CHAP. XXXIII. OF THE BENEFIT OF CLERGY. FOR the better understanding the nature of the benefit of ter part of this clergy, or rather of the (a) statute at this day, I shall endeavour to (a) See the lat chapter. 185. 2 Hale, 323. 330, &c. shew: 1. By what kind of persons it is demandable. 2. For what crimes clergy is demandable. 3. At what times clergy is demandable. 4. Whether it shall be allowed where it is not demanded. 5. Who is to judge whether the person who demands it have a right to it or not. 6. How far the ordinary was punishable at law for demanding or refusing a clerk against law. 7. In what manner at the common law a clerk was to be delivered to the ordinary, and what is to be done to him afterwards. 8. What is to be done to him at this day, and how far it shall be to his benefit. As to the FIRST POINT, viz. By what kind of persons the benefit of clergy, or rather of the statute at this day, is demandable. Sect. 1. It may not be improper to look a little back into the original of clergy, whereby we shall find, that anciently the clergy (b) Keilw. 181. (b) strongly insisted, that by the law of God their persons were so sacred, that they could not, without a violation of that law, be convened before, and much less be punished with the loss of life, or member, by any secular judge, for any crime whatsoever. But there seems to be so little colour for any pretence of this kind from scripture, that I almost wonder how it was possible that any persons could be so far prejudiced, as seriously to be persuaded that it is deducible from thence. (c) See Lyndw. book 2. in the chapter de foro competente. Kely. 99. 101, &c. Sect. 2. But it seems agreed, (c) that all persons in holy orders have this privilege by the canon law. But this law being no farther in (d) force here than as it hath been received, and is consistent with the common or statute law, it will be proper to shew how far it hath been received, and is consistent with those laws; which I shall at present consider under this head, so far as it re(d)Keil.181,&c. lates to the persons intitled to this privilege; and shall farther Coke de Jure consider it as to other matters, in the following part of this Regis Eccles. S.P.C. 123, 124. 13, &c. 2 Hale, 325. 1 chapter. Sect. 3. It seems agreed, that before the statute of Articuli Cleri, c. 13. made in the ninth year of Edward the Second, it was (e) F. Cor. 155. (e) generally denied to those who had abjured, or who had any 11 Coke, 29. other way confessed themselves guilty. But by a favourable in- S. P. C. 124. Keilway, 186. terpretation of that statute, which expressly extends only to those Seld. Ja. Ang. who fly to the church for safeguard, it hath been allowed (f) to all those who have confessed themselves guilty upon their B. Clergy, arraignment or otherwise, in the same manner as if they had not confessed. 27 H. 6,7. c. 10. 3. 7, 8. 9 E. 4. 28. 8 H. 4. 3. F. Cor. 191. 28. West. 1. c. 2. Sect. 4. Also it seems, that notwithstanding the clergy (g) (g) Kelynge, contended, that the word " clericus" (which is the word generally 99, 100. used by the (h) canon law, as well as ours, (i) to express those () Lindw. b. 2. c. de foro compewho are entitled to this privilege) did include those of the inferior tente. orders, as well (k) as bishops, priests, and deacons; (1) yet it (i) See st. Marl. seems, () that the temporal judges sometimes denied it to those c. in inferior orders, as well as to mere (m) laymen, before the statute of 25 Edw. 3. c. 4. which reciting, "that the prelates had grievously complained, that secular clerks, as well chaplains as "other monks, and other people of religion, had been drawn and "hanged by award of the secular justices, in prejudice of the "franchise of holy church, &c." doth enact," that all manner of clerks, as well secular as religious, &c. shall freely enjoy the privilege of holy church, &c." 66 66 Art. Cleri, c. 15. and the old books cited, 2 Inst. 633, 634, &c. (k) Keilw. 