(y) 11 Coke, 31, 32, &c. Vide sup. s. 36. that which restores it, and consequently re-entitled those (y) convict of it to clergy, in all cases but that of challenging more than twenty, till the making of 5 and 6 Edw. 6. as shall be more fully shewn hereafter. Sect. 39. FOURTHLY, In that the clause which ousts horsestealers of their clergy, is worded in such a manner as makes it doubtful whether it extend to those who steal but one, which (3) Vide infra, occasioned the making of 2 (z) and S Edw. 6. c. SS. which declares," That a person feloniously stealing one horse, gelding or sect. 61. mare, shall be put from his clergy, in the same manner as if he "had been indicted or appealed for stealing of two, &c. Sect. 40. FIFTHLY, In that the clause which ousts housebreakers of their clergy, is not worded in such a manner as fully brings their offence under the notion of felony; for it is thus expressed, "Any person who shall be attainted, &c. of breaking "any house by day or night, any person being therein and put in "fear or dread, &c." But such a breaking even in the night is no felony, unless it be done with an intent to commit a felony, which makes it burglary; neither can it be felony, if done in the (a) Yet quære, day with any intent whatsoever; for though a felony follow, which for this matter is may make the house-breaking done with an intent to commit it, doubtfully exproperly enough to be called felonious; yet it seems, that it canpressed. S. P. C. 126. not make it become (a) a felony, because it is not reducible to any species of felony. And therefore the statute must be supplied by a reasonable intendment, and (b) construed to mean such house-breaking only as amounts to, or is attended with felony. 11 Coke, 31, 32. (b) S. P. C. 125, 126. 11 Coke, 31, 32. (c) 11 Coke, 31. (d) Moor, 756. 3 Inst. 111. (e) B. 1. c. 20. s. 6, 7. 2 Hale, 370. Sect. 41. It is holden by Sir Edward Coke, (c) that piracy was restored to the benefit of clergy by this statute; but as to piracy on the high sea, the contrary hath been solemnly (d) adjudged and confirmed by constant experience, and is certainly agreeable to the (e) legal notion of piracy in other cases; which being a capital offence by the civil law only (even after the statute of 23 Hen. 8. c. 15. which altered not the nature of the offence, but only the manner of the trial), shall not be included in a statute speaking generally of felonies, which shall be construed only of those felonies which are such by our law; as those piracies are (f) Bk. 1. c. (f) which are committed in a creek or port within the body of a county, but no other. 20. s. 15. 2 Hale, 369. sect. 30. Sect. 42. The next general statute relating to these matters is 5 and 6 Edw. 6. c. 10. which first recites the above-mentioned (g) Vide sup. (g) clause of 23 Hen. 8. concerning clergy, and takes notice that it was defective in omitting those who rob, &c. in one county, and remove the thing taken into another, and there tried, &c. and that this omission was supplied by 25 Hen. 8. and that the said statute of 25 Hen. 8. was in this respect made ineffectual by 1 Edw. 6. c. 12. which restored clergy as it stood before the reign of Hen. 8. to all the felonies not therein mentioned; and that by reason of the said statute of 1 Edw. 6. divers persons had committed robberies, &c. in one county and after had been taken, &c. and tried in another, and there had their clergy, which they would not have had, if the said statute of 25 Hen. 8. had stood in force; and then goes on in these words, "For redress whereof from 66 henceforth 2 Hale, 341. "henceforth to be had, be it enacted, &c. that the said act made "in the said 25 year, touching the putting of such offenders from "their clergy; and every article, clause and sentence contained "in the same, touching clergy, shall, from henceforth, touching "such offence to be henceforth committed and done, stand, re"main, and be in full strength and virtue, in such manner and "form, as it did before the making of the said act in the first year "of the reign of our sovereign lord the king that now is; any "clause, article, or sentence comprised therein to the contrary. "notwithstanding." Sect. 43. It was for some time a great question, Whether this statute revived 25 Hen. 8. for the whole, or only for such part of it which relates to felons removing the thing feloniously taken into a different county from that wherein they took it, and there tried, &c. And Sir William Staundforde (g) inclines to (g) S.P.C. 128. the latter opinion: because the words are," that the said act "made in the said twenty-fifth year, touching the putting such "offenders from their clergy, shall be revived, &c." where the word "such" shall have relation only to the offenders mentioned before; which are those who steal in one county, and remove the thing stolen into another. And this objection is strength ened (b) by the title of the act, which is only this, "That such as () 11 Coke, 33. "rob in one shire, and fly into another, shall not have their 66 clergy." To which it may added, that all statutes which take away, are to be construed strictly in favorem vita. Yet it hath been adjudged, (i) and is, as I take it, fully (k) (i) 11 Coke, settled, that this statute revived 25 Hen. 8. as to every other 33, 34, 35. part of it, as well as that