Benefit of Clergy - Tudor-era Reforms

Tudor-era Reforms

As a result of this leniency in the ecclesiastical courts, a number of reforms were undertaken to combat the abuse of the benefit of clergy. Henry VII decreed that non-clergymen should be allowed to plead the benefit of clergy only once: those taking the benefit of clergy, but not able to prove through documentation of their holy orders that they actually were clergymen, were branded on the thumb, and the brand disqualified them from pleading the benefit of clergy in the future. (In 1547, the privilege of claiming benefit of clergy more than once was extended to peers of the realm, even illiterate ones.)

In 1512, Henry VIII further restricted the benefit of clergy by making certain offences "unclergyable" offences; in the words of the statutes, they were "felonies without benefit of clergy." This restriction was condemned by Pope Leo X at the Fifth Lateran Council in 1514, and the resulting controversy (in which both the Lord Chief Justice and the Archbishop of Canterbury became involved) was one of the issues that would lead to Henry VIII splitting the Church of England from the Catholic Church in 1532. By the end of the 16th century, the list of unclergyable offences included murder, rape, poisoning, petty treason, sacrilege, witchcraft, burglary, theft from churches, and pickpocketing. In 1533 benefit of clergy was withdrawn from those who refused to enter a plea.

In 1575, a statute of Elizabeth I radically changed the effect of the benefit of clergy. Whereas before, the benefit was pleaded before a trial to have the case transferred to an ecclesiastical court, under the new system the benefit of clergy was pleaded after conviction but before sentencing, and it did not nullify the conviction, but rather changed the sentence for first-time offenders from probable hanging to branding and up to a year's incarceration.