(196) English law. A service which some tenants 1 Kent's Com. 101. Sir W. Scott, (The were bound to perform; as to reap their Elsebe,) 5 Rob. Adm. R. 155, 163. 1 landlord's corn in harvest. Cowell. Blount. Gallison, 558. The right to all captures Spelman, voc. Bidripa. vests primarily in the sovereign. A fundamental maxim of public law. (197) Magna Charta, (c. 14), beneficium ecclesiasticum. act of Parliament, 1 and 2 Vict. c. 106, s. 124, a distinction is expressly made between benefices, and such preferments as have either rank or public office connected with them. Id. ibid. note (k). 23. Hence they were sometimes called judices pedanei, either a pedibus, from the feet, (as the prætor sometimes heard causes In its technical sense, this term includes while standing, or on foot; supra,) or beecclesiastical preferments to which rank or cause they administered justice pede plano, public office is attached, otherwise described with their feet on a level with those of the as ecclesiastical dignities or offices, such as suitors. Calvin's Lex. Jurid. voc. Pedanei. bishoprics, deaneries and the like; but, in Among the ancient Britons, justice was popular acceptation, it is almost invariably administered from seats or tribunals conappropriated to rectories, vicarages, perstructed of mounds or banks of turf, (e tri-petual curacies, district churches and enbunalibus aggesto cespite constructis.) Speldowed chapelries. 3 Steph. Com. 77. By man. The right of occupying a bench or tribunal (termed the jus banci, or right of bench,) was from an early period considered to be a peculiar privilege of the king's courts in England; the judges of inferior courts, such as hundred courts, and courts baron, being supposed to administer justice without such a formality. See High justice. These last are compared by Spelman to the judices pedanei of the Roman law, (supra,) from which source the idea of the distinctive privilege of a bench was most probably borrowed. Such inferior judges were called in France juges dessous l'orme, (judges under the elm,) because they used to sit under an elm or other tree, near the lord's house. Spelman, voc. Bancus. And in much later times, in England, the hundred court at Freibridge, in Norfolk, was held under an oak at Geywood; and the court for the hundred of Woolsey, in Herefordshire, was held under an oak near Ashton, which was called "the hundred oak." Id. ibid. Blount, voc. Bank. (198) An because it was a gratuitous donation, given law. The clerical privilege; the privilege out of the mere good will (ex mero beneficio) of the clergy; a clerk's privilege.* and liberality of the grantor. Ducange. exemption from capital punishment in cases 1 Robertson's Charles V. Appendix, note viii. of capital felony, anciently allowed to crimiIn the second Book of Feuds, a beneficium nals in holy orders, or (what was once is defined to be that which is given to one, equivalent,) able to read, and originally alout of good will, (ex benevolentia,) in such lowed to these only, though afterwards exa manner that the property (proprietas) of tended both to clergy and laity, and conthe immoveable thing bestowed remains fined on the other hand to capital felonies with the giver, but the usufruct passes to of the lighter kind. 4 Steph. Com. 121. the receiver, so as to belong to him and See Clergy, Clergyable, Clerk. The privilege his heirs forever. Feud. Lib. 2, tit. 23, § 1. was this:-if a person convicted of a capiThe better opinion, however, appears to be tal felony was a clerk in orders, he was that the name was adopted from the beneabsolutely discharged, and handed over to ficia of the Roman emperors, which appear the court christian; if a layman, under to have signified any kind of favors, privithe degree of a peer, who could read, he leges or emoluments, granted to a subject was discharged upon being burnt in the by the sovereign. Sueton. Tiber. 12. Id. hand, that is, marked with a hot iron upon Tit. 8. P. Cyclopædia. The term benethe brawn of the left thumb. See Burning ficium gave place to that of feudum about in the hand. Whipping, fine and imprisonthe close of the tenth century. It occurs ment were afterwards substituted for burnvery frequently in the Books of Feuds. ing. Barringt. Obs. Stat. 442—444, and See Feud. Lib. 2, titt. 1, 3, 9, 11, 12, 27, notes. 4 Bl. Com. 364-374. 4 Steph. 34, 38, 39, 51, 55. See Feudum. Com. 436, note (b). Benefit of clergy was abolished in England by statute 7 & 8 Geo.