a general name given to the body of ecclesiastics belonging to the Christian church, in contradistinction to the laity.

The distinction of Christians into clergy and laity was derived from the Jewish, and adopted into the Christian church, 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, was ordained to minister to them. The clergy originally consisted of the bishops, priests, and deacons; but in the third century many inferior orders were appointed, as subservient to the office of deacon, such as Acoluthists, Readers, &c.

Benefit of Clergy is an ancient privilege, by which 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 or arrested by some intervening circumstances, of which the principal is benefit of clergy. As this is a title of no small importance, it may not, therefore, be improper to inquire, first, into its origin, and the various mutations which this privilege of the clergy has sustained; secondly, to what persons it is to be allowed; thirdly, in what cases; and, fourthly, 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 Romish ecclesiastics soon made of that regard. The exemptions which they granted to the church were principally of two kinds: first, exemptions of places consecrated to religious duties from criminal arrests, which was the foundation of sanctuaries; and, secondly, exemption of the persons of clergymen from criminal process before the secular judge in a few particular cases, which was the true origin 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 had obtained by the favour of the civil government, they now claimed as their inherent right, and as a right of the highest nature, or indefensible. By their canons and constitutions, therefore, they aspired to and obtained a vast extension of those exemptions, as well in regard to the crimes themselves, as to the persons exempted; and among these were at length comprehended, not only every little subordinate officer belonging to the church or clergy, but even many who were totally laymen.

In England, however, although the usurpations of the pope were very manifold, till Henry VIII. totally extinguished his supremacy, yet a complete exemption of the clergy from secular jurisdiction could never be thoroughly effected, though often aimed at by the clergy; and therefore, though the ancient privilegium clericae was allowed in some capital cases, yet it was not universally so. And in those particular cases, the usage 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; but the allowance of this demand was for many years a matter of great uncertainty, until at length it was finally settled in the reign of Henry VI. that the prisoner should first be arraigned, and might then either claim his benefit of clergy by way of declinatory plea, or, after conviction, by way of arrest of judgment. This latter way was most usually practised, as it was satisfactory to the court to have the crime previously ascertained by confession or the verdict of a jury; and it was also more advantageous to the prisoner himself, who might possibly be acquitted, and so might not need the benefit of his clergy at all.

Originally the law held that no man could be admitted to the benefit of clergy, unless he had the habitum et tonsuram clericae. 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, being accounted a clerk, or clericus, and allowed the benefit of clerkship, though neither initiated in clerkship, nor trimmed with the holy tonsure. When learning, however, 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 of being in holy orders, it was found that as many laymen as divines were admitted to the privilegium clericae, and therefore, by the statute 4 Henry VII. cap. 13, a distinction was drawn between mere lay scholars, and clerks who were really in orders. And although 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 more than once the clerical privilege. Accordingly the statute directs, that no person, once admitted to the benefit of clergy, shall be admitted thereto a second time, until he produce his orders; and to distinguish their persons, all laymen who were allowed this privilege were 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 Henry VIII. c. 1, and 32 Henry VIII. c. 3; but it is held to have been virtually restored by the statute 1 Edward VI. c. 12, which enacts, 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 chargeable to commoners, and also for the crimes of housebreaking, 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 the party himself was first of all ordained to make oath to his own innocence; next there was required the oath of twelve compurgators, who should swear that 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; or if otherwise, the accused, if a clerk, was degraded or put to penance. A learned judge, upwards of a century ago, remarks with much indignation on 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 of the guilt. The delinquent party also, though convicted in the clearest manner, and conscious of his own offence, was yet permitted, and almost compelled, to swear that he was not guilty; nor was the good bishop himself, under whose countenance this scene was transacted, by any means exempt from a share in 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 declared an entirely innocent man.

This scandalous prostitution of oaths and the forms of justice, in the almost constant acquittal of felonious clerks by purgation, was the reason that, in 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 facienda; in which situation the clerk convict could not make purgation, but was doomed to continue in prison during life, and rendered incapable of acquiring any personal property, or of receiving the profits of lands, unless the king pleased to pardon him. Both these courses were in some degree exceptionable; the latter perhaps being too rigid, while the former was productive of the most abandoned perjury. As these mock trials therefore took their rise from mischievous tenets, tending to exempt one part of the nation from the general municipal law, when the reformation became thoroughly established, it was found necessary to abolish so vain and impious a ceremony.

Accordingly the statute 18 Elizabeth, 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 this proviso, that the judge may, if he thinks fit, continue the offender in jail for any time not exceeding a year. And thus the law continued unaltered for above a century, excepting only that the statute 21 Jac. I. c. 6, allowed, that women convicted of simple larcenies under the value of ten shillings should be burned in the hand, whipped, put in the stocks, or imprisoned for any time not exceeding a year. And a similar indulgence was, by the statutes 3 and 4 William and Mary, c. 9, and 4 and 5 William and Mary, c. 24, extended to women guilty of any clergyable felony whatsoever; they 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 absolutely in such felonies, if clerks in orders; and if lay, for the first offence upon burning in the hand; yet all, except peers, were liable, if the judge saw occasion, to imprisonment not exceeding a year; whilst those who could not read, if under the degree of peerage, were hanged.

