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whipped,' stocked, or imprisoned, for any time not exceeding a year. And a similar indulgence, by the statutes 3 & 4 W. & M., c. 9, and 4 & 5 W. & M., c. 24, was extended to women guilty of any clergyable felony whatsoever; who were allowed once to claim the benefit of the statute, in like manner as men might claim the benefit of clergy, and to be discharged upon being burned in the hand, and imprisoned for any time not exceeding a year. The punishment of burning in the hand being found ineffectual, was also changed by statute 10 & 11 W. III., c. 23, into burning in the most visible part of the left cheek, [370] nearest the nose; but such an indelible stigma being found by experience to render offenders desperate, this provision was repealed, about seven years afterward, by statute 5 Ann., c. 6; and, till that period, all women, all peers of Parliament and peeresses, and all male commoners who could read, were discharged in all clergyable felonies; the males absolutely, if clerks in orders; and other commoners, both male and female, upon branding; and peers and peeresses without branding, for the first offense; yet all liable (excepting peers and peeresses), if the judge saw occasion, to imprisonment not exceeding a year. And those men who could not read, if under the degree of peerage, were hanged.

Afterward, indeed, it was considered that education and learning were no extenuations of guilt, but quite the reverse; and that, if the punishment of death for simple felony was too severe for those who had been liberally instructed, it was, a fortiori, too severe for the ignorant also. And, thereupon, by the same statute 5 Ann., c. 6, it was enacted, that the benefit of clergy should be granted to all those who were entitled to ask it, without requiring them to read, by way of conditional merit. And experience having shown that so very universal a lenity was frequently inconvenient, and an encouragement to commit the lower degrees of felony; and that, though capital punishments were too rigorous for these inferior offenses, yet no punishment at all (or next to none) was as much too gentle, it was further enacted by the same statute, that when any person is convicted of any theft or larceny, and burned in the hand for the same, according to the ancient law, he shall also, at the discretion of the judge, be committed to the house of correction, or public work-house, to be there kept to hard labor for any time not less than six months, and not exceeding two years, with a power of inflicting a double confinement in case of the party's escape from the first. And it was also enacted, by the statutes 4 Geo. I., c. 11, and 6 Geo. I., c. 23, that when any persons shall be convicted of any larceny, either grand or [371] petit, or any felonious stealing or taking of money or goods and chattels, either from the person or the house of any other, or in any other manner, and who by the law shall be entitled

(3) Whipping of women was abolished by 1 Geo. IV., c. 57.

to the benefit of clergy, and liable only to the penalties of burning in the hand, or whipping, the court, in their discretion, instead of such burning in the hand or whipping, may direct such offenders to be transported to America (or, by statute 19 Geo. III., c. 74, to any other parts beyond the seas) for seven years; and if they return, or are seen at large in this kingdom within that time, it shall be felony without benefit of clergy. And by the subsequent statutes 16 Geo. II., c. 15, and 8 Geo. III., c. 15, many wise provisions are made for the more speedy and effectual execution of the laws relating to transportation, and the conviction of such as transgress them. But now, by the statute 19 Geo. III., c. 74, all offenders liable to transportation may, in lieu thereof, at the discretion of the judges, be employed, if males (except in the case of petty larceny), in hard labor for the benefit of some public navigation; or, whether males or females, may in all cases be confined to hard labor in certain penitentiary houses, to be erected by virtue of the said act, for the several terms therein specified, but in no case exceeding seven years; with a power of subsequent mitigation, and even of reward, in case of their good behavior. But if they escape and are retaken, for the first time an addition of three years is made to the term of their confinement; and a second escape is felony without benefit of clergy."

In forming the plan of these penitentiary houses, the principal objects have been, by sobriety, cleanliness, and medical assistance, by a regular series of labor, by solitary confinement. during the intervals of work, and by due religious instruction, to preserve and amend the health of the unhappy offenders, to inure them to habits of industry, to guard them from pernicious company, to accustom them to serious reflection, and to teach them both the principles and practice of every Christian and moral duty. And if the whole of this plan be properly executed, and its defects be timely supplied, there is reason to [372] hope that such a reformation may be effected in the lower classes of mankind, and such a gradual scale of punishment be affixed to all gradations of guilt, as may in time supersede the necessity of capital punishment, except for very atrocious

crimes."