concerning felons carrying the things) Sum. 232 to stolen from one county into another. For granting that the 2 Hale, 341. makers of the statute of 5 & 6 Edw. 6. had the case of such See Rastal's statutes, title felons principally in their view; which appears pretty plainly, Clergy, par. 16. not only from the title of the statute, but also from the preamble and purview; for the preamble expressly takes notice of no other mischief from the repeal of 25 Hen. 8. but only this, "that thereby many of such felons had their clergy;" and then follows the enacting clause, which begins in these words, "For redress whereof," and then goes on, "be it enacted, &c. "that 25 Hen. 8. touching such offenders and such offences, "remain in full force:" yet considering that the statute of 5 & 6 Edw. 6. begins with a recital of the whole clause of 23 Hen. 8. wherein there are several other offences contained, and that the words "such offenders and such offences" in the enacting clause of 5 and 6 Edw. 6. may properly enough refer to them, as well as to the offence of the felons mentioned next immediately before; and farther considering that the words, "such offenders "and such offences," may properly enough be taken to include all such in mischief, and such in inconvenience, according to the received (1) construction of the word "such" in some other sta- (1) 11 Coke, 33. tutes, and à fortiori those in greater mischief and greater inconvenience, as almost all the other offences specified in 25 Hen. 8. are, as for instance, petit treason, murder, arson, &c.; and that it is a received (m) construction of penal statutes, to extend them 33, 34. to all cases that come within the meaning of the words; and Vide sup. s. 25. VOL. II. I I (m) 11 Coke, that it would be absurd to imagine that the makers of the statute intended to put those who carried goods stolen into a different county, in a worse case in such county than in that wherein they stole them, as they must be, if 25 Hen. 8. were only revived against them where they carried the thing stolen into a different county, for by such a construction they would have been excluded from clergy, in the county wherein they committed the the robbery, by 1 Edw. 6. c. 12. only, which not extending to those who challenge above the number of twenty, might easily be evaded, whereas in a different county they would be excluded (n) 11 Coke, 34. from it in such case by 25 Hen. 8.; to which may be added, (n) that the first sentence of the purview of 5 & 6 Edw. 6. viz. " that "the said act of 25 Hen. 8. touching the putting such offenders "from their clergy," had been sufficient, if no more had been intended but the excluding those who rob in one county and fly into another, and therefore it is most natural to intend that it was the meaning of the makers of the statute, by adding those farther words, "that every article, clause and sentence in the same, "touching clergy, shall, touching such offences, remain, &c." to revive the whole statute so far as it related to clergy and since the whole statute of 25 Hen. 8. is revived, it follows by a necesSee Foster, 375. sary consequence, that so much of 23 Hen. 8. also as is expressly affirmed by it, is revived also. (0) 11 Coke, 34, $5. Sum. 232, 233. 1 Hale, 570, 571, &c. 2 Hale, 345, Con. Savil, 46. (p) Vide sup. sect. 33. 66 66 Sect. 44. And therefore, since 25 Hen. 8. having recited the clause of 23 Hen. 8. concerning clergy, and the mischief that it extended only to those who are found guilty, expressly enacts, That whoever shall be indicted of petit treason, wilful burning "of houses, murder, robbery or burglary, or other felony, according to the tenor and meaning of the said statute, and stand "mute, or challenge peremptorily above twenty, &c. shall lose "the benefit of the clergy, in like manner as if he had pleaded, "and been found guilty;" whereby it affirms and inforces the 23 Hen. 8. as to those found guilty of such crimes; it follows by a necessary consequence, that persons not in holy orders found guilty of petit treason, or (o) arson, which were omitted by 1 Edw. 6. are excluded from clergy by 23 Hen. 8. thus affirmed and enforced by 25 Hen. 8. and consequently revived by 5 & 6 Edward the Sixth. 66 Sect. 45. But it is observable, that the said statute of 25 Hen. 8. wholly omits (p) accessaries, as well as 1 Edw. 6. But to remedy this defect, it is enacted by 4 and 5 Ph. & Mary, c. 4. "That every person that shail maliciously command, hire, or "counsel any person or persons, to commit or do any petit trea"son, wilful murder, or to do any robbery in any dwelling house or houses, or to commit or do any robbery in or near the highway in the realm of England, or in any other the queen's dominions, or to commit or do any robbery in any place within "the Marches of England against Scotland, or wilfully to burn any dwelling house, or any part thereof, or any barn then hav"ing corn or grain in the same; that then every such offender, being outlawed thereof, or being thereof arraigned and found guilty by the order of the law, or being otherwise lawfully at"tainted or convicted of the same offence, or being arraigned 66 66 "thereof, "thereof, do stand mute of malice or froward mind, or do chal"lenge peremptorily above the number of twenty persons, or "will not answer directly to such offence, shall not have the be"nefit of his clergy." It is observable, 483 Sect. 46. FIRST, That this statute is general as to all robberies in any dwelling-house, yet it seems to have been always taken as a (q) reasonable construction, that it shall be restrained (g) 11 Coke, 35, to such robberies of this kind as were excluded from the benefit 36. 