C L E 
lies againft him that does it, or the clergyman arrefted 
may have a fuperfedeas out of chancery. 2 Injl. 4. In 
adlion of trefpafs, account, &c. againft a perfon in holy 
orders, wherein procefs of capias lies, if the fheriff return 
that the defendant is clericus benef.ciatus nullam babens lai- 
cum feodum ubi. fummoneri potejl ; in this cafe the plaintiff 
cannot have a capias to arreit his body; but the writ 
ought to iffue to the bilhop to compel him to appear; but, 
on execution had againft luch clergyman, a fequeltration 
fhall be had of the profits of his benefice. 2 Injl. 4. Dcgge 
* 57 - ... 
Benefit of Clergy, being a circumftance of no final 1 
curiofity as well as ufe, we have here abridged judge Black- 
ftone’s learned Commentaries upon this ufage of law, to¬ 
gether with fuch additions as feemed requifite. Thefe'are 
comprifed under the following heads : 1. Its original, and 
various changes. 2. To whom it is now to be allowed. 
3. In what cafes. 4. The conlequences of allowing it. 
1. The benefit of clergy had its original from the pious 
regard paid by Chriftian princes to the church in its in¬ 
fant date; and the ill ule which fome eccleliaifics made 
of that pious regard. The exemptions which they granted 
to the church were principally of two kinds: 1. Exemption 
of places, conl'ecrated to religious duties, from criminal 
arrefts, which was the foundation of fanftuaries. 2. Ex¬ 
emption of the perfons of clergymen from criminal pro¬ 
cefs before the fecular judge, in a few particular cafes; 
which was the true original and meaning of this priajile- 
gium clericale. In England, however, a total exemption 
of the clergy from fecular jurifdidtion could never be tho¬ 
roughly effefled, though often endeavoured by the clergy. 
Stat. IVeJim. 1. 3 £. I. c. 2. and, therefore, though the an¬ 
cient privilegium clericale was in fome capital cafes, yet 
it was not univerfally allowed. And in thofe particular 
cafes, the ufe was for the bifhop or ordinary to demand 
liis clerks to be remitted out of the king’s courts as foon 
as they were indidted ; concerning the allowance of which 
demand there was for many years a great uncertainty; 
(a Hal. P. C. 377 ;) till at length it was finallj' fettled, in 
the reign of Henry VI. that the prifoner fhould firlt be 
arraigned, and might either then claim his benefit of 
clergy, by way of declinatory plea, or, after conviction, 
by way of arrelting judgment. This latter way is molt 
ufually praCtifed, as it is more to the fatisfaCtion of the 
court to have the crime previoufiy afcertained by confef- 
fion, or the verdiCt of a jury 5 and alfo it is more advan¬ 
tageous to the prifoner himlelf, who may poflibly be ac¬ 
quitted, and fo need not the benefit of his clergy at all. 
Originally the law was held, that no man fhould be 
admitted to the privilege of clergy, but fuch as had the 
babitum et tonfuram clericalem. 2 Hal. P. C. 372. but, in 
procefs of time, a much wider and more comprehenfive 
criterion was eftablifhed; every one that could read, (a 
mark of great learning in thofe days of ignorance and fu- 
perlfition,) being accounted a clerk, or clericus, and al¬ 
lowed the benefit of clerkfhip, though neither initiated in 
holy orders, nor trimmed with the clerical tonfure. But 
•when learning, by means of the invention of printing, 
and other concurrent caufes, began to be more generally 
diffeminated than formerly; and reading was no longer 
a competent proof of clerkfhip, or being in holy orders; 
it was found that as many laymen as divines were ad¬ 
mitted to the privilegium clericale ; and therefore, by flat. 
4 Hen. VII, c. 13. a diftinftion was once more drawm be¬ 
tween mere lay-fcholars, and clerks that were really in 
orders. And, though -it was thought reafonable (fill to 
mitigate the feverity of the law with regard to the former, 
yet they were not put upon the fame footing with aCtual 
clergy; being fubjeCted to a flight degree of punifhment, 
and not allowed to claim the clerical privilege more than 
once. Accordingly the ftatute diredts, that no perfon, 
once admitted to the benefit of clergy, fhall be admitted 
thereto a fecond time, unlefs he produces his orders ; and, 
in order to diftinguifh their perfons, all laymen who are 
allowed this privilege fhall be burnt with a hot iron in 
Vol. IV. No. 228. 
