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by the same statute, 5 Ann. c. 6, is was enacted, that the be-
(2) See the existing law upon this subject partially detailed, ante, 132, notes (12) and (13). The 5 Geo. IV. c. 84, § 1, recites, that the laws then in force for regulating the transportation of offenders would expire at the end of that session, and enacts that all persons already ordered for transporta
tion shall be placed under the provisions of that Act, which are in substance similar to those in the preceding statutes. It has been held with reference to one of the former Acts, 8 Geo. III. c. 15, that the word transportation meant not merely the conveying the felon to the place of trans
ders liable to transportation may, in lieu thereof, at the discretion of the judges, be employed, if males, except in the case of petit 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 unbappy 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
portation, but his being so conveyed and remaining there during the term for which he was ordered to be transported; and, therefore, that a felon attainted was not, by that statute, re
stored to his civil rights till after the expiration of the term for which he was ordered to be so transported; Bullock v. Dodds, 2 B. & A. 258.
long and labori English legislaturaits original in
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 (3).
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 awhile 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, 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 (i) 2 Hal. P. C. 375.
(k) Duchess of Kingston's case, in parliament, 22 Apr. 1776.
(3) The 19 Geo. III. c. 74, was made perpetual by the 39 Geo. III. c. 45; but by the 1 Geo. IV. c. 57,
the punishment of whipping females is abolished.
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 cases 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 (I). But I much question whether this was ever ruled for law, since the reintroduction 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 misdemesnors, 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 most part, became legally entitled to this *indulgence by the statute de clero, 25 Edw. III. stat. 3, c. 4, which provides that clerks convict for treason or felonies, touching other persons than the king himself or his royal 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,
IV. Lastly, we are to inquire what the consequences are to the party, of allowing him this benefit of clergy. I speak (0) Moor, 756; Fost. 288.
(r) 1 Hal. P. C. 529; Foster, 356, ( 2 Hal. P. C. 330.
357. (9) 2 Hawk. P. C. 341.