to be discharged at all, for whom the law has not directed burning. Suppose the king should pardon the burning; it was thought, in lord Warwick's case, that would be a perfect discharge. Burning was not substituted in the place of purgation: that was a mere slip: it is contrary to the history: burning existed before the 18th of Elizabeth, in just the same extent as after. Imprisonment, at the discretion of the temporal judge, was the substitute for purgation; and is extended expressly to all, who are discharged from purgation. But it seems too late to argue this. Was it not expressly decided in the case of Searl and Williams, when prohibition went to stay the deprivation of a parson, who had been convicted of manslaughter, and discharged under the 18th of Elizabeth, although he could not be burnt? "For when the statute says after burning, it imports, where burning ought to be; other wise the statute would do no good to clerks, for whom it was most intended." The case is reported in Hobart. The statute speaks universally of every body, those who were, and those who were not liable to burning; and discharges them all, after allowance of clergy, and burning according to law, as it had stood before; that is, reddendo singula singulis.' The next objection is, that the word justices' will not apply to your lordships, even while you are sitting merely in the characters of judges. Therefore a statute, which is to be executed by justices, cannot relate to a peer, who is not triable by justices. Is it then seriously contended, that your lordships, exercising your jurisdiction in the trial of a peer, will not do all the same acts of justice, which judges must do in the trial of a commoner? Upon reading many acts of parliament, your lordships will find, either, that you have no jurisdiction at all, or that you must exercise it under the character and denomination of justices. The same objection might have been made to lord Ferrers's execution ;* the same to the burning a peer under the statute of Henry the 7th. By the word 'justices' I understand, in our law, all manner of officers who are entrusted with the administration of justice. So Spelman defines the word. In high antiquity, the name went to the greatest subject in this country; for I take the Justitiarius totius Angliæ' to have been above the Seneschallus regis.' Your lordships therefore will not disdain the name; for you sit here in no higher character than that, which, by just and natural construction, is attributed to the word 'justices.' Therefore, if no better objections can be raised than these, I apprehend the words of the statute sufficiently comprize the peerage. This also was laid down in the trial of lord Warwick. But, my lords, if these are objections, whither do they go? Not only to subvert the statute of Elizabeth, in this most reasonable particular of giving some convenient correction, * See his case, vol. 19, p. 885. as the statute calls it, to a criminal found so upon_record; but to restore a law, which has now for many ages been understood to be at an end; and I flatter myself, considering the account which the books all give of it, that purgation is at an end. But I am called upon to look at the 20th of H. 6, c. 9. This was a mere declaratory law; reciting the 29th chapter of Magna Charta, 'nullus liber homo,' and so forth, and a very absurd doubt, whether homo' included both genders; and declaring, that "ladies shall be put to answer, and judged before such judges and peers" (here by the way judges and peers are synonymous)" as peers should be." But though, by Magna Charta, peeresses were to be tried by their peers, as other women were by theirs, there the privilege ends. All were, upon conviction, to receive the like judgment and execution: and, in the exemption from death, the difference was not between the ranks, but the sexes, of the convicts. And so the law undoubtedly continued, notwithstanding this statute. But it was said, that, by the equity of this statute, marchionesses and viscountesses were included, though not named. This was to give countenance to the rule, that all statutes in pari materiá shall be construed alike. There is great good sense in the rule. Marchionesses and viscountesses were clearly within the law declared; and consequently within the reason of declaring it: therefore duchesses, countesses, and baronesses were, by a sort of synechdoche, put for all peeresses. So where a privilege is saved to certain denominations of people, all others, who were before within the same privilege, will be within the saving, if there be nothing in the context to raise a distinction against them; particularly, if the saving be only declaratory, and not a positive exception. Nay, in a new law, things, equally within the reason of it, have been comprized in it by construction. But this borders upon arbitrary: parliament seems the properest judge of this reason. If peers, disqualified to vote, should claim the benefit of the 1st of Edward the 6th, it might be argued with some plausibility, that they are within the reason of the act. They are so certainly, in every point, except that of voting; and yet I should think it too much to overlook so material a distinction made by the statute itself. But if women, who were not concerned in any part of the subject matter, make the same claim, it would be making a perfectly new law to include them. Where then is the paritas materia between the act of William and Mary, for exempting women from capital punishment, and the 20th of Henry the 6th, which had nothing to do with punishment; or the 1st of Edward the 6th, which had nothing to do with women? I did propose two statutes to be considered in pari materiá, the acts of James and of William and Mary; the only