happened to see through the cheat, might in some instances, perhaps, not be sorry to connive at it, in favor of a man possessed of so rare and valuable a qualification. But one book was easily substituted for another: a man might easily be tutored so to get by rote a small part of a particular book; and as society advanced to maturity, learning became more and more diffused. We need not wonder therefore, if by the time of Henry seventh, it was found that as many laymen as divines were admitted to the ecclesiastical privilege. I should suppose a great many more, for there is something in the ecclesiastical function, that in the worst of times will render them less liable than others of the same rank and fortune, to fall into open and palpable enormities. A statute therefore' was made to apply a remedy to this abuse; and what would one imagine was that remedy? To oblige persons, claiming the benefit of clergy, to produce their orders? No; but to provide, that persons claiming it, and not being in orders, should not be allowed it more than once; and that all persons who had once been allowed it, should have a mark set upon them, whereby they might be known. Real clergymen, clergymen who had orders to produce, were by an express provision of the statute, entitled to claim it toties quoties, as often as they should have need, which privilege they have still.

When a felon was admitted to his clergy, he was not absolutely set free, but delivered to the ordinary. The great point then was, if we may believe lay judges, who it is to be confessed are not altogether disinterested witnesses, to prove him innocent, for this tended to discredit the profane tribunal. This business of proving him innocent, was called his purgation. If this were impracticable, he was put to penance: that is, subjected to such corporal punishment as the ordinary thought proper to inflict upon him, which we

14 Hen. VII. c. 13.

Thus it was that the

may imagine was not very severe. clergy contrived to bind even the most stubborn spirits under the yoke of their dominion; the honest and credulous by their fears; the profligate, though incredulous, by their hopes.

Circumstances, however, are not wanting, which tend pretty strongly to make it probable, that when once a man got into the hands of the clergy, he almost always stood the purging, and proved innocent; and it is what the lay judges seem to have taken for granted would be the case of course. When therefore they made a point of making the offender suffer the train of punishments that stood annexed to acknowledged guilt, (death excepted, which was too much for them to attempt) they knew no other way of compassing it, than by insisting on his not being admitted to make purgation. These punishments, the imprisonment excepted, consisted altogether of forfeitures and civil disabilities; penalties with which the ecclesiastical superior had nothing to do, and which it lay altogether within the province of the temporal judge to enforce. One should have thought then it would have been a much less apparent stretch of authority in the latter, to give effect to the proceedings of his own judicature, than to lay a restraint on the ecclesiastical judge in the exercise of what was acknowledged to be his. But it were too much to expect any thing like consistency in the proceedings of those rude ages. The whole contest between the temporal judge and the spiritual was an irregular scramble, the result of which was perpetually varying, according to the temper of individuals and the circumstances of the time.

By the time of queen Elizabeth it came to be generally understood that purgation, which originally meant trial, was synonymous to acquittal.' This is so true, that when by a

1 It is amusing enough to observe the continual struggle between the spiritual and the carnal judge, as described in Staundford, title clergy. It seems

statute of that reign,' purgation came to be abolished, the legislature, instead of appointing a trial, appointed punishment. Persons claiming the benefit of clergy, instead of being delivered to the ordinary to make purgation, were now, after being burnt in the hand, to be forthwith delivered out of prison, unless the temporal judge should think proper to sentence them to imprisonment, which he was now for the first time empowered to do for any time not exceeding a year.

It will here be asked what was done with the pecuniary punishments, the forfeitures, the corruption of blood, and the disabilities? The answer is, nothing at all-they were never thought of. However, by one means or other, there is now an end of them. The legislator neither then nor since has ever opened his mouth upon the subject. But the judge, drawing an argument from that silence, has opened his and construed them away.

This bold interpretation is a farther proof how entirely the ideas of purgation had become identified with that of acquittal. When a man was admitted to make purgation, he was acquitted: by that means he was discharged from these pecuniary penalties. Now then that the legislature

to have been a continual game of leap-frog, in which sometimes spirit, sometimes flesh was uppermost.”

