CHAPTER THE TWENTY EIGHTH.
OF THE BENEFIT OF CLERGY.

AFTER 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 fmall curiofity as well as ufe; and concerning which I fhall therefore enquire, 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.

I. CLERGY, the privilegium clerical, 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 popifh 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 procefs before the fecular judge in a few particular cafes, which was the true original and meaning of the privilegium clericale.
BUT
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BUT the clergy, encreafing in wealth, power, honour, number, and intereft, began foon to fet up for themfelves: 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 higheft nature, indefeafible, and jure divino^a. By their canons therefore and conftitutions they endeavoured at, and where they met with eafy princes obtained, a vaft extenfion of thefe exemptions: as well in regard to the crimes themfelves, of which the life became quite univerfal^b; 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 jurifdiction could never be thoroughly effected, though often endeavoured by the clergy ^c: and therefore, though the antient privilegium clericale was in fome capital cafes, yet it was not univerfally, allowed. And in thofe particular cafes, the ufe was for the bifhop 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 ^d: 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 moft ufually practiced, as it is more to the fatisfaction of the court to have the crime previoufly afcertained by confeffion or the verdict of a jury; and alfo as it is more advantageous to the prifoner himfelf, who may

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^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.
^d 2 Hal. P. C. 377.
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poffibly
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poffibly 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 habitum et tonfuram clericalem^e. But in procefs of time a much wider and more comprehenfive criterion was eftablifhed: every one that could read (a mark of great learning in thofe days of ignorance and her fifter fuperftition) being accounted a clerk or clericus, and allowed the benefit of clerkfhip, 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 clerkfhip, or being in holy orders; it was found that as many laymen as advines were admitted to the privilegium clericale : and therefore by ftatute 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 punifhment, 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, unlefs he produces his orders: and, in order to diftinguifh their perfons, all laymen who are allowed this privilege fhall be burnt with a hot iron in the brawn of the left thump. This diftinction between learned lawmen, and real clerks in orders, was abolifhed for a time by the ftatutes 28 Hen. VIII. c. 1, and 32 Hen. VIII. c. 3. but is held^f to have been virtually reftored by ftatute 1 Edw. VI. c. 12. which ftatute alfo enacts that lords of parliament, and peers of the realm, may have the benefit of their peerage, equivalent to that of clergy, for the firft offence, (although they cannot read, and

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^e 2 Hal. P. C. 372. M. Paris. A. D. 1259. See Vol. I. pag. 24.
^f Hob. 294.
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with-
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without being burnt in the hand) for all offences then clergyable to commoners, and alfo for the crimes of houfebreaking, highway robbey, horfe-ftealing, and robbing of churches.

AFTER this burning the laity, and before it the real clergy, were difcharged 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 himfelf formally to work to make a purgation of the offender by a new canonical trial; although he had been previoufly convicted by his country, or perhaps by his own confeffion. This trial was held before the bifhop in perfon, or hid deputy; and by a jury of twelve clerks: and there, firft, the party himfelf was required to make oath of his own innocence; next, there was to be the oath of twelve compurgators, who fwore they believed he fpoke the truth; then, witneffes were to be examined upon oath, but on behalf of the prifoner only and, laftly, the jury were to bring in their verdict upon oath, which ufually acquitted the prifoner: otherwife, if a clerk, he was degraded, or put to penance ^g. A learned judge, in the beginning of the laft century ^h, 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 cleareft evidence, and confcious of his own offence, yet was permitted evidence, and confcious of his own offence, yet was permitted and almoft compelled to fwear himfelf not guilty: nor was the good bifhop himfelf, under whofe countenance this fcene of wickednefs was daily tranfacted, by any means exempt from a fhare of it. and yet by this purgation the party was reftored to his credit, his liberty, his lands, and his capacity of purchafing afrefh, and was entirely made a new and an innocent man.

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^g 3 P. W^ms. 447. Hob. 289.
^h hon. 291
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VOL. IV.

X x

THIS

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THIS fcandalous proftitution of oaths, and the forms of juftice, in the almoft conftant acquittal of felonious clerks by purgation, was the occafion, that, upon very heinous and notorious circumftances of guilt, the temporal courts would not truft the ordinary with the trial of the offender, but delivered over to him the convicted clerk, abfque purgatione facienda: in which fituation the clerk convict could not make purgation; but was to continue in prifon during life, and was incapable of acquiring any perfonal property, or receiving the profits of his lands, unlefs the king fhould pleafe to pardon him. Both thefe courfes were in fome degree exceptionable; the latter being perhaps too rigid, as the former was productive of the moft abandoned perjury. As therefore thefe mock trials took their rife from factious and popifh tenets, tending to exempt one part of the nation from the general municipal law; it became high time, when the reformation was thoroughly eftablifhed, to abolifh fo vain and impious a ceremony.

