and command all manner of persons here pre-sovereign lord the king, for his grace my Lord sent, and that have here attended, to depart High Steward of Great Britain intends now to hence in the peace of God, and of our said dissolve his commission.

describe some of the incidents of peerage, or to
include bishops, who are lords of parliament
though not peers: and if these words should
confine the benefit of this statute to those only
who actually sat in parliament, it would exclude
peers minors, and papist peers, who, by statute
30 Car. 2, stat. 2, c. 1, are now rendered inca-
pable of sitting or voting in parliament: the
words therefore are merely descriptive, and not
restrictive. And what makes it very plain is,
that, in the 4th and 5th P. and M. c. 4, which
takes away clergy from accessaries before the
fact in murder and several other offences, there
is a proviso that every lord and lords of the
parliament, and peer and peers of this realm,
having place and voice in parliament, upon
every indictment for any of the offences afore-
said, shall be tried by their peers, as hath been
accustomed by the laws of this realm. Here
are the very words used in 1 E. 6, c. 12; yet
it could never be doubted, but notwithstanding
those words, peeresses must be tried by their
peers for offences against that statute; and
lady Somerset [see her case, vol. 2, p. 951]
was tried by her peers for being accessary
to the murder of sir Thomas Overbury, which
was an offence against that very statute.
What gave rise probably to this statute, 1 E.
6, c. 12, was another statute passed the
same year, c. 3, providing for the punish-
ment of vagabonds, by making them slaves for
two years; in which act was a clause, that no
clerk convict shall make his purgation, but
shall be a slave for one year to him who will
become bound with two sureties to the ordinary
to take him into his service, and he shall be
used like a vagabond; and a clerk attainted or
convict, which by law cannot make bis pur-
gation, may by the ordinary be delivered to any
man, who will give security to keep him as his
slave for five years; and it shall be lawful to
every person, to whom any shall be adjudged
a slave, to put a ring of iron about his neck,
arm, or leg. To avoid all possible question
whether a peer could be subject to any of these
provisions, this act, 1 E. 6, c. 12, provides for
their immediate delivery, on praying the be-
nefit of this statute. This statute 1 E. 6, c. 3,
was repealed 3d and 4th E. 6, c. 16, but was
in force when 1 E. 6, c. 12, was made. The
next statute, 18 Eliz. c. 7, provides, that every
person which shall be admitted and allowed to
have the benefit of privilege of his clergy, shall
not thereupon he delivered to the ordinary, as
has been accustomed; but, after such clergy
allowed and burning in the hand, according to
the statute in that behalf provided, shall forth-
with be enlarged and delivered out of prison by
the justices, before whom such clergy shall be
granted, that cause notwithstanding. Then
follows the proviso, that the justices, before
whom any such allowance of clergy shall be
bad, shall and may, for the further correc

tion of such persons to whom clergy shall be
allowed, detain and keep them in prison for
such convenient time as the same justices in
their discretions shall think convenient, so as
the same do not exceed one year's imprison-
This proviso plainly relates only to
ment.
those persons mentioned in the clause, that is,
such persons as bad been burnt in the hand ac-
cording to the statute in that case made and
provided, meaning 4 H. 7. As peers therefore
are not to be burnt in the hand, they cannot be
imprisoned; for those only are to be imprisoned
who have been burnt in the hand; and the
word 'justices,' is more properly applicable to
other courts of judicature than to this house.
The 21 Ja. 1, c. 7, cannot relate to this ques-
tion; for it relates to common persons, and was
intended to put women on the same footing
with men, as to small larcenies; and 3d and
4th W. and M. c. 9, does the same in all
clergyable felonies. This shews the justice of
allowing to the peeresses the same benefit of
1 E. 6, c. 12, as peers have; and it is natural
to suppose, that when the legislature were put-
ting women of inferior rank on the same foot-
ing as men, they would have put peeresses on
the same footing with peers, had it not been
conceived that the same privileges were already
extended to both.

Upon the whole therefore, by stat. 1 E. 6, a peer convicted of a clergyable felony is intitled to his immediate discharge, without reading or burning in the hand, or being liable to imprisonment by 18 Eliz.

