What Is It: Benefit of Clery and the Neck Verse

Many principles of common law that carried over from England to early America had their start during the reigns of the Plantagenet kings.  One of the more interesting was something called benefit of clergy and a resulting use of Psalms 51:1 that forever gave this scripture the name of the Neck Verse, because knowing it and being able to recite it by heart could literally save one's neck from a hanging.

Prior to and during the opening years of Henry's reign, courts of law were presiding over jointly by a clergyman and a secular magistrate.  If a member of clergy, which could include priests, monks, nuns or even people training to be any of the above, were accused of a crime the clergyman, usually a bishop, would determine and pronounce guilt and punishment.  Henry II tried to put a stop to this with the Constitutions of Clarendon in 1166, which decreed that clergy would be tried and convicted, like regular subjects, in regular courts of law.  Thomas Becket, Archbishop of Canterbury, refused to acknowledge the Constitutions, setting off a showdown between himself and Henry over how much authority secular government would have over the church.  As part of a later agreement called the Compromise of Avranches (1172), Henry agreed that, except in cases of high treason, secular law courts would have no power to adjudge or punish clergy members for crimes.  They would be turned over to ecclesiastical courts for trial and sentence.

In the ensuing years, debates arose about who could claim the right of clergy.  In the earlier centuries, the person had to be tonsured, wearing clerical or monastic garb, but the allowance could also cover people who were clergy-able, i.e., in training to enter the clergy, such as a student or a clerk, or someone who could otherwise conceivably become a member of clergy.  Over time, this requirement was relaxed to a literacy test.  As long as one could recite scripture, one could count as clergy but with one proviso.  They could only make use of the privilege one time, as mercy for a first offense.  The verse usually chosen was Psalm 51:1, "have mercy on me, O God...", sometimes known as the Miserere for the Latin opening to the verse.  Because knowing this verse might get a person off from a severe punishment, hanging being the most common offense for many crimes, it became known as the Neck Verse. 

By Tudor times, benefit of clergy was codified as a mark of mercy for a first offense.  One could only claim the privilege once and, once claimed, the punishment was commuted to branding on the thumb with the letter M, for Malefactor or criminal, in addition to a lesser punishment, sometimes transportation to the colonies.  Often, the branding was carried out by the executioner in open court.  The custom of allowing a criminal mercy for a first offense carried across the Atlantic to the American colonies.  In 1770, following the Boston Massacre, the two convicted Redcoats were allowed to plead benefit of clergy on the advice of their attorney, John Adams.  They were branded on the thumb in open court and released to resume duty in the British Army.  In old court buildings in England, a device known as a hold-fast, to immobilize someone's hand while they were branded, was often installed in the docks where defendants sat, so that the punishment could be carried out as soon as possible.