a general name given to the body of ecclesiastics of the Christian church, in contradiction to the laity. See Laity.

The distinction of Christians into clergy and laity, was derived from the Jewish church, and adopted into the Christian by the apostles themselves: whenever any number of converts was made, as soon as they were capable of being formed into a congregation or church, a bishop or presbyter, with a deacon, were ordained to minister to them. Of the bishops, priests, and deacons, the clergy originally consisted; but in the third century, many inferior orders were appointed, as subervient to the office of deacon, such as Acoluthists, Readers, &c.

This venerable body of men being separate and set apart from the rest of the people, in order to attend Comment, the more closely to the service of Almighty God, have therefore large privileges allowed them by our municipal laws; and had formerly much greater, which were abridged at the time of the reformation, on account of the ill use which the Popish clergy had endeavoured to make of them. For, the laws having exempted them from almost every personal duty, they attempted a total exemption from every secular tie. But it is observed by Sir Edward Coke, that as the overflowing of waters doth many times make the river to lose its proper channel, so, in times past, ecclesiastical persons, seeking to extend their liberties beyond their due bounds, either lost, or enjoyed not, those which of right belonged to them. The personal exemptions do indeed for the most part continue: a clergyman cannot be compelled to serve on a jury, nor to appear at a court-leet, or view of frank-pledge, which almost every other person is obliged to do; but if a layman is summoned on a jury, and before the trial takes orders, he shall notwithstanding appear and be sworn. Neither can he be chosen to any temporal office, as bailiff, reeve, constable, or the like; in regard of his own continual attendance on the sacred function. During his attendance on divine service, he is privileged from arrests in civil suits. In cases also of felony, a clerk in orders shall have the benefit of his clergy, without being branded in the hand; and may likewise have it more than once: in both which particulars he is distinguished from a layman. But, as they have their privileges, so they have also their difficulties, on account of their spiritual avocations. Clergymen are incapable of sitting in the house of commons; and by statute 21 Hen. VIII. c. 13. are not in general allowed to take any lands or tenements to farm, upon pain of 10l. per month, and total avoidance of the lease; nor, upon like pain, to keep any tap-house or brew-house; nor shall engage in any manner of trade, nor sell any merchandize, under forfeiture of the treble value. Which prohibition is concomitant to the canon law.

Benefit of CLERGY, is an ancient privilege whereby one in orders claimed to be delivered to his ordinary to purge himself of felony.

After trial and conviction* of a criminal, the judgment of the court regularly follows, unless suspended articles Ar- or arrested by some intervening circumstance; of which renement, the principal is benefit of clergy: a title of no small Flea, Trial, curiosity as well as use; and concerning which, therefore, Convoi- it may not be improper to inquire, 1. Into its original, tion, and the various mutations which this privilege of the clergy has sustained. 2. To what persons it is to be allowed at this day. 3. In what cases. 4. The consequences of allowing it.

1. Clergy, the privilegium clericae, or (in common speech) the benefit of clergy, had its origin from the pious regard paid by Christian princes to the church in its infant state, and the ill use which the popish ecclesiastics soon made of that pious regard. The exemp-

H 2 tions which they granted to the church were principally of two kinds: 1. Exemptions of places consecrated to religious duties from criminal arrests; which was the foundation of sanctuaries. 2. Exemption of the persons of clergymen from criminal process before the secular judge in a few particular cases; which was the true original and meaning of the privilegium clericae.

But the clergy increasing in wealth, power, honour, number, and interest, soon began to set up for themselves; and that which they obtained by the favour of the civil government, they now claimed as their inherent right, and as a right of the highest nature, indefeasible, and jure divino. By their canons, therefore, and constitutions, they endeavoured at, and where they met with easy princes, obtained, a vast extension of those exemptions; as well in regard to the crimes themselves, of which the list became quite universal, as in regard to the persons exempted; among whom were at length comprehended, not only every little subordinate officer belonging to the church or clergy, but even many that were totally laymen.