This privilege, given by statute, being such as may be enjoyed by a peeress, is by operation of law communicated to her, and puts her in the same situation as a peer; the consequence of which is, that a peeress, convicted of a clergyable felony, praying the benefit of this statute, is not only excused from capital punishment, but ought to be immediately discharged, without being burnt in the hand, or liable to any imprisonment.

1

To the mention in vol. 12, p. 632, et seq. of illiterateness in the clergy, and in persons of distinction among the laity, may be added from Mr. Barrington, "that so late as the year 1525, Adam Gordon earl of Sutherland and his countess, subscribe their names with a pen led. by a notary public, as appears in the case of the countess of Sutherland in Dom. Proc. A. D. 1770." Observations on 1 H. 5, p. 382, Note [r] 4th edition of 1775. What Mr. Barrington in the same note says of Edward the 1st when prince of Wales I do not thoroughly understand. For other particulars respecting such illiterateness, see Warton's Life of sir Thomas Pope, and the passage in Fox cit. by Mr. Walter Scott in note 2, to canto 3, of the Lady of the Lake.

Voltaire, (Dict. Philos. art. Clerc) notices be

Lords. Ay, ay.

Then the white staff being delivered to the Lord High Steward by the gentleman usher of the Black Rod on his knee, his grace stood up uncovered, and holding the staff in both his hands, broke it in two, and declared the commission to be dissolved; and then, leaving the chair, came down to the woolpack, and said, Is it your lordships' pleasure to journ to the Chamber of Parliament ?

Chamber of Parliament.
L. H. S. This House is adjourned to the

Then the peers and others, returned back to the Chamber of Parliament in the same order they came down, except that his royal highad-ness the duke of Cumberland walked after the lord chancellor.

nefit of clergy. The passage affords an amusing instance of the ease with which his sententious flippancy compresses into a very small space a copious mass of false statement and impertinent reflection. "On était si savant vers le dixième et onzième siècle, qu'il s'introduisit une coutume ayant force de loi en France, en Allemagne, en Angleterre, de faire grace de la corde à tout criminel condamné qui savait lire; tant un homme de cette érudi tion était nécessaire à l'état. Guillaume le bâtard, conquérant de l'Angleterre, y porta cette coutume. Cela s'appelloit bénéfice de clergie, • beneficium clericorum aut clergicorum.'

"Nous avons remarqué en plus d'un endroit, que de vieux usages perdus ailleurs se retrouvent en Angleterre, comme on retrouva dans l'ile de Samothrace les ancieus mystères d'Orphée. Aujourd'hui même encore ce bénéfice de clergie subsiste chez les Anglais dans toute sa force pour un meurtre commis sans dessein, et pour un premier vol, qui ne passe pas cinq cents

livres sterling. Le criminel qui sait lire demande un bénéfice de clergie: on ne peut le lui refuser. Le juge, qui était réputé par l'ancienne loi ne savoir pas lire lui-même, s'en rapporte encore au chapelain de la prison, qui présente un livre au condamné. Ensuite il demande au chapelain,' Legit?' lit-il? Le chapelain répond, Legit ut clericus,' il lit comme uu clerc. Et alors on se contente de faire marquer d'un fer chaud le criminel à la paume de la main. On a eu soin de l'enduire de graisse, le fer fume et fait un siflement, sans faire aucun mal au patient réputé clerc."

6

552. Proceedings against JOHN HORNE, Clerk, on an Information in the King's-Bench by the Attorney-General, for a Libel: 17 GEORGE III. A. D. 1777.

In this Case, the report of the proceedings said present sovereign lord the king prosecutes had upon the Trial at Guildhall, and upon in this behalf, in his proper person comes into the Attorney-General's Motion for Judg-king before the king himself, at Westminster, the court of our said present sovereign lord the ment in the Court of King's-bench at Westminster, was published by the Defendant, Mr. Horne. I have subjoined an account, (compiled from Mr. Cowper's Reports and Brown's Cases in Parliament) of the subsequent proceedings before the House of Lords.

