Wms. 452. Coke is contra same advantage to all by a direct and express law, attended with no inconvenience, which before some only gained by an usurped practice, very frequently abused, and highly derogatory from the honour of the common law. But (p) Sir Edward Coke is of (p) 5 Coke, 110. opinion, that it shall enure by way of purgation in respect of such but see 3 Peer. persons only who might be admitted to make their purgation be- where the opifore the statute, and in respect of others by way of pardon. And nion of Lord (9) Hobart argues, that because many offenders before the statute dicted. might have their clergy, who yet could not be discharged by mak- (9) Hobart, ing their purgation, and the statute intends that all in general who 292, 293. are admitted to their clergy, shall be discharged, &c. and also because all purgations discredited a trial at law, therefore it is not reasonable to intend that the statute meant that such a discharge should enure by way of a purgation, but only by way of a statutepardon. But to this it seems a reasonable answer, that it doth by no means follow, that because the statute intended that such discharge should extend to persons who could not have the benefit of a purgation, therefore it did not intend that it should have the effect of a purgation; neither doth it seem to follow, that because a purgation discredited the acts of a jury, therefore such a discharge, if it have to some purposes the same effect as a purgation, must discredit them likewise. 2 Stat. Tr. 523. 4 5 Sect. 129. THIRDLY, Taking the statute to enure either by way of a statute-pardon, or purgation, it seems that it restores (r) (r) Sum. 941. the party to his credit, and consequently enables (s) him to be a Raymond, 369, (s) Kely. 37. good witness; which it hath been questioned whether a pardon 370. 380. by the king can do, as shall be set forth more at large in the Siderfin, 222. chapter of Pardon. Also it seems agreed, that it gives him a Stat. Tr. 379 capacity to purchase (t) goods, and to retain the (u) profits of his to 386. land, but gives him no right to be restored to those which he had Modern, 15. at the time of the conviction, which, being vested in the king by 5 Coke, 110. (t) Sum. 241. the forfeiture upon the conviction, (x) shall not be divested either Hobart, 293. by a (y) pardon or (2) purgation. For it is certain that a pardon (u) 5 Coke, 210. never avoids (a) any precedent legal act, as shall be more fully Forfeit, 34. shewn in the chapter of Pardon. Neither would the common (x) 12 Co. 121. law endure that purgation, which was introduced by a connivance, 5 Coke, 110. or rather tolerated than allowed, should so far control its pro- Co. Lit. 391. Summary, 241. ceedings. F. Corone, 393. 3 H. 7. 12. F. Corone, 53. 356. 365. 393. F. Forfeiture, 23. 34. B. Forfeiture, 11. 8 H. 4. 2. Plowden, 262. S. P. C. 185. 20 E. 4. 5. B. Corone, 166. But it is holden 40 Ed. 3. 42. Ab. F. Corone, 91. and B. Forfeit. 5. that nothing is forfeited unless there be an attainder. Also it is said, that the profits of lands are not forfeited. 20 E. 4. 5. pl. 3. B. Cor. 166. (y) Saund. 362. 1 Lev. 8. 20. (2) Vide supra, s. 110. F. Corone, 356. Finch, 464. Con. F. Corone, 365. B. Forfeit. 113. F. N. B. 66. B. Clergy, 28. (a) 1 Saund. 362. 1 Levinz, 8. 120. Sect. 130. FOURTHLY, Whether the statute enure as a pardon or purgation, it (b) seems to take from the spiritual court the (b) Hobart, 292, power of depriving the party for the crime for which he has had 293. his clergy; for if it enure as a pardon, surely it cannot be doubted 2 R. Abr. 305. but that it frees the party from all subsequent punishment, and consequently from a deprivation; and if it enure as a purgation, which is admitted (c) to have been a good bar to a deprivation (c) C. Jac. 451. before the statute, why should it not have the same effect as a purgation had formerly, in this as well as in other respects? Yet 6. in the folio (d) Watson, in his Clergyman's Law, holds an opinion on the edition. authority 431. (e) C. Jac. 430, authority of (e) Croke's Second Report, that a clergyman may be deprived for manslaughter after he has had his clergy; not observing, as I suppose, that what is said in this book was only on the sudden, on a motion for a prohibition in the king's bench, and that in the same case a prohibition was afterwards actually brought and declared on in the (f) common pleas, and judgment thereupon solemnly given for the plaintiff upon open argument by all the judges. (f) Hob. 288. 2 Hale, 389. 2 R. Abr. 305. Also a prohibition was granted in the like case, 27 and 28 Eliz. Rotulo, 2574. cited Hobart, 294. (g) 1 Lev. 180. (k) Hob. 67.81. 294. 5 State Tr. 168. Sect. 131. FIFTHLY, It seems agreed, that where a person exempt from burning in the hand, either in respect of his (g) peerage or (h) orders, or a (i) special pardon, is admitted to the benefit of his clergy, he shall have the same advantage of the statute without being burnt in the hand as others shall have upon such burning; for the words of the statute, that the party," after such "clergy allowed, and burning in the hand, shall be enlarged, &c." shall have this construction, that he shall be enlarged, &c. upon burning where burning ought to be. Sect. 132. It is holden, that after a man is admitted to his clergy, it is (k) actionable to call him felon, &c. because his 1 Danv. 163. pl. offence being pardoned by the statute, all the infamy and other 6. and the chap- consequences of it are discharged (7). And how far a person See Thomas convicted of a crime within the clergy, and praying or being ready Reilly's Case, to pray it, but not actually admitted to it, shall be within these Cases in Crown statutes, shall be considered chapter thirty-seven. ter of Pardon. Law, 360. Persons liable to hand shall be burned in the left cheek. † Sect. 133. But as burning in the hand