#1661 - Avoidance Or Mitigation Of Punishment - History of English Law

Avoidance or Mitigation of Punishment

Benefit of Clergy

‘Benefit of Clergy’: This was the privilege of clergymen to be exempt from capital punishment which was settled in the reign of Henry II, after the conflict with Beckett, with the result that the accused person who could prove himself to be a clerk in orders would be handed over to the ecclesiastical authorities to be dealt with according to Canon law. Many of those handed over escaped further punishment by undergoing purgation, a form of wager of law, while others were put in Church prisons. + Helmholtz: Not surprisingly most Ds passed the test.

Procedure: Original procedure was for benefit of clergy to be claimed on arraignment, in which case there was an ‘inquest of office’ (a compulsory jury) to investigate guilt. The purpose was to warrant the seizure of the clerk’s chattels pending his purgation. If the inquest found him not guilty there handing over could be avoided (Quynzene). At every gaol delivery a representative of the bishop, called the ‘ordinary’, was supposed to be in attendance to claim clerks. But the judges were not at first disposed to trust these representatives. Claim would be disallowed if the prisoner was not in clerical dress, tonsured, or if he could not read.

If convicted, D would then be delivered over to a bishop as guilty in the eyes of the secular law. The Church insisted upon the retrial of the convicted clerk in accordance with canon-law rules. Upon a finding of guilt the clerk suffered punishment by the church, usually degradation from orders, temporary imprisonment, and penance.

Later practice: Clerks accepted jury trial and only claimed clergy in the event of conviction. Practice was noted with mixed feelings by Bereford CJ in 1313.

How did the royal judges’ attitude to benefit of clergy change?

Between 1350-1490: Attitude changed completely from distrusting representatives of the bishop. Came to benefit as a regular means of escape from the mandatory death penalty. Physical appearance was disregarded and reading became the sole test of clerical status. When a man was convicted of felony he would fall on his knees and ‘pray the book’; he would then be tendered with a passage from the psalter, known as the neck-verse, and if he could read it recite it satisfactorily then clergy was taken to be proved. Judges had discretion to choose passages at random, but at some point it became customary to assign the same text. Strictly speaking the decision whether the convict read ‘as a clerk’ was for the bishop, called the ‘ordinary’, but he was subject to the control of the judges and could be fined for refusing to accept someone. Secularisation of benefit between mid-fourteenth century and mid-fifteenth century.

By end of 16^th c: Benefit grew considerably in popularity. By fiction the judges had extended the clerical privilege to laymen. + Cockburn: Identified from assizes records that 47% of all convicts for felony between 1559 and 1624 had clergy.

Issue: Judges were unable to extend it to persons who were incapable of ordination, i.e. women. Woman could ‘plead the belly’ though and some intention to truth was practised there too.

16^th/17^th c: Parliament cleared the fiction of its remaining ecclesiastical impediments, substituted a short term imprisonment for delivery of the ‘clerk’ to the ordinary and extended the privilege to women (3 Will & Mar. c.9).

Abolition of reading test – Stat. 6 Ann. c. 9 (1706): In 1706 the pretence was abandoned, since the reading test itself had been ‘by experience found to be of no use’, and clergy could be claimed without knowing the neck verse… ‘forasmuch as when any person is convicted of felony within the benefit of clergy upon his prayer to have the benefit thereof allowed to him it hath been used to administer a book to him to try whether he read as a clerk, which by experience is found to be of no use …’

Why did judges rely on the benefit of clergy?

+ Baker: The clemency of the royal judges in extending this privilege was almost as indiscriminate as the harshness of the automatic punishment which occasioned it. It was as inconvenient that murderers and robbers should escape all punishment as it was that they should inexorably suffer death. Some means of control was needed.

A thorough review of the Tudor legislation regarding eligibility to claim benefit of clergy reveals the re-emergence of a distinction between different types of felonious homicide. This distinction, which came to be one between ‘murder’ and ‘manslaughter’ was conceptually similar to the one drawn by the 1390 statute and, ultimately that which the community had long drawn between capital and noncapital homicide.

1488 Statute: Crown sought to reduce impact of benefit of clergy by prohibiting a layman from twice having recourse to it for certain offences. To prevent evasion convicts were branded on their left thumb. While this statute drew no explicit distinction between different types of felonious homicide, its distinction between first/second offenders signals an important first step in the graduation of punishment for felony.

Statute of 1494 in Ireland, c. 21: Made murder once again a capital offence by turning it into treason, which had never been clergiable (R v. Merks).

Temporary statute of 1512: Experiment attempting to remove benefit covering murder of malice aforethought, and robbery in a church, on a highway, or in a dwelling house. Provoked an angry reaction from the church (Dr Standish’s Case (1515)), but by end of Henry VIII’s reign the principle was fully established.

Statute of 1531: Reinstated the 1512 provisions, with the addition of arson. Reintroduced capital punishment, which was in some cases commutable to transportation. After 1718 clergy still provided an absolute discharge, subject to a largely ineffective branding, in the case of certain offences – such as manslaughter – which were not affected by the legislative restrictions.

Statute of 1779: Judges given power to award fines or whipping instead of branding, so iron went out of use.

Statute 7 & 8 Geo. IV, c.28 (1827): Abolished.

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Pardons

Functions:

• Contributed directly to law of homicide - Ever since the Crown began to intervene in the prosecution of criminals, the king enjoyed a power to grant charters of pardon for wrongs done, as a matter of grace. Essential to justice in the case of homicide because the early common law failed to distinguish between intentional and accidental killing. Ironically the existence of this merciful prerogative served to perpetuate a procedure which was far out of line with the prevailing notions of criminal responsibility, so that what ought to have been a plain question of law remained for centuries at least nominally a question of favour. Encouraged the development of the criminal law – considered the weight of evidence. Unless there was an error on the face of the judgment judges could not scrutinise otherwise. Also issued for money,...