1. THE TRIAL AT GUILDHALL.

in the county of Middlesex, on Thursday nextafter fifteen days from the day of St. Martin in this same term, and for our said lord the king giveth the court here to understand and be informed, that John Horne late of London, clerk, being a wicked, malicious, seditious, and ill disposed person, and being greatly disaffect ed to our said present sovereign lord the king and to his administration of the government of this kingdom and the dominions thereunto belonging, and wickedly, maliciously, and seditiously intending, devising, and contriving to stir up and excite discontents and seditions* * With the following title: The Trial at among his majesty's subjects, and to alienate large of John Horne, esq., upon an Informa- and withdraw the affection, fidelity, and alletion filed Ex Officio by his majesty's attorney-giance of his said majesty's subjects from his general, for a Libel, before the right hon. William earl of Mansfield, in the court of 'King's-bench, Guildhall, on Friday the 4th of July, 1777. Published by the defendant from Mr. Gurney's short-hand notes.

London, to wit. BE it remembered, That Edward Thurlow, esq. attorney general of our present sovereign lord the king, who for our

-Nec bellua tetrior ulla est,
Quam servi rabies in libera colla furentis.'

said majesty, and to insinuate and cause it to be believed that divers of his majesty's innocent and deserving subjects had been inbumanly

As to the operation of these words, see: lord Ellenborough's Judgment in the Case of the King against Phillipps, 6 East, 464.

wicked, malicious, scandalous, and seditious libel, of and concerning his said majesty's government and the employment of his troops, according to the tenor and effect following that is to say, King's Arms tavern, Cornhill, June 7, 1775. At a special meeting this day of several members of the Constitutional Society, during an adjournment, a gentleman 'proposed that a subscription should be immediately entered into by such of the members present who might approve the purpose, for raising the sum of 100l. to be applied to the relief of the widows, orphans, and aged parents of our beloved American fellow-subjects, who, faithful to the character of Englishmen, preferring death to slavery, were for that reason only inhumanly murdered by the king's' (again meaning his majesty's) troops at or near Lexington and Concord, in the province ' of Massachusets' (meaning the said province, colony, or plantation of the Massachusets Bay in New England, in America) on the

