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the court to permit the defendant to speak with the profecutor, before any judgment is pronounced; and, if the profecutor [ 364 ] declares himself satisfied, to inflict but a trivial punishment. This is done, to reimburse the profecutor his expenfes, and make him some private amends, without the trouble and circuity of a civil action. But it furely is a dangerous practice: and, though it may be intrusted to the prudence and difcretion of the judges in the fuperior courts of record, it ought never to be allowed in local or inferior jurisdictions, such as the quarter-feffions; where profecutions for affaults are by this means too frequently commenced, rather for private lucre than for the great ends of public justice. Above all it should never be suffered, where the testimony of the profecutor himfelf is neceffary to convict the defendant: for by this means, the rules of evidence are entirely fubverted; the prosecutor becomes in effect a plaintiff, and yet is suffered to bear witnefs for himself. Nay even a voluntary forgiveness, by the party injured, ought not in true policy to intercept the stroke of justice." This," fays an elegant writer, (who pleads with equal strength for the certainty as for the lenity of punishment,) " may be an act of good nature and humanity, but "it is contrary to the good of the public. For, although a "private citizen may dispense with fatisfaction for his private "injury, he cannot remove the neceffity of public example. "The right of punishing belongs not to any one individual "in particular, but to the fociety in general, or the fove"reign who represents that society: and a man may re"nounce his own portion of this right, but he cannot give that of others."

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Becc. ch. 46.




FTER trial and conviction, the judgment of the court regularly follows, unlefs fufpended or arrefted by fome intervening circumftance; of which the principal is the benefit of clergy: a title of no small curiofity as well as ufe; and con cerning which I fhall therefore inquire, 1. Into it's original, and the various mutations which this privilege of clergy has fuftained. 2. To what perfons it is to be allowed at this day. 3. In what cafes. 4. The confequences of allowing it,

1. CLERGY, the privilegium clericale, or in common fpeech the benefit of clergy, had it's original from the pious regard paid by chriftian princes to the church in it's infant ftate; and the ill ufe which the popish ecclefiaftics foon made of that pious regard. The exemptions which they granted to the church, were principally of two kinds: 1. Exemption of places, confecrated to religious duties, from criminal arrefts, which was the foundation of fanctuaries: 2. Exemption of the perfons of clergymen from criminal process before the secular judge in a few particular cafes, which was the true original and meaning of the privilegium clericale.

BUT the clergy, increasing in wealth, power, honour, number, and intereft, began foon to fet up for themselves: and that which they obtained by the favour of the civil government, they now claimed as their inherent right; and as a

right of the highest nature, indefeasible, and jure divinoa. By their canons therefore and constitutions they endeavoured at, and where they met with eafy princes obtained, a vast extenfion of thefe exemptions: as well in regard to the crimes themselves, of which the lift became quite univerfal; as in regard to the perfons exempted, among whom were at length comprehended not only every little fubordinate officer belonging to the church or clergy, but even many that were totally laymen.

In England however, although the ufurpations of the pope were very many and grievous, till Henry the eighth entirely exterminated his fupremacy, yet a total exemption of the clergy from fecular jurisdiction could never be thoroughly effected, though often endeavoured by the clergy: and therefore, though the antient privilegium clericale was in fome capital cafes, yet it was not univerfally, allowed. And in those particular cafes, the use was for the bishop or ordinary to demand his clerks to be remitted out of the king's courts, as foon as they were indicted: concerning the allowance of which demand there was for many years a great uncertainty: till at length it was finally fettled in the reign of Henry the fixth, that the prifoner fhould firft be arraigned; and might either then claim his benefit of clergy, by way of declinatory plea; or, after conviction, by way of arrefting judgment. This latter way is most usually practifed, as it is more to the fatisfaction of the court to have the crime previously ascertained by confeflion or the verdict of a jury; and also it is more advantageous to the prifoner himself, who may pos fibly be acquitted, and fo need not the benefit of his clergy at all.

