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BENEFICIUM, a Latin word, lite of their predecessors required confirmarally“ a good deed;" also “a favour,"“ an tion; but Titus, by one edict, without act of kindness." This word had seve- solicitation, confirmed all grants of preral technical significations among the vious emperors. The grants made by the Romans.
emperors, which were often lands, were When a proconsul, proprætor, or entered in a book called the Liber Benequæstor returned to Rome from his ficiorum, which was kept by the chief province, he first gave in his accounts to clerk of benefices, under the care of the the treasury; after which he might also comes Rerum Privatarum of the emperor; give in the names of such persons as had or it was kept by a person entitled “A served under him in the province, and by Commentariis Beneficiorum," or clerk of their conduct had deserved well of the the benefices, as we learn from a curious state. To do this was expressed by the inscription in Gruter (DLXXVIII. 1). This phrase, “ in beneficiis ad ærarium de inscription, which is a monumental inferre,”—“to give into the treasury the scription, is in memory of M. Ulpius names of deserving persons ;” and in the Phædimus, who, among other offices, held case of certain officers and persons, this that of clerk of benefices to Trajan: the was to be done within thirty days after monument was erected in the reign of the proconsul, &c. had given in his ac- Hadrian, A.D. 131, by Valens Phadimicounts. The object of this practice was anus, probably one of the same family, apparently to recommend such indivi, who styles himself wardrobe-keeper (a duals to public notice and attention, and veste). in many cases it would be a kind of in- Beneficium, in the civil law, signifies troduction to future honours and emolu- any particular privilege: thus it is said ments. It does not seem quite certain if (L'ig. i. 4. 3) that the beneficium of the money was given to those thus recom- emperor must be interpreted very libemended, in the time of Cicero. (Cicero, rally; and by the Julian law Dé bonis Ad Divers. v. 20; Pro Archia, 5.) Bene- Cedendis a debtor, whose estate was not ficium, in another sense,
soine sufficient to satisfy the demands of his honour, promotion, or exemption from creditors, was said to receive the benefit certain kinds of service, granted by a (beneficium) of this law so far, that he Roman governor or commander to certain could not be taken to prison after judg. of his soldiers, hence called Beneficiarii. ment obtained against him. (Codex, vii. (Cæsar, De Bello Civili, i. 75; ii. 88; tit. 71, s. 1. 4.) Sueton. Tiber. 12.) Numerous inscrip- Beneficium, among the writers of the tions given in Gruter show how common middle ages, signified any grant of land this practice was: in some of them the from the fiscus, that is, the private postitle is represented by the initial letters sessions of the king or sovereign, or any B.F. only; Beneficiarius Legati Consularis other person, for life; so called, says (li. 4); B.F. Proconsulis (cxxx. 5), &c. Ducange, because it was given out of the Under the emperors, beneficia appear to mere good will (beneficium) and liberality have signified any kind of favours, privi- of the granter. But it is evident, from leges, or emoluments granted to a subject what we have said, that this kind of grant by the emperor; and Suetonius observes was so called after the fashion of the (Titus, 8) that all the Cæsars, in con- grants of the Roman emperors. A beneformity with a regulation of Tiberius, ficiary grant in the middle ages appears considered that, on their accession to the to have been properly a grant for life, supreme power, all the grants (beneficia) | that is, a grant to the individual, and
Where the impropriation or appropriation of the great tithes is shared between owners of different classes, it is included under each class.
There are some few cases of rectories in which the rector has only a portion of the great tithes, the remainder being the property of a spiritual person or body, or of a lay impropriator; and in Jersey and Guernsey the benefices are merely nominal rectories, the incumbent not being entitled in any case to more than a portion (generally one-third) of the great lithes, the Crown or governor taking the residue; and in some cases the whole goes to the Crown or governor.
accordingly corresponds to usufructus, | law, nuns were exempted from temporal and is opposed to proprietas. The name jurisdiction. beneficium, as applied to a feudal grant, In earlier periods of the history of this was afterwards changed for that of feu- privilege in England, the benefit of clergy dum, and, as it is asserted, not before the was not allowed unless the prisoner apsixth century; the terms beneficium and peared in his clerical habit and tonsure feudum are often used indifferently in to claim it; but in process of time, as the writings which treat of feuds. [Feud.] original object of the privilege was The English term Benefice signifies some gradually lost sight of, this ceremony was church living or preferment. [BENEFICE.) considered unnecessary, and the only For further remarks on the term bene- proof required of the offender's clergy ficium, see Ducange, Glossarium, &c.; was his showing to the satisfaction of the and Hotman, Commentarius Verborum court that he could read, a rare accomJuris, Opera, Lugd. fol. 1599.