R G Y. 6S1 
the brawn of the left thumb. This diftindVion between 
learned laymen, and real clerks in orders, was abolifhed 
for a time by the Hats. z8 H. VIII. c. 1. and 32 H. VIII. 
c. 3. but it is held (Hob. 294. 2 Hal. P. C. 375.) to have 
been virtually reftored by flat. 1 Edw. VI. c. 12. which 
ftatute alfo enadls, that lords of parliament, and peers of" 
the realm, having place and voice in parliament, may 
have the benefit of their peerage, equivalent to that of 
clergy, for the firft offence, (although they cannot read, 
and without being burnt in the hand,) for all offences 
then clergyable to commoners ; and alfo for the crimes 
of houfe-breaking, highway-robbery, horfe-ftealing, and 
robbing of churches. 
After this burning, the laity, and before it the real 
clergy, were difcliarged from the lentence of the law in 
the king’s court, and delivered over to the ordinary, to 
be dealt with according to the eccleliaftical canons. 
Whereupon the ordinary proceeded to make a purgation 
of the offender by a new canonical trial, by the oath of 
the offender and that of twelve compurgators, although 
he had been previoufiy convi&ed by his country, or, per¬ 
haps, by his own confeffion. But this purgation open¬ 
ing a door to a fcandalous proftitution of oaths, and other 
abufes, it was enadled, by flat. 18 Eliz. c. 7. that, for the 
avoiding of fuch perjuries and abufes, after the offender 
has been allowed his clergy, he fhall not be delivered to 
the ordinary as formerly ; but, upon fuch allowance, and 
burning in the hand, he fhall forthwith be enlarged and 
delivered out of prifon ; with provifo 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 for 
above a century unaltered, except only that the flat. 21 
Jac. I. c. 6. allowed, that women convidled of fimple lar¬ 
cenies, under the value of ten fhillings, fhould (not pro¬ 
perly have the benefit of clergy, for they were not called 
upon to read, but) be burned in the hand, whipped, put 
in the flocks, or imprifoned for any time not exceeding 
a year. And a fimilar indulgence, by Hats. 3 & 4 W. & 
M. c. 9. & 24, w’as extended to women guilty of any cler¬ 
gyable felony whatfoever, who were allowed to claim the 
benefit of the ftatute once, in like manner as men might 
claim the benefit of clergy, and to be difcharged upon 
being burned in the hand, and imprifoned for any time 
not exceeding a year. The punifhment of burning in the 
hand was changed by flat. 10 & 11 W. III. c. 23. into 
burning in the left cheek, near the nofe ; but this provi- 
fion was repealed by flat. 5 An. c. 6. and, till that period, 
allwomen, all peers of parliament, and peerefles, and all male 
commoners who could read, were difcharged in all cler¬ 
gyable felonies; the males abfolutely, if clerks in orders ; 
and other commoners, both male and female, upon brand¬ 
ing ; and peers and peerefles without branding, for the 
firft offence; yet all liable, (except peers and peerefles,) 
at the difcretion of the judge, to imprifonment, not ex¬ 
ceeding a year. And thofe men who could not read, if 
under the degree of peerage, were hanged. 
But, by the faid flat. 5 An. c. 6. it was enadted, that 
the benefit of clergy fhould be granted to all thofe who 
were entitled to afk it, without requiring them to read. 
And it was further enacted by the fame ftatute, that when 
any perfon is convicted of any theft or larceny, and burnt 
in the hand for the fame, according to the ancient law, 
he fhall alfo, at the difcretion of the judge, be committed 
to the houle of corredtion, or public work- houfe, to be 
there kept to hard labour for any time not lefs than fix 
months, and not exceeding two years; with a power of 
inflidling a double confinement in cafe of the party’s 
efcape from the firft. And, by flats. 4 Geo. I. c. 11. 
6 Geo. I. c. 23. when any perfons fhall be convidled of 
any larceny, either grand or petit, or any felonious Heal¬ 
ing or taking of money or goods, either from the perfon 
or the houfe of another, or in any other manner, and who, 
by the law, fhall be entitled to the benefit of clergy, and 
liable only to burning in the hand, or whipping, the court 
may,'inftead thereof, diredt fuch offenders to be tranf- 
8F ported 3 
