BEN 



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BEN 



on their accession to the supreme power, all the grants 

 (benefieia) of their predecessors required confirmation ; but 

 Titus by one edict, without solicitation, confirmed all grants 

 of previous emperors. The grants made by the emperors, 

 which were often lands, were entered in a book called the 

 Liber Benefiniorum, which was kept by the chief clerk of 

 benefices, under the care of the Comes Rerum Privatarum 

 of the emperor ; or it was kept by a person entitled ' A Com- 

 mentariis Beneficiorum,' or clerk of the benefices, as we 

 learn from a curious inscription in Gruter (DLXXVIII. 1.) 

 This inscription, which is a monumental inscription, is in 

 memory of M. Ulpius Phsedimus, who among other offices 

 held that of clerk of benefices to Trajan : the monument 

 was erected in the reign of Hadrian, A.D. 131, by Valens 

 Phffidimianus, probably one of the same family, who styles 

 himself wardrobe-keeper (a veste). 



Beneficium, in the civil law, signifies any particular privi- 

 lege : thus it is said (Dig. i. 4. 3.) that the beneficium of 

 the emperor must bo interpreted very liberally ; and by the 

 Julian law, de bonis cedendis, a debtor was said to receive the 

 benefit (beneficium) of not being taken to prison. (Codex 

 vii. Tit. 71.) 



Beneficium, among the writers of the middle ages, signi- 

 fied any grant of land from the fiscus, that is, the private 

 possessions of the king or sovereign, or any other person, for 

 life ; so called, says Ducange, because it was given out of 

 the mere good will (beneficium) and liberality of the grantor. 

 But it is evident from what we have said, that this kind of 

 grant was so called, after the fashion of the grants of the 

 Roman emperors. A beneficiary grant in the middle ages 

 appears to have been properly a grant for life, that is, a 

 grant to the individual, and accordingly corresponds to usu- 

 fructus, and is opposed to proprietus. The name benefi- 

 cium, as applied to a feudal grant, was afterwards changed 

 for that of feudum ; and the terms beneficium and feudum 

 are often used indifferently in writings which treat of feuds. 

 [See FEUD.] For further remarks on the term beneficium, 

 see Ducange, Glossarium, fyc. ; and Hotman, Commenta- 

 rius Verbt>rum Juris, Opera. Lugd. fol. 1.199. 



BENEFIT OF CLERGY. The privilege or exemption 

 thus called had its origin in the regard which was paid by 

 the various sovereigns of Europe to the early Christian 

 Church, and in the endeavours of the popes to withdraw 

 the clergy altogether from secular jurisdiction. In England, 

 these attempts, being vigorously resisted by our earlier kings 

 after the Conquest, only succeeded partially and in two par- 

 ticular instances, namely, in procuring, 1. the exemption 

 of places consecrated to religious purposes from arrests for 

 crimes, which was the origin of sanctuaries [see SANC- 

 TUAKY] ; and 2. the exemption of clergymen in certain 

 cases from criminal punishment by secular judges. From 

 the latter exemption came the benefit of clergy, which arose 

 when a person indicted for certain offences pleaded that he 

 was a clerk or clergyman and claimed his privilegium cleri- 

 cals. Upon this plea and claim the ordinary appeared and 

 demanded him; a jury was then summoned to inquire into 

 the truth of the charge, and according to their verdict the 

 accused was delivered to the ordinary either as acquit or 

 convict, to undergo canonical purgation, and then to be dis- 

 charged or punished according to the result of the purgation. 

 This privilege, however, never extended to high treason nor 

 to offences not capital, and wherein the punishment would 

 not affect the life or limb of the offender (quee non tan/runt 

 >n et membrum). It is singular that previously to the 

 statute 3 and 4 Will. III., which expressly includes them, 

 this privilege of clergy never extended by the English law 

 to women, although it is clear that, by the canon law, nuns 

 were exempted from temporal jurisdiction. 



In early periods of the history of this privilege in England, 

 the benefit of clergy was not allowed unless the prisoner ap- 

 peared in his clerical habit and tonsure to claim it ; but in 

 process of time, as the original object of the privilege was gra- 

 dually lost sight of, this ceremony was considered unneces- 

 sary, and the only proof required of the offender's clergy was 

 his showing to the satisfaction of the court that he could read, 

 a rare accomplishment, except among the clergy, previously 

 to the 15th century. The consequence was, that at length 

 all persons who could read, whether clergymen or lay clerks, 

 as they were called in some antient statutes, were admitted 

 to the benefit of clergy in all prosecutions for offences to 

 which the privilege extended. The mode in which this test 

 if reading was applied is thus described by Sir Thomas 

 Smith in his Commonwealth of England,' written in 



1565. ' The bishop,' says he, 'must send one with au- 

 thority under his seal to be a judge in that matter at every 

 gaol delivery. If the condemned man demandeth to be 

 admitted to his book, the judge commonly giveth him a 

 Psalter, and turneth to what place he will. The prisoner 

 readeth so well as he can (God knoweth sometime very 

 slenderly), then he (the judge) asketh of the bishop s com- 

 missary. Legit ut clericus ? The commissary must say legit 

 or non legit, for these be words formal, and our men of law 

 be very precise in their words formal. If he say legit, the 

 judge proceedeth no further to sentence of death; if he say 

 non, the judge forthwith proceedeth to sentence.' 



