BENEFIT OF CLERGY

“Benefit of Clergy” is a phrase which has entered into English
literature and English thought. The thing itself exists no longer,
though the last traces of it were only removed during the present
reign; but it so strikingly illustrates certain peculiarities of
English law-making, it has, moreover, so curious a history as to be
interesting even to-day. It took its rise in times when the pretensions
of the Church, high in themselves, were highly favoured by the secular
power. The clergy was a distinct order, and to subject its members to
the jurisdiction of the secular courts was deemed improper; so, when
a clerk was seized under a charge of murder, or some other crime, the
ordinary stepped forth and claimed him for the “Court Christian,”
whereto the whole matter was at once relegated. There the bishop or
his deputy sat as judge. There was a jury of twelve clerks before whom
the prisoner declared his innocence on oath. He was ready with twelve
compurgators (a species of witnesses to character) who, after their
kind, said more good of him than they had any warrant for; after which,
on the question of fact, some witnesses were examined for, but none
against him. This curious proceeding, which was not abolished till the
time of Elizabeth, soon became a sham. Nearly every accused got off,
and the rare verdict of guilty had no worse result than degradation or
imprisonment.

Now, so far, the system is intelligible, but in the succeeding
centuries it lost this quality. English legal reformers have ever shown
a strong disinclination to make a clean sweep of a system, but they
keep tinkering at it year after year with a view of making it more
rational or better adapted to current needs. They did so here, and the
result was a strange jumble of contradictions. First, the privilege
was confined to such as had the clerical dress and tonsure, afterwards
it was extended to mere assistants, the very door-keepers being held
within the charmed circle; yet the line had to be drawn somewhere,
and how to decide when every ruffian at his wits’ end for a defence
was certain with blatant voice to claim the privilege? Well, could
he read? If so, ten to one he was an ecclesiastic of some sort, and
therefore entitled to his clergy. And it soon came that this was the
only test demanded. If you could read you were presumed a parson, and
had your right to at least one crime free. As no woman could possibly
be ordained, she could not “pray her clergy”–(an exception was made
in the case of a professed nun)–nor might a _bigamus_, who was not
a man who had committed bigamy, but one who “hath married two wives
or one widow.” However, a statute (1 Edw. VI., c. 12, s. 16, _temp._
1547) made an end of this latter distinction by declaring, with quaint
tautology that _bigami_ were to have their clergy, “although they or
any of them have been divers and sundry times married to any single
woman or single women, or to any widow or widows, or to two wives
or more.” Before this it might well be that your chance of saving
your neck depended on whether you had married a widow or not; which
species was dangerous in a sense undreamt of by Mr Weller. As regards
the reading, it must not be supposed that a difficult examination was
passed by the prisoner before he escaped. You had but to read what
came to be significantly called the Neck-verse from the book which
the officer of court handed you when you “prayed your clergy.” The
Neck-verse was the first verse of the fifty-first Psalm in the Vulgate.
It was only three words–_Miserere mei, Deus_: “Have mercy on me, O
God.” It seems strange that it was ever recorded of anyone that he
did not read, and was therefore condemned to be hanged; for surely
it were easy to get these words by heart and to repeat them at the
proper time? This must have been done in many cases, and yet sometimes
criminals were so densely ignorant and stupid, or it might be merely
bewildered, that they failed; then the wretch paid the penalty of his
life. “_Suspendatur_,” wrote the scribe against his name, and off he
was hauled. The endless repetition of this word proved too much for
official patience, and with brutal brevity the inscription finally
appears, “Sus.” or “S.”

