3

In some Tudor-period acts of attainder (laws passed by Parliament declaring certain people to be guilty of crimes and ordaining their punishment), there is a stipulation that the named person will not enjoy "benefit of clergy".

  • A murder statute, 12 Henry VII c.7 (1496) says that one James Grame "shall be drawn, and hanged in such manner and form, as by the law of the land has been used in such cases, as persons being no clerks, doing like murder, have or ought to be punished, any privilege of his clergy, or demand of the same notwithstanding".
  • The notorious "Act for poisoning", 22 Henry VIII c.9 (1530), declared that Richard Roose "shall stand, and be attainted of High Treason, and shall be therefore boiled to Death, without Benefit of Clergy".

(These are both quoted from Statutes at Large.)

I understand that if somebody was convicted of a crime in the normal way, they could under certain circumstances claim their "clergy", which transferred the case to an ecclesiastical court where any punishment would be nominal. They did not have to actually be in holy orders. There is a long history of this process being shaped and reformed before its eventual abolition. Procedurally, I believe that at this time it was up to the secular court to determine whether to permit the claim, which had to be made before sentencing.1

What I do not understand is why these laws take away clergy from the specific named people, who were convicted and sentenced by statute. I am wondering what procedural/legal mechanism there might have been for them to assert their clergy when they were not appearing before a judge in a real criminal trial. In my imagination, when they are being dragged off for execution they could no more claim benefit of clergy than they could plead not guilty - they aren't in a courtroom and these words have no special meaning. But presumably, Parliament wrote the laws this way intending them to have an actual legal consequence, so there must have been some potential avenue being closed off to the attainted person.

In Coke's Reports on "Powlter's Case" (vol. 11 fol. 29ff), which is rather later, under James I, he comments favourably on a statute 1 Edward VI c.12. This refers to any person "in due form of law attainted or convicted" of various crimes, who "shall not be admitted to have the benefit of clergy or sanctuary". Coke says at 32a that the form of words chosen resolves some defects in earlier law, as "due form of law" applies to "men outlawed, attainted by battel, abjured, attainted by Parliament" - so he appears to think that there is some situation where a person "attainted by Parliament" might be able to claim clergy, if it were not for this Act. But I do not know what that might be.

Probably I am wrong about some aspect of the law - say, perhaps, an early sixteenth-century bishop might have actually been able to intervene on his own initiative; or there was some sort of habeas-corpus procedure for getting in front of a proper judge even after an act of attainder. I am looking for a well-informed answer on what that might be, for this specific period prior to 1533-ish. (Cutoff there because of the break with Rome, the submission of the clergy, etc., would likely change things.)


1 From Hale's Historia Placitorum Coronae (1736), which is much later but does at least talk about this period, it appears that the assessment of a claim to clergy had been taken over by the king's courts long before, and the local ordinary (the bishop) would send a representative to witness the proceedings but not take part. Hale also mentions that benefit of clergy could be allowed post-sentencing, even on the gallows, "if the judge come that way" (chapter 52), but this appears to be a special exception to the principle that the sentence was final. It has to be the same judge from the trial, who is present at the scene and suffers an attack of conscience.
5
  • This was complete news to me, so I tried looking it up. The one source I found said this was initially a perk for being clergy to essentially give them their own separate legal system to use. It went on to say it eventually got expanded to everyone literate, which seems a bit much (and gave me no references for that factoid, nor any idea of when "eventually" was).
    – T.E.D.
    Jan 31 at 17:53
  • Yes, I've heard that too - clergy and monks being, at one time, practically the only people who were literate. Jan 31 at 18:25
  • It does seem odd. I thought that you could be tried by the secular courts, in which case you could claim Benefit of Clergy and get your case moved to an ecclesiastical court, or you weren't tried by any court but convicted by a bill of attainder, in which case you could not claim BoC. So why mention BoC in the act/statute? During the English Reformation, plenty of clergy were executed for heresy, treason etc. both by the courts and because they were attainted. But for the Henry VII case I would have guessed at Henry VIII trying to emphasise that cannon law was being superseded by civil courts. Jan 31 at 18:37
  • @T.E.D. Yes, resulting in such oddities as the wife of a nobleman being able to claim that she was a clergyman. (She could borrow her husband's status, and peers were automatically given benefit of clergy, without even having to do a literacy test.)
    – alexg
    Jan 31 at 19:42
  • Readers familiar with the U.S. Constitution might like to contemplate how the Act of 1530 is an ex post facto law, that is also a bill of attainder, respecting an establishment of religion, and mandating a cruel and unusual punishment.
    – alexg
    Jan 31 at 19:44

