“‘A Noble Alchemy’:
Benefit of Clergy and the Early History of Leniency”
Matthew P. Cavedon
Criminal justice reform efforts have recently focused on the consequences of having a record. There is a growing sense that society needs to show mercy to those who pay the consequences for doing wrong and amend their lives, rather than saddle them with permanent disabilities. For instance, at the start of 2021, a new law came into effect in Georgia allowing people to have many misdemeanor and some felony records sealed. Campaigners are seeking to expand the voting rights of people convicted of felonies. Others are exploring ways to help convicted people reenter job markets.
Efforts like these are on the cutting-edge of criminal justice reform. But they have deep historical precedent. Our legal tradition has long recognized the need to temper strict punishments with restorative mercy. This article explores the main way that English law did so for 600 years: benefit of clergy. The odd name reflects ancient preferences given to Christian clergy that slowly morphed into a general leniency available to most offenders.
First, some background. Early medieval criminal punishment in England was harsh. Felonies – that is, all serious crimes – were punished by the seizure of all of the convict’s lands or goods. While technically not all felonies were punishable by death, the monumental jurist William Blackstone1The first edition of Blackstone’s Commentaries on the Laws of England (1765–69) is the source for all information below unless another link is embedded. noted that “the idea of felony is indeed so generally connected with capital punishment, that we find it hard to separate them.”
But there was an important limit to the infliction of such stiff measures, one whose reach only grew over time. In the 1100s, showing “pious regard . . . to the church in its infant state,” England granted Christian clergy the right to be tried by ecclesiastical courts instead of secular ones. There, they met with procedures highly likely to result in acquittal. Blackstone describes how a defendant would swear innocence, then twelve companions had to do the same. If this happened, then witnesses were called – but only by the defense. Thereafter, unsurprisingly, juries usually acquitted the accused. If not, the punishment was usually demotion for clerics, or religious penance. This was not insignificant. But it beat loss of life, financial credit, personal liberty, and property.
Early English citizens saw tremendous value in this “benefit of clergy.” The Church quickly convinced the powers that be to let it cover more and more offenses, until the benefit of clergy “became quite universal.” Its protections soon stretched to “not only every little subordinate officer belonging to the church or clergy, but even many that were totally laymen.” The nobility claimed it as their right, too. And, importantly, literacy became the test for commoners’ eligibility. This was first introduced as a proxy for being a learned churchman. But as the ability to read spread throughout society, the literacy test pushed the benefit open to more and more men. Jews and women were eventually included, too. Soon, the great majority of offenders had the chance to avail themselves of it and be “entirely made a new and an innocent” person.
At this point pushback arose from the government, concerned that the benefit was undermining criminal justice. Rather than being a total bar to prosecution, the benefit came to be used mainly after a verdict came in. This way, the secular courts could determine guilt or innocence – as could the defendant, who might not need to use the benefit in the case of acquittal. Additionally, literacy was only allowed as a basis for using the benefit once in a lifetime. After that, a defendant had to prove that he had taken holy orders. The law even required laypeople who had used the benefit to be burned on the hand so that they would not get a second free pass.
The government narrowed the scope of the benefit’s reprieve, too. “[U]pon very heinous and notorious circumstances of guilt,” a lay defendant claiming the benefit would be tried in a secular court using normal procedures. If convicted, the defendant was spared death and dispossession, but was still sentenced to life in prison and barred from most property rights.
Blackstone notes a problem in this change. It was “perhaps too rigid.” Then, the government made another refinement. It did away with life sentences and permanent property restrictions in favor of immediate release from prison, with power given to the judge to confine the offender in jail for one more year if he saw fit.
What became of illiterate lay commoners? “[I]ndeed it was considered, that education and learning were no extenuations of guilt, but quite the reverse: and that, if the punishment of death for simple felony was too severe for those who had been liberally instructed, it was, a fortiori, too severe for the ignorant also.” A law passed letting anyone use the benefit of clergy, literate or not.
This liberalization, like those before it, triggered a new swing back toward strictness. This time, the change was narrower. It let judges send anyone using the benefit to the American colonies for seven years, on pain of losing benefit of clergy should they return too soon. This had an enormous impact on this continent’s development. Over 50,000 convicts – more than 70 percent of those convicted at London’s Old Bailey court, and about a fifth of all British immigrants to America during the 18th century – arrived on our shores as a result.
Thus stood the benefit on the eve of American Independence. It was “very considerably different from its original institution.” Merry old England had “extracted by a noble alchemy rich medicines” out of a peculiar religious privilege. It had “converted, by gradual mutations” a narrow exemption for clerics “into a merciful mitigation of the general law, with respect to capital punishment.”
Perhaps surprisingly, given how many new Americans had taken advantage of it – or perhaps not, given their bitter memories of forcible transport to another continent, and general disdain for special privileges – the United States swiftly abolished benefit of clergy. Federal criminal law excluded it in 1790. England did away with it 37 years later.
Those stories deserve to be told in their own right. But what lessons does benefit of clergy hold for today, when the trend is once more toward leniency? It certainly confirms that movement’s legitimacy. American law has been devoid of many of the mitigating features of the old English system for most of its existence. Thankfully, hanging has declined precipitously. But the sting of a permanent criminal record, with all of its consequences for employment, citizenship, and public reputation, has been a pronounced feature of our history. The American Bar Association has identified over 45,000 statutes imposing collateral consequences on people convicted of crimes. Over a quarter of former prisoners lack work, keeping them out of the stability that could stop them from reoffending. Surely England was onto something when it opened a wide avenue for social restoration over the course of six centuries.
The other side of the history of benefit of clergy also merits attention. Leniency sometimes threatened to swallow the criminal justice system altogether, trading slaps on the wrist and mock trials for meaningful punishment. Whenever England veered too far in this direction, enough mayhem resulted that it found itself tightening the law again. This stark social and political reality should remind utopian activists not to push too hard against consequences for crimes. People and governments will likely only tolerate so much before cracking down – sometimes with more harshness than good sense recommends.
Mercy and responsibility in balance. The history of benefit of clergy shows this to be the recipe for a sensible social alchemy. ♦
Matthew P. Cavedon is a criminal defense attorney in Gainesville, GA. He graduated from Emory University in 2015 with a law degree and masters of theological studies.
Cavedon, Matthew P. “”A Noble Alchemy”: Benefit of Clergy and the Early History of Leniency.” Canopy Forum, March 8, 2021. https://canopyforum.org/2021/03/08/a-noble-alchemy-benefit-of-clergy-and-the-early-history-of-leniency/