Not Guilty By Reading

[In England] after 1170, … as part of the Compromise of Avranches, Henry … agreed that the secular courts, with few exceptions (high treason being one of them), had no jurisdiction over the clergy. … 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 … the benefit of clergy was officially extended to all who could read. …

The Biblical passage traditionally used … [was the first verse of] Psalm 51 [which] …. 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] if the defendant swore an oath to his own innocence and found twelve compurgators to swear likewise … he was acquitted. … By the 15th century, most convictions in these courts led to a sentence of penance. …

Henry VII decreed that non-clergymen should be allowed to plead the benefit of clergy only once … [and] 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 [i.e., Nobleman] of the realm, even illiterate ones.)

In 1512, Henry VIII further restricted the benefit of clergy by making certain offences “unclergyable” offenses; … This restriction was condemned by Pope Leo X … [and led] to Henry VIII splitting the Church of England from the Roman Catholic Church in 1532.  In 1575, a statute of Elizabeth I … the benefit of clergy … 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.

More here.  The English literate classes had quite a conspiracy going to help themselves at the expense of others!  HT Greg Clark.

Added 11a: From stats Clark showed in a talk, it seems most folks people did not invoke this benefit.  This was not a benefit given to all.

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  • gwern

    That’s a rather cynical view. You know, sometimes when people devise ways around the Bloody Code using legal loopholes left over from feudal battles, they actually are trying to help the nonliterate.

    If it was a *literate* conspiracy, then why was it quite deliberately restricted to a single fixed memorizable verse? If one has a Bible handy and wanted to test for literacy, nothing stops one from picking a random page.

  • botogol

    Nowadays in the UK similar indulgences are granted to Muslims. Or perhaps more accurately to Muslim men.

    My, haven’t we moved on?

    In the US do you still have special laws for Mormons?

    • Tyrrell McAllister

      Muslims are not granted any indulgences. They are just using binding arbitration, and everyone has access to that. From your own link:

      Under the act, the sharia courts are classified as arbitration tribunals. The rulings of arbitration tribunals are binding in law, provided that both parties in the dispute agree to give it the power to rule on their case.

  • And very topically indeed, it turns out today that the law in England even grants you a license to punch people without punishment if you are religious.

    It’s unclear how the judge (Tony Blair’s wife, Cherie Booth) was able to tell that he is *really* religious, or just pretending to be. Not, evidently, from his actions. Perhaps he was asked to recite something.

  • gwern, Psalm 51 isn’t a verse, it’s a psalm. It’s nineteen verses long:

    “Have mercy upon me, O God, according to thy lovingkindness: according unto the multitude of thy tender mercies blot out my transgressions. Wash me throughly from mine iniquity, and cleanse me from my sin. For I acknowledge my transgressions: and my sin is ever before me. Against thee, thee only, have I sinned, and done this evil in thy sight: that thou mightest be justified when thou speakest, and be clear when thou judgest. Behold, I was shapen in iniquity; and in sin did my mother conceive me. Behold, thou desirest truth in the inward parts: and in the hidden part thou shalt make me to know wisdom. Purge me with hyssop, and I shall be clean: wash me, and I shall be whiter than snow. Make me to hear joy and gladness; that the bones which thou hast broken may rejoice. Hide thy face from my sins, and blot out all mine iniquities. Create in me a clean heart, O God; and renew a right spirit within me. Cast me not away from thy presence; and take not thy holy spirit from me. Restore unto me the joy of thy salvation; and uphold me with thy free spirit. Then will I teach transgressors thy ways; and sinners shall be converted unto thee. Deliver me from bloodguiltiness, O God, thou God of my salvation: and my tongue shall sing aloud of thy righteousness. O Lord, open thou my lips; and my mouth shall shew forth thy praise. For thou desirest not sacrifice; else would I give it: thou delightest not in burnt offering. The sacrifices of God are a broken spirit: a broken and a contrite heart, O God, thou wilt not despise. Do good in thy good pleasure unto Zion: build thou the walls of Jerusalem. Then shalt thou be pleased with the sacrifices of righteousness, with burnt offering and whole burnt offering: then shall they offer bullocks upon thine altar.”

