Pure Fun II
Bill Long 1/21/08
I will devote a good deal of time in this essay to clarifying two legal terms: clergiable and angary. Even though I will focus on the former at some length, it can never be used in a spelling bee. Why? Because it is spelled both clergyable and clergiable in the Unabriged (as well as the Century), even though it only appears as clergiable in the OED. Yet, Google references to clergyable are tenfold those of clergiable. Figure that out. While you are figuring it out, I want to introduce to you the concept of clergiable and the medieval notion in the (English) common law of "benefit of clergy." Clergiable is defined as "Of an offense: Admitting benefit of clergy; in regard to which benefit of clergy may be pleaded." What this gets at is that for hundreds of years in English common law the claim that you were clergy meant that you wouldn't be punished for crimes by secular courts (thus you couldn't get the death penalty) and, often, you got more leninent treatment in other ways from ecclesiastical courts. You might be wondering why clergy were committing felonies in the first place, and I can't really answer that one. Phillip Spector argues, in 33 U of Toledo L Rev. 511 (2002) that benefit of clergy is the soil from which the "rule of lenity" in our modern criminal law arose. John Langbein, in 50 U of Chicago L Rev. 1 (1983) gives us a concise overview of the development of this most anomalous doctrine, as the Century calls it. Here is some of the relevant history.
The Development of Benefit of Clergy or a "Clergiable" Offense
The concept of benefit of clergy, where a person could claim clerical status and thus not have his case considered by the secular court system, arose in the wake of the controversy between Henry II and Thomas a Becket (late 12th century). By the late 13th century the central part of the doctrine was in place. The ecclesiastical representative attending medieval trials controlled the privilege; if he endorsed the accused's claim to be a cleric, the royal court released the accused to ecclesiastical courts. During the 14th century the benefit of clergy became expanded not simply to those who claimed clergy status but to those males who could read. What did they "read" to invoke this status? Psalm 51, David's great penitential Psalm, in Latin. Benefit of clergy originally allowed one to be released from sentencing for any crime by the secular courts. Because the effect of claiming this privilege immunized the literate for prosecution for felony, a 1489 law provided that the person could claim the privilege only once. How so? Well, it was arranged that a person claiming the privilege and being released to the ecclesiastical courts would be branded on his thumb, thus carrying with him evidence of his prior release from the secular courts.
But by the middle of the 1490s a movement was afoot to begin to withdraw the benefit of clergy from a series of crimes. Benefit of clergy was, for the two-three centuries before the 1490s, a sort of blanket immunity, and it still acted as immunity unless the privilege was taken away by a specific statutory enactment. For example, a 1496 law stripped the privilege from murder and extreme cases of robbery. They no longer were "clergiable" offenses. By the middle of the 16th century benefit of clergy was withdrawn from even the most trivial felonies, including "stealing horses," pickpocketing and "burning a dwelling or barn having grain therein." Since England had extremely harsh capital punishment laws at the time (making the death penalty available for any felony), the stripping of the benefit of clergy made such literate persons eligible for the death penalty for specified felonies. In 1576 benefit of clergy was further secularized when legislation eliminated the role of the ecclesiastical courts. One could still claim benefit of clergy, but one's grounds for being able successfully to invoke it became narrower and narrower. The benefit of clergy was finally fully repealed in the early 1800s.
At its height, then, benefit of clergy gave what you might call "one free bite" at the felony apple for those who successfully claimed the immunity. But after about 1500 the number of crimes withdrawn from this privilege began to grow. Langbein argues that by the beginning of the 17th century the major crimes of violence and the most detested property crimes had been made capital again even for literate male first offenders. The major crime remaining clergiable was larceny/grand larceny. In addition, Spector argues that even after protection for clergy/literate males was withdrawn by statute, judges construed these statutes in favor of the defendant. Thus, when benefit of clergy was taken away for stealing horses, a defendant who had stolen only one horse would still be able to claim the privilege.
I am sure that I have not done justice fully to the concept; you now know, however, what a "clergiable" offense is, even if you are never called upon to spell it. I wonder how quickly one would get thrown out of court in America today if you claimed "benefit of clergy" as a reason for robbing a store. I think you would need much more than benefit of clergy to help you out.
If "benefit of clergy" developed in the context of medieval English law of church and state, angary is a concept in international law growing up in the late medieval period in times of war. It had to do with a right of one belligerent to seize vessels of a neutral force to aid in its war efforts. As van Glahn (Law Among Nations: An Introdcution to Public International Law, 6th Ed. 1992) says, angary
"developed when belligerents lacked sufficient vessels for their purposes. They claimed, under these circumstances, a right to seize neutral merchant ships in their ports and to force them and their crews to carry troops, provisions, and materiel to certain places on payment of freight charges in advance .... Unlike the original law, the modern concept applies only to property and does not permit the use of neutral crews of ships or trains seized under this right," p. 866.
The neutral owner of the vessel must, according to the theory, be fully indemnified. To show that this right isn't something that just faded away long ago, the US Naval War Code of 1900 stated that taking and destroying neutral naval vessels was within the authority of a belligerent provided there was a military necessity and that the owners were fully compensated [The Naval War Code of 1900 was written by Captain Charles H. Stockton of the US Navy].
Though the word angary didn't appear in English until 1880, the verb angariate goes back to the 1670s. Derived from the Latin angariare, "to constrain to service," it also reflects an older Greek usage, derived ultimately from the Persian angaros, a messenger or courier liable to be impressed on the King's business. So, the verb means "to exact forced labor from; to press into service; to impress." "It is not wisdom in the Church to pretend to..that power of angariating men further than their occasions will permit."
After our legal digression, we return to words that mean something in our world today.
Copyright © 2004-2008 William R. Long