(4) The above acts of 16 Geo. II., c. 15, and 8 Geo. III., c. 15, and several subsequent statutes relative to this subject, were repealed by the 5 Geo. IV., c. 84, which regulates the punishment of the hulks, and that of transportation; and, especially in the latter case, inflicts the additional punishment of hard labor on the prisoner, and also contains provisions for remitting part of the sentence of transportation if the prisoner behaves well, &c.-[CHITTY.] See, also, the 6 Geo. IV., c. 85, s. 18; 1 Vict., c. 90; 6 & 7 Vict., c. 7.

As to the offense of returning from transportation, and its present punishment, see ante, p. 132.

(5) See post, p. 377, n. (7).

(6) The regulation of the 19 Geo. III., c. 74, as to the employment of this description of convicts in penitentiary houses, was suffered to expire on the 25th of March, 1802; but see the 56 Geo. III., c. 63, and 59 Geo. III., c. 136, establishing and regulating the penitentiary at Millbank.-[CHITTY.] See,

It is also enacted by the same statute 19 Geo. III., c. 74, that, instead of burning in the hand (which was sometimes too slight and sometimes too disgraceful a punishment), the court in all clergyable felonies may impose a pecuniary fine; or (except in the case of manslaughter) may order the offender to be once or oftener, but not more than thrice, either publicly or privately whipped; such private whipping (to prevent collusion or abuse) to be inflicted in the presence of two witnesses, and in case of female offenders, in the presence of females only; which fine or whipping shall have the same consequences as burning in the hand; and the offender so fined or whipped shall be equally liable to a subsequent detainer or imprisonment."

In this state does the benefit of clergy at present stand; very considerably different from its original institution, the wisdom of the English legislature having, in the course of a long and laborious process, extracted by a noble alchemy rich medicines out of poisonous ingredients, and converted, by gradual mutations, what was at first an unreasonable exemption of particular popish ecclesiastics, into a merciful mitigation of the general law, with respect to capital punishment.

From the whole of this detail we may collect, that however, in times of ignorance and superstition, that monster in true policy may for a while subsist, of a body of men, residing in the bowels of a state, and yet independent of its laws; yet, when learning and rational religion have a little enlightened men's minds, society can no longer endure an absurdity so gross as must destroy its very fundamentals. For, by the original contract of government, the price of protection by the united force [373] of individuals is that of obedience to the united will of the com

munity. This united will is declared in the laws of the land, and that united force is exerted in their due and universal execution.

II. To what persons now. allowed.

II. I am next to inquire to what persons the benefit of clergy is to be allowed at this day; and this must be chiefly collected from what has been observed in the preceding article; for, upon the whole, we may pronounce that all clerks in orders are, without any branding, and of course without any transportation, fine, or whipping (for those are only substituted in lieu of the other), to be admitted to this privilege, and immediately discharged; and this as often as they offend. Again, all lords

j 2 Hal., P. C., 375.

also, the statutes 1 Vict., c. 91, and 6 &
7 Vict., c. 26, as to Millbank prison; 1
& 2 Vict., c. 82, as to the establishment
of the prison for the reformation of ju-
venile convicts, at Parkhurst, in the Isle
of Wight; and 5 Vict., c. 29, for the es-
tablishment of a model prison at Penton-
ville.
The principal statutes now in force

relating to the government, regulation. and discipline of prisons, and the classification, employment, &c., of offenders, are the 4 Geo. IV., c. 64; 5 Geo. IV., c. 85; 5 & 6 Will. IV., c. 38; 6 & 7 Will. IV., c. 105; and 2 & 3 Vict., c.56.

(7) See now the 7 & 8 Geo. IV., c. 28, s. 8, ante, p. 98, n. (6).

of Parliament and peers of the realm having place and voice in Parliament, by the statute 1 Edw. VI., c. 12 (which is likewise held to extend to peeressesk), shall be discharged in all clergyable and other felonies provided for by the act, without any burning in the hand or imprisonment, or other punishment substituted in its stead, in the same manner as real clerks convict; but this is only for the first offense." Lastly, all the commons of the realm not in orders, whether male or female, shall for the first offense be discharged of the capital punishment of felonies within the benefit of clergy, upon being burned in the hand, whipped, or fined, or suffering a discretionary imprisonment in the common jail, the house of correction, one of the penitentiary houses, or in the places of labor for the benefit of some navigation; or, in case of larceny, upon being transported for seven years, if the court shall think proper. It hath been said that Jews and other infidels and heretics were not capable of the benefit of clergy till after the statute 5 Ann., c. 6, as being under a legal incapacity for orders; but I much question whether this was ever ruled for law since the reintroduction of the Jews into England in the time of Oliver Cromwell; for, if that were the case, the Jews are still in the same pre- [374] dicament, which every day's experience will contradict, the statute of Queen Anne having certainly made no alteration in this respect, it only dispensing with the necessity of reading in those persons who, in case they could read, were before the act entitled to the benefit of their clergy.

cases allow.