two which coufer upon any woman any exemption from capital punishment. I have not heard it denied, put an end to all question, by stating expressly the very measure of punishment allotted to all women. Burnt in the hand in open court, it is said, shall not apply to peeresses, because they were never liable to be burnt at all. The position is true, not of peeresses alone, but of all women. But they were liable to judgment of death; for which this slighter punishment was a desirable commutation. that if a peeress had stood convicted of the crimes mentioned in the first act, the panishment there specified must have ensued." This fixes the sense of these words,' in the like case.' 1 am possessed therefore, of this ground, that the act of Edward the 6th did not touch the difference put by the law of clergy between the sexes; nor that of James make any difference as to the quality of the offender. We go entirely upon the act of William and Mary. It is inaccurate to say, this act puts women My lords, if there be any thing, in the nainto the same condition with men; and still ture of the punishment, unreasonable, or immore, with men of the same quality respec-proper to be applied to women in general, or to tively. There is nothing in it about the condition of the person. Where a man, convict of any felony, has clergy, a woman, convict of the like offence, shall not have judgment of death, but suffer the same punishment as a man would suffer, with clergy, in the like case. These words refer altogether to the quality of the of fence. That very crime, which in one record, applied to a man, infers judgment of death, avoidable by his claim of clergy, applied in another to a woman, infers the specific judgment prescribed by the act. Nor are the two sexes put into the same condition, even as to punishment. All women avoided judgment of death; not so of all men. Some were indispensably incapable of holy orders: such cannot have their clergy at this day; nor had any other exemption from death before the 5th of Anne. Some could not prove their title to elergy by reading. Men could have their clergy but once: women the benefit of this statute toties quoties, till a subsequent act altered the law in this respect. Sull less can the words be twisted to create a difference as to the rank of the offender. It is hard, says a learned gentleman, to put the se. verest construction upon an act of this sort. The act is not penal. But the shorter answer is, there are not two constructions to chuse between. If the phrase had been left general, the same punishment as a man should suffer that had his clergy in the like case,' it might have been thought uncertain what that punish ment should be; because different orders of men were liable to different measure of punishment in the like case; the bulk of men to forfeiture, burning, and discretionary imprisonment; inferior ecclesiastics to forfeiture and imprisonment; lords of parliament to imprisonment only. In such a text there might have been room to contend for a favourable construction; and yet, even then, I should have thought that the measure of punishment allotted to the bulk of mankind, undistinguished by peculiar privileges, must have been deemed the meaning of the legislature. But whatever might have been the construction of such a text, it must have applied equally to all women. They could not have been classed in casts, according to the condition of their respective husbands; the wife of a lord of parliament to be imprisoned; of an inferior ecclesiastic to be imprisoned and to forfeit; of other men to be imprisoned, to forfeit, and be burnt. The statute however has VOL. XX. noblewomen in particular, let the matter come before parliament. It is a legislative consideration, and parliament will entertain it according to the extent of the principle, which certainly will apply to many noblewomen of much higher rank than some peeresses, who, as the law now stands, are liable to that punishment. So, I think, they ought to remain. Guilt levels rank. A noblewoman, covered with the ignominy of such a conviction, cannot forfeit less than her estimation. My lords, the only question is this: has any positive law granted the exemption now demanded, to wind up such a record as this with perfect impunity, a ridiculous disgrace to public justice? Has this been done in express terms; or in terms, whose necessary construction amounts to express? My lords, when I have qualified the question in that manner, I have gone to the verge of judicial authority. And I do desire to press this upon your lordships as an universal maxim: no more dangerous idea can creep into the mind of a judge, than the imagination that he is wiser than the law. I confine this to no judge, whatever be his denomination, but extend it to all. And, speaking at the bar of an English court of justice, I make sure of your lordships' approbation, when I comprize even your lordships, sitting in Westminster-hall. It is a grievous example to other judges. If your lordships assume this, sitting in judgment, why not the King'sbench? Why not commissioners of Oyer and Terminer? If they do so, why not the Quarter sessions? Ingenious men may strain the law very far-but, to pervert it-to new model it the genius of our constitution says, judges have no such authority, nor shall presume to exercise it. The Lords then adjourned to the Chamber of Parliament; and, after some time passed there the House adjourned again into Westminster-hali; when, after the usual proclamation for silence, his grace the Lord High Steward addressed the prisoner to the following effect: Whereupon the Lord Chief Baron of the Court of Exchequer, having conferred with the rest of the judges present, delivered their unanimous Opinion upon the said Question, with bis reasons, as follow, viz. My lords; the question proposed by your lordships for our opinion is, Whether a peeress convicted by her peers of a clergyable felony, is by law intitled to the benefit of the statutes, so as to excuse her from capital punishment, without being burnt in the hand, or being liable to any imprisonment?