor any mere misdemeanor (by which was meant petty crimes less than felony), and was as a general rule allowable only in capital felonies, but not in all even of that class. The exemption was mainly founded on the statute 25 Edward III., by which it was provided that clerks convicted of treason or felonies touching other persons than the king himself should have the privilege of holy church. By the common law, benefit of clergy was denied in three kinds of felony, viz.: lying in wait for one on the highway (insidiatio viarum), ravaging a country (depopulatio agrorum), and burning of houses (combustio domorum); and in all these cases, even after the statute above mentioned, the privilege continued to be denied. It was enacted afterward, in various statutes, that certain crimes should be without benefit of clergy, as murder, rape, burglary, larceny from the person, or from a dwelling house, any one being therein, and many other offences.
As to the persons entitled to benefit of clergy, it was originally limited to such as had the habitus et tonsura clericalis, that is, the regular clergy; but the claim being made in behalf of the retainers of ecclesiastics, and other laymen, who were not entitled to it, only such as could read were at last allowed the privilege. But in the reign of Henry VII. it was found that there were as many laymen as divines who had an exemption by this test, and a law was then passed making a distinction between lay scholars and such as were in orders. Lay scholars were not allowed to take the benefit of clergy but once, and upon being admitted to the privilege were burned in the hand, probably in order that they might not set up a claim to it again. The distinction was abolished in the reign of Henry VIII., but revived again by the statute 1 Edward VI. It was also enacted by this statute that peers having a place in parliament should have the benefit of peerage, equivalent to that of clergy, for the first offence, although they could not read, and without being burnt in the hand, for all offences then clergyable to commoners, and also for the crimes of house-breaking, highway robbery, horse-stealing, and robbing of churches - a significant indication of the state of morals and education among the highest nobility in that era.
In the duchess of Kingston's case, it was held that peeresses were entitled to the benefit of the statute. All these provisions required, as the condition of exemption, that the person claiming exemption should be able to read, so that those who could not read (except peers) were hanged. To remedy this unequal severity, it was enacted by 5 Anne that the benefit of clergy should be granted to all who were entitled to it without requiring them to read. Finally, by statutes 7 and 8 George IV., the benefit of clergy was entirely abolished. - In the United States this privilege has never been recognized as existing. There is, however, a statute (act of congress, April 30, 1790) in which it is provided that benefit of clergy shall not be allowed for any offences punishable by death.
Benefit Of Clergy. See Benefit of Clergy.