In earlier periods of the history of this privilege in England, the benefit of clergy was not allowed unless the prisoner ap peared in his clerical habit and tonsure to claim it ; but in process of time, as the original object of the privilege was gradually lost sight of, this ceremony was considered unnecessary, and the only proof required of the offender's clergy was his showing to the satisfaction of the court that he could read, a rare accom plishment, except among the clergy, previously to the 15th century. The consequence was, that at length all persons who could read, whether clergymen or lay clerks, as they were called in some antient statutes, were admitted to the be nefit of clergy in all prosecutions for offences to which the privilege extended. The mode in which this test of reading was applied is thus described by Sir Thomas Smith, in his Commonwealth of England,' written in 1565. " The bishop," says he, "must send one with authority under his seal to be a judge in that mat ter at every gaol delivery. If the con demned man demandeth to be admitted to his book, the judge commonly giveth him a Psalter, and turneth to what place he will. The prisoner readeth so well as he can (God knoweth sometime very slenderly), then he (the judge) asketh of the bishop's commissary, Legit ut clericus The commissary must say legit or son legit, for these be words formal, and our men of law be very precise in their words formal, If he say legit, the judge pro ceedeth no further to sentence of death ; if he say non, the judge forthwith pro ceedeth to sentence." The clergy, however, do not appear to have universally admitted that the mere fact of a prisoner's ability to read was to be taken as a conclusive proof of his clerical character. A curious case is I recorded in the Year Book, 34 Hen. VL 49 (1455), which greatly puzzled the judges. A man indicted of felony claimed the benefit of clergy ; upon which the archdeacon of Westminster Abbey was sent for, who showed him a book, in which the felon read well and fluently. Upon hearing this, the court ordered him to be delivered to the archdeacon on be half of the ordinary, but the archdeacon refused to take him, alleging that the prisoner was nat a clerk. This raised a serious difficulty; and the question was one of particular importance to the prisoner, as the judges deliberated whether he must not of necessity be hanged. He was, however, remanded to prison, and the subject was much discussed by the judges for several terms ; but, luckily for the culprit, the conscientious archdeacon be ing removed, his successor heard the prisoner read, and consented to receive him ; whereupon he was delivered to the ordinary, the judges saying " that in favo revs vita et libertatis ecclesia, even where a man had once failed to read, and had received sentence of death, they would allow him his benefit of clergy, under the gallows, if he could then read, and was received by the ordinary." Another case is recorded in the 21st year of Edw. IV. (1481), in which a felon read well and audibly in the presence of the whole court ; but the ordinary declared " non ut clericus for divers considerations." Upon which judgment was given that he should be hanged ; " And so," says the reporter, "he was ut audivi." (Year Book, 21 Edw. IV. 21.) But though a felon might claim the benefit of clergy to the last moment of his life, it was an in dictable offence to teach him to read for the purpose of saving him. Thus in the 7th Richard II. (1383), the vicar of Round Church in Canterbury was ar raigned and tried, " for that by the licence of the jailer there, he had instructed in reading one William Gore, an approver, who at the time of his apprehension was unlearned (ineruditus in leotard)." (Dyer's Reports, p. 206.) It may readily be con ceived that questions between the tempo ral courts and the ordinary would arise as the art of reading became more generally diffused ; and it was probably on this account that an express provision was made by the legislature in order in some degree to obviate the occurrence of such difficulties. The statute 4 Henry VII.
C. 13 (1488), revived the distinction be tween actual clergymen and such persons as bad accidentally acquired a competent skill in reading, by providing that no per son once admitted to the benefit of clergy should a second time be allowed the same privilege, unless he produced his orders ; and to mark those who had once claimed the privilege, the statute enacted that all persons, not in orders, to whom it was so allowed, should be marked upon the " brawn of the left thumb" in the court, before the judge, before such person was delivered to the ordinary. After the offen der was thus burned in the hand, he was formally delivered to the ordinary, to be dealt with according to the ecclesiastical canons, and to make purgation by under going the farce of a canonical trial. This second trial took place before the bishop or his deputy : there was a jury of twelve persons, who gave their verdict on oath ; witnesses were examined on oath ; the prisoner answered on oath ; and twelve compurgators swore that they believed him. On this occasion, though the pri soner had been convicted at common law by the clearest evidence, or had even con fessed his guilt, he was almost invariably acquitted. The whole proceeding before the ordinary is characterised by Chief Justice Hobart, at the beginning of the seventeenth century, "as turning the solemn trial of truth by oath into a cere monious and formal lie." (Hobart's Reports, p. 291.) To remove this discre ditable abuse of the forms of justice, the statute 18 Eliz. c. 7, enacted that in all cases after an offender had been allowed his clergy, he should not be delivered to the ordinary, but be at once discharged by the court, with a provision that he might be detained in prison for any time not exceeding a year, at the discretion of the judge before whom he was tried.
By various statutes passed in the course of the last century, the court before which an offender was tried and admitted to his clergy were empowered to commute the burning in the hand for transportation, imprisonment, or whipping; and subse quently to the passing of these statutes it is believed that no instance has occurred of a convict being burned in the hand.
The practice of calling upon a con victed person to read in order to prove to the court his title to the benefit of clergy continued until a comparatively late period. A case is mentioned in Kelynge'e Reports, p. 51, which occurred in 1666, where the bishop's commissary had de ceived the court by reporting, contrary to the fact, that a prisoner could read ; upon which Chief Justice Kelynge rebuked him severely, telling him "that he had unpreached more that day than he could preach up again in many days," and fined him five marks. At length the statute of the 5th of Anne, c. 6, enacted that the benefit of clergy should be granted to all those who are entitled to it without re quiring them to read ; and thus the "idle ceremony of reading," as Mr. Justice Foster justly terms it, was finally abolished.
The absurd and perplexing distinctions which the continuance of this antiquated and worn-out clerical privilege had in troduced, having become extremely de trimental to the due administration of justice, it was enacted by one the recent statutes for the cousolidation and improve ment of the criminal law, commonly called •eel's Acts (namely, 7 & 8 Geo. I V. c. 28, § 6, for England, and 9 Geo. IV. c. 54, § 12, for Ireland), that benefit of clergy with respects to persons convicted of fe lony shall be abolished. Since the pass ing of this statute, the subject is of no practical importance whatever ; but those who may be inclined to pursue it as a matter of historical curiosity may find the following references useful :—Black stone's Commentaries, vol. iv. chap. 28: Hale's Pleas of the Crown, part ii. C. 45 Barrington's Observations on Ancient Statutes ; Hobart's Reports, p. 288.