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The Benefit of Clergy: Getting Away With Murder

A person used to be able to get away with murder simply by demonstrating the ability to read a passage in the Bible.
This curious legal tradition was described by historian Lesley Skousen for the weekly Newberry Library Colloquium on 16 Jan. 2013. Skousen, from the University of Wisconsin Madison, has been researching the subject as a graduate scholar in residents at the Newberry.
The talk was titled, �Getting Away with Murder: `Benefit of Clergy� across the Atlantic, 1500-1800.�
The legal loophole of �benefit of clergy� began from the tradition in the Middle Ages that priests were not subject to secular laws. If one could demonstrate that he was an ordained priest, he could escape punishment for crimes.
The definition of �clergy� was a problem, since there was a tendency to extend it to monks, lay brothers and others who might not be officially ordained priests. The matter was eventually settled by a literacy text, which means the benefit of clergy was extended to any literate male. The practice was eventually stopped in France and other continental powers, but Skousen found that it lasted in England and the United States in various forms until the late 1800s.
 
See an article on branding by the Colonial Williamsburg historical association.

The last citation of benefit of clergy that Skousen found was in Chicago in the 1880s, as case that she said �was a matter of a judge cleaning out overcrowded jails.� 

The passage that was read for the literacy test was Psalm_51, called the Miserere. The English Book of Common Prayer version is 325 words, meaning that even illiterate men could memorize it and fake the test. It became known as the �Neck Verse� because knowing it would save one�s neck.
�People would burgle houses in clerical garb in order to claim the benefit of clergy,� Skousen said. King Henry VII of England limited its use to one time in a person�s life and required branding on the hands to identify people who had escaped punishment.
Peers of the realm could claim it more than once, however, and Skousen said she found cases where people had seven brands on their hands and references to people with �scared-over hands.�

Psalm 51, The "Neck Verse"
 Have mercy upon me, O God, after Thy great goodness
According to the multitude of Thy mercies do away mine offences.
Wash me throughly from my wickedness: and cleanse me from my sin.
For I acknowledge my faults: and my sin is ever before me.
Against Thee only have I sinned, and done this evil in thy sight: that Thou mightest be justified in Thy saying, and clear when Thou art judged.
Behold, I was shapen in wickedness: and in sin hath my mother conceived me.
But lo, Thou requirest truth in the inward parts: and shalt make me to understand wisdom secretly.
Thou shalt purge me with hyssop, and I shall be clean: Thou shalt wash me, and I shall be whiter than snow.
Thou shalt make me hear of joy and gladness: that the bones which Thou hast broken may rejoice.
Turn Thy face from my sins: and put out all my misdeeds.
Make me a clean heart, O God: and renew a right spirit within me.
Cast me not away from Thy presence: and take not Thy Holy Spirit from me.
O give me the comfort of Thy help again: and stablish me with Thy free Spirit.
Then shall I teach Thy ways unto the wicked: and sinners shall be converted unto Thee.
Deliver me from blood-guiltiness, O God, Thou that art the God of my health: and my tongue shall sing of Thy righteousness.
Thou shalt open my lips, O Lord: and my mouth shall shew Thy praise.
For Thou desirest no sacrifice, else would I give it Thee: but Thou delightest not in burnt-offerings.
The sacrifice of God is a troubled spirit: a broken and contrite heart, O God, shalt Thou not despise.
O be favourable and gracious unto Sion: build Thou the walls of Jerusalem.
Then shalt Thou be pleased with the sacrifice of righteousness, with the burnt-offerings and oblations: then shall they offer young calves upon Thine altar.
�After 1536 the benefit of clergy was available to any man who could read,� Skousen explained. �There are at least 20 plays where it was a major plot twist.�
Reciting the Neck Verse led to amusing courtroom theatrics. �Justices would hand the bible to a person upside down to test if people could read, or give them a bible in another language,� Skousen related. Sometimes people would shout out in court the right phrases for the accused when he forgot them.
Eventually the right was extended to women, even where they were not eligible to be clergy. Skousen found a very interesting case from Virginia where an African American slave named Mary Aggie was charged with stealing items from her owner in 1730. She claimed benefit of clergy, and the resulting legal imbroglio over rights of slaves resulted in the Virginia legislature extending the benefit of clergy to all persons, no matter their race or condition.
The branding was required on the face in 1699, but Skousen said this was changed to the hand in 1706 because the branding on the face for a crime was a severe social and economic handicap. Eventually many people claiming benefit of clergy suffered some punishment like whipping or a year in jail, or were transported.
Skousen stresses that granting the benefit of clergy used mercy to enhance the power of the king. It had the effect of drawing priests out of ecclesiastical jurisdiction, and also of placing women firmly under royal jurisdiction.
For the person claiming it, the brand was a symbol of special favor from the king. Skousen said the brand proclaimed, "I was a thief but I got away with it because I 'm literate and clever."
It also enticed colonial residents and slaves to choose the mercy and participation in law offered by the benefit of clergy, where English criminal law was loosely enforced. In Jamaica, for instance, it's hard to find a single criminal law passes in the colony in the 17th century, Skousen said. Local laws were devoted to how plantation owners kept control and common law covered most everything else.