Benefit of Clergy, the Medieval Stowaway

STAN LICHTENSTEIN

November 17, 1992|By STAN LICHTENSTEIN

Bethesda. -- More than six centuries ago, a gang of highwaymen robbed Geoffrey Chaucer of ''twenty pounds of the king's money.'' One gang member escaped punishment because he could read and ''received benefit of clergy.''

Much later at Exeter, England, in 1598, three men were convicted of sheep-stealing. ''One was clergyed; the other two hanged.''

I glean these bits of classical jurisprudence from a work that has gathered dust on my bookshelf for 37 years. Its author, George W. Dalzell, was a lawyer who wrote it for ''amusement'' and died before its publication. The title was ''Benefit of Clergy in America.''

What brings the nearly forgotten volume to mind is a recent news item about an accused ex-priest named James R. Porter. Records reportedly show that he ''admitted to the Vatican and Pope Paul VI in 1973 that he had molested youths at churches in Massachusetts and four other states and believed he had been able to conceal detection because he was a priest.''

''Benefit of clergy'' is described in the book as a doctrine originating in English ecclesiastical courts, crossing the seas as ''something of a stowaway in the cargo of judicial lumber.'' Its ''curious'' principle, according to Dalzell, was that anyone who could demonstrate an ability to read, and thereby establish the fact that he was a clergyman, could escape the death penalty at least once for any of certain capital crimes.

The doctrine influenced the outcome of many famous colonial trials, including ''those of Captain Thomas Smith, who was involved in Claiborne's rebellion, of the Long Finn, of the British soldiers who participated in the Boston Massacre, and, at least indirectly, of Steve Bonnet, the pirate.''

The book's jacket blurb notes that this doctrinal ''stowaway'' in judicial ''lumber'' survived with various modifications until after the Revolution, and, indeed, that it ''was not finally abolished until 1869!''

If I could converse now with the late author I would have news for him: Benefit of clergy, extravagantly broadened, is rampant in 1992 America. In place of equality before the law we have courts, juries, defense attorneys, prosecutors, sentencing authorities, parole boards and the media routinely introducing inequality before the law.

Lay people who do wrong are commonly indulged, absolved or leniently treated if they: (1) say they believe in God; (2) go to church; (3) fear hell-fire; (4) show repentance, and (5) are ostentatiously tearful and prayerful. Unbelievers and the unorthodox are far less likely to get a fair shake. They also run a higher risk of being convicted when innocent.

Despite the constant touting of religion as a cure-all for crime and anti-social behavior in America, its efficacy is dubious. ''The Roper polling organization reports that born-again Christians do not necessarily behave any better after their conversion,'' noted The Christian Century on its ''Events and People'' page a while back. The results were summarized:

''While 4 percent of born-agains admitted to drunken driving before conversion, three times as many -- 12 percent -- acknowledged doing so after. Similar slippage was discovered in the use of illegal drugs: 5 percent before, 9 percent after. And adultery more than doubled among the born-agains; 2 percent before, 5 percent after.''

Nevertheless, the religiously correct in this country are coated with Teflon. Beyond the courtroom, media commentators are habitually deferential to believers and this favoritism is accepted without challenge.

That's why, for example, Mike Wallace, well known for his normally aggressive questioning, was positively supine as he interviewed a teen-ager (with his mother) who had been implicated in the gang rape and near-murder of the Central Park jogger. The young man claimed innocence on the basis that he is a Muslim, and no Muslim could possibly do such a thing. Mr. Wallace didn't even raise an eyebrow, though he and millions of his viewers surely had heard of horrendous crimes against humanity committed under Islamic auspices around the world.

Politicians led by George Bush exploit the prevailing prejudice. They insist, above all, that an atheist cannot be president -- just as it used to be claimed that a Catholic or a divorced person could not be president. Many still believe that a black, a woman or a Jew cannot be president.

What then becomes of the Constitution's ''no religious test for public office'' provision, and the concept of equality before the law?

Conceivably, there might be some ''benefit'' for me in all this. If I could have a dime for every time some ''born-again'' suspect, defendant or convict demands special considerations, I would be richer than Ross Perot.

Stan Lichtenstein is a former editor of Church & State.

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