The Book of Curiosities

by John Platts

“But if the privileges of the church were less dangerous in England than on the continent, they soon became more extensive. They not only embraced every order of clergymen, but were claimed for every subordinate officer of religious houses, with the numerous classes of their retainers. And so liberal was the application of these dangerous benefits, that, at length, every one who in those days of ignorance was able to read, though not even initiated in holy orders, began to demand them, such reading being deemed evidence of his clerical profession. The privileges of the clergy were recognized and confirmed by statute in the reign of Edward the Third. It was then enacted, that all manner of clerks, secular as well as religious, should enjoy the privileges of holy church for all treasons or felonies except those immediately affecting his majesty. To the advantage of this provision, all who could read were admitted. But as learning became more common, this extensive interpretation was found so injurious to the security of social life, that the legislature, notwithstanding the opposition of the church, were compelled to afford a partial remedy.

“In the reign of Henry the Seventh, a distinction was drawn between persons actually in holy orders, and those who, in other respects secular, were able to read; by which the latter were only allowed the benefit of their learning once, and, on receiving it, to be branded in the left thumb with a hot iron, in order to afford evidence against them on any future occasion. The church seems to have lost ground in the succeeding reign, probably in consequence of the separation of England from the sway of the Roman pontiff; for all persons, though actually in orders, were rendered liable to be branded, in the same way as the learned class of laymen. But, in the time of Edward the Sixth, the clergy were restored to all the rights of which they were deprived by his predecessor, except as to certain atrocious crimes, which it became necessary more uniformly to punish. At the same time, some of the more enormous evils attendant on this general impunity were done away. Murder, poisoning, burglary, highway-robbery, and sacrilege, were excepted from all that privilege which was confirmed as to inferior offences. But peers of the realm, for the first offence were to be discharged, in every case, except murder and poisoning, even though unable to read.

“But here we must pause, before we proceed to follow the gradual improvement of this privilege, to inquire what was originally done with an offender to whom it was allowed by those ecclesiastical authorities who claimed the right of judging him, and in what manner the power of the church in this respect was ultimately destroyed. It appears, that after a layman was burnt in the hand, a clerk discharged on reading, or a peer without either burning or penalty, he was delivered to the ordinary, to be dealt with according to the ecclesiastical canons. Upon this, the clerical authorities instituted a kind of purgation, the real object of which was to make him appear innocent, who had already been shewn to be guilty, and to restore him to all those capacities of which his conviction had deprived him. To effect this, the party himself was required to make oath of his innocence, though before he might have confessed himself guilty. Then twelve compurgators were called to testify their belief in the falsehood of the charges. Afterwards he brought forward witnesses completely to establish that innocence, of which he had induced so weighty a presumption. Finally, it was the office of the jury to acquit him; and they seldom failed in their duty. If, however, from any singular circumstance, they agreed in the justice of the conviction, the culprit was degraded, and compelled to do penance. As this seldom occurred, and the most daring perjuries were thus perpetually committed, the courts of common law were soon aroused to abridge the power of these clerical tribunals. They, therefore, sometimes delivered over the privileged of felony, when his guilt was very atrocious, without allowing him to make purgation; the effect of which proceedings was, his perpetual imprisonment, and incapacity to acquire personal or to enjoy real estate, unless released by his majesty’s pardon. But the severity of this proceeding almost rendered it useless; and it became absolutely necessary for the legislature to interfere, in order to prevent the contemptible perjuries which this absurd ceremony produced under the sanction and pretence of religion. This desirable object was effected in the reign of Elizabeth; and the party, after being allowed his clergy, and burnt in the hand, was to be discharged without any interference of the church to annul his conviction.