III. The third point to be considered is, for what crimes the III. In what privilegium clericale, or benefit of clergy, is to be allowed. ed. And it is to be observed, that neither in high treason nor in petit larceny, nor in any mere misdemeanors, it was indulged at the common law; and, therefore, we may lay it down for a rule that it was allowable only in petit treason and capital felonies, which, for the most part, became legally entitled to this indulgence by the statute de clero, 25 Edw. III., st. 3, c. 4, which provides that clerks convict for treasons or felonies, touching other persons than the king himself or his royal majesty, shall have the privilege of holy Church. But yet it was not allowable in all felonies whatsoever; for in some it was denied even by the common law, viz., insidiatio viarum, or lying in wait for one on the highway; depopulatio agrorum, or destroying and ravaging a country;m and combustio domorum, or arson, that is, the burning of houses: all which are a kind of hostile acts, and in some degree border upon treason. And

Duchess of Kingston's case, in Parliament, 22d of April, 1776.

12 Hal., P. C., 373; 2 Hawk., P. C., 338; Fost., 306.

m2 Hal., P. C., 333.

1 Hal., P. C., 346.

(8) See ante, p. 367, n. (2).

further, all these identical crimes, together with petit treason, and very many other acts of felony, are ousted of clergy by particular acts of Parliament, which have in general been mentioned under the particular offenses to which they belong, and, therefore, need not be here recapitulated. Upon all which statutes for excluding clergy I shall only observe, that they are nothing else but the restoring of the law to the same rigor of capital punishment in the first offense that is exerted before the privilegium clericale was at all indulged, and which it still exerts upon a second offense in almost all kinds of felonies, unless committed by clerks actually in orders. But so tender is the law of inflicting capital punishment in the first instance for any inferior felony, that notwithstanding by the marine law, as declared in statute 28 Hen. VIII., c. 15, the benefit of clergy is not allowed in any case whatsoever, yet, when offenses are committed within the admiralty jurisdiction, which would be clergyable if committed by land, the constant course is to acquit and discharge the prisoner.o And, to conclude this head of inquiry, we may observe the following rules: 1. That in all felonies, whether new created or by common law, clergy is now allowable, unless taken away by express words of an act of Parliament.P 2. That where clergy is taken away from the principal, it is not, of course, taken away from the accessory, unless he be also particularly included in the words of the statute. 3. That when the benefit of clergy is taken away from the offense (as in case of murder, buggery, robbery, rape, and burglary), a principal in the second degree being present, aiding and abetting the crime, is as well excluded from his clergy as he that is principal in the first degree. But, 4. That, where it is only taken away from the person committing the offense (as in the case of stabbing, or committing larceny in a dwellinghouse, or privately from the person), his aiders and abettors are not excluded, through the tenderness of the law, which hath determined that such statutes shall be taken literally."

IV. Consequences of

IV. Lastly, we are to inquire what the consequences are to allowing it. the party, of allowing him this benefit of clergy. I speak not of the branding, fine, whipping, imprisonment, or transportation, which are rather concomitant conditions than consequences of receiving this indulgence. The consequences are such as affect his present interest and future credit and capacity, as having been once a felon, but now purged from that guilt by the privilege of clergy, which operates as a kind of statute pardon.

• Moor, 759; Fost., 288.
P 2 Hal., P. C., 330.

(9) But now, by 39 Geo. III., c. 37, offenses committed on the high seas are to be considered and treated in the same manner as if committed on shore; and

1 2 Hawk., P. C., 342.

r

1 Hal., P. C., 529; Fost., 356.

see the 43 Geo. III., c. 113, s. 6; 56 Geo. III., c. 27, s. 3 [7 & 8 Geo. IV., c. 28, s. 12; and ante, p. 269, n. (13)] [CHITTY.]

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