ARSER IN LE MAIN - The Law Mind Legal Dictionary

ARSER IN LE MAINAuthored

The Law Mind • 776 words

Definition

Arser in le main (also rendered "arsure en la main") is an archaic Anglo-Norman legal term meaning "burning in the hand." It refers to a penal practice in English criminal law by which a convicted offender who successfully claimed benefit of clergy was branded or burned on the left thumb — typically with the letter "M" (for murder) or "T" (for thief) — as a permanent mark of that prior claim. The branding served an administrative purpose: because benefit of clergy could ordinarily be claimed only once by a layman, the mark allowed courts to identify repeat claimants and deny them the privilege a second time.

Common Confusion

Arser in le main is sometimes loosely associated with the broader punishment of branding as a criminal sanction, but the two are distinct. General branding was used as punishment in its own right for various offenses. Arser in le main was specifically tied to the benefit of clergy procedure — it was not itself the punishment for the crime, but a consequence of receiving a reduced punishment. A clergyman who successfully pleaded clergy escaped the full penalty; the brand was the mechanism for ensuring he could not do so again as a layman.

Why It Matters in Research

This term appears almost exclusively in historical sources and will not be encountered in modern legal materials. Researchers working in pre-nineteenth century English criminal law, ecclesiastical law, or penal history will encounter it in case reports, treatises, and statutes of the Tudor and Stuart periods, where it operates as a procedural term of art rather than a standalone offense or remedy.

The key navigational point is that arser in le main cannot be understood in isolation. It is a component of the benefit of clergy doctrine, and sources treating one almost always reference the other. Researchers who locate this term in an early case report should immediately trace the benefit of clergy claim to which it attaches — the branding record may be the only surviving procedural notation in sources where fuller records are lost.

A secondary research trap: the term appears in Law French, and historical sources spell it inconsistently. Variant forms include "arsure en la main," "arser en la main," and anglicized forms such as "burning in the hand." Index searches in historical databases will require multiple variant searches to capture the full range of sources.

The practice was abolished by statute in England. Benefit of clergy itself was progressively curtailed through the sixteenth, seventeenth, and eighteenth centuries, and the branding punishment was formally abolished by 6 Geo. IV, c. 25 (1825), which also largely eliminated benefit of clergy as a functional doctrine. Researchers working across that statutory boundary should be alert to sources referencing the practice in the past tense as a historical curiosity versus sources applying it as live law.

Historical Dictionary Support

The historical dictionaries are in full agreement on the core definition. Black's (both editions) and Bouvier's define the term identically as "burning in the hand" and anchor it to the benefit of clergy procedure. Black's (both editions) references 5 Coke 51 and 4 Blackstone's Commentaries 367 as primary authorities. Bouvier's cites Termes de la Ley, an early Law French legal glossary, reflecting the antiquarian character of the term even at the time Bouvier wrote.

None of the historical dictionaries discuss the abolition of the practice or situate it within the broader legislative history of benefit of clergy reform. Researchers should not assume that the absence of a terminus date in these entries means the practice persisted indefinitely — Blackstone's Commentaries (4 Bl. Comm. 367) and Coke's reports provide the most substantive historical treatment and should be consulted directly for contextual depth.

Bouvier's entry is the most concise of the three and adds no information beyond what Black's provides. The truncation visible in the Bouvier's source text — where the entry transitions abruptly to the definition of Arson — reflects standard dictionary formatting of the period rather than any editorial commentary on the relationship between the two terms.

Jurisdictional Note

Arser in le main was a feature of English common law and has no recognized American counterpart. Benefit of clergy was received into the early American colonies and states but was abolished at different times in different jurisdictions; the branding component of the practice appears to have been abandoned in American courts well before formal legislative abolition in England.

ARSER IN LE MAINsubentry

Black's Law Dictionary • 1891

Burning in the hand. The punishment by burning or branding the left thumb of lay offenders who claimed and were allowed the benefit of clergy, so as to distinguish them in case they made a second claim of clergy. 5 Coke, 51; 4 Bl. Comm. 367.

