Friday 19 June 2020

privilegium clericale

Vis-ร -vis our last article touching on religious invocation and the law, we are directed to an engrossing dissection of the legal question whence cometh the benefit of clergy, dating back to the jurisprudence of the Middle Ages when those outlaws affiliated (apparently the degree of tenuousness was a question) with the Church were outside of the secular jurisdiction of the king and were eligible to stand trial in ecclesiastical courts and could expect a more lenient sentence.
This carve-out (a similar, parallel system applied to universities) proved particularly vexing for Henry II and his former friend and trusted advisor Thomas Becket, Archbishop of Canterbury, who put up resistance to the notion that those whom the king characterised as “criminous clerks” should be made to stand trial in civil court. Backlash from Becket’s assassination caused Henry to reverse his stance and extending this benefit to anyone professing Holy Orders, no matter how minor—a precedent lasting until reforms of the late 1820s through in the meantime some capital crimes were deemed “unclergyable” offenses, leading to the misapprehension of the phrase as meaning without absolution administered by a priest. In order to establish some threshold, the courts established a litmus test, requiring defendants to appear before the court tonsured or in some sort of recognised ecclesiastical dress—later to be replaced by a literacy test by reading from a Latin Bible. As the Benefit of the Clergy further devolved into the realm of a legal fiction, the loophole broadened to include claiming affiliation through recitation of a Bible verse—the favoured one for memorisation being Psalm 51—Miserere mei, Deus, secundum misericordiam tuam, figuratively and literally saving one’s neck since condemned to hanging was the most common judgment in secular trials. Though spared from harsher sentences, the ability of the justice system to mete out punishment—even of a more commiserate nature, was severely eroded and new coping methods to maintain order beginning in the sixteenth century included banishment to North America and Australia.