In England, however, although the usurpations of the pope were very many and grievous, till Henry VIII. totally exterminated his supremacy, yet a total exemption of the clergy from secular jurisdiction could never be thoroughly effected, though often endeavoured by the clergy: and therefore, though the ancient privilegium clericae was in some capital cases, yet it was not universally allowed. And in those particular cases, the use was for the bishop or ordinary to demand his clerks to be remitted out of the king's courts as soon as they were indicted; concerning the allowance of which demand there was for many years a great uncertainty; till at length it was finally settled, in the reign of Henry VI., that the prisoner should first be arraigned; and might either then claim his benefit of clergy by way of declinatory plea; or, after conviction, by way of arrest of judgment. This latter way is most usually practised, as it is more to the satisfaction of the court to have the crime previously ascertained by confession or the verdict of a jury; and also it is more advantageous to the prisoner himself, who may possibly be acquitted, and so need not the benefit of his clergy at all.

Originally the law was held that no man should be admitted to the benefit of clergy, but such as had the habitum et tonsuram clericalis. But, in process of time, a much wider and more comprehensive criterion was established; every one that could read (a great mark of learning in those days of ignorance and her sister superstition) being accounted a clerk, or clericus, and allowed the benefit of clerkship, though neither initiated in clerkship, nor trimmed with the holy tonsure. But when learning, by means of the invention of printing, and other concurrent causes, began to be more generally disseminated than formerly; and reading was no longer a competent proof of clerkship, or being in holy orders; it was found that as many laymen as divines were admitted to the privilegium clericae: and therefore by statute 4 Henry VII. c. 13, a distinction was once more drawn between mere lay scholars and clerks that were really in orders. And, though it was thought reasonable still to mitigate the severity of the law with regard to the former, yet they were not put upon the same footing with actual clergy; being subjected to a slight degree of punishment, and not allowed to claim the clerical privilege more than once. Accordingly the statute directs, that no person, once admitted to the benefit of clergy shall be admitted thereto a second time, until he produces his orders: and in order to distinguish their persons, all laymen who are allowed this privilege, shall be burned with a hot-iron in the brawn of the left thumb. This distinction between learned laymen and real clerks in orders was abolished for a time by the statutes 28 Hen. VIII. c. 1, and 32 Hen. VIII. c. 3.; but is held to have been virtually restored by statute 1 Edw. VI. c. 12, which statute also enacted, that lords of parliament and peers of the realm may have the benefit of their peerage, equivalent to that of clergy, for the first offence (although they cannot 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.

After this burning, the laity, and before it the real clergy, were discharged from the sentence of the law in the king's courts, and delivered over to the ordinary, to be dealt with according to the ecclesiastical canons. Whereupon the ordinary, not satisfied with the proofs adduced in the profane secular court, set himself formally to make a purgation of the offender by a new canonical trial; although he had been previously convicted by his country, or perhaps by his own confession. This trial was held before the bishop in person, or his deputy; and by a jury of twelve clerks: And there, first, the party himself was required to make oath of his own innocence; next, there was to be the oath of twelve compurgators, who swore they believed he spoke the truth: then, witnesses were to be examined upon oath, but on behalf of the prisoner only: and, lastly, the jury were to bring in their verdict upon oath, which usually acquitted the prisoner; otherwise, if a clerk, he was degraded, or put to penance. A learned judge in the beginning of last century, remarks with much indignation the vast complication of perjury and subornation of perjury in this solemn farce of a mock trial: the witnesses, the compurgators, and the jury, being all of them partakers in the guilt: the delinquent party also, though convicted in the clearest manner, and conscious of his own offence, yet was permitted, and almost compelled, to swear himself not guilty; nor was the good bishop himself, under whose countenance this scene was transacted, by any means exempt from a share of it. And yet, by this purgation, the party was restored to his credit, his liberty, his lands, and his capacity of purchasing afresh, and was entirely made a new and an innocent man.