And now the Neck-verse was free to everyone were he or were he not in
holy orders, and he claimed the privilege after conviction, but in the
reign of Henry VII. (1487) an important change was made. A person who
claimed clergy was to be branded on the crown of his thumb with an
“M” if he were a murderer, with a “T” if he were guilty of any other
felony; if he “prayed his clergy” a second time this was refused him,
unless he were actually in orders. Of course the mark on the thumb was
to record his previous escape from justice. It was with this “Tyburn
T” (as it was called in Elizabethan slang) that Ben Jonson was branded.
It is only within the last few years that careful Mr Cordy Jeaffreson
has exhumed the true story from the Middlesex County Records. The
poet quarrelled and fought a duel with Gabriel Spencer, an actor, and
probably a former colleague. The affair came off at Shoreditch. Jonson,
with his rapier, which the indictment (for a reason explained in the
chapter on “Deodands”) values at three shillings, briskly attacked his
opponent, and almost immediately gave him a thrust in the side, whereof
Spencer died then and there. Ben was forthwith seized and thrown into
prison. Whilst waiting his trial he said that spies were set on him,
but he was too much for them, and afterwards all the judges got from
him was but “Ay” and “No.” Why spies should have been necessary in so
plain a case is far from clear. It is more significant that a devoted
priest succeeded in converting him for the time to Roman Catholicism,
and he afterwards confessed to Drummond of Hawthornden that he had
come near the gallows. However, what he said, or did not say, is of
little weight as compared with the evidence of contemporary judicial
records. The fact is clear that the poet of _Every Man in his Humour_,
the cunning artist of _Queen and Huntress_, and _Drink to me only with
thine Eyes_, had a true bill found against him by the grand jury, who
sat, by the way, in a tavern, for as yet Hicks Hall, the predecessor of
the Session’s-House on Clerkenwell Green, was not.

In October 1598, he was taken to the Old Bailey to stand his trial.
He pleaded guilty, asked for the book, read like a clerk (“Jonson’s
learned sock,” forsooth!), and as the strangely abbreviated Latin of
the record has it, “_sign’ cum lra’ T et del_,” that is, marked with
the letter “T,” and set at large to repair to “The Sun,” “The Bolt,”
“The Triple Tun,” or some other of those dim, enchanting Elizabethan
taverns, there to give such an account of the transaction as sufficed
to dissemble it till this age of grubbers and dictionaries wherein
you are destined to nose every ancient scandal as you go up the
staircase of letters. It has been suggested that the officer, moved
to inexplicable tenderness, touched him with a cold iron. The only
ground for this is that Dekker, in his savage Satiro Mastix; or, _The
Untrussing of the Humourous Poet_, makes no reference to the “Tyburn
T.” One fancies that Ben speedily acquired a trick of carrying his hand
so that the mark was not readily seen, or he may have cut or burnt it
out as others did. All the same, the best evidence shows it to have
been there.

In the reign of James I. another change was made. Women got the benefit
of clergy in certain cases, and afterwards they were put on the same
footing as men. Then in 1705 the necessity for reading was abolished,
and in 1779 so was branding.

But another process was going on all this time. A great and
ever-increasing number of crimes were declared to be without benefit
of clergy. The selection was somewhat capricious. Among the exempted
felonies were abduction with intent to marry, stealing clothes off
the racks, stealing the kings’ stores, and so on. Naturally the whole
subject fell into inextricable confusion, and when it was abolished
in 1827, even pedants must have given a sigh of relief. One detail
escaped the reformer: since the time of Edward VI. every peer (“though
he cannot read,” saith the statute) enjoyed a privilege akin to that of
clergy, and it was not till 1841 that this last vestige of the system
vanished from the statute-book. I will only add that, in its details,
“benefit of clergy” was even more grotesque and fantastic than it has
here been possible to set forth.

