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nesses, the compurgators, and the jury, being all of them partakers in the guilt: the delinquent party also, though convicted before on the clearest evidence, and conscious of his own offence, yet was permitted and almost compelled to swear himself not guilty: nor was the good bishop himself, under whose countenance this scene of wickedness was daily transacted, by any means exempt from a share of it. And yet by this purgation the party was restored to his credit, his liberty, his lands, and his capacity of purchasing afresh, and was entirely made a new and an innocent man.

This scandalous prostitution of oaths and the forms of justice, in the almost constant acquittal of felonious clerks by purgation, was the occasion, that upon very heinous and *notorious circumstances of guilt, the temporal courts [*369] would not trust the ordinary with the trial of the offender, but delivered over to him the convicted clerk, absque purgatione facienda: in which situation the clerk convict could not make purgation; but was to continue in prison during life, and was incapable of acquiring any personal property, or receiving the profits of his lands, unless the king should please to pardon him. Both these courses were in some degree exceptionable; the latter being perhaps too rigid, as the former was productive of the most abandoned perjury. As, therefore, these mock trials took their rise from factious and popish tenets, tending to exempt one part of the nation from the general municipal law; it became high time, when the reformation was thoroughly established, to abolish so vain and impious a ceremony.

Accordingly, the statute of 18 Eliz. c. 7, enacts that, for the avoiding of such perjuries and abuses, after the offender has been allowed his clergy, he shall not be delivered to the ordinary, as formerly; but, upon such allowance and burning in the hand, he shall forthwith be enlarged and delivered out of prison; with proviso that the judge may, if he thinks fit, continue the offender in gaol for any time not exceeding a year. And thus the law continued, for above a century, unaltered, except only that the statute of 21 Jac. I, c. 6, allowed, that women convicted of simple larcenies under the value of ten shillings should (not properly have the benefit of clergy, for they were not called upon to read; but) be burned in the hand, and whipped, (3) stocked, or imprisoned for any time not exceeding a year. And a similar indulgence, by the statutes 3 and 4 W. and M. c. 9, and 4 and 5 W. and 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 burnt 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 and 11 Wm. III, c. 23, into burning in the most visible part of the left cheek, nearest the nose; but such an indelible stigma being found by experience to render offenders desperate, this provision was repealed, about seven years afterwards, 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 [*370] 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 offence: 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.

Afterwards, indeed, it was considered, that education and learning were no extenuations of guilt, but quite the reverse: and that, if the punishment of

(3) Whipping of women in England was abolished in England by Stat. 1 Geo. IV, c. 57. Whipping as a punishment is allowed in a few only of the American states. It is not "cruel" or unusual" punishment in a constitutional sense. Commonwealth v. Wyatt,

6 Rand., 694.

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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 offences, 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 burnt 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 workhouse, to be there kept to hard labour, 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 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 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 [*371] 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 labour for the benefit of some public navigation; or, whether males or females, may, in all cases, be confined to hard labour 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 behaviour. 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 labour, 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 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.

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 of individuals is that of obedience to the united will of the community. This united will is declared in the laws of the land: and that united force is exerted in their due and universal execution.

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 [*372] 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. (i) Again, all lords 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 peeresses) (k) 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 offence. Lastly, all the commons of the realm, not in orders, whether male or female, shall, 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 suffering a discretionary imprisonment in the common gaol, the house of correction, one of the penitentiary houses, or in the places of labour, 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. (1) But I much question whether this was ever ruled for law, since the re-introduction of the Jews into England, in the time of Oliver Cromwell. For, if that were the case, the Jews are still in the same predicament, 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.

III. The third point to be considered is, for what crimes the privilegium clericale, or benefit of clergy, is to be allowed. 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 [*373] 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

(i) 2 Hal. P. C. 375.

(k) Duchess of Kingston's Case in Parliament, 22 Apr., 1776, (1) 2 Hal. P. C. 373. 2 Hawk. P. C. 338. Fost. 306.