* My lords, your lordships would probably expect, that on a question of this importance the judges would have desired time to have considered of it; but, as it was easy to foresce from the first appointment of this trial, that a question of this sort would probably arise, we have all looked into the several statutes, from which any light could be expected and as on such a consideration we have been able to form an opinion, in which we all concur, we thought it our duty to deliver it immediately, and not obstruct the public business by unnecessarily protracting this trial, which has already taken up so much of your lordships' time. I am therefore authorized by my brothers to say, we all concur in opinion, that a peeress convicted by her peers of a clergyable felony is by law intitled to the benefit of the statutes, so as to excuse her from capital punishment, without being burnt in the hand, or being liable to any imprisonment. My lords, the question depends on several acts of parliament. The first I shall trouble your lordships with, is the 29 Hen. 8,† c. 9, which recites, "that by Magna Charta no freeman shall be taken, or imprisoned, or disseised of his freehold, or his liberties or free customs, or shall be outlawed, or in any wise destroyed, that is, forejudged of life or limb, or put to death, or shall be condemned at the king's suit, either before the king in his bench, that is, the King's-bench, or before any other commissioner or judge whatsoever, but by the lawful judgment of his peers, or by the law of the land; in which statute, (that is, Magna Charta,) no mention is made how women, ladies of great estate in respect of their husbands peers of the land, married or sole, that is to say, duchesses, countesses, or baronesses, shall be put to answer, or before what judges they shall be judged upon indictments of treasons or felonies by them committed or done; in regard whereof it is a doubt in the law of England, before whom and by whom such *See Leach's Hawkins's Pleas of the Crown, bk. 2, c. 33, s. 8. L. H. S. Madam, the lords have considered of the prayer you have made, to have the benefit of the statutes, and the lords allow it you. But, Madam, let me add, that although very ladies so indicted shall be put to answer and be judged: our said lord the king, willing to put out such ambiguities and doubts, hath declared by authority aforesaid, that such ladies so indicted, or hereafter to be indicted of any treason or felony by them done or hereafter to be done, whether they be married or sole, that they thereof shall be brought to answer, and put to answer and judged before such judges and peers of the realm, as peers of the realm should be, if they were indicted or impeached of such treasons or felonies done or hereafter to be done, and in like (autiel) manner and form, and none otherwise." Your lordships will observe, that this statute does not introduce a new law, but is a declarative law, explaining what the true meaning of Magna Charta was. 'Peers' in that statute means equals; and therefore any of the nobility must by Magna Charta be tried by the nobility who are their peers; for all nobility, whether barons the lowest, or dukes the highest degree of nobility, are all equals in this respect and lord Coke, 2d Inst. 45, says, "though duchesses, countesses, and baronesses are only named in this declaratory statute, and marchionesses and viscountesses are omitted, notwithstanding, they are also comprehended in this 29th chapter of Magna Charta." 'Peers,' though originally meaning only equals, is now by common use applied to a particular part of the nation, distinguished from the rest by superior rank and privileges, which they derive from the king originally by writ or letters patent granted to them or their ancestors; and in cases of such ladies as are not so ennobled, they obtain that nobility by marriage to those who are so ennobled. As the next statute, 1 E. 6, c. 12, s. 14, speaks of the benefit of clergy, it will be necessary to say something upon that subject. Lord Hale, in his second volume of his History of Pleas of the Crown, page 323, says, that "anciently princes and states converted to Christianity granted the clergy exemptions of places consecrated to religious duties from arrests for crimes, which was the original of sanctuaries; and secondly, exemptions of their per sons from criminal proceedings in some cases capital before secular judges, which was the true original of this privilegium clericale. The clergy increasing in wealth, power, honour, number, and interest, claimed as a right what they at first obtained by the favour of princes and states, and by degrees extended these exemptions to all that had any kind of subordinate ministration relative to the church." 