181. Kely. 99, 100. (1) Kely. 99, 100. (m) F.Cor. 233. But they someF. Corone, 117. year after the beat sacram ton times allowed it to mere laymen, being able to read. Sect. 5. It seems, that by a favourable interpretation of this (n) Yet it was statute, which universally prevailed soon (n) after it was made, holden the next not only those actually admitted into some inferior order of the statute, quod liclergy, (0) but also those who were qualified to be admitted teratura non facit into orders, (which was (p) tried by putting them to read a verse), clericum nisi hahave been taken to have a (q) right to this privilege, as much as suram. persons in holy orders, whether they were persons lawfully born 26 Assize, 19. or (r) bastards, (s) aliens or denizens, in the communion of the Ab. F. Cor. 191. church or (t) excommunicate, within the common benefit of the law, or (u) outlaws, &c. so that they were not (x) heretics convict, (o) Kely. 100, nor (y) Jews, Mahometans, nor Pagans; nor under (2) perpetual 101, 102. B. Clergy, 7.20. disability of going into orders; admitting of no dispensation, as (p) Kelynge, (a) blind and maimed persons formerly were, and women (b) still 100, 101. are; nor liable to the objection of bigamy, viz. of having (c) married two different women successively, or a widow, which by a constitution of the Council of Lyons, (d) received in this kingdom, was a bar to the demand of the privilege of the clergy, and by S. P. C. 124. Finch, 462, 463. S. P. C. 133. cited to the chapter. (9) 9 E. 4. 28. Ab. B. Cler. 7. (r) B. Cler. 22. 2 Hale, 373. (s) B. Clergy, 20. (t) B. Clergy, 20. Sum. 229. 11 Coke, 29. (u) See 3 & 4 W. & M. 9. 11 Coke, 29. b. (r) S. P. C. 133. B. Clergy, 20. 11 Coke, 29. (y) B. Clergy, 20. 11 Coke, 29. Sum. 229. 2 Hale, 373. (3) 11 Coke, 29. (a) 11 Coke, 29. Summary, 229. Con. B. Clergy, 21. (b) Finch, 463. 11 Coke, 29. See prea. 21 Jac. 1. c. 6. and 3 & 4 W. & M. c. 9. s. 7. Yet it is admitted, F. Corone, 461. that a woman might claim the benefit of clergy. (c) S. P. C. 134, 135. Rastal, 106. 2 Hale, 372. (d) See stat. of bigamy, 4 E. 1. c. 5. 5 Coke de Jure Regis Ecclesiastico, 13. S. P. C. 125. (1) The Roman clergy consisted of two classes, those in holy orders, viz. bishops, priests, deacons, and sub-deacons, and those who were clerici in minoribus, as exorcists acolyti, (or light bearers,) singers, readers, and door-keepers. The former 1 were created by the sacramental unction, the latter, merely by the episcopal benediction; and a distribution of sacred vestments. For their respective duties, see Inst. Jur. Can. Launcelotti, lib. 1. tit. 5. (d) Rast. 160. by force of 18 Edw. 3. c. 2, was triable by the certificate (d) of S. P. C. 134, 135. the bishop. 11 H. 4. 11. Ab. F. Corone, 85. 40 E. 3. 42. Ab. F. Attorney, 39. (f) S. P. C. 2 Hale, 372. In what cases women shall of clergy. Fost. 305. Sect. 6. But it is expressly enacted by 1 Edw. 6. c. 12. s. 16. "That any person who by the law of this realm ought to have "the benefit of his clergy, shall be admitted to it, although he "have been divers times married to any single woman, or to any "widow or widows, or to two wives or more." But it bore some (f) question whether this statute were not impliedly repealed by 1 and 2 Philip and Mary, c. 8. while it stood in force, which repealed "all clauses, &c. against the See of Rome." + Sect. 7. But still all persons not capable of holy orders, as women, who from the delicacy of their frame seem to be most have the benefit susceptible of human passions, and some others, were left to the extreme rigour of the common law, and to the mercy of the crown; for at common law, all felonies except petit larceny, rape, and mayhem, were considered as capital offences, unless in cases where the offender was capable of holy orders, and qualified for them. But it is enacted by 21 Jac. 1. c. 6. "That on a convic"tion of grand larceny under the value of ten shillings, being no burglary, nor robbery in or near the highway, nor a felonious "private taking from the person, &c. but only such an offence "for which a man might have his clergy, they shall be burnt in "the hand, and imprisoned, &c." The case of the (g) S. P. C. 31, 32. 123, 124. 