1 Answer 1

4

Generally, claiming Benefit of Clergy did not prevent the inquest into the crime, and only after conviction, the clergy was delivered to the church authorities.

Anne J. Duggan, Clerical Exemption in Canon Law from Gratian to the Decretals. medieval worlds No. 6 2017, p. 89 describes the process in its original 12th century form:

Generally speaking, a cleric who pleaded clergy was tried, and then released to the bishop’s proctor, with notification of the verdict for the bishop’s information. If he had been acquitted, there was nothing further to do; if he had been convicted, he could try to purge himself in the bishop’s court; if he failed, he would be imprisoned for life in an ecclesiastical prison. [65]

[65] London Trailbaston Trials, ed. Pugh, 14-16; Wiltshire Gaol Delivery, ed. Pugh, 14-16; cf. Pugh, Imprisonment in Medieval England, 134-139. See Helmholz, Oxford History of the Laws, 508-514.

Essentially the same seems to be described as common practice in 23 Henry VIII c.1 (1531):

...Thieves and Murderers, indicted and found guilty of their Misdeeds by good and substantial Inquests, and upon plain and proveable Evidence before the King's Justices, and afterwards by the Usages of the common Laws of the Land delivered to the Ordinaries as Clerks convict...

The core of the law was to define a group of offences where only clerics "of the Order of sub-decons, or above" and found guilty, could claim Benefit of the Clergy, but the ecclesiastical court was prevented from offering Purgation, or simply releasing them:

IV. And be it further enacted by Authority aforesaid, That every such Person and Persons within such Orders of Sub-deacon, or above, which at any Time hereafter be found guilty of any Petit Treason, or of any Murder of Malice prepensed, or of any of the Felonies above rehearsed, or of any Accessary to Petit Treason, wilful Murder, or to any other the Felonies above specified, and admitted to his or their Clergy, and delivered to the Ordinary for the same, shall not in any wise from henceforth be suffered to any Purgation, nor be set at Liberty...

Finally, the Act as I understand it, describes that the same order of procedure be used for confessions, judgements by court or acts of attainder – first conviction, then deliverance to the church:

V. Provided alway, That this Act extend not to give any Benefit to any such Person or Persons, which, after their Confession, or Judgement given against them, of or for Felony, or Murder, or after they be outlawed for any such Cause, be admitted to their Clergy, and delivered to the Ordinary for the same ; but that they and every of them shall remain in the Custody of the Ordinaries without making Purgation, upon such Peril, and in such Manner and Form, as it was used by the common Law before the making of this present Act ; this Act or any Thing therein contained notwithstanding.

2
  • Thank you for your findings on this. I think I'm to understand that if somebody was 'convicted' by an Act of Parliament, they would still undergo a judicial process to confirm, ah yes, that is the John Smith who's named in the law and is to be executed. And at this occasion they might, in principle, say "but wait, I'm literate, take me to the bishop".
    – alexg
    Feb 2 at 20:40
  • That would be an interpretation of the phrase "admitted to his/their Clergy" as an explicit decision step in the process, different from the following action "delivered to the Ordinary". Sounds reasonable.
    – ccprog
    Feb 2 at 21:42

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service and acknowledge you have read our privacy policy.

Not the answer you're looking for? Browse other questions tagged or ask your own question.