afforded the offender be burned in the an opportunity of concealing the punishment, it was conceived that, by rendering this mark more visible, many evil-disposed persons might be deterred from offending; and accordingly by 10 & 11 Will. S. c. 23. it was enacted, 66 That persons convicted of "larceny within the benefit of clergy, who were liable to be burnt "in the hand, should, instead thereof, be burnt with the usual “mark in the most visible part of the left cheek nearest the nose, "in open court, and in the presence of the judge." But very short experience evinced the necessity of repealing this clause, and that the desired effect of this stigma was rendered abortive by exposing the objects of it to public jealousy, and, by rendering them unfit to be entrusted in any service or employment to get their living in an honest and lawful way, made them more desperate. Burning in the hand restored, and an additional punishment inflicted. Sect. 134. By 5 Anne, c. 6. therefore it is enacted, "That in "all cases where any person or persons shall be convicted of any "theft or larceny who shall be liable to be burnt in the hand, "they shall be burnt in the hand as formerly (1) they ought or "should have been before the making the said act, and the judge or justices before whom such offender or offenders shall be tried " and convicted, shall also at his or their discretion award and give judgment that such offender and offenders shall be com"mitted to some house of correction or public work-house within "the county or place where such conviction shall be, there to re"main without bail or mainprize for such time as such judge or justices 66 (1) See post, 19 Geo. 3. c.74. made perpetual by 39 Geo. S. by which burning in the hand is abolished, and a moderate fine substituted in lieu thereof. 'justices shall then judge and award, not less than six months " and not exceeding two years from the time of such conviction; an entry whereof is to be made of record, &c.: and if such "offender escape, he shall be committed to some house of cor"rection or public work-house within the county or place where "he shall be retaken and kept to hard labour, &c. not less than "twelve months, and not exceeding four years." 66 except man fenders shall be whipped, &c. Sect. 135. But it is recited by 19 Geo. 3. c. 74. s. 3." That Burning in the the punishment of burning in the hand, when any person is con- hand abolished, victed of felony within the benefit of clergy, is often disregarded slaughter, and and ineffectual, and sometimes may fix a lasting mark of disgrace in lieu of such and infamy on offenders, who might otherwise become good sub- burning, the of jects and profitable members of the commonwealth ;" and therefore it is enacted, "That when any person shall be lawfully con"victed at any session of oyer and terminer, or gaol-delivery, or "at any general or quarter-sessions, of any felony within the be"nefit of clergy, for which he or she is liable to be burnt in the "hand, the court before which any person shall be so convicted, or any court holden at the same place with the like authority, "if such court shall think fit, instead of such burning, may im"pose upon such offender such a moderate pecuniary fine as to "the court in its discretion shall seem meet. Or otherwise it "shall be lawful instead of such burning in any of the cases "aforesaid, except in the case of manslaughter, to order and adjudge that such offender shall be once or oftener, but not "more than three times, either publicly or privately whipped; "such private whipping to be inflicted in the presence of no less "than two persons besides the offender and the officer who in"flicts the same; and in case of female offenders, (1) in the presence of females only. And such fine or whipping so imposed or inflicted, instead of such burning in the hand, shall have the "like effects and consequences to the party, with respect to any "discharge from the same, or other felonies, or any restitution to "his or her estates, capacities, and credits, as if he or she had "been burned or marked as aforesaid." 66 66 + Sect. 136. But it is provided, par. 4. "That nothing in this act shall abridge the said courts from detaining and keeping in "prison for any time not exceeding one year, or of committing to "the house of correction for any time not less than six months, or exceeding two years, any offender as aforesaid; but that such "offender may, if such court shall think fit, after such burning or "marking, or after such whipping or fine imposed by this act in "lieu thereof, be so detained or committed, and with such accu"mulated punishment in case of escape as before-mentioned." Sect. 137. But as transportation has now become a common mode of punishment in clergyable felonies, it may be proper here to consider the statutes upon which that punishment is such case depends. Transportation. This statute shall not take away the imprisonment and whipping inflicted by 5 Anne, c. 6. + Exile or transportation is a species of punishment unknown 3Peer. Williams, to the common law of England; and where it is now inflicted 37. and 460. it (1) The punishment of whipping female offenders is now abolished by stat. 57 Geo. 3. c. 75. See postea, tit. "Judgment." it is either by the choice of the criminal himself, in order to escape capital punishment, or it is imposed by the express direction of some modern act of parliament: for no power on earth, except the authority of parliament, can send a subject of England, not even a criminal, out of the land against his will. (b) 39 Eliz. c. 4. The first introduction of it into our laws was in the reign of queen Elizabeth (b). But it seems to have taken place more nearly as now practised, about the time of the Restoration (c). After the establishment of English colonies in America, therefore, it became in this country, as in all others which have had colonies, the most common sentence of criminals (c). Rastal's statutes, 429. Rymer, par. 2. page 36. (c) Kelynge, 45. (d) Barrington, 445. 