66 Sect. 8. But it is enacted by 3 and 4 Will. and Mary, c. 9. s. 7. "That where a man being convicted of any felony may demand "the benefit of his clergy, if a woman be convicted for the same "or the like offence, upon her prayer to have the benefit of this statute, judgment of death shall not be given against her upon "such conviction, or execution awarded upon any outlawry for "such offence; but she shall suffer the same punishment as a "man should suffer, that has the benefit of his clergy allowed "him in the like case; that is to say, shall be burnt in the hand "by the gaoler in open court, and further be kept in prison for "such a time as the justices in their discretion shall think fit, so "as the same do not exceed one year's imprisonment.." + But it has been determined upon the construction of these statutes, 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. Sect. 9. It seems, (g) that one who had been guilty of sacrilege, or of breaking the prison of the ordinary, had no right to the F. Cor 112.117. benefit of clergy, but at the (h) discretion of the ordinary. 135. 120.250. 257. 4 Inst. 314. Sect. 9 E. 4. 28. (h) Yet it 12 Assize, 39. Ab. B. Clergy, 10. 17 Assize, 4. 17 E. 3. 13. Ab. F. Corone, 112. Ab. B. Clergy, 7. 27 Assize, 42. Ab. F. Cor. 205. B. Clergy, 13. 11 Coke, 29. seems to be holden, 26 Assize, 19, 27. Ab. B. Cler. 11, 12. F. Corone, 191. 193. that one who had been guilty of sacrilege might demand it as well as any other. 2 Hale, 333. 366. And it seems to be holden, F. Corone, 232. 250. 257. 419. 2 Hale, 372. that one who had broken the prison of the ordinary had no manner of right to it. 12 Assize, 39. Ab. B. Clergy, 10. This point is made a quære. 9 Edw. 4. 28. pl. 40. Ab. B. Clergy, 7. 107. 124. 135. Sect. 10. It seems clear, (i) that before the statute of 4 Hen. () Sum. 230. 7. c. 13. he who had been admitted to the benefit of clergy, might S. P. C. 31, 32. have it a second time as well as the first, unless he had broken See Pream. the prison of the ordinary, to which he was committed when clergy was first allowed him; in which case it seems, (j) that he could not save himself from a second prosecution, though for the very same felony for which he was before convicted, unless he could shew a purgation. 4 H. 7. 3. 13. But 17 Ass. 4. 17.3. 13. 17. it seems to have Ab. F. Cor. 112. been doubted where the clerk was attainted before he first had the benefit of clergy. (j) F. Corone, 232. and the books cited to letter (b), and to the former section. "That every Sect. 11. But by 4 Hen. 7. c. 13. it is enacted, person, not being within orders, who hath once been admitted "to the benefit of his clergy, eftsoons arraigned of any such "offence, be not admitted to have the benefit or privilege of the clergy, &c." 64 And by 4 Hen. 7. c. 13. it is provided, "That if any person at "the second time of asking his clergy, because he is within "orders, hath not there ready his letters of his orders, or a certi"ficate of his ordinary, witnessing the same; that then the jus"tices afore whom he is so arraigned, shall give him a day by "their discretion to bring in his said letters or certificate; and if "he fail, and bring not at such a day his said letters or certificate, "then the person to lose the benefit of his clergy, as he shall do "that is without orders." Sect. 12. But by 28 Hen. 8. s. 7. it is enacted, "That persons "within holy orders shall be under the same pains and dangers for the offences referred to by that statute, and be used and "ordered to all intents and purposes, as other persons not being "within holy orders." And by 32 Hen. 8. c. 3. s. 8. it is further enacted, "That per"sons within holy orders who shall be admitted to their clergy, "shall be burnt in the hand in like manner as lay clerks, and shall "suffer and incur all such pains, dangers, and forfeitures, and be "ordered and used for their offences of felony, to all intents, pur"poses, and constructions, as lay persons admitted to their clergy "be, or ought to be, &c." Sect. 13. But by 1 Edw. 6. c. 12. s. 10. it is enacted, "That "in all cases of felony, other than those in that act mentioned, "every person who shall be found guilty, or confess, or stand "mute, or not answer directly, shall have the benefit of his clergy, in like manner and form as before the first year of King "Henry the Eighth." 