A man, however, was not always so very kindly dealt with: he fared better or worse, according as he happened to be in favor with the church. If they happened not to like him, although he had not been tried when delivered to them, they would not admit him to his purgation, but kept him in hard durance without trial. The temporal courts were then obliged to drive them on to trial. If he was a favorite, although convicted, no guest could be better entertained they used to cram him at both ends. This, a good archbishop admits, who, being driven by the parliament to make an ordinance to remedy this mischief, appoints, that in certain cases, they shall be dieted in a manner he prescribes; speaking all the while in much worse terms of the lay judges than of the malefactors, who met with this reception from their friends.

: 18 Eliz. c. 7.

* Tale of a tub.

Staundford, clergy, c. 48; Bracton.

has appointed that in the room of going free, the delinquent may now be punished by a slight punishment, and that not of course, but only in case the judges should think fit to order it of their own accord, we cannot, said the judges, suppose that it meant to subject him to a set of punishments so much severer than those it has named. Therefore, as to all but these, coming in place of an acquittal, we must look upon it as a pardon. Having by this chain of reasoning got hold of the word pardon, they went on applying it to other purposes in a very absurd manner; but as we have already had occasion to observe, with a beneficial effect.

One would imagine that being to suffer nothing (what has been mentioned only excepted), first, because he was acquitted, next, because he was pardoned, there was an end of all pecuniary penalties, of the one species of forfeiture as well as the other. This, however, neither was nor is the case. A man did then and does still continue subject to the forfeiture of his personal estate. The reason of this is of true legal texture, and altogether characteristic of ancient jurisprudence. Forfeiture of real estate is not to take place till after judgment; forfeiture of personal estate, without the least shadow of a reason for the difference, is to take place before judgment: to wit, upon conviction. Now, ever since the days of Henry sixth, it has not been the way to admit a man to plead his clergy till after conviction. Now, then, if a man comes and pleads his clergy, whatever goods he had the king has got them. This being the case, having had your clergy, you are innocent, or, what comes to the same thing, you are forgiven. All this is very true; but as to your money, the king, you hear, has got it, and when the king has got hold of a man's money, with title or without title, such is his royal nature, he cannot bear to part with it. For the king can do no man wrong, and the law is the quintessence of reason. To make all this clear, let it be observed, there is a kind of electrical virtue in royal fingers,

which attracts to it light substances, such as the movables and reputed movables of other men; there is, moreover, a certain glutinous or viscous quality, which detains them when they are got there.

Such are the grounds upon which the forfeiture of personal estate, in cases of clergyable felony, still continues to subsist.

This act gave the finishing stroke to the abusive jurisdiction of the clergy. The still more abusive exemption remained still, but so changed and depreciated by a lavish participation of it with the laity, that its pristine dignity and value was almost entirely obliterated. By the turn they had given to it, it was originally an instrument of unlimited dominion over others; it was now sunk into a bare protection, and that no longer an exclusive one for themselves.

At last, came the statute of queen Ann,' which gives the benefit of clergy to all men whatsoever, whether they can read or cannot. This, together with a statute of the preceding reign,' which had already given the same benefit to all women, gave quite a new import to the phrase. In words, it confirmed and extended the abusive privilege; in reality, it abolished it. It put the illiterate altogether upon a footing with the literate; providing, at the same time, that in the case of the offences to which it extended, both classes alike should suffer, not the punishment which the unprivileged, but that which the privileged had been used to suffer before.

Since, then, to allow the benefit of clergy to any offence, is to punish all persons who shall have committed that offence, in the same manner as lettered persons were punished before; it is to punish in a certain manner all persons for that offence. To take away this benefit is to punish in a certain other manner, much more severe, all persons for

15 Ann. c. 6.

23 & 4 W. & M. c. 9.