plishment, except among the clergy, BENEFIT OF CLERGY. The pri- previously to the 15th century. The vilege or exemption thus called had its consequence was, that at length all persons origin in the regard which was paid by who could read, whether clergymen or the various princes of Europe to the lay clerks, as they were called in some early Christian Church, and in the en- antient statutes, were admitted to the bedeavours of the popes to withdraw the nefit of clergy in all prosecutions for clergy altogether from secular jurisdic- offences to which the privilege extended. tion. In England, these attempts, being The mode in which this test of reading vigorously resisted by our earlier kings was applied is thus described by Sir after the Conquest, only succeeded par- Thomas Smith, in his « Commonwealth of tially and in two particular instances, England,' written in 1565.“ The bishop,” namely, in procuring, 1. the exemption of says he,“must send one with authority places consecrated to religious purposes under his seal to be a judge in that matfrom arrests for crimes, which was the ter at every gaol delivery. If the conorigin of sanctuaries (SANCTUARY]; and demned man demandeth to be admitted 2. the exemption of clergymen in certain to his book, the judge commonly giveth cases from criminal punishment by secu- him a Psalter, and turneth to what place lar judges. From the latter exemption he will. The prisoner readeth so well came the benefit of clergy, which arose as he can (God knoweth sometime very when a person indicted for certain offences slenderly), then he (the judge) asketh of pleaded that he was a clerk, or clergyman, the bishop's commissary, Legit ut clericus ? and claimed his privilegium clericale. The commissary must say legit or non Upon this plea and claim the ordinary legit, for these be words formal, and our appeared and demanded him; a jury was men of law be very precise in their words then summoned to inquire into the truth formal, If he suy legit, the judge proof the charge, and according to their ver- ceedeth no further to sentence of death ; dict the accused was delivered to the if he say non, the judge forthwith proordinary either as acquit or convict, to ceedeth to sentence.' undergo canonical purgation, and then to
The clergy, however, do not appear to be discharged or punished according to have universally admitted that the mere the result of the purgation. This privi- fact of a prisoner's ability to read was to lege, however, never extended to high be taken as a conclusive proof of his treason nor to offences not capital, and clerical character. A curious case is wherein the punishment would not affect recorded in the Year Book, 34 Hen. VI. the life or limb of the offender (quæ non 49 (1455), which greatly puzzled the tangunt vitam et membrum). It is singu- judges. A man indicted of felony claimed lar that previously to the statute 3 & the benefit of clergy; upon which the 4 Will. III., which expressly includes archdeacon of Westminster Abbey was them, this privilege of clergy never ex- sent for, who showed him a book, in tended by the English law to women, which the felon read well and fluently. although it is clear that, by the canon Upon hearing this, the court ordered him to be delivered to the archdeacon on be- son once admitted to the benefit of clergy half of the ordinary, but the archdeacon should a second time be allowed the same refused to take him, alleging that the privilege, unless he produced his orders; prisoner was not a clerk. This raised a and to mark those who had once claimed serious difficulty; and the question was one the privilege, the statute enacted that all of particular importance to the prisoner, persons, not in orders, to whom it was so as the judges deliberated whether he must allowed, should be marked upon the not of necessity be hanged. He was, “ brawn of the left thumb" in the court, however, remanded to prison, and the before the judge, before such person was subject was much discussed by the judges delivered to the ordinary. After the offenfor several terms; but, luckily for the der was thus burned in the hand, he was culprit, the conscientious archdeacon be- formally delivered to the ordinary, to be ing removed, his successor heard the dealt with according to the ecclesiastical prisoner read, and consented to receive canons, and to make purgation by underhim; whereupon he was delivered to the going the farce of a canonical trial. This ordinary, the judges saying “ that in favo- second trial took place before the bishop or rein vita et libertatis ecclesia, even where his deputy: there was a jury of twelve a man had once failed to read, and had persons, who gave their verdict on oath; received sentence of death, they would witnesses were examined on oath ; the allow him his benefit of clergy, under prisoner answered on oath ; and twelve the gallows, if he could then read, and compurgators swore that they believed was received by the ordinary.” Another him. On this occasion, though the pricase is recorded in the 21st year of Edw. soner had been convicted at common law IV. (1481), in which a felon read well by the clearest evidence, or bad even conand audibly in the presence of the whole fessed his guilt, he was almost invariably court; but the ordinary declared " non acquitted. The whole proceeding before legit ut clericus for divers considerations." the ordinary is characterised by Chief Upon which judgment was given that he Justice Hobart, at the beginning of the should be hanged; “And so," says seventeenth century, “as turning the the reporter, “ he was ut audivi.”