Benefit of Clergy - The Miserere

The Miserere

At first, in order to plead the benefit of clergy, one had to appear before the court tonsured and otherwise wearing ecclesiastical dress. Over time, this proof of clergy-hood was replaced by a literacy test: defendants demonstrated their clerical status by reading from the Bible. This opened the door to literate lay defendants also claiming the benefit of clergy. In 1351, under Edward III, this loophole was formalised in statute, and the benefit of clergy was officially extended to all who could read. For example, the English dramatist Ben Jonson avoided hanging by pleading benefit of clergy in 1598 when charged with manslaughter.

Unofficially, the loophole was even larger, because the Biblical passage traditionally used for the literacy test was inevitably and appropriately Psalm 51 (Psalm 50 according to the Vulgate and Septuagint numbering), Miserere mei, Deus, secundum misericordiam tuam ("O God, have mercy upon me, according to thine heartfelt mercifulness"). Thus, an illiterate person who had memorized the appropriate Psalm could also claim the benefit of clergy, and Psalm 51 became known as the neck verse, because knowing it could save one's neck by transferring one's case from a secular court, where hanging was a likely sentence, to an ecclesiastical court, where both the methods of trial and the sentences given were more lenient. If the defendant who claimed benefit of clergy was particularly deserving of death, courts occasionally would ask him to read a different passage from the Bible; if, like most defendants, he was illiterate and simply had memorized Psalm 51, he would be unable to establish the defence and would be put to death.

In the ecclesiastical courts, the most common form of trial was by compurgation. If the defendant swore an oath to his own innocence and found twelve compurgators to swear likewise to their belief that the accused was innocent, he was acquitted. A person convicted by an ecclesiastical court could be defrocked and returned to the secular authorities for punishment; but the English ecclesiastical courts became increasingly lenient, and, by the 15th century, most convictions in these courts led to a sentence of penance.