ARSER IN LE MAINsubentry

Bouvier's Law Dictionary • 1928

(Burning in the hand.) The punishment inflicted on those who received the benefit of clergy. Termes de la Ley. ARSON (Lat. ardere, to burn). The malicious burning of the house of another. Co. 3d Inst. 66; Bish. Cr. L. § 415; 4 Bla. Com. 220; 2 Pick. 320; 16 Cush. 479; 7 Gratt. 619; 9 Ala. 175; 7 Blackf. 168; 1 Leach, Cr. Cas. 218; 51 Cal. 319; 12 Bush 243; Ch. Cr. Law 226; but it is not arson to demolish the house first and then burn the material; 25 Tex. App. 199. In some states by statute there are degrees of arson. The house, or some part of it, however small, must be consumed by fire; 9 C. & P. 45; 16 Mass. 105; 5 Ired. 350. Where the house is simply scorched or smoked and the fire is not communicated to the building the crime of arson is not complete; 30 Tex. App. 346. The question of burning is one of fact for the jury; 1 Mood. Cr. Cas. 398; 5 Cush. 427. It must be another's house; 1 Bish. Cr. Law § 389; but aliter under the N. H. stat- ute; 51 N. H. 176; but if a man set fire to his own house with a view to burn his neighbor's, and does so, it is, at least, a great misdemeanor; 1 Hale, Pl. Cr. 568; 2 East, Pl. Cr. 1027; W. Jones 351; 2 Pick. 325; 34 Me. 428; 2 N. & M'C. 36; 8 Gratt. 624; 5 B. & Ad. 27. See 1 Park. Cr. Cas. 560; 2 Johns. 105; 7 Blackf. 168; 32 Vt. 58. If he sets fire to a schoolhouse with the intention of burning an adjoining dwelling, which actually happens, he is guilty of arson; 29 S. W. Rep. (Ky.) 221. The house of another must be burned, to constitute arson at common law; but the term "house" comprehends not only the very mansion-house, but all out-houses which are parcel thereof, though not con- tiguous to it, nor under the same roof, such as the barn, stable, cow-house, sheep-house, dairy-house, mill-house, and the like, being within the curtilage, or same common fence, as the mansion itself; 4 C. & P. 245; 20 Conn. 245; 16 Johns. 203; 3 Ired. 570:3 Rich. 242; 5 Whart. 427; Cl. Cr. Law 221; 4 Leigh 683; 4 Call 109; 88 N. C. 656; 71 Ν. Υ. 561; 26 Ohio St. 420. And it has also been said that the burning of a barn, though no part of the mansion, if it has corn or hay in it, is felony at common law; 1 Hale, P. C. 567; 4 C. & P. 245; 5 W. & S. 385; contra, 81 III. 565. In Massachusetts, the statute refers to the dwelling-house strictly; 10 Cush. 478. Where a prisoner set fire to his cell, in order to effect an escape, held, not arson; 18 Johns. 115; but see 1 Whart. Cr. L. 9th ed. § 829; 8 Call 109; 49 Ala. 30; 2 Ida- ho 1182; 32 Tex. Cr. R. 534. The burning must have been both malicious and wilful; Roscoe, Cr. Ev. 8th ed. 289; 2 East, Pl. Cr. 1019, 1031; 1 Bishop, Cr. L. § 259; 28 Miss. 100; 68 id. 339. And generally, if the act is proved to have been done wilfully, it may be inferred to have been done maliciously, unless the contrary is proved; 1 Russ. & R. Cr. Cas. 26; Cl. Cr. Law 229. On a charge of arson for setting fire to a mill, an intent to injure or defraud the mill-owners will be conclusively inferred from the wilful act of firing; 1 Russ. & R. Cr. Cas. 207; 2 B. & C. 264. But this doctrine can only arise where the act is wilful, and therefore, if the fire appears to be the result of accident, the party who is the cause of it will not be liable; 53 Ga. 33; 47 III. 583. In some states by statute a wife may be guilty of arson by burning a husband's property; 1 Ind. App. 146. It is a felony at common law, and origin- ally punishable with death; Co. 3d Inst. 66; 2 East, PL. Cr. 1015; 5 W. & S. 885; but this is otherwise, to a considerable extent, by statute; 8 Rich. S. C. 276; 4 Dev. 305; 4 Call 109; 5 Cra. C. C. 78. If homicide result, the act is murder; 1 Green, N. J. 361; 1 Bish. Cr. Law 361. See CRIMES. It is not an indictable offenceat common law to burn one's own house to defraud in- surers; 1 Whart. Cr. L. 9th ed. § 843; otherwise in some states by statute; 51 Ν. Η. 176; 19 N. Y. 587; 32 Čal. 160.

ARSER IN LE MAINsubentry

Black's Law Dictionary (2nd Ed.) • 1910

Burning in the hand. The punishment by burning or branding the left thumb of lay offenders who claimed and were allowed the benefit of clergy, so as to distinguish them in case they made a second claim of clergy. 5 Coke, 51; 4 Bl. Comm. 367. ,

Explore the full Law Mind legal research platform.

Subscribe Encyclopedia Sign In