. (Year solemn trial of truth by oath into a cereBook, 21 Edw. IV. 21.) But though a monious and formal lie.” (Hobart's felon might claim the benefit of clergy to Reports, p. 291.) To remove this discre the last moment of his life, it was an in- ditable abuse of the forms of justice, the dictable offence to teach him to read for statute 18 Eliz. c. 7, enacted that in all the purpose of saving him. Thus in the cases after an offender had been allowed 7th Richard II. (1383), the vicar of his clergy, he should not be delivered to Round Church in Canterbury was ar- the ordinary, but be at once discharged by raigned and tried, “ for that by the licence the court, with a provision that he might of the jailer there, he had instructed in be detained in prison for any time not reading one William Gore, an approver, exceeding a year, at the discretion of the who at the time of his apprehension was judge before whom he was tried. nnlearned (ineruditus in lectura).” (Dyer's By various statutes passed in the course Reports, p. 206.). It may readily be con- of the last century, the court before which ceived that questions between the tempo an offender was tried and admitted to his ral courts and the ordinary would arise as clergy were empowered to commute the the art of reading became more generally burning in the hand for transportation, diffused ; and it was probably on this imprisonment, or whipping; and subseaccount that an express provision was quently to the passing of these statutes it made by the legislature in order in some is believed that no instance has occurred degree to obviate the occurrence of such of a convict being burned in the hand. difficulties. The statute 4 Henry VII. The practice of calling upon a conc. 13 (1488), revived the distinction be victed person to read in order to prove to tween actual clergymen and such persons the court his title to the benefit of clergy as had accidentally acquired a competent continued until a comparatively late skill in reading, by providing that 110 per-| period. A case is mentioned in Kelynge's
Reports, p. 51, which occurred in 1666, benevolences were declared to be illegal; where the bishop's commissary had de- but this statute is so expressed as not ceived the court by reporting, contrary to clearly to forbid the solicitation of volunthe fact, that a prisoner could read ; upon tary gifts, and Richard himself afterwards which Chief Justice Kelynge rebuked violated its provisions. Henry VII. exhim severely, telling him “ that he had acted benevolences, which were enforced unpreached more that day than he could in a very oppressive way. Archbishop preach up again in many days," and fined Morton, who solicited merchants and him five marks. At length the statute of others to contribute, employed a piece of the 5th of Anne, c. 6, enacted that the logic which obtained the name of “ Morbenefit of clergy should be granted to all ton's fork.” He told those who lived those who are entitled to it without re- | handsomely, that their opulence was quiring them to read; and thus the “idle manifested by their expenditure; and ceremony of reading," as Mr. Justice those who lived economically, that their Foster justly terms it, was finally frugality must have made them rich: so abolished.
that no class could evade him. Cardinal The absurd and perplexing distinctions Wolsey, among some other daring projects which the continuance of this antiquated to raise money for Henry VIII., proposed and worn-out clerical privilege had in- a benevolence, which the citizens of Lontroduced, having become extremely de- don objected to, alleging the statute of trimental to the due administration of Richard III.; but the answer was, that justice, it was enacted by one the recent the act of an usurper could not oblige a statutes for the consolidation and improve- lawful sovereign. Elizabeth also “sent ment of the criminal law, commonly called out her privy seals,” for so the circulars Peel's Acts (namely, 7 & 8 Geo. IV. c. 28, demanding a benevolence were termed ; $ 6, for England, and 9 Geo. IV. c. 54, but though individuals were committed to § 12, for Ireland), that benefit of clergy prison for refusing to contribute, she rewith respects to persons convicted of fe-paid the sums exacted. Lord Coke, in lony shall be abolished. Since the pass-the reign of James I., is said to have at ing of this statute, the subject is of no first declared that the king could rot so practical importance whatever ; but those licit a benevolence, and then to have rewho may be inclined to pursue it as a tracted his opinion, and pronounced upon matter of historical curiosity may find its legality. the following references useful:-Black- The subject underwent a searching instone's Commentaries, vol. iv. chap. 28: vestigation during the reign of Charles I., Hale's Pleas of the Crown, part ii. c. 45; | as connected with the limitation of the Barrington's Observations on Ancient king's prerogative. That king had apStatutes ; Hobart's Reports, p. 288. pointed commissioners for the collection