ACCORDINGLY the ftatute 18. Elix. c. 7. enacts, that, for the avoiding of fuch perjuries and abufes, after the offender has been allowed his clergy, he fhall not be delivered to the ordinary, as formerly; but, upon fuch allowance and burning in the hand, he fhall forthwith be enlarged and delivered out of prifon; with provifo, 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 ftatute 21 Jac. I. c. 6. allowed, that women convicted of fimple larcenies under the value of ten fhillings fhould, (not properly have the benefit of clergy, for they were not called upon to read; but) be burned in the hand, and whipped, ftocked, or imprifoned for any time not exceeding a year. And a fimilar indulgence, by the ftatutes 3 & 4 W. & M. c. 9. and 4 & 5 W. & M. c. 24. was extended to women, guilty of any clergyable felony whatfoever; who were allowed to claim the benefit of the ftatute, in like manner as men might claim the benefit of clergy,
and
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and to be difcharged upon being burned in the hand, and imprifoned for any time not exceeding a year. All women, all peers, and all commoners who cloud read, were therefore difcharged in fuch felonies; abfolutely, if clerks in orders; and for the firft offence, upon burning in the hand, if lay: yet all liable (excepting peers) if the judge faw occafion, to imprifonment not exceeding a year. And thofe men, who could not read, if under the degree of peerage, were hanged.

AFTERWARDS indeed it was confidered, that education and learning were no extenuations of guilt, but quite the reverfe: and that, if the punifhment of death for fimple felony was too fevere for thofe who had been liberally inftructed, it was, a fortiori, too fevere for the ignorant alfo. And thereupon by ftatute 5 Ann. c. 6. it was enacted, that the benefit of clergy fhould be granted to all thofe who were intitled to afk it, without requiring them to read by way of conditional merit.

BUT a few years experience having fhewn, that this univerfal lenity was frequently inconvenient, and an encouragement to commit the lower degrees of felony; and that, though capital punifhments were too rigorous for thefe inferior offences, yet no punifhment at all (or next to none, as branding or whipping) was as much too gentle; it was enacted by ftatutes 4 Geo. I. c. 11. and 6 Geo. I. c. 23. that when any perfons fhall be convicted of any larceny, either grand or petit, and fhall be entitled to the benefit of clergy, or ⁱ liable only to the penalties of burn-

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ⁱ The printed ftatute book reads and inftead of or: and, if that be the true reading, it may be doubted, and, as the confequence may in fome cafes be capital, in deferves to be explained by the legiflature, whether women, and perfosn convicted of petit larceny, are ftrictly within thefe ftatutes of George the firft;; for the ftatutes, as printed, feem to extend only to fuch convicts as are entitled to the benefit of clergy, which no woman, or petit larciner, properly is. For, with regard to the female fex, the ftatutes of William and Mary (before referred to) very anxioufly diftinguifh between the benefit of clergy, which extends only to men, and the benefit of the ftatute 3 & 4 W. & M. which is allowed to be claimed by women: and the ftatute of Anne (as is hereafter obferved) doth not entitle any one to the benefit of clergy but fuch as were entitled before; as it's whole operation is merely to difponfe with their reading.
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X x 2

ing

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ing in the hand or whipping, the court in their difcretion, inftead of fuch burning in the hand or whipping, may direct fuch offenders to be tranfported to America for feven years: and, if they return within that time, it fhall be felony without benefit of clergy.

IN this ftate does the benefit of clergy at prefent ftand; very confiderably different from it's original inftitution: the wifdom of the Englifh legiflature having, in the courfe of a long and laborious procefs, extracted by a noble alchemy rich medicines out of poifonous ingredients; and converted, by gradual mutations, what was at firft an unreafonable exemption of particular popifh ecclefiaftics, into a merciful mitigation of the general law, with refpect to capital punifhment.

FROM the whole of this detail we may collect, that, however in times of ignorance and fuperftition that monfter in true policy may for a while fubfift, of a body of men, refiding in the bowles of a ftate, and yet independent of it's laws; yet, when learning and rational religion have a little enlightened mens minds, fociety can no longer endure an abfurdity fo grofs, as muft deftroy it's 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 in exerted in their due, and univerfal, execution.