This scandalous prostitution of oaths, and the forms of justice, in the almost constant acquittal of felonious clerks by purgation, was the occasion that, upon very heinous and notorious circumstances of guilt, temporal courts would not trust the ordinary with the trial of the offender, but delivered over to him the convicted clerk, absque purgatione faciendo: in which situation the clerk convict could not make purgation; but was to continue in prison during life, and was incapable capable of acquiring any personal property, or receiving the profits of his lands, unless the king should please to pardon him. Both these courses were in some degree exceptionable; the latter perhaps being too rigid, as the former was productive of the most abandoned perjury. As therefore these mock trials took their rise from factious and popish tenets, tending to exempt one part of the nation from the general municipal law; it became high time, when the reformation was thoroughly established, to abolish so vain and impious a ceremony.

Accordingly the statute 18 Eliz. c. 7. enacts, that, for the avoiding such perjuries and abuses, after the offender has been allowed his clergy, he shall not be delivered to the ordinary as formerly; but, upon such allowance, and burning of the hand, he shall forthwith be enlarged and delivered out of prison; with proviso, that the judge may, if he thinks fit, continue the offender in gaol for any time not exceeding a year. And thus the law continued unaltered for above a century; except only, that the statute 21 Jac. I. c. 6. allowed, that women convicted of simple larcenies under the value of 10s. should (not properly have the benefit of clergy, for they were not called upon to read; but) be burned in the hand, whipped, or stocked, or imprisoned for any time not exceeding a year. And a similar indulgence by the statutes 3 and 4 Will. and Mary c. 9. and 4 and 5 Will. and Mary c. 24. was extended to women guilty of any clergyable felony whatever; who were allowed once to claim the benefit of the statute, in like manner as men might claim the benefit of clergy, and to be discharged upon being burned in the hand, and imprisoned for any time not exceeding a year. All women, all peers, and all male commoners who could read, were therefore discharged in such felonies absolutely, if clerks in orders; and for the first offence upon burning in the hand, if lay; yet all liable (except peers), if the judge saw occasion, to imprisonment not exceeding a year. And these men who could not read, if under the degree of peerage, were hanged.

Afterwards, indeed, it was considered, that education and learning were no extenuations of guilt, but quite the reverse; and that if the punishment of death for simple felony was too severe for those who had been liberally instructed, it was, a fortiori, too severe for the ignorant also. And thereupon, by statute 5 Anne, c. 6. it was enacted that the benefit of clergy should be granted to all those who were entitled to ask it, without requiring them to read by way of conditional merit. And, experience having shown that so universal a lenity was frequently inconvenient, and an encouragement to commit the lower degrees of felony; and that though capital punishments were too rigorous for these inferior offences, yet no punishment at all (or next to none, as branding or whipping), was as much too gentle; it was enacted by the same statute 5 Anne, c. 6. that when any person is convicted of any theft or larceny, and burnt in the hand for the same, he shall, at the discretion of the judge, be committed to the house of correction or public workhouse, to be there kept to hard labour, for any time not less than six months, and not exceeding two years; with a power of inflicting a double confinement in case of the party's escape from the first. And it is also enacted by the statutes 4 Geo. I. c. 11. and 6. Geo. I. c. 23. that when any person shall be convicted of any larceny, either grand or petit, or any felonious stealing or taking of money or goods and chattels, either from the person or the house of any other, or in any other manner, and who by the law shall be entitled to the benefit of clergy, and liable only to the penalties of burning in the hand, or whipping; the court, in their discretion, instead of such burning in the hand, or whipping, may direct such offenders to be transported to America for seven years; and if they return, or are seen at large in this kingdom within that time, it shall be felony without benefit of clergy.

In this state does the benefit of clergy at present stand; very considerably different from its original institution; the wisdom of the English legislature having, in the course of a long and laborious process, extracted, by a noble alchemy, rich medicines out of poisonous ingredients; and converted, by gradual mutations, what was at first an unreasonable exemption of particular popish ecclesiastics, into a merciful mitigation of the general law with respect to capital punishments.

From the whole of this detail, we may collect, that however in times of ignorance and superstition, that monster in true policy may for a while subsist, of a body of men residing in a state, and yet independent of its laws; yet when learning and rational religion have a little enlightened mens minds, society can no longer endure an absurdity so gross, as must destroy its very fundamentals. For, by the original contract of government, the price of protection by the united force of individuals, is that of obedience to the united will of the community. This united will is declared in the laws of the land; and that united force is exerted in their due, and universal, execution.

