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
During the reign of Edward I., the practice established during the reign
of Henry III., that a clerk, convicted of felony, could be delivered to
the ordinary, was recognized by act of Parliament (Statute Westminster),
and this statute recited this privilege and simply admonished the
prelates not to liberate those so delivered to them, without putting
them to their canonical purgation.[27] In the 25’ year of Edward III.
the clergy complained to Parliament that a certain knight, entitled to
clergy, had been hanged and quartered, on a judgment of treason and that
a priest had been hanged for killing his master. These complaints led to
the enactment of the statute _De Clero_ (25 Edward III. st. 3) by the
terms of which it was provided that henceforth all manner of clerks, as
well secular as religious, convicted before any secular justice, for
treason or felony, touching other persons than the king himself or his
royal majesty, should freely have and enjoy the privilege of the holy
church and should, without any impeachment or delay, be delivered to the
ordinary demanding them.[28]
During the reign of Henry VII. (7 Henry VII., c. 1), the benefit of
clergy was taken away from persons convicted of desertion while under
enlistment as soldiers of the crown and the privilege was likewise taken
away from those convicted of petit treason. The exemption of the clergy
from punishment for crimes was given a most decided set-back by the
statute 4’ Henry VIII., c. 2, which provided that:
“All persons committing murder or felony, in any church,
chapel, or hallowed place; or who, of malice prepens, rob or
murder any person in the king’s highway, or rob or murder any
person in his house, the owner or dweller of the house, his
wife, child or servant being then therein, and put in fear or
dread, shall not be admitted to clergy.”
This statute contained no exception of those actually engaged in the
holy orders and this led to the most determined resistence on the part
of the clergy of the kingdom.[29] Henry VIII. stood firm, however, and
during the same reign another statute was passed (23 Henry VIII., c.
1), taking away the benefit of clergy from persons convicted of petit
treason, wilful, malicious murder, robbery, wilful burning of a dwelling
house, or barn, where grain or corn was stored, and the like privilege
was denied to the abettors, helpers, maintainers or counselors of such
felons, except only such as were within the holy orders. It was also made
a felony, without clergy, for a clerk convict to break prison and escape,
and this was a serious blow to the exemption, for though the lives of the
clergy were spared, after conviction of the offenses named, yet they were
to be condemned to imprisonment and even to death, if the ordinary so
directed.[30]
Public-domain text, read in full here on John Shaqi.
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