Afterwards, indeed, it was considered, that education and learning were not 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, à fortiori, too severe for the ignorant and untutored. Hence, by the 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. Experience having shown that so universal a lenity was frequently inconvenient, and proved 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 slight; it was enacted by the same statute, the 5 Anne, c. 6, that any person convicted of any theft or larceny, and burnt in the hand for the same, shall, at the discretion of the judge, be committed to the house of correction, or public work-house, 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 was further enacted, by the statutes 4 George I. c. 11, and 6 George 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 person, 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.

From the whole of this detail we may collect, that however, in times of ignorance and superstition, so great an anomaly in true policy may for a while exist, as a body of men residing in a state, and independent of its laws, yet when learning and rational religion have a little enlightened men's minds, society can no longer endure so gross and pernicious an absurdity. For, by the original contract of government, the price of protection by the united force of individuals is 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.

We are next to inquire to what persons the benefit of clergy is allowable under the foregoing enactments; and this must chiefly be collected from what has been observed in the preceding part of this article. For, upon the whole, we may pronounce that all clerks in orders were, without any branding, and of course without any transportation, to be admitted to this privilege, and immediately discharged, or at most only confined for one year, and this as often as they offended. Again, all lords of parliament and peers of the realm must, by the statute 1 Edward VI. c. 12, 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 commons of the realm, not in orders, whether male or female, must, 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.

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 petty larceny, nor in any mere misdemeanours, was it indulged at the common law; and therefore we may lay it down as a rule, that it was allowable only in petty treason and capital felonies, which for the most part became legally entitled to this indulgence by the statute de clerico, Edward III. stat. 3, c. 4, where it is provided that clerks convict for treason or felonies, touching other persons than the king himself or his royal majesty, shall have the privilege of holy church. But still it was not allowed in all cases whatsoever; for in some it was denied even in common law, namely, insidiatio viarum, or lying in wait for one on the highway; depopulatio agrorum, 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 further, all these crimes, together with petty treason, and many other acts of felony, are ousted of clergy by particular acts of parliament.

Upon the whole, then, we may observe, that in all felonies, whether newly created, or constituted by common law, clergy was allowable, unless taken away by act of parliament; that where clergy was taken away from the principal, it was not of course taken away from the accessory, unless he was also particularly included in the words of the statute; that when the benefit of clergy was taken away from the offence, as in case of murder, robbery, rape, burglary, and unnatural crimes, a principal in the second degree, being present, aiding and abetting the crime, was as well excluded from his clergy, as he that was a principal in the first degree; but that where it was 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 were not excluded, through the tenderness of the law, which has determined that such statutes shall not be taken literally.

The last point for consideration was, the consequences to the party, of allowing him this benefit of clergy. We speak not of the branding, imprisonment, or transportation, which were rather concomitant conditions, than consequences of receiving this indulgence. The consequences were such as affected his present interest, and his future credit and capacity; as, having been once a felon, but afterwards purged from that guilt by the privilege of clergy, this operated as a kind of statute pardon. And we may observe, that by his conviction he forfeited to the king all his goods, which being once vested in the crown, cannot afterwards be restored to the offender; that, after conviction, and till he received the judgment of the law by branding or the like, or else was pardoned by the king, he was to all intents and purposes a felon, and subject to all the disabilities and other incidents of a felon; that, after burning or pardon, he was discharged forever of that, and all other felonies before committed within the benefit of clergy, but not of felonies from which such benefit was excluded, as appears by the statutes 8 Eliza. c. 4, and 18 Eliza. c. 7; that by the burning or pardon, he was restored to every capacity and credit, and to the possession of his lands, as if he had never been convicted; and that what has been said with regard to the advantages of commoners and laymen, subsequently to the burning in the hand, was equally applicable to all peers and clergymen, although never branded at all. They had the same privileges without any burning, to which others were entitled after it.

It is held, that after a man is admitted to his clergy, it is actionable to call him a felon; because, his offence being pardoned by the statute, all the infamy and other consequences are discharged. As to what felonies are within, and what without clergy, see Tomlin's Law Dictionary, title Felons; and the Index to Hauck P.C. As to the time of pleading, see titles Pleading and Judgment, of the same dictionary.

The benefit of clergy, which was formerly a declinatory plea, is now very rarely pleaded; first, because the prisoner, upon a trial, has a chance to be acquitted and discharged; and, secondly, because, if convicted of a clergyable felony, he is equally entitled to his clergy after as before conviction; but if found requisite, it is prayed by the convict before judgment is passed upon him.