II. We are next to inquire, to what persons the benefit of clergy is to be allowed at this day: and this must chiefly be collected from what has been observed in the preceding article. For, upon the whole, we may pronounce, that all clerks in orders are, without any branding, and of course without any transportation (for that is only substituted in lieu of the other), to be admitted to this privilege, and immediately discharged, or at most only confined for one year; and this as often as they offend. Again, all lords of parliament, and peers of the realm, by the statute 1 Edw. VI. c. 12. shall be discharged in all clergyable and other felonies provided for by the act without any burning in the hand, in the same manner as real clerks convict: but this is only for the first offence. Lastly, all the commoners of the realm, not in orders, whether male or female, shall, for the first offence, be discharged of the punishment of felonies, within the benefit of clergy, upon being burnt in the hand, and suffering discretionary imprisonment; or, in case of larceny, upon being transported for seven years, if the court shall think proper.

III. The third point to be considered is, for what crimes the privilegium clericae, or benefit of clergy, is to be allowed. And it is to be observed, that neither in high treason, nor in petit larceny, nor in any mere misdemeanors, it was indulged at the common law: and therefore we may lay it down as a rule, that it was allowable only in petit treason and capital felonies; Clergy.

Colonies; which for the most part became legally entitled to this indulgence by the statute de clero, 25 Edw. III. stat. 3, c. 4, which provides, that clerks convicted for treason or felonies, touching other persons than the king himself or his royal majesty, shall have the privilege of holy church. But yet it was not allowed in all cases whatsoever: for in some it was denied even in common law, viz. infidelatio viarum, or lying in wait for one on the highway; depopulatio agri, or destroying and ravaging a country; combustio domorum, or arson, that is, burning of houses; all which are a kind of hostile acts, and in some degree border upon treason. And farther, all these identical crimes, together with petit treason, and very many other acts of felony, are outlawed of clergy by particular acts of parliament.

Upon the whole, we may observe the following rules. 1. That in all felonies, whether new created, or by common law, clergy is now allowable, unless taken away by act of parliament. 2. That where clergy is taken away from the principal, it is not of course taken away from the accessory, unless he be also particularly included in the words of the statute. 3. That when the benefit of clergy is taken away from the offence (as in case of murder, buggery, robbery, rape, and burglary), a principal in the second degree, being present, aiding and abetting the crime, is as well excluded from his clergy as he that is a principal in the first degree: but, 4. That where it is only taken away from the person committing the offence (as in the case of stabbing, or committing larceny in a dwelling-house), his aiders and abettors are not excluded, through the tenderness of the law which hath determined that such statutes shall not be taken literally.

IV. Lastly, We are to inquire what the consequences are to the party, of allowing him this benefit of clergy. We speak not of the branding, imprisonment, or transportation; which are rather concomitant conditions, than consequences, of receiving this indulgence. The consequences are such as affect his present interest, and future credit and capacity: as having been once a felon, but now purged from that guilt by the privilege of clergy; which operates as a kind of statute pardon. And we may observe, 1. That, by his conviction, he forfeits all his goods to the king; which, being once veiled in the crown, shall not afterwards be restored to the offender. 2. That, after conviction, and till he receives the judgment of the law by branding or the like, or else is pardoned by the king, he is, to all intents and purposes, a felon; and subject to all the disabilities and other incidents of a felon. 3. That, after burning or pardon, he is discharged for ever of that, and all other felonies before committed, within the benefit of clergy; but not of felonies from which such benefit is excluded: and this by statutes 8 Eliz. c. 4, and 18 Eliz. c. 7. 4. That, by the burning, or pardon of it, he is restored to all capacities and credits, and the possession of his lands, as if he had never been convicted. 5. That what is said with regard to the advantages of commoners and laymen, subsequent to the burning in the hand, is equally applicable to all peers and clergymen, although never branded at all. For they have the same privileges, without any burning, to which others are entitled after it.