In England during many centuries a prisoner was called to the bar
before trial and enjoined to hold up his right hand, by which act he
was held to admit himself the person named in the indictment. The
clerk then asked him, “How say you, are you guilty or not guilty?” If
he answered, “Not guilty,” the next question was: “Culprit, how will
you be tried?” to which he responded, “By God and my country.” “God
send you a good deliverance,” rejoined the official, and the trial
went forward. If the accused missed any of these responses, or would
not speak at all, and if the offence were treason or a misdemeanour,
his silence was taken for confession of guilt, and sentence was passed
forthwith. If the charge were felony, a jury was empanelled to try
whether he stood “mute of malice,” or “mute by the visitation of
God.” If this last were found, the trial went on; if the other, he
was solemnly warned by the judges of the terrible consequences summed
up by Lord Coke (trial of Sir Richard Weston in 1615, for Sir Thomas
Overbury’s murder) in the three words–_onere, frigore, et fame_.
The proceedings were most commonly adjourned to give him time for
reflection; but if after every exhortation he remained obdurate, then
he was adjudged to suffer the _peine forte et dure_. The judgment of
the Court was in these words: “That you return from whence you came,
to a low dungeon into which no light can enter; that you be stripped
naked save a cloth about your loins, and laid down, your back upon the
ground; that there be set upon your body a weight of iron as great as
you can bear–and greater; that you have no sustenance, save on the
first day three morsels of the coarsest bread, on the second day three
draughts of stagnant water from the pool nearest the prison door, on
the third day again three morsels of bread as before, and such bread
and such water alternately from day to day; till you be pressed to
death; your hands and feet tied to posts, and a sharp stone under your
back.”

There is but one rational way to discuss an institution of this sort.
Let us trace out its history, for thus only can we explain how it
came to have an existence at all. For the prisoner himself there was
usually a very strong reason why _he_ should stand mute. If he were
convicted of felony his goods were forfeited; while in case of capital
felony, the result of attainder was corruption of blood so that he
could neither inherit nor transmit landed property. Often he must
have known that conviction was certain. Had he fondness enough for
his heirs–children or other–to make him choose this hideous torture
instead of milder methods whereby the law despatched the ordinary
convict from this world? Well, very many underwent the punishment.
Between 1609-1618 the number was thirty-two (three of them women) in
rural Middlesex alone. “_Mortuus en pen’ fort’ et dur’_,” so the clerk
wrote for epitaph against each name, and something still stranger than
the penalty itself is revealed to us by an examination of the original
records. Many of the culprits were evidently totally destitute, and
these underwent the _peine forte et dure_ from stupidity, obstinacy, or
sheer indifference to mortal suffering and death.

The custom of pressing did not obtain its full development at once, and
there is some difficulty as to how it began. A plausible explanation is
given in Pike’s “History of Crime,” and is supported by the authority
of the late Mr Justice Stephen. At one time a man charged with a
serious offence was tried by ordeal; but by paying money to the king,
it was possible to get the exceptional privilege of a trial by jury.
Thus, when the accused was asked how he would be tried, his answer
originally ran, “by God” (equal to by ordeal), or “by my country”
(equal to by jury), since to put yourself on the country meant to
submit yourself to this last. But trial by ordeal was abolished
about 1215, and the alternative was a privilege to be claimed, not a
necessity to be endured. Offenders soon discovered that by standing
mute and declining to claim this privilege, they put the Court in a
difficulty. The ideas of those distant days were simple exceedingly,
and a legal form had strange force and efficacy. To put a prisoner
before a jury without his consent was not to be thought of; but how
to get his consent? At first the knot was rather cut than loosened.
Thus, in some cases, the accused were put to death right off for not
consenting to be tried “according to the law and custom of the realm.”
Then this was held too severe, and under Edward I., in the proceedings
of the Parliament of Westminster, occurs the earliest definite mention
of the punishment. It was enacted that notorious felons refusing to
plead should be confined in the _prison forte et dure_. Here they went
“barefooted and bareheaded, in their coat only in prison, upon the bare
ground continually night and day, fastened down with irons,” and only
eating and drinking on alternate days as already set forth. It was
bad enough, no doubt, but not of necessity fatal. So the authorities
perceived, and they again cut the knot by a policy of starvation. So
one infers from the case of Cecilia, wife of John Rygeway, in the time
of Edward III. Cecilia was indicted for the murder of her husband; she
refused to plead. Being committed to prison, she lived without meat or
drink for forty days; and this being set down to the Virgin Mary, she
was thereupon allowed to go free. This procedure seems to have been
found too slow, and the increase of business at the assizes seemed like
to end in a hopeless block. Were the judges to encamp in a country town
while the prisoners made up their mind as to pleading? Something was
wanted to “mend or end” the stubborn rascals; and under Henry IV., in
the beginning of the fifteenth century, the “prison” _forte et dure_
became the “peine” _forte et dure_: with the consequence that, if the
accused declined to plead, there was an end of him in a few hours, the
provision of bread and water being a mere remnant of the older form of
sentence. This procedure lasted till 1772, when the 12 Geo. III., c.
20 made “standing mute in cases of felony equivalent to conviction.”
In 1827 it was enacted by 7 and 8 Geo. IV., c. 28, “that in such
cases a plea of not guilty should be entered for the person accused.”
The curious formal dialogue between the clerk and the prisoner was
abolished that same year. Something stronger than exhortation was now
and again used before the obdurate prisoner was sentenced to pressing,
thus at the Old Bailey in 1734, the thumbs of one John Durant were tied
together with whipcord, which the executioner strung up hard and tight
in presence of the Court; he was promised the _peine forte et dure_
if this did not answer, but upon a little time being given him for
reflection, he speedily made up his mind to plead not guilty.