“The clerical process being thus abolished, it was thought proper, at the same time, to empower the temporal judges to inflict a further punishment where they should regard it as proper. The eighteenth Elizabeth, c. vii. empowered them, therefore, to direct the convict to be imprisoned for a year or any shorter period. But the law on this subject was still in many respects imperfect. Females were still liable to the punishment of death, without any exemption, in all cases of simple felony; because, being never eligible to the clerical office, they were not included in any of the extensions of the Benefit of Clergy. No other proof need be adduced to shew the absurdity of the very foundations of the system. At length it was enacted that women convicted of simple larcenies under the value 10s. should be punished with burning in the hand and whipping, exposure in the stocks, or imprisonment for any period less than a year. And in the reign of William and Mary they were admitted to all the privileges of men, in clergiable felonies, on praying the benefit of the statute; though they can only once be allowed this means of escaping. In the same reign, the punishment of burning in the hand was changed for a more visible stigma on the cheek, but was soon afterwards brought back to the original practice.

“Hitherto all laymen except peers, who, on their conviction, were found unable to read, were liable to suffer death for every clergiable felony. But it was at length discovered, that ignorance, instead of an aggravation, was an excuse for guilt, and that the ability to read was no extenuation of crime; and, therefore, by fifth Ann, c. vi. the idle ceremony of reading was abolished, and all those who were before entitled to clergy on reading, were now to be admitted without any such form to its benefits. At the same time it was sensibly felt that the branding, which had dwindled into a mere form, and the year’s imprisonment which the judges were empowered to inflict, were very inadequate punishments for many clergiable offences; and, therefore, the court were authorized to commit the offenders to the house of correction for any time not less than six months nor exceeding two years, and to double it in case of escaping.

“Further alterations have since been made in the penalties consequent upon clergy. The fourth Geo. I. c. xi. and sixth Geo. I. c. xxiii. provide, that the court, on the allowance of this benefit for any larceny whether grand or petty, or other felonious theft not excluded from the statutable indulgence, may, instead of judgment of burning in case of men, and whipping in that of females, direct the offender to be transported for seven years to America, which has been since altered to any part of his majesty’s colonies. To return within the period, was, at the same time, made felony without Benefit of Clergy. And by several subsequent provisions, many wise alterations have been made respecting transportation, and the mode of treating offenders while under its sentence.

“At length the burning in the hand was entirely done away, and the judges were empowered to sentence the criminal, in its room, and in addition to the former penalties, to a pecuniary fine, or, except in the case of manslaughter, to private whipping, not more than thrice to be inflicted, in the presence of three witnesses. Provisions were at the same time made for the employment of this description of convicts in penitentiary houses, where a system of reformation might be adopted, and an experiment made how far punishment might become conducive to its noblest and most legitimate use—the reformation and benefit of the offender. But this regulation, though applauded by Blackstone and other humane writers, after having been continued by several subsequent acts, was recently suffered to expire. It appears from these several modern regulations, that, as observed by Mr. Justice Foster, we now consider Benefit of Clergy, or rather the benefit of the statutes, as a relaxation of the rigour of the law, a condescension to the infirmities of the human frame, exempting offending individuals in some cases from the punishment of death, and subjecting them to milder punishment; and therefore, in the case of clergiable felonies, we now profess to measure the degree of punishment by the real enormity of the offence, and not, as the ignorance and superstition of former times suggested, by a blind respect for sacred persons or sacred functions, nor by an absurd distinction between subject and subject, originally owing to impudent pretension on one hand, and to mere fanaticism on the other.”

Curious Tenures.—A farm at Broadhouse, in Langsett, in the parish of Peniston, and county of York, pays yearly to Godfrey Bosville, Esq. ‘a snow-ball at Midsummer, and a red rose at Christmas.’

William de Albermarle holds the manor of Loston, ‘by the service of finding, for our lord the king, two arrows, and one loaf of oat bread, when he should hunt in the forest of Eartmoor.’

Solomon Attefield held land at Repland and Atterton, in the county of Kent, upon condition ‘that as often as our lord the king would cross the sea, the said Solomon and his heirs ought to go along with him, to hold his head on the sea, if it was needful.’