ORIGINALLY the law was held, that no man fhould be admitted to the privilege of clergy, but fuch as had the babitum et tonfuram clericalem. But in procefs of time a much [ 367 ]

a The principal argument, upon which they founded this exemption, was that text of fcripture; "touch not "mine anointed, and do my prophets ** no harm." (Keilw. 181.)

b See Vol. III. pag. 62.

c Keilw. 180.


2 Hal. P. C. 377.

e 2 Hal. P. C. 372. M. Paris. A.D. 1259. See Vol. I. pag 24.

Book IV. wider and more comprehenfive criterion was eftablifhed: every one that could read (a mark of great learning in those days of ignorance and her fifter fuperftition) being accounted a clerk or clericus, and allowed the benefit of clerkship, though neither initiated in holy orders, nor trimmed with the clerical tonfure. But when learning, by means of the invention of printing, and other concurrent caufes, began to be more generally diffeminated than formerly; and reading was no longer a competent proof of clerkship, or being in holy orders; it was found that as many laymen as divines were admitted to the privilegium clericale: and therefore by statute 4 Hen. VII. c. 13. a diftinction was once more drawn between mere lay fcholars, and clerks that were really in orders. And, though it was thought reafonable ftill to mitigate the feverity of the law with regard to the former, yet they were not put upon the fame footing with actual clergy; being fubjected to a flight degree of punishment, and not allowed to claim the clerical privilege more than once. Accordingly the ftatute directs, that no perfon, once admitted to the benefit of clergy, fhall be admitted thereto a fecond time, unless he produces his orders; and in order to distinguish their persons, all laymen who are allowed this privilege fhall be burnt with a hot iron in the brawn of the left thumb. This distinction between learned laymen, and real clerks in orders, was abolished for a time by the ftatutes 28 Hen. VIII. c. I. and 32 Hen. VIII. c. 3. but is held to have been virtually restored by ftatute 1 Edw. VI. c. 12. which statute alfo enacts that lords of parliament and peers of the realm, having place and voice in parliament, may have the benefit of their peerage, equivalent to that of clergy, for the first offence, (although they cannot read, and without being burnt in the hand,) for all offences then clergyable to commoners, and alfo for the crimes of houfe-breaking, highway-robbery, horfe-ftealing, and robbing of churches (1).

e Hob. 294. 2 Hal. P. C. 375.

(1) Upon the conviction of the duchefs of Kingston for bigamy, it was argued by the attorney-general Thurlow, that peereffes


AFTER this burning the laity, and before it the real clergy, were discharged from the fentence of the law in the king's courts, and delivered over to the ordinary, to be dealt with according to the ecclefiaftical canons. Whereupon the ordinary, not fatisfied with the proofs adduced in the profane fecular court, fet himself formally to work to make a purgation of the offender by a new canonical trial; although he had been previously convicted by his country, or perhaps by his own confeffion. This trial was held before the bishop in perfon, or his deputy; and by a jury of twelve clerks: and there, first, the party himself was required to make oath of his own innocence; next, there was to be the oath of twelve compurgators, who fwore they believed he spoke the truth; then, witnesses were to be examined upon oath, but on be half of the prisoner only; and, laftly, the jury were to bring in their verdict upon oath, which usually acquitted the prifoner; otherwife, if a clerk, he was degraded, or put to penance. A learned judge, in the beginning of the last century, remarks with much indignation the vaft complication of perjury and fubornation of perjury, in this folemn farce of a mock trial; the witneffes, the compurgators, and the jury, being all of them partakers in the guilt: the delinquent party alfo, though convicted before on the clearest evidence, and confcious of his own offence, yet was permitted and almost compelled to fwear himself not guilty: nor was the good bishop himself, under whofe countenance this fcene of wickedness was daily tranfacted, by any means exempt from

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were not entitled by 1 Edw. VI. c. 12. like peers, to the privilege of peerage; but it was the unanimous opinion of the judges, that a peerefs convicted of a clergyable felony ought to be immediately difcharged without being burnt in the hand, or without being liable to any imprisonment. 11 H. St. Tr. 264. If the duchefs had been admitted, like a commoner, only to the benefit of clergy, burning in the hand at that time could not have been difpensed with.

a fhare

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