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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: (n) all which are a kind of hostile acts, and in some degree border upon treason. And, farther, 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 offences 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 rigour of capital punishment in the first offence that it exerted before the privi legium clericale was at all indulged; and which it still exerts upon a second offence 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 offences are committed within the admiraltyjurisdiction, which would be clergyable if committed by land, the constant course is to acquit and discharge the prisoner. (o) (4) 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. (2) 3. That when the benefit of clergy is taken away from the offence (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 [*374] 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 offence (as in the case of stabbing, or committing larceny in a dwelling-house, 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. (r) IV. Lastly, we are to inquire what the consequences are 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 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.

And we may observe, 1. That by this conviction he forfeits all his goods to the king: which being once vested in the crown, shall not afterwards be restored to the offender. (s) 2. That, after conviction, and till he receives the judgment of the law, by branding, or some of its substitutes, or else is pardoned by the king, he is to all intents and purposes a felon, and subject to all the disabilities and other incidents of a felon. (t) 3. That after burning, or its substitute, or pardon, he is discharged forever of that, and all other felonies before committed, within the benefit of clergy; but not of felonies from which such benefit is excluded: and this by statutes 8 Eliz. c. 4 and 18 Eliz. c. 7. 4. That, by the burning, or its substitute, or the pardon of it, he is restored to all

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(4) By subsequent statutes, offenses committed on the high seas are to be considered and treated in the same manner as if committed on shore.

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capacities and credits, and the possession of his lands, as if he had never been convicted. (%) 5. That what is said with regard to the advantages of commoners and laymen, subsequent to the burning in the hand, is equally applicable to all peers and clergymen, although never branded at all, or subjected to other punishment in its stead. For they have the same privileges, without any burning, or any substitute for it, which others are entitled to after it. (w)

CHAPTER XXIX.

OF JUDGMENT AND ITS CONSEQUENCES.

WE are now to consider the next stage of criminal prosecution, after trial and conviction are past, in such crimes and misdemeanors 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 presence of the prisoner, he is either immediately, or at a convenient time soon after, asked by the court if he has anything to offer why judgment should not be awarded against him. And in case the defendant be found guilty of a misdemeanor (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 absconds, he may be prosecuted even to outlawry. But whenever he appears in person, 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 arrest or stay of judgment: as, for want of sufficient certainty in setting forth either the person, the time, the place, or the offence. And, if the objections be valid, the whole proceedings shall be set aside; but the party may be indicted again. (a) (1) And we may take notice, 1. That none of the statutes of jeofails, (b) for amendment of errors, extend to indictments or proceedings in criminal cases; *and therefore a defective indictment is not aided by [*376] a verdict, as defective pleadings in civil cases are. 2. That, in favour

of life, great strictness has at all times been observed, in every point of an indictment. Sir Matthew Hale indeed complains, "that this strictness is grown to be a blemish and inconvenience in the law, and the administration thereof: for that more offenders escape by the over-easy ear given to exceptions in indictments, than by their own innocence." (c) And yet no man was more tender of life than this truly excellent judge. (2)

A pardon, also, as has been before said, may be pleaded in arrest of judgment, and it has the same advantage when pleaded here as when pleaded upon arraignment, viz., the saving the attainder, and, of course, the corruption of blood; which nothing can restore but parliament, when a pardon is not pleaded till after sentence. And certainly, upon all accounts, when a man hath obtained a pardon, he is in the right to plead it as soon as possible.

Praying the benefit of clergy may also be ranked among the motions in arrest of judgment: of which we spoke largely in the preceding chapter.

If all these resources fail, the court must pronounce that judgment which the law hath annexed to the crime, and which hath been constantly mentioned,

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(1) See Casborus v. People, 13 Johns., 351; Commonwealth v. Goddard, 13 Mass., 455. (2) But now, formal defects apparent on the face of the indictment can only be taken advantage of by demurrer or motion to quash, and not afterwards. Statute 14 and 15 Vic. c. 100, § 25.

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