1 These exemptions never rose to so great an height in this kingdom as in other places The stat. 20 H. 6, seems to be here in- and therefore the clergy were not exempted here from civil suits, nor was this privilegium tended. like benefit a second time, but another offence of the same kind will be capital. Madam, you are discharged, paying your fees. be made by the gaoler openly in the court before the judge, before that such persons be delivered to the ordinary." This statute prevented laymen having their clergy more than once; and the branding answered the purpose of discovering whether they had had the benefit of their clergy before, though it was necessary to prove it by other means, to prevent their having clergy a second time. kittle punishment, or none, can now be inflicted, the feelings of your own conscience will supply that defect. And let me give you this information likewise, that you can never have the clericale allowed in the lowest crimes not capital, nor wherein they were not to lose life or limb, nor in high treason touching the king himself, or his royal majesty: but by 25 E. 3, c. 4, de Clero, in all other felonies the ordinary might demand the prisoner as a clerk, or the prisoner himself might demand the benefit of the clergy. "The canon law gave the privilege only to men in holy orders: our law, in favour to learning and the desire of the English bishops, The 1 E. 6, c. 12, will come next to be conextended it to lay clerks, i. e. any layman, that sidered; which, after repealing several newby reason of his ability to read was in a possi- created treasons and felonies, and taking away bility of being made a priest." C. J. Treby, clergy in several other felonies, in sec. 14, See vol. 13, p. 1015. The means of try-enacts, that "in all and every case, where any ing whether he was entitled to it was by of the king's majesty's subjects shall and may, reading. If he could read, he was delivered to upon his prayer, have the privilege of clergy as the ordinary, that is, the bishop or the person a clerk convict that may make purgation; in who had ordinary jurisdiction there but the all these cases and every of them, and also in all ordinary was so much the minister of the tem- and every case and cases of felony, wherein the poral courts, and so subordinate to them, that if privilege and benefit of clergy is restrained, the ordinary refused to let the prisoner read, the excepted, or taken away by this statute (wilful temporal court could control, and order a book murder and poisoning of malice prepensed only to be delivered to him; and if the ordinary said excepted) the lord and lords of the parliament, he could read when he could not, or vice versa, and peer and peers of the realm, having place that he could not read when in reality he could, and voice in parliament, shall by virtue of this the temporal courts gave judgment according present act, of common grace, upon his or their to the truth of the case; and those courts like- request or prayer, alledging that he is a lord or wise directed, whether the prisoner should be peer of this realm, and claiming the benefit of delivered to the ordinary with purgation, or this act, though he cannot read, without any without purgation. In the last case they were burning in the hand, loss of inheritance, or to be kept in the ordinary's prison for life: if corruption of his blood, be adjudged, deemed, delivered with purgation, then the ordinary taken, and used, for his first time only, to all tried him for the fact whereof he was accused, intents, constructions, and purposes as a clerk by a jury of twelve clerks; and if he was ac- convict, and shall be in case of a clerk conquitted, as was generally the case, he was vict which may make purgation, without any discharged out of prison. Purgation was the further or other benefit or privilege of clergy convict's clearing himself of the crime by his to any such lord or peer from thenceforth at own oath, and the oaths or verdict of an inquest any time after for any cause to be allowed, adof twelve clerks as compurgators. The pro- judged or admitted; any law, statute, usage, ceeding was before the ordinary; and old books or custom, or any other thing to the contrary speak of their making proclamation for persons notwithstanding: provided always, that if any to come in against his purgation, and of their of the said lords of the parliament, or any of enquiring into his life, conversation, and fame, the peers of this realm for the time being, shall and of other formalities; in all which, several fortune to be indicted of any of the offences statutes say, there were great abuses. limited in this act, that then they and every of them shall have his or their trial by their peers, as it hath been used heretofore in cases of treason." The statute 4 H. 7, c. 13, reciting that "upon trust of the privilege of the church divers persons have been the more bold to commit murder, rape, robbery, theft, and all other misebievous deeds, because they have been continually admitted to the benefit of the clergy, as oft as they offended:" it enacts, that "every person not being within orders, which hath once been admitted to the benefit of his clergy, being again arraigned of any such offence, be not admitted to have the benefit or privilege of the clergy; and that every person so convicted for murder (which was then a clergyable offence) should be marked with an M on the brawn of the left thumb; and if he be for any other felony, to be marked with a T in the same place of the thumb; and those marks to From the time of this statute, whenever a peer has been convicted of any felony, for which a commoner might have the benefit of clergy, such peer, on praying the benefit of this statute, has always been discharged without burning or delivering to the ordinary: and there are a series of precedents from lord Morley's case, 1666, [vol. 6, p. 769], till one in this reign as late as 1765;* and C.J. Treby says, * See the Case of lord Byron in this Collection, vol. 19, p. 1178. See also more concerning benefit of clergy in vol. 12, p. 631, and the other cases and books there referred to. L. H. S. My lords, this trial being at an end, nothing remains to be done here, but to determine the commission. Lords. Ay, ay. L. H. S. Let proclamation be made for dissolving the commission of High Steward. Serjeant at Arms. Oyez! oyez! oyez! our