4 Geo. 1. c. 11. For felonies within clergy. For felonies ex cluded from clergy. Receivers of stolen goods. See Foster, 73. The king may dispense with sentence. To have the ef 66 66 Sect. 138. Accordingly, it is enacted by 4 Geo. 1. c. 11. "That where any person shall be convicted of grand or petit larceny, 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 (except persons convicted of "buying or receiving stolen goods, knowing them to have been stolen), it shall and may be lawful for the court before whom they were convicted, or any court held at the same place with "the like authority, if they think fit, instead of ordering any such "offenders to be burned in the hand, or whipped, to order and "direct that they shall be sent to America for the space of seven years." 66 66 66 "That where any per Sect. 139. And it is further enacted, son shall be convicted of any offence for which death by law "ought to be inflicted, or where any offenders shall be convicted "of crimes excluded from the benefit of clergy, and the king shall "extend mercy to such offender upon the condition of transpor"tation to any part of America, and such intention of mercy be signified by one of his majesty's principal secretaries of state, "it shall and may be lawful to and for any court having proper "authority to allow such offenders the benefit of a pardon under "the great seal." 66 66 + Sect. 140. And it is further enacted, "That it shall and may be lawful for the court as aforesaid to order and direct 66 any person convicted of buying or receiving stolen goods, "knowing them to be stolen, to be transported as aforesaid for "the term of fourteen years, in case such condition of transpor"tation be general, or else for such other term as shall be made "part of such condition, if any time be specified by his majesty as aforesaid." 66 Sect. 141. Provided nevertheless, "That his majesty may " at any time pardon and dispense with any such transportation, " and allow of the return of any such offender or offenders from America." + Sect. 142. And it is further enacted, "That where any such fect of pardon. «< offenders shall be transported, and shall have served their respective terms according to the order of any such court as "aforesaid, such services shall have the effect of a pardon to all "intents "intents and purposes as for that crime or crimes for which they "were so transported, and shall have so served as aforesaid." 66 courts. + Sect. 143. And it is further enacted by 6 Geo. 1. c. 23. 6 Geo. 1. c. 23. "That all the powers and authorities given by the above act to The power given any court before whom any felons or offenders tried for and to subsequent convicted of any offences for which they may be transported to "America, shall and may be observed and executed by any other "subsequent court with the like authority held for the same. county, riding, division, or liberty, where such felons or offenders "were tried and convicted, notwithstanding such subsequent "court shall happen to be held at or in any other term or place "than that wherein such trials or conviction were or shall be." quent court in Sect. 144. But the judges of assize, according to the circum- 8 Geo. 3. c. 15. stances of the case, frequently reprieved convicts tried before Power of subsethem, for the purpose of applying to the crown for a pardon on felonies excondition that such convicts should be transported to America; cluded clergy. in which case such convicts were obliged to lie in gaol until the coming of the judges at the subsequent assize. To remedy this inconvenience it was enacted by 8 Geo. 3. c. 15. "That where any "offender shall be convicted of any crimes excluded from the "benefit of clergy, and the judge before whom such offender "shall be convicted or condemned shall grant a reprieve for staying the execution of such offender, and recommend him to the "crown as an object of mercy; if his majesty shall be pleased "to extend his mercy to such offender on condition of transpor"tation to any part of America, and such intention of mercy "shall be signified by one or more principal secretary of state "to the judge so recommending; it shall and may be lawful for every such judge of oyer and terminer, or gaol-delivery, to "make an order for immediate transportation of every such of"fender, in the same manner as if such intention of mercy had "been signified to him by a principal secretary of state during "the continuance of the assizes at which such offender was con"demned: and such order shall be considered as an order made "at such assizes or place, and shall be as effectual to every in"tent and purpose, and shall have all the same consequences in every respect, as any order for the transportation of any of"fender made by any justice of oyer and terminer, and gaol-de"livery, as aforesaid." + Sect. 145. But the English colonies in America having se- 19 Geo. S. c.74. parated from their connection with Great Britain, the transpor- Of transportatation of felons to that country became impracticable; and it tion to parts beyond the seas. was therefore enacted by 19 Geo. 3. c. 74. " That when any "person at any session of oyer and terminer or gaol-delivery, or "at any quarter or other general session of the peace in England "or Wales, shall be lawfully convicted of any grand or petit larceny or any other crime for which he or she shall be liable by "law to be transported to America, the court may order and adjudge, that such person shall be transported to any parts "beyond the seas, whether the same be situated in America or elsewhere, in such and the like manner and for any term of years, not exceeding such and the same term as and for which "such person was liable to be transported to America." Sect. |