It is difficult to explain the distinction drawn between ordinary
felony on the one hand and treason and misdemeanours on the other.
Perhaps the explanation is that the last, being much lighter offences,
were never made the subject of trial by ordeal, and that treason
being a crime endangering the very existence of the State, a sort of
necessity compelled the judge to proceed in the most summary manner.
No student of English History needs to be reminded that a trial for
treason resulted almost as a matter of course in a conviction for
treason. Peers of the realm had many privileges, but they were not
exempt from the consequences of standing mute. Nor, as already noted,
were women. Perhaps it were unreasonable to expect a criticism of the
system from contemporary judges or text writers; but what they did say
was odd enough; they did not condemn pressing, but they highly extolled
the clemency of the law which directed the Court to reason with and
admonish the accused before it submitted him to this dread penalty.

I shall now give some examples of practice. Fortunately (or
unfortunately you may think as you read) we have at least one case
recorded in great detail, though, curiously enough, it has escaped the
notice of an authority so eminent as Mr Justice Stephen.

Margaret Clitherow was pressed to death at York on Lady Day, March
25th, 1586, and the story thereof was written by John Mush, secular
priest, and her spiritual director. Margaret’s husband was a
Protestant, though his brother was a priest, and all his children
appear to have been of the older faith. Accused of harbouring Jesuit
and Seminary priests, of hearing mass, and so on, she was committed
to York Castle, and in due time was arraigned in the Common Hall.
In answer to the usual questions, she said that she would be tried
“by God and by your own consciences,” and refused to make any other
answer. It was sheer obstinacy: she was a married woman, and she could
have lost nothing by going to trial. But she coveted martyrdom, which
everybody concerned appears, at first at any rate, to have been anxious
to deny her. It was plainly intimated that if she would let herself
be tried she would escape: “I think the country,” said Clinch, the
senior judge, “cannot find you guilty upon the slender evidence.” The
proceedings were adjourned, and the same night “Parson Whigington, a
Puritan preacher,” came and argued with her, apparently in the hope of
persuading her to plead; but he failed to change her purpose; the next
day she was brought back to the Hall. Something of a wrangle ensued
between herself and Clinch, and in the end the latter seemed on the
point of pronouncing sentence. Then Whigington stood up and began to
speak; “the murmuring and noise in the Hall would not suffer him to be
heard;” but he would not be put off, and “the judge commanded silence
to hear him.” He made a passionate appeal to the Court (“Did not
perhaps God open the mouth of Balaam’s ass?” is the somewhat ungracious
comment of Father Mush.) “My lord,” said he, “take heed what you do.
You sit here to do justice; this woman’s case is touching life and
death, you ought not, either by God’s law or man’s, to judge her to die
upon the slender witness of a boy;” with much more to the same effect.
Clinch was at his wits’ end, and went so far as to entreat the prisoner
to plead in the proper form: “Good woman, I pray you put yourself to
the country. There is no evidence but a boy against you, and whatsoever
they (the jury) do, yet we may show mercy afterwards.” She was moved
not a whit; and then Rhodes, the other judge, broke in: “Why stand
we all day about this naughty, wilful woman?” Yet once again she was
entreated, but as vainly as before; it was evident that the law must
take its course; and “then the judge bade the sheriff look to her,
who pinioned her arms with a cord.” She was carried back to prison
through the crowd, of whom some said, “She received comfort from the
Holy Ghost;” others, “that she was possessed of a merry devil.” When
her husband was told of her condemnation, “he fared like a man out of
his wits, and wept so vehemently that the blood gushed out of his nose
in great quantity.” Some of the Council suggested that she was with
child. There seems to have been some foundation for the remark, at any
rate, Clinch caught eagerly at the idea. “God defend she should die if
she be with child,” said he several times, when the sheriff asked for
directions, and others of sterner mould were pressing for her despatch.
Kind-hearted Whigington tried again and again to persuade her; and the
Lord Mayor of York, who had married her mother (“a rich widow which
died before this tragedy the summer last”), begged her on his knees,
“with great show of sorrow and affection,” to pronounce the words
that had such strange efficacy. It was all in vain, so at last even
Whigington abandoned his attempt, and “after he had pitied her case
awhile, he departed and came no more.”