sovereign lord the king does strictly charge "the statute 1 E. 6, exempts the peers convict approved by the common law :" and page 291, of clergyable felonies from burning in the hand, he says, "the perjuries were sundry in the and virtually repeals the statute, 4 H. 7, as to witnesses and compurgators, in the jury of so much; and the statute 18 Eliz. requires clerks, and the judge himself was not clear, all burning in the hand only according to the turning the solemn trial of truth by oath into a statute in that behalf before provided; and ceremonious and formal lie." It is not probathere being no statute then or now in force to ble the parliament, intending a great distinction subject peers to such brand, they are in such in favour of peers, so as to dispense with readcase (upon the allowing the benefit of the said ing and burning in the hand, meant to leave a statute of E. 6, which is as much as clergy peer a prisoner in the custody of the ordinary, without reading or burning) freed from discre- and to have his credit and capacity to acquire dit and other penalties of the felony, as much personal property, and enjoy the profits of his as commoners are by having clergy formally al- lands, to be decided upon in such a mock trial; lowed, and being burnt." Vol. 13, p. 1014. And and in fact there is no instance in any of the he 66 says, a peer shall have this benefit with- law books, where a peer convicted of a clergyout either clergy or burning, a clerk in orders able felony has ever been delivered to the ordiupon clergy alone without burning, and a lay-nary, or has made purgation: and the jurisdic clerk not without clergy and burning." Vol. 13, p. 1019. And I believe nobody can dispute but the law is so. The question therefore is, whether a peeress is not entitled to the same privilege? and we are of opinion that she is. 'Peers' is a word capable of including the whole body of the peerage, females as well as males; and every personal privilege conferred on peers is by operation of law communicated to peeresses whether by blood or marriage, though only males are mentioned. As trial by peers, though recognized in Magna Charta only as belonging to the male sex, nec super eum ibimus, nec super eum mittemus,' did by construction of law belong to females, as appears by 20 H. 6, which is only a declaratory law; so any other personal privilege, granted or confirmed to peers generally, is com municated to females, if it is of a nature capable of being communicated to and enjoyed by them; as trial by peers, freedom from arrest : Countess of Rutland's case, Moor 769, and 2 Co. 52. And if those privileges are so communicated, as they certainly are, why should not this given by 1 E. 6, the consequence of which is so reasonable and agreeable to justice, that a female offender shall not undergo a greater punishment than a male of her own rank would do for a crime of the same sort? But it was insisted at the bar, that between 1 E. 6, and 18 Eliz. a peer found guilty of a clergyable offence should be delivered to the ordinary as a clerk convict: and Staunford, 130, is quoted for that purpose, that by the words of this statute a peer ought to make his purgation; and if so, he ought to be delivered to the ordinary to be kept till he has made his purgation. That opinion of Staun ford seems contrary to law in many particulars. The 1 E. 6, c. 3, had in effect suspended purgation, even as to commoners: therefore the legislature could never mean to introduce and establish purgation as to a peer, which Hobart says, 289, "is no ordinance of the common law, but is a practice among themselves, i. e. the clergy, rather overseen and winked at than tion of the ordinary to purge the clerk relates only to clerks in orders, or such as the common law considered as clerks; and a peer not being a clerk, he could not make purgation, the ordinary having no jurisdiction over him; and the words here," have the privilege of clergy as a clerk convict that may make purgation, and shall be adjudged, deemed, taken, and used for his first time only to all intents, constructions, and purposes as a clerk convict, and shall be in case of a clerk convict which may make purgation," do not import or direct that he shall make purgation; but give a peer the same advantage as a clerk convict who might make purgation, i. e. an absolute discharge from all further punishment; and the statute, as to him, is to be construed to be a pardon: and it seems most probable, that peers never did make purgation; because, as all who made purgation were to be tried by a jury of clerks, such trial would be derogatory to their inherent privilege of being tried by their peers. Lord chief justice Hale, on this statute (2 H. H. P. C. 376) says, "I think it was never meant that a peer of the realm should be put to read, or be burnt in the hand, where a common person should be put to his clergy; neither is it said, that he shall be discharged by his praying of the benefit of this statute, where a common person shall have the privilege of clergy and may make his purgation; but only where he may have the benefit of his clergy in the first clause of the statute: the other clause shall be in case of a clerk convict that may make purgation' is only for his speedier discharge and farther advantage, and not to restrain the general clause. But it is objected, that the statute 1 E. 6, c. 12," gives this privilege only to "lord and lords of the parliament, and peer and peers of the realm having place and voice in the parliament ;" and that a peeress, not having place and voice in parliament, cannot have the benefit of this statute. This expression," having place and voice in parliament," cannot mean to exclude all peers but such as sat in parliament; but to |