murdered by his said majesty's troops in the province, colony, or plantation of the Massachusets-Bay in New-England, in America, belonging to the crown of Great-Britain, and unJawfully and wickedly to seduce and encourage his majesty's subjects in the said province, colony, or plantation, to resist and oppose his majesty's government, on the 8th day of June, in the 15th year of the reign of our present sovereign lord George the third, by the grace of God of Great-Britain, France, and Ireland, king, defender of the faith, &c. with force and arms at London aforesaid, in the parish of St. Mary-le-Bow, in the ward of Cheap, wickedly, maliciously, and seditiously did write and pubJish, and cause and procure to be written and published, a certain false, wicked, malicious, scandalous, and seditious libel of and concerning his said majesty's government and the employment of his troops, according to the tenor and effect following: King's-Arms tavern, • Cornhill, June 7, 1775. At a special meeting this day of several members of the Constitu- 19th of last April; which sum being imme⚫tional Society, during an adjournment, a gen- 'diately collected, it was thereupon resolved tleman proposed that a subscription should be 'that Mr. Horne' (again meaning himself the immediately entered into by such of the mem- said John Horne) do pay to-morrow into the ⚫bers present who might approve the purpose, 'hands of Mess. Brownes and Collinson, on for raising the sum of 100l. to be applied to the account of Dr. Franklin, the said sum of the relief of the widows, orphans, and aged 100l. and that Dr. Franklin be requested to parents of our beloved American fellow-sub- apply the same to the above-mentioned purjects, who, faithful to the character of Eng-pose; John Horne' (again meaning himself lishmen, preferring death to slavery, were for the said John Horne) in contempt of our said that reason only inhumanly murdered by the lord the king, in open violation of the laws of 'king's' (meaning his said majesty's) troops at this kingdom, to the evil and pernicious examor near Lexington and Concord, in the pro- ple of all others in the like case offending, and ⚫vince of Massachusets' (meaning the said pro- | against the peace of our said lord the king, his vince, colony, or plantation of the Massachu- crown and dignity: and the said attorney gesets-Bay in New-England, in America,) on neral of our said lord the king for our said lord the 19th of last April; which sum being im- the king further gives the Court here to unmediately collected, it was thereupon resolved derstand and be informed, that the said John that Mr. Horne' (meaning himself the said Horne being such person as aforesaid, and conJohn Horne) do pay to-morrow into the hands triving and wickedly and maliciously devising of Mess. Brownes and Collinson, on account and intending as aforesaid, afterwards, to wit, of Dr. Franklin, the said sum of 100l. and on the 9th day of June, in the 15th year afore* that Dr. Franklin be requested to apply the said, with force and arms at London aforesaid, 'same to the above-mentioned purpose; John in the parish and ward aforesaid, wickedly, Horne' (meaning himself the said John maliciously, and seditiously did print and pubHorne) in contempt of our said lord the king, lish, and cause and procure to be printed and in open violation of the laws of this kingdom, published, in a certain other news-paper, entito the evil and pernicious example of all others tled, The_London Packet, or New Lloyd's in the like case offending, and also against the Evening Post, a certain other false, wicked, peace of our said present sovereign lord the scandalous, malicious, and seditious libel of and king, his crown and dignity: and the said at- concerning his said majesty's government and torney-general of our said lord the king for our the employment of his troops, according to the said lord the king further gives the court here tenor and effect following; that is to say, to understand and be informed, that the said 'King's Arms tavern, Cornhill, June 7, 1775. John Horne being such person as aforesaid, At a special meeting this day of several and again unlawfully, wickedly, and seditiously ⚫ members of the Constitutional Society, during intending, devising, and contriving as aforesaid, an adjournment, a gentleman proposed that afterwards, to wit, on the 9th day of June in a subscription should be immediately entered the 15th year aforesaid, with force and arms at into (by such of the members present who London aforesaid, in the parish and ward afore- 'might approve the purpose) for raising the said, wickedly, maliciously, and seditiously sum of 100l. to be applied to the relief of the printed and published, and caused and procured widows, orphans, and aged parents of our to be printed and published, in a certain news- 'beloved American fellow-subjects, who, faithpaper, intitled, The Morning Chronicle and ful to the character of Englishmen, preferring London Advertiser, a certain other false, 'death to slavery, were for that reason only

:

in the like case offending, and against the peace of our said lord the king, bis crown and dignity: and the said attorney general of our said present sovereign lord the king for our said lord the king further gives the Court here to understand and be informed, that the said John Horne being such person as aforesaid, and contriving and wickedly and maliciously devising and intending as aforesaid, afterwards, to wit, on the 9th day of June in the 15th year aforesaid, with force and arms at London aforesaid, in the parish and ward aforesaid, wickedly, maliciously, and seditiously did print and publish, and cause and procure to be printed and published, a certain other false, wicked, malicious, scandalous, and seditious libel of and concerning his said majesty's government and the employment of his troops, according to the tenor and effect following; that is to say, King's Arms tavern, Cornhill, June 7. At a special meeting this day of several mem'bers of the Constitutional Society, during an adjournment, a gentleman proposed that 'a subscription should be immediately entered into (by such of the members present who 'might approve the purpose) for raising the sum ' of 100%. to be applied to the relief of the wi'dows, orphans, and aged parents of our belov'ed American fellow-subjects, who, faithful to 'the character of Englishmen, preferring death 'to slavery, were for that reason only inhumanly murdered by the king's' (again meaning his said majesty's) troops at or near Lexington and Concord, in the province of Mas'sachusets' (meaning the said province, colony, or plantation of the Massachusets-bay in NewEngland, in America) on the 19th of last

