Legal antiquities : $b A collection of essays upon ancient laws and customsWhite, Edward J. (Edward Joseph)
History
Legal antiquities : $b A collection of essays upon ancient laws and customs
White, Edward J. (Edward Joseph)
Criminal law -- History; Law -- History; Law, Ancient; Punishment -- History
Engrossed as the profession is today with the agitation for the
betterment of our remedial procedure, it will sometimes prove profitable
to turn aside from the progress of our twentieth century procedure and
entering the musty lumber-room of the law, brush aside the cob-webs
and take a cursory view of some of the pleas that occupied the time of
courts and lawyers of past centuries. Nothing is calculated to encourage
more respect for the modern procedure of American and English courts,
than reading the history of some of the unequal and unjust privileges
and exemptions which obtained in the administration of the English law,
until a comparatively recent date. The contrast is indeed striking, when
we turn from the just ideals of equality and justice that characterize
the remedial procedure of our day, to contemplate some of the customs
and pleas that were followed and enforced by our own courts, before the
evolution of our civilization had made the present ideals possible.
There is no doubt but that the English common law is the outgrowth of
the most enlightened system of jurisprudence that the world has ever
seen, for it represents the best thought of the brightest minds of
civilization’s most progressive people. Its rules and doctrines were
formed, however, during the middle ages, and although it was generally
consistent with the scholastic methods of thought that dominated the
thinking world of that period and for the most part, it was in thorough
accord with proper and just ideals, yet, at the same time, the general
doctrines and principles were applied along with many of the unequal
proceedings and special pleas and privileges existing in favor of the
higher classes and together with the extremely technical standards, that
frequently were nothing but mere fantastic quibbles.
The benefit of clergy is an illustration of the engraftment upon this
enlightened system of jurisprudence, of one of the old special privileges
of a favored class, who, as an incident and high prerogative of their
office, claimed exemption from punishment for crimes. Of course such
an exemption of a favored class was inconsistent with the object of
distributive justice, to visit equal punishment upon all alike who are
similarly situated and with the elevation of the standards of justice and
equality, the plea was finally abolished by the legislative and judicial
branches of Government in England and the United States.
The benefit of clergy, or _privilegium clericale_, was the exemption of
the clergy from all responsibility to the temporal courts and laws from
the punishment imposed for various criminal offenses. Originally the
persons of clergymen alone were held to be exempt from criminal process
before a secular judge, but the privilege was later extended by the law
to all who could read, as all such were held to be _clerica_, or clerks.
Public-domain text, read in full here on John Shaqi.
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