    You could memorize it if you have a good memory, but not so easily even then without being able to practice from a written text. But I doubt it matters. You can always let someone slide if they make a bunch of mistakes but are the right sort, and flunk someone who makes a single mistake if you want to flunk them. That’s what happened with literacy tests for voting under Jim Crow, no?

    • gwern

      To fail less hard, do more research:

      One verse is trivial to memorize.

      Even the whole damn thing isn’t too difficult for someone of an oral culture. It’s not like it wasn’t translated with an eye to being memorable. The prospect of hanging wonderfully focuses the mind, and the entire Psalm is comparable in length to things like the Lord’s Prayer or the Nicean Creed or many popular songs and ballads.

  • Peter Harris

    Maybe the law had its good side, applying mild selection pressure to raise the average intelligence (or at least literacy) of the population. Since genuine clergy didn’t breed (or weren’t meant to…), it would only select in favour of those who were prepared to learn to read for other reasons. Although avoiding a hanging was a pretty good reason in itself, and didn’t need to correlate with a love of knowledge.

  • Erik M

    Citing Wikipedia is likely to lead to the sort of confusion that Simetrical is chiding gwern over, especially when it doesn’t have any linked citations at the bottom. I counter with The Free Dictionary:
    “The verse formerly read to entitle a party to the benefit of clergy, said to be the first verse of the fifty-first Psalm”

    And slightly more seriously: Bartleby gives it as “Psalm li. 1”, a form of notation indicating the first verse. This is what I learned in school as well, so I’m fairly confident that Wikipedia is wrong, and it seems Robin Hanson is either naive or cynical to be accepting it.

    • gwern

      > Citing Wikipedia is likely to lead to the sort of confusion that Simetrical is chiding gwern over

      As it happens, I’ve read the same Clark material Hanson has. None of us is confused is about it being the first verse – nor is Wikipedia, which you will note does quote the first verse in one of Hanson’s ellipses. That it is not specific & clear about this, even if it is implied by the ‘Neck Verse’ quote, is not an error or confusion.

    • I’ve edited the post to be clearer on this point.

  • Douglas Knight

    Maybe it was a conspiracy of some other group than the literate?

    One theory about why it was always the same verse is that the judges administering it were not literate; and it seems likely, though not necessary, that they were part of any such conspiracy.

  • Vladimir

    Another thing to have in mind is that English post-Reformation legal authors viewed the medieval origins of the benefit of clergy with a strong anti-Catholic bias, and this has undoubtedly colored the modern views at least somewhat. For example, Blackstone introduces the topic with a hilariously cartoonish King-good-Pope-bad outburst:

    Clergy, the privilegium clericale, or, in common speech, the benefit of clergy, had its original from the pious regard paid by Christian princes to the church in its infant state, and the ill use which the popish ecclesiastics soon made of that pious regard. The exemptions which they granted to the church were principally of two kinds: 1. Exemption of places consecrated to religious duties from criminal arrests, which was the foundation of sanctuaries. 2. Exemption of the persons of clergymen from criminal process before the secular judge in a few particular cases, which was the true original and meaning of the privilegium clericale.

    But the clergy, increasing in wealth, power, honour, number, and interest, began soon to set up for themselves; and that which they obtained by the favour of the civil government they now claimed as their inherent right, and as a right of the highest nature, indefeasible, and jure divino. By their canons therefore and constitutions they endeavoured at, and where they met with easy princes obtained, a vast extension of these exemptions, as well in regard to the crimes themselves, of which the list became quite universal, as in regard to the persons exempted, among whom were at length comprehended not only every little subordinate officer belonging to the church or clergy, but even many that were totally laymen.

    In England, however, although the usurpations of the pope were very many and grievous till Henry the Eighth entirely exterminated his supremacy, yet a total exemption of the clergy from secular jurisdiction could never be thoroughly effected…

    In any case, the medieval power struggles between the Church and secular rulers that resulted (among many other things) in the English institution of the benefit of clergy were much more complex than either Blackstone’s simplistic anti-popish story or a mere class-solidarity conspiracy of the literate. It’s questionable if the real history of this institution can even be written given what we know today.

  • Stuart Armstrong

    The English literate classes had quite a conspiracy going to help themselves at the expense of others!

    Egad! Never thought they would be so blatant. They even added the illiterate peers into the mix to preserve their privileges.

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