37. of clergy by some former statute: for it cannot be well imagined 2 Hale, 542. Summary, 235. that the makers of this or any statute intended in any case to Con. Savil, 46. take away clergy from the accessary, where the principal is left to the full benefit of it. Sect. 47. SECONDLY, That an indictment or appeal, in order to oust an accessary of his clergy by force of this statute, must expressly pursue it, in substance (r) at least, as hath been already (r) Vide Dyer, shewn, section twenty-five. 186. that the words wilful murder in an indictment on the statute are sufficiently pursued by laying the murder done ex malitiâ præcogitata. 9. Sect. 48. It is further enacted by 3 and 4 Will. & Mary, c. s. 3. "That if any person or persons whatsoever be indicted "of any offence, for which by virtue of any former statute he or "they are excluded from having the benefit of his or their clergy, "if he or they had been thereof convicted by verdict or confes"sion, if he or they stand mute, or will not answer directly to "the felony, or shall challenge peremptorily above the number "of twenty persons returned to be on the jury, or shall be out"lawed thereupon, shall not be admitted to the benefit of his or "their clergy." Sect. 49. But note, That this statute extends not to appeals, nor to offences made felonies by subsequent statutes. And now I am in the second place more distinctly to consider the several statutes which take away the benefit of clergy, so far as they particularly relate to the several kinds of crimes. For the better illustration whereof, having referred the reader, as to the felonies made such by statute, to the several chapters in the first book wherein such felonies are handled, I shall here consider the statutes which take away clergy from capital offences at the common law, under the follow heads-as they relate, 1. To petit treason. 2. To homicide. 3. To larceny. 4. To sacrilege. 5. To robbery. 6. To burglary. 7. To arson. 112 I. As 484 (2) Sup. s. 43, 44. Summary, 232. (2) 2 Hale, 338, 339. 341. Summary, 232. (a) Sup. sect. 43, 44. I. As to PETIT TREASON. Sect. 50. It is certain that by force of 23 & 25 Hen. 8. revived (s) by 5 & 6 Edward 6. the principal, not being a (t) clerk in holy orders, is excluded from the benefit of clergy, upon a (u) conviction, (x) standing mute, or challenge of more than twenty upon an (y) indictment. 32, 33. (y) Sup. section 33. Sect. 51. And Sir Matthew Hale (z) seems to be of opinion, that the principal is likewise ousted of his clergy by 23 Hen. 8. in appeal of petit treason, if he be convict by verdict or confession, but not in other cases. But quare, How this can be? For since so much (a) only of 23 Hen. 8. seems to be revived, as is affirmed and enforced by 25 Hen. 8. and that no way extends to appeals but only to indictments, it seems difficult to make out, that any part of 23 Hen. 8. so far as relates to appeals is revived by 25 Hen. 8. Sect. 52. But I would rather incline to think, that the principal in an appeal of petit treason may be excluded from his clergy (b) Sup.s.34,35. by (b) 1 Edw. 6. c. 12. in all cases except that of challenging "murder of above the number of twenty, under the words "malice prepensed," in that statute; because all petit treason, (c) Bk. 1. c. 14. in the very notion of it, necessarily (c) includes such murder and s. 6. (d) Vide supra, section 45. more. Sect. 53. However, the makers of 4 (d) & 5 Ph. & Mary, c. 4. seem plainly to have been of opinion, that the principals in petit treason are excluded from clergy in all cases, as well upon an appeal as indictment; because they have in all cases expressly (e) Vide 11 Co. excluded the accessaries maliciously before, as well upon an appeal as indictment; and (e) it cannot be well imagined that they intended to make the law more severe against them than against the principals. 35. 2 Hale, 342. 346. and sup. sect. 46. (ƒ) Ante. (g) Sum. 232. 2 Hale, 343. II. As to HOMICIDE. Sect. 54. It is certain that wilful murder of malice prepensed is excluded from the benefit of clergy upon indictments in all cases by 23 and 25 Hen. 8. and 1 Edw. 6. c. 12. before recited (f). Sect. 55. Also it seems (g) to be the opinion of Sir Matthew Hale, that it likewise is excluded from clergy in all cases as well upon appeals as indictments. But this seems questionable; for (h) Vide sup. s. appeals are certainly not (h) within 25 Hen. 8. and therefore 42, 43. 51. since so much only of 23 Hen. 8. is revived by 5 & 6 Edw. 6. as is affirmed and enforced by 25 Hen. 8. I do not see how it can be revived as to any appeal. From whence it seems to follow, that the only statute which expressly excludes them is 1 Edw. 6. c. 12. which () omits the case of challenging more than twenty. Neither is this defect supplied by 3 & 4 Will. & Mary, c. 9. for this extends (k) only to indictments. Sect. 56. But accessaries maliciously before to such murder are expressly excluded from clergy in all cases, as well upon appeals |