Her execution was fixed for Friday, and the fact was notified to her
the night before. In the early morning of her last day on earth she
quietly talked the matter over with another woman. “I will procure,”
the woman said, “some friends to lay weight on you, that you may be
quickly despatched from your pain.” She answered her that it must not
be. At eight the sheriffs came for her, and “she went barefoot and
barelegged, her gown loose about her.” The short street was crowded
with people to whom she dealt forth alms. At the appointed place,
one of the sheriffs, “abhorring the cruel fact, stood weeping at the
door;” but the other, whose name was Fawcett, was of harder stuff. He
“commanded her to put off her apparel,” whereupon she and the other
woman “requested him, on their knees, that she might die in her smock,
and that for the honour of womankind they would not see her naked.”
That could not be granted, but they were allowed to clothe her in a
long habit of linen she had herself prepared for the occasion. She now
lay down on the ground. On her face was a handkerchief. A door was laid
upon her. “Her hands she joined towards her face”; but Fawcett said
they must be bound, and bound they were to two posts, “so that her body
and her arms made a perfect cross.” They continued to vex the passing
soul with vain words, but at last they put the weights on the door. In
her intolerable anguish she gave but a single cry: “Jesu! Jesu! Jesu!
have mercy upon me!” Then there was stillness; though the end was not
yet. “She was in dying one quarter of an hour. A sharp stone as much as
a man’s fist put under her back, upon her was laid a quantity of seven
or eight hundredweight to the least, which, breaking her ribs, caused
them, to burst forth of the skin.” It was now nine in the morning, but
not till three of the afternoon were the braised remains taken from
the press.

Stories of violence and cruelty serve not our purpose unless they
illustrate some point, and I shall but refer to two other cases.

Major Strangeways was arraigned in 1658 (under the Commonwealth be
it noted) for the murder of his brother-in-law. In presence of the
coroner’s jury he was made to take the corpse by the hand and touch its
wounds, for it was supposed that, if he were guilty, these would bleed
afresh. There was no bleeding, but this availed him nothing, and he was
put on his trial at the Old Bailey in due course. He refused to plead,
and made no secret of his motive; he foresaw conviction, and desired
to prevent the forfeiture of his estate. He was ordered to undergo the
_peine forte et dure_. The press was put on him angle-wise; it was
enough to hurt, but not to kill, so the bystanders benevolently added
their weight, and in ten minutes all was over. The dead body was then
displayed to the public.

Again, in 1726, a man named Burnworth was arraigned at Kingston for
murder. At first he refused to plead, but after being pressed for an
hour and three-quarters with four hundredweight of iron, he yielded. He
was carried back to the dock, said he was not guilty, and was tried,
convicted, and hanged. There was at least one case in the reign of
George II.–but enough of such horrors.