6

inhumanly murdered by the king's' (meaning bis said majesty's) troops at or near Lexing ⚫ton and Concord, in the province of Massa'chusets' (meaning the said province, colony, | or plantation of the Massachusets Bay in New England, in America) on the 19th of last April; which sum being immediately collected, it was thereupon resolved, that Mr. 'Horne' (again meaning himself the said John Horne) do pay to-morrow into the hands of 'Mess. Brownes and Collinson, on the account ' of Dr. Franklin, the said sum of 100l. and that Dr. Franklin be requested to apply the 'same to the above-mentioned purpose; John 'Horne' (again meaning himself the said John Horne) in contempt of our said lord the king, in open violation of the laws of this kingdom, to the evil and pernicious example of all others in the like case offending, and also against the peace of our said lord the king, his crown and dignity and the said attorney general of our said lord the king for our said lord the king further gives the Court here to understand and be informed, that the said John Horne being such person as aforesaid, and contriving and wickedly and maliciously devising and intend. ing as aforesaid, afterwards, to wit, on the 9th day of June in the 15th year aforesaid, at London aforesaid, in the parish and ward aforesaid, wickedly, maliciously, and seditiously did print and publish, and cause and procure to be printed and published, in a certain other newspaper, entitled, The Public Advertiser, a certain other false, wicked, scandalous, malicious, and seditious libel of and concerning his said majesty's government and the employment of his troops, according to the tenor and effect following; that is to say, 'King's Arms tavern, April; which sum being immediately colCornhill, June 7. At a special meeting this 'lected, it was thereupon resolved that Mr. ' day of several members of the Constitutional 'Horne' (again meaning himself the said John Society, during an adjournment, a gentleman Horne) do pay to-morrow into the hands of proposed that a subscription be immediately Mess. Brownes and Collinson, on account of entered into (by such of the members present 'Dr. Franklin, the said sum of 100%. and that ♦ who might approve the purpose) for raising 'Dr. Franklin be requested to apply the same the sum of 100l. to be applied to the relief of to the above-mentioned purpose; John Horne' the widows, orphans, and aged parents of our (again meaning himself the said John Horne) beloved American fellow-subjects, who, faith-in contempt of our said lord the king, in open ful to the character of Englishmen, preferring death to slavery, were for that reason only ⚫ inhumanly murdered by the king's' (meaning his said majesty's) troops at or near Lexington and Concord, in the province of Massa'chusets' (meaning the said province, colony, or plantation of the Massachusets Bay in New England, in America) on the 19th of last April; which sum being immediately 'collected, it was thereupon resolved that Mr. • Horne' (again meaning himself the said John Horne) do pay to-morrow into the hands of Mess. Brownes and Collinson, on the account of Dr. Franklin, the said sum of 100l. and that Dr. Franklin be requested to apply the same to the abovementioned purpose; John "Horne' (again meaning himself the said John Horne) in contempt of our said lord the king, in open violation of the laws of this kingdom, to the evil and pernicious example of all others

་

violation of the laws of this kingdom, to the evil and pernicious example of all others in the like case offending, and also against the peace of our said present sovereign lord the king, his crown and dignity: and the said attorney-general of our said present sovereign lord the king for our said lord the king further gives the Court here to understand and be informed, that the said John Horne being such person as aforesaid, and contriving and wickedly and maliciously devising and intending as aforesaid, afterwards, to wit, on the 9th of June in the 15th year aforesaid, with force and arms at London aforesaid, in the parish and ward aforesaid, wickedly, maliciously, and seditiously did print and publish, and cause and procure to be printed and published, a certain other false, wicked, malicious, scandalous, and seditious libel, in which said last-mentioned libel are contained, amongst other things, divers false,

