The secularization of ecclesiastical privileges in medieval England and their subsequent adoption and use in Colonial America 1066-1766

Pincemin Johnstone, Peter (2017) The secularization of ecclesiastical privileges in medieval England and their subsequent adoption and use in Colonial America 1066-1766. Doctoral thesis (PhD), Manchester Metropolitan University.

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Abstract

This thesis demonstrates that I have provided a sustained, original, coherent, and significant contribution to scholarly research on benefit of clergy as it transitioned from ecclesiastical use to temporal during the late middle ages and how once secularized was subsequently adopted and used in colonial Virginia and Massachusetts. The Introduction argues that whereas benefit of clergy existed in the English-speaking world for almost fifteen hundred years it has been largely dismissed as evil, a farce and a queer old legal anomaly. At its worst it permitted members of the church immunity from prosecution before secular courts for the crimes of murder, robbery, rape and a suite of other felonies. At its best it saved women, children and the poor from the gallows for the most minor of thefts. I argue that the life and history of benefit of clergy is a fascinating and important insight into the development of the common law and the relationship that members of the church had with the society they served. Over time the benefit became available to first time offenders regardless of their station in society in exchange for a sentence of transportation to the American colonies. The criminal courts of England attached an indentured servitude to benefit pleas resulting in thousands of men and a few women and children being sent to Virginia to service the labor pool needed to make Virginia the financial success its London backers had hoped for. Within a short period of time benefit of clergy became an established part of the legal system of the colony to the extent that it was possible to claim benefit of clergy in Virginia and be transported away to the West Indies. Further north the motivation for colonization differed. The early arrivals to Massachusetts were familiar with benefit of clergy but their enthusiasm for wholesale adoption of English common law was tepid. Notwithstanding these reservations the practicality of having a mitigatory plea that was known to all members of the community meant that the written law could appear to embrace religious severity but in practice could be applied with leniency when appropriate. The Critical Essay demonstrates my contribution beyond what has previously been offered. Prior to my works there was one scholarly book dedicated to the topic of benefit of clergy. Leona Gabel’s 1923 doctoral thesis was published in 1928 as Benefit of Clergy in England in the Later Middle Ages. Since her work there have been a couple of dozen scholarly articles and an entertaining unreferenced read by George Dalzell, Benefit of Clergy in America published posthumously in 1955. I have made a unique contribution in bringing the related legal options to claim sanctuary, abjuration, exile and outlawry into the benefit of clergy discussion. Also, I have argued that it is vital to an informed understanding of the uptake and use of benefit of clergy in colonial America that the history of the arguments that took place in England during the twelfth, thirteenth and fourteenth centuries are explored to appreciate why transported felons would adopt and apply clericus in such different worlds as existed in Virginia and Massachusetts. The Critical Essay does not attempt to explain or utilize primary sources in theology. Nor does it seek to interpret theoretical canon law from the period. Through the use of case examples my work takes a case based approach to describe the social setting of benefit of clergy throughout this period of history. By examining examples of benefit of clergy use and abuse a better understanding may be gained of the socio-legal world of the late Middle Ages which will help locate privilegium fori as an organic privilege that shifted from ecclesiastical exclusivity to secular adoption. It attempts to explain that benefit of clergy, though much and inexcusably abused, was not exceptional, rather the opposite. Clericus began as a plea available to a few select men who had a particular status in society. This of itself is not unusual. Over time the advantages of having immunity from certain sanguinary remedies became clear to an audience far greater than just England’s clergy. Defending benefit of clergy as an exclusive ecclesiastical privilege became impossible because of its wholesale abuse. Eventually it would have to have been rescinded by the secular law or adopted. It was modified, adopted and then lived on for another five hundred years in consistently changing applications. A life of five hundred years is much more than a legal farce. It is a statement of societal growth. Of the clericus plea there is little scholarly pusillanimity but it tends to follow one track; benefit of clergy was a farce, a legal fiction. I reject this interpretation and my Critical Essay provides an alternative and plausible history.