239. And therefore it seems plain, that where lay persons are not excluded from the benefit of clergy the first time, persons in holy orders may have it as often as they want it, in the same manner as they might upon the foot of the said statute of 4 Hen. 7. c. 13. (a) Sum. 238, (a) except they shall be outlawed, or challenge above the number S. P. C. 135. of twenty, in which case they are not within the purview of (b) S. P. C. 135, 1 Edw. 6. which extends only to those "who shall be found 136. "guilty, or confess, or stand mute, &c." But (b) where the crime Vide 2 Hale, itself charged against a person in holy orders, is, by any statute, $74. 376. $39. generally 341, 342. 345. Sum. 235, 236. (c) Omitted in Keble's Statutes: but in serted in Ruffhead's. (d) Dyer, 253. generally excluded from clergy, such person shall no more have the benefit of it than if he were a mere layman. 66 Sect. 14. By 34 and 35 Hen. 8. c. 14. it is recited, "That divers persons had been indicted and attainted, and some of them clerks convict, and some of them clerks attainted, &c. before justices of peace, gaol-delivery, &c. within divers cities, counties, franchises, &c. the records of which attainders and convictions. often, by negligence of the clerks, &c. having the rule and keeping thereof, had been embezzled, and not ready to be objected against such persons, being newly arraigned before other justices, &c. And for that it hath not been known certainly whither to resort for the same records, because they were not certified into any place certain, such offenders had often had the benefit of the clergy where they ought not, &c. And thereupon it is enacted, That the clerk of the crown, clerks of the peace, and clerks of "assize, where any such attainder or conviction shall be so had, "shall certify a transcript, briefly containing the effect of every "such indictment, &c. and clerk attainted, &c. that is to say, the name, surname, and addition of every such person, &c. and the certainty of the offence, &c. and the day and place of his at"tainder or conviction, &c. and the day and place of his offence, "&c. before the king in his bench at Westminster, there to remain "of record for ever, within forty days of such attainder, &c. if the "term be then, and if not, then within twenty days after the next term, &c. on pain of forty shillings, &c. And that the clerk of "the crown in the king's bench shall receive the same without "fee, under the like pain." 66 66 66 Sect. 15. By 34 and 35 Hen. 8. c. 14. it is provided, "That if "there be more persons contained in any such indictment, other "than such person so attainted or convicted, that then such clerk "shall certify such transcript only (c) concerning the person or persons so attainted or convicted, which shall be as effectual against such person and persons against whom it shall be objected, alledged, or pleaded, as if the very record were pre"sent." Sect. 16. And by 34 and 35 Hen. 8. c. 14. it is farther enacted, "That the said clerk of the crown in the king's bench, at all "such times as the justices of gaol-delivery, or justices of the "peace, in every county within this realm of England, do write, "unto him for the names of such persons, which be SO attainted "or convict, and certified in the said bench, shall incontinently certify the said names and surnames of the said persons, with "the causes why and wherefore they were convicted or attainted, "unto the justices of gaol-delivery, or justices of the peace, &c. on pain of forty shillings." 66 Sect. 17. But by 34 and 35 Hen. 8. c. 14. it is provided, "That this act shall not extend to the clerks of the crown, &c. in "Wales or Chester, or counties palatine of Lancaster and Dur"ham, to make any transcript of any such attainder or conviction "before the king's justices of his counties in Wales, &c." Sect. 18. It seems (d) that the justices may, by force of this act, |