The clergy, however, do not appear to have universally 

 admitted that the mere fact of a prisoner's ability to read 

 was to be taken as a conclusive proof of his clerical charac- 

 ter. A curious case is recorded in the Year Book, 34 Hen. 

 VI. 49 (1455), which greatly puzzled the judges. A man 

 indicted of felony claimed the benefit of clergy ; upon which 

 the archdeacon of Westminster Abbey was sent for, who 

 showed him a book, in which the felon read well and fluently. 

 j Upon hearing this, the court ordered him to be delivered to 

 I the archdeacon on behalf of the ordinary ; but the arch- 

 I deacon refused to take him, alleging that the prisoner was 

 not a clerk. This raised a serious difficulty ; and the ques- 

 I tion was one of particular importance to the prisoner, as the 

 (judges deliberated whether he must not of necessity be 

 hanged. He was, however, remanded to prison, and the 

 subject was much discussed by the judges for several terms; 

 but, luckily for the culprit, the conscientious archdeacon 

 being removed, his successor heard the prisoner read, and 

 consented to receive him ; whereupon he was delivered to 

 the ordinary, the judges saying ' that in favorem vitce et 

 libertatis ecclesiee, even where a man had once failed to 

 read, and had received sentence of death, they would allow 

 him his benefit of clergy, under the gallows, if he could then 

 read, and was received by the ordinary.' Another case is 

 recorded in the 21st year of Edw. IV. (1481), in which a 

 felon read well and audibly in the presence of the whole 

 court ; but the ordinary declared ' non legit ut clericus for 

 divers considerations.' Upon which judgment was given 

 that he should be hanged; ' And so,' says the reporter, 'he 

 was, ut audivi.' ( Year Book, 2 1 Edw. IV. 21 .) But though 

 a felon might claim the benefit of clergy to the last moment 

 of his life, it was an indictable offence to teach him to read 

 for the purpose of saving him. Thus in the 7th Richard II. 

 (1383), the vicar of Round Church in Canterbury was ar- 

 raigned and tried, ' for that by the license of the jailer 

 there, he had instructed in reading one William Gore, an 

 approver, who at the time of his apprehension was un- 

 learned ;' (ineruditus in lecturd.) (Dyer's Reports, p. 206.) 

 It may readily be conceived that questions between the 

 temporal courts and the ordinary would arise as the art of 

 reading became more generally diffused; and it was pro- 

 bably on this account that an express provision was made 

 by the legislature in order in gome degree to obviate the 

 occurrence of such difficulties. The statute 4 Henry VII. 

 c. 13 (1488), revived the distinction between actual clergy- 

 men and such persons as had accidentally acquired a com- 

 petent skill in reading, by providing that no person once 

 admitted to the benefit of clergy should a second time he 

 allowed the same privilege, unless he produced his orders ; 

 and to mark those who had once claimed the privilege, the 

 statute enacted that all persons, not in orders, to whom it 

 was so allowed, should be marked upon the ' brawn of the 

 left thumb' in the court, before the judge, before such person 

 was delivered to the ordinary. After the offender was thus 

 burned in the hand, he was formerly delivered to the ordinary 

 to be dealt with according to the ecclesiastical canons, and to 

 make purgation by undergoing the farce of a canonical trial. 

 This second trial took place before the bishop or his deputy ; 

 there was a jury of twelve persons, who gave their verdict 

 on oath; witnesses were examined on oath; the prisoner 

 answered on oath ; and twelve compurgaUirs swore that 

 they believed him. On this occasion, though the prisoner 

 had been convicted at common law by the clearest evidence, 

 or had even confessed his guilt. l,e was almost invariably 

 acquitted. The whole proceeding before the ordinary is 

 characterised by Chief Justice Hobart, at the beginning of 

 the seventeenth century, ' as turning the solemn trial of 

 truth by oath into a ceremonious and formal lye.' (Hobart s 

 Reports, p. 291.) To remove this discreditable abuse of the 

 forms of justice, the statute 18 Eliz. c. 7, enacted that in 

 all cases after an offender had been allowed bis clergy, he 



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