scandalous, malicious, and seditious matters of ous example of all others in the like case ofand concerning his majesty's government, and fending, and also against the peace of our said the employment of his troops, according to the present sovereign lord the king, his crown and tenor and effect following; that is to say, dignity: and the said attorney-general of our 'King's Arms Tavern, Cornbill, June 7. At a said lord the king for our said lord the king special meeting this day of several members further gives the Court here to understand and of the Constitutional Society, during an ad- be informed, that the said John Horne being journment, a gentleman proposed that a sub- such person as aforesaid, and again unlawfully, scription should be immediately entered into wickedly, and seditiously intending, devising, (by such of the members present who might and contriving as aforesaid, afterwards, to wit, approve the purpose) for raising the sum of on the 15th day of July, in the 15th year afore100l. to be applied to the relief of the widows, said, with force and arms at London aforesaid, orphans, and aged parents of our beloved in the parish and ward aforesaid, wickedly, ma"American fellow-subjects, who, faithful to the liciously, and seditiously printed and published, 'character of Englishmen, preferring death to and caused and procured to be printed and pubslavery, were for that reason only inhumanly lished, in a certain other news-paper, intitled, murdered by the king's' (again meaning his The Public Advertiser, a certain other false, said majesty's) troops at or near Lexington wicked, malicious, scandalous, and seditious and Concord, in the province of Massachusets' libel of and concerning his said majesty's go(meaning the said province, colony, or plan- vernment and the employment of his troops, tation of the Massachusets Bay in New Eng- according to the effect following; that is to land, in America) on the 19th of last April,' say,' (meaning himself the said John in contempt of our said lord the king, in open Horne) think it proper to give the unknown violation of the laws of this kingdom, to the 'contributor this notice, that I' (again meaning evil and pernicious example of all others in the himself the said John Horne) did yesterday like case offending, and also against the peace 'pay to Mess. Brownes and Collinson, on the of our said present sovereign lord the king, his 'account of Dr. Franklin, the sum of 50%. and crown and dignity: and the said attorney-ge- that I' (again meaning himself the said John neral of our said lord the king for our said lord Horne) will write to Dr. Franklin, requesting the king further gives the Court here to under- him to apply the same to the relief of the stand and be informed, that the said John 'widows, orphans, and aged parents of our beHorne being such person as aforesaid, and 'loved American fellow-subjects, who, faithful again unlawfully, wickedly, maliciously, and to the character of Englishmen, preferring seditiously intending, devising, and contriving death to slavery, were' (for that reason only) as aforesaid, afterwards, to wit, on the 14th day inhumanly murdered by the king's' (again of July, in the 15th year aforesaid, with force meaning his said majesty's) troops at or near and arms at London aforesaid, in the parish Lexington and Concord, in the province of and ward aforesaid, wickedly, maliciously, Massachusets' (meaning the said province, and seditiously did write and publish, and cause colony, or plantation of the Massachusets Bay and procure to be written and published, a cer- in New England, in America) on the 19th of tain false, wicked, malicious, scandalous and last April; John Horne,' (again meaning himseditious libel of and concerning his said ma- self the said John Horne,) in contempt of our jesty's government and the employment of said lord the king, in open violation of the laws his troops, according to the tenor and effect of this kingdom, to the evil and pernicious exfollowing: I' (meaning himself the said John ample of all others in the like case offending, Horne) think it proper to give the unknown and also against the peace of our said lord the ⚫ contributor this notice, that I' (again mean- king, his crown and dignity and the said ating himself the said John Horne) did yester- torney-general of our said present sovereign day pay to Messieurs Brownes and Collinson, lord the king for our said lord the king further on the account of Dr. Franklin, the sum of gives the Court here to understand and be in, ⚫ 50%. and that I' (again meaning himself the formed, that the said John Horne being such said John Horne) will write to Dr. Franklin, person as aforesaid, and contriving and wickedly * requesting him to apply the same to the relief and maliciously devising and intending as of the widows, orphans, and aged parents of aforesaid, afterwards, to wit, on the said 15th our beloved American fellow-subjects, who, day of July in the 15th year aforesaid, with 'faithful to the character of Englishmen, pre- force and arms at London aforesaid, in the ⚫ferring death to slavery, were for that reason parish and ward aforesaid, wickedly, malicionly inhumanly murdered by the king's' ously, and seditiously did print and publish, (meaning his said majesty's) troops at or and cause and procure to be printed and pubnear Lexington and Concord, in the province fished, a certain other false, wicked, malicious, ' of Massachusets,' (meaning the said province, scandalous, and seditious libel of and concerncolony, or plantation of the Massachusets Baying his majesty's government and the employin New England, in America) on the 19th of last April; John Horne,' (again meaning himself the said John Horne) in contempt of our said lord the king, in open violation of the laws of this kingdom, to the evil and perniciVOL. XX.

ment of his troops, according to the tenor and effect following; that is to say, 'I' (meaning himself the said John Horne) think it, proper 'to give the unknown contributor this notice, that I' (meaning himself the said John Horne) 2 U