benefit of clergy

benefit of clergy, term originally applied to the exemption of Christian clerics from criminal prosecution in the secular courts. The privilege was established by the 12th cent., and it extended only to the commission of felonies. The ecclesiastical courts did not inflict capital punishment except in rare cases, in which event those adjudged guilty were turned over to local secular authorities for enforcement of the sentence (see canon law). In the ecclesiastical courts the severest sentences usually were degradation and the imposition of penances. Many criminals posed as clerics to obtain benefit of clergy. In England the privilege was soon extended to all clerks, i.e., literate persons. The ecclesiastical courts lost all jurisdiction over criminal acts in 1576, and thereafter clerics were tried by the secular courts and, under statute law, were either discharged or sentenced to a year's imprisonment. Early in the 18th cent. the reading test was abolished and all persons were allowed to claim this privilege for the first conviction of felony; later the privilege was extended generally to peers and women. Benefit of clergy thus mitigated the severities of English criminal law, which imposed the death penalty for many offenses now deemed trivial. Criminal law was ameliorated in the early 19th cent., and in 1827 benefit of clergy was abolished as being no longer necessary. In the United States it was abolished in 1790 for all federal crimes, and c.1850 it disappeared from the state courts. The term “benefit of clergy” has come in popular usage to mean sanction of the clergy, particularly in the phrase “marriage without benefit of clergy.”

See L. C. Gabel, Benefit of Clergy in England in the Later Middle Ages (1929, repr. 1969); J. R. Cameron, Frederick William Maitland and the History of English Law (1961).

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