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of the realm having place and voice in parliament, by the ftatute i Edw. VI. c. 12. (which is likewise held to extend to


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peereffes *,) fhall be discharged in all clergyable and other felonies, provided for by the act, without any burning in the [372] hand or imprisonment, or other punishment fubstituted in it's ftead, in the fame manner as real clerks convict: but this is only for the first offence. Laftly, all the commons of the realm, not in orders, whether male or female, fhall for the first offence be discharged of the capital punishment of felonies within the benefit of clergy, upon being burnt in the hand, whipped, or fined, or fuffering a discretionary imprifonment in the common gaol, the house of correction, one of the penitentiary houses, or in the places of labour for the benefit of fome navigation; or, in cafe of larciny, upon being transported for feven years, if the court fhall think proper (4). 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, fince the re-introduction of the Jews into England, in the time of Oliver Cromwell. For, if that were the cafe, the Jews are ftill in the fame predicament, which every day's experience will contradict: the statute of queen Anne having certainly made no alteration in this respect; it

k Duchefs of Kingston's cafe, in parliament, 22 Apr. 1776.

12 Hal. P. C. 373. 2 Hawk. P. C. 338. Folt. 306.

petty larciny, though they are fubject to no corporal punishment whatever, upon being convicted of a grand larciny or any clergyable felony.

(4) A layman, who has once had the benefit of clergy, may be precluded from obtaining it a fecond time, by a counter-plea on the part of the profecution, averring the identity of the prisoner's perfon, and that he had before been allowed the benefit of his clergy, though the fecond crime be quite different from the firft. As a perfon convicted of bigamy is liable to fuffer death for a manflaughter, or any other clergyable felony, Scott's cafe; Leach, 31z.

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only dispensing with the neceffity of reading in those perfons, who, in cafe they could read, were before the act entitled to the benefit of their clergy.

III. THE third point to be confidered is, for what crimes the privilegium clericale, or benefit of clergy, is to be allowed. And, it is to be obferved, that neither in high treafon, nor in petit larciny, nor in any mere misdemefnors, it was indulged at the common law; and therefore we may lay it down for a rule, that it was allowable only in petit treafon and capital felonies: which for the most part became legally entitled to this indulgence by the ftatute de clero, 25 Edw. III. ft. 3. c. 4. which provides that clerks convict for treasons or felonies, touching other perfons than the king himself or his royal majefty, fhall have the privilege of holy church. But yet it was not allow able in all felonies whatfoever: for in fome it was denied even by the common law, viz. infidiatio viarum, or lying in wait for one on the highway; depopulatio agrorum, or deftroying and ravaging a country'; and combuftio domorum, or arfon, that is, the burning of houfes m; all which are a kind 373] of hoftile acts, and in fome degree border upon treafon. And farther, all these identical crimes, together with petit treafon, and very many other acts of felony, are oufted of clergy by particular acts of parliament; which have in general been mentioned under the particular offences to which they be long, and therefore need not be here recapitulated. Upon all which statutes for excluding clergy I fhall only obferve, that they are nothing elfe but the reftoring of the law to the fame rigor of capital punishment in the first offence, that is exert ed before the privilegium clericale was at all indulged; and which it ftill exerts upon a fecond offence in almost all kinds of felonies, unlefs committed by clerks actually in orders. But fo tender is the law of inflicting capital punishment in the firft inftance for any inferior felony, that notwithstanding by the marine law, as declared in ftatute 28 Hen. VIII. c. 15. the benefit of clergy is not allowed in any cafe whatfoever;

12 Hal. P. C. 333

Hal. P. C. 346.


yet, when offences are committed within the admiraltyjurifdiction, which would be clergyable if committed by land, the conftant courfe is to acquit and difcharge the prisoner". And, to conclude this head of enquiry, we may obferve the following rules: 1. That in all felonies, whether new created or by common law, clergy is now allowable, unless taken away by exprefs words of an act of parliament. 2. That, where clergy is taken away from the principal, it is not of course taken away from the acceffory, unless he be alfo particularly included in the words of the statute P. 3. That, when the benefit of clergy is taken away from the offence, (as in cafe of murder, buggery, robbery, rape, and burglary,) a principal in the fecond degree, being prefent, 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 perfon committing the offence, (as in the cafe of ftabbing, or committing larciny in a dwelling-houfe (5), or privately from the perfon,) his aiders and abetters are not excluded; through the tenderness of the law, which hath determined that such statutes fhall be taken literally 9,

IV. LASTLY, we are to inquire what the confequences are [ 374 3 to 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 confequences of receiving this indulgence. The confequences are fuch as affect his prefent intereft, 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 ftatute pardon.

n Moor. 756. Foft. 288.

2 Hal. P. C. 330.

p 2 Hawk. P. C. 341.

91 Hal. P. C. 529. Fofter 356, 357.

(5) In the case of all capital larcinies in a dwelling-house, the benefit of clergy has been taken away, as well from those who aid, affift, and abet, as from those who actually commit the crime, W. & M, c. 9. and 12 Ann. ft. 1. c. 7. See p. 240. ante.

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AND, we may obferve, 1. That by this conviction he forfeits all his goods to the king; which, being once vested in the crown, fhall not afterwards be reftored to the offender". 2. That, after conviction, and till he receives the judgment of the law, by branding or fome of it's fubftitutes, or elfe is pardoned by the king, he is to all intents and purposes a felon, and fubject to all the disabilities and other incidents of a felon. 3. That, after burning or it's fubftitute, or pardon, he is discharged for ever of that, and all other felonies before committed, within the benefit of clergy; but not of felonies from which fuch benefit is excluded: and this by ftatutes 8 Eliz. c. 4. and 18 Eliz. c. 7. 4. That by the burning, or it's fubftitute, or the pardon of it, he is restored to all capacities and credits, and the poffeffion of his lands, as if hẹ had never been convicted '. 5. That what is faid with regard to the advantages of commoners and laymen, subse quent to the burning in the hand, is equally applicable to all peers and clergymen, although never branded at all, or fubjected to other punishment in it's ftead. For they have the fame privileges, without any burning, or any fubftitute for it, which others are entitled to after it ".

2 Hal. P. C. 388.

3 P, Wms. 487.

t2 Hal. P. C. 389. 5 Rep. 110.

u 2 Hal. P. C. 389, 390.





W recution, after arial, and conviction are paft, in fuch

E are now to confider the next stage of criminal pro


crimes and mifdemefnors, as are either too high or too low to be included within the benefit of clergy: which is that of judgment, For when, upon a capital charge, the jury have brought in their verdict guilty, in the prefence of the prisoner; he is either immediately, or at a convenient time foon after, afked by the court, if he has any thing to offer why judg ment should not be awarded against him. And in cafe the defendant be found guilty of a mifdemefnor, (the trial of which may, and does usually, happen in his absence, after he has once appeared,) a capias is awarded and issued, to bring him in to receive his judgment; and, if he abfconds, he may be profecuted even to outlawry. But whenever he ap pears in perfon, upon either a capital or inferior conviction, he may at this period, as well as at his arraignment, offer any exceptions to the indictment, in arreft or stay of judgment: as for want of fufficient certainty in fetting forth either the perfon, the time, the place, or the offence. And, if the objections be valid, the whole proceedings fhall be fet afide; but the party may be indicted again. And we may take notice, I. That none of the statutes of jeofails, for amend ment of errors, extend to indictments or proceedings in cri

* 4 Rep. 45.

b See Vol. III. pag. 407,

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