II. I AM next to enquire, to what perfons the benefit of clergy is to be allowed at this day: and this muft be chiefly collected from what has been obferved in the preceding article. For, upon the whole, we may pronounce, that all clerks in orders are, without any branding, and of courfe without nay tranfportation, (for that is only fubftituted in lieu of the other) to be admitted to this privilege, and immediately difcharged, or at moft only confined for
one
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one year: and this as often as they offend ^k. Again, all lords of parliament and peers of the realm, by the ftatute 1 Edw. VI. c. 12. fhall be difcharged in all clergyable and other felonies, provided for by the act, without any burning in the hand, in the fame manner, as real clerks convict: but this is only for the firft offence. Laftly, all the commons of the realm, not in orders, whether male or female ^l, fhall for the firft offence be difcharged of the punifhment for felonies, within the benefit of clergy; upon being burnt in the hand, imprifoned for a year, or lefs; or, in cafe of larceny, being tranfported for feven years, if the court fhall thing proper. If hath been faid, that Jews, and other infidels and heretics, were not capable of the benefit of clergy, till after the ftatute 5 Ann. c. 6. as being under a legal incapacity for orders ^m. But, with deference to fuch refpectable authority, I much queftion 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 ftatute of queen Anne having certainly made no alteration in this refpect; it only difpenfing with the neceffity of reading in thofe 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 larceny, nor in any mere mifdemefnors, 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 felonies: which for the moft part became legally intitled to this indulgence by the ftatute de clero, 25 Edw. III. ft. 3. c. 4. which provides, that clerks convict for treafons or felonies, touching other perfons than the king himfelf or his royal majefty, fhall have the privilege of holy

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^k 2 Hal. P. C. 375.
^l See note ⁱ.
^m 2 Hal. P. C. 373. 2 Hawk. P. C. 338. Foft. 306.
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church. But yet it was not allowable 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 ⁿ; and combuftio domorum, or arfon, that is, the burning of houfes ^o; all which are king of hoftile acts, and in fome degree border upon treafon. And father, all thefe 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 belong, and therefore need not be here recapitulated. Of all which ftatutes for excluding clergy I fhall only obferve, that they are nothing elfe but the reftoring of the law to the fame rigor of capital punifhment in the firft offence, that in exerted before the privilegium clericale was at all indulged; and which it ftill exerts upon a fecond offence in almoft all kinds of felonies, unlefs committed by clerks actually in orders. We may alfo remark, that by the marine law, as declared in ftatute 28 Hen. VIII. c. 15. the benefit of clergy is not allowed in any cafe whatfoever. And therefore when offences are committed within the admiralty-jurifdiction, which would be clergyable if committed by land, the conftant courfe is to acquit and difcharge the prifoner ^p. And laftly, under 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, unlefs taken away by exprefs words of an act of parliament ^q. 2. That, where clergy is taken away from the principal, it is not of courfe taken away from the acceffory, unlefs he be alfo particularly included in the words of the ftatute ^r. 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, aiding and abetting the crime, is as well excluded from his clergy as he that is principal in

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ⁿ 2 Hal. P. C. 333.
^o 1 Hal. P. C. 346.
^p Moor. 756. Foft. 288.
^q 2 Hal. P. C. 330.
^r 2 Hawk. P. C. 342.
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the firft degree: but, 4. That, where it is only taken away from the perfon committing the offence, (as in the cafe of ftabbing, or committing larceny in a dwelling houfe, or privately from the perfon) his aiders and abetters are not excluded; through the tendernefs of the law, which hath determined that fuch ftatutes fhall be taken literally ^s.

IV. LASTLY, we are to enquire what the confequences are to the party, of allowing him this benefit of clergy. I fpeak not of the branding, imprifonment, or tranfportation; 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.

AND, we may obferve, 1. That by his conviction be forfeits all his goods to the king; which, being once vefted in the crown, fhall not afterwards be reftored to the offender ^t. 2. That, after conviction, and till he receives the judgment of the law, by branding or the like, or elfe is pardoned by the king, he is to all intents and purpofes a felon, and fubject to all the difabilities and other incidents of a felon ^u. 3. That, after burning or pardon, he is difcharged 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 pardon of it, he is reftored to all capacities and credits, and the poffeffion of his lands, as if he had never been convicted ^w. 5. That what is faid with regard to the advantages of commoners and laymen, fubfequent to the burning in the hand, is equally applicable to all peers and clergymen, although never branded at all. For they have the fame privileges, without any burning, which others are intitled to after it ^x.

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^s 1 Hal. P. C. 529. Fofter. 356.
^t 2 Hal. P. C. 388.
^u 2 P. W^ms 487.
^w 2 Hal. P. C. 389. 5 Rep. 110.
^x 2 Hal. P. C. 389, 390.
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