BENEVOLENCE, a species of forced of a general loan from every individual, loan or gratuity, and one of the various and they had private instructions to rearbitrary modes of obtaining supplies of quire not less than a certain proportion of money, which, in violation of Magna each man's property in land or goods, and Charta, were formerly resorted to by the had extraordinary powers given them. kings of England. The name implies a The name of loan given to this tax was free contribution, with or without the a fiction which the most ignorant could condition of repayment; but so early as not but detect. Many of the common the reign of Edward IV. the practice had people were impressed to serve in the grown into an intolerable grievance. That navy for refusing to pay; and a number King's lavish liberality and extravagance of the gentry were imprisoned. The deinduced him to levy benevolences very tention of five knights, who sued the Court frequently; and one of the wisest and of King's Bench for their writ of Habeas most popular acts of his successor, Richard Corpus, gave rise to a most important III., was to procure the passing of a question respecting the freedom of English statute (cap. 2) in the only parliament subjects from arbitrary arrest, and out of assembled during his reign, by which the discussion which then arose, and the contests respecting the levying of ship- The canonists speak of betrothing and money, &c., came the distinct assertion of marrying, describing the former as and ultimate establishment of the great being sponsalia, or espousals, with the principle of English liberty. The 13 Car. verba de futuro, the latter with the verba II. stat. 1, cap. 4, provides for a voluntary de presenti. In England there is no present to his majesty, with a proviso, doubt that formal engagements of this however, that no aids of that nature can kind were usual down to the time of the be but by authority of parliament. The Reformation. One class of the documents Bill of Rights, in 1688, repeats what which have descended in the families who Magna Charta declared in 1215, that have been careful in the preservation of levying of money for or to the use of the their ancient evidences, are marriage crown, by pretence of prerogative, with contracts, which are generally between out grant of parliament, for longer time parents, and set out with stating that a or in any other manner than the same is marriage shall be solemnized between or shall be granted, is illegal.
certain parties when they attain to a cer(Hallam's Constitutional History of tain age, or at some distant period, as England, and Turner's History of Eng- after six months or a year; and amongst land.)
the terms of the contract it is not unusual BETROTHMENT. We sometimes to find stipulations respecting the apparel hear of parties being betrothed to each of the future bride, and the cost of the other, which means that each has pledged entertainment which is to be provided on his or her troth or truth to the other, to the occasion. When these contracts were enter at some convenient time, fixed or entered into by the parents, there is reaundetermined, into the state of matrimony. son to believe that the younger parties soIt now has seldom any other meaning lemnly plighted their troth to each other. than that the parties have engaged them- At the present day marriage settleselves privately, sometimes, though it is ments are generally made when the presumed very rarely, in the presence of future husband or wife has property, or one or more friends, who might, if neces- when both of them have property. The sity of doing so arose, bear testimony to object of the settlement is to secure prosuch an engagement having been entered vision for the children who may be bom into. Even the rustic ceremonies which of the marriage, and generally to make heretofore were in use, to give some kind such disposition of the property of the of formality to such contracts, seem almost man and of the woman as may have been to have fallen into entire disuse. In an- agreed on. Such settlements always cient times, however, there were engage- begin by reciting that a marriage between ments of this kind of a very formal na- the parties therein mentioned is intended, ture, and they were not thought unworthy which is in effect a contract of marriage. the notice of the great legislators of an- The late Mr. Francis Douce, who was tiquity. In the laws of Moses there are very learned in all matters relating to the certain provisions respecting the state of popular customs of our own and other the virgin who is betrothed. In the Roman nations, describes the ceremony of belaw, the "sponsalia,” or betrothment, is trothmeut (Illustrations of Shakspeare defined to be a “promise of a future and of Ancient Manners, vol. i. p. 108), as marriage.” Accordingly Sponsa signifies having consisted in the interchangement a woman promised in marriage, and of rings--the kiss-the joining of hands; Sponsus a man who is engaged to marry. to which is to be added the testimony of Sponsalia could take place after the witnesses.” In France, where the cereparties were seven years of age. There mony is known by the name of fianwas no fixed time after betrothment at cailles, the presence of the curé, or of a which marriage necessarily followed, but priest commissioned by him, was essential it might for various reasons be deferred to the completeness of the contract. In for several years. The sponsalia might be England such contracts were brought made without the two parties being present under the cognizance of the ecclesiastical at the ceremony. (Digest, xxiii. tit. i.) law. Complaints are made by a writer