Wh may dezand it.

Others besides clerks.

Clergy only allowable once.

magistrate, which yet was not so absolute, but that it had - subordination and subjection to this ecclesiastical government; so it was regnum sub graviore regno. 2 Hale' Hit. 321.

But although the usurpations of the pope were very great, and obtained mech in this kingdom, until the extermination of his pretended supremacy by Hen. 8, yet this claim of exemption of the clergy totally from secular jurisdiction grew so burden. some and intolerable, that it was from time to time qualified aud abridged by the civil power, sometimes by acts of parliament taking it away in some cases, sometimes by the interpretation and construction of the judges, and sometimes by the contrary usage of the kingdom; for ecclesiastical canons never bound in England further than they were received, and so had not their authority from their own strength and obligation, but from the usages and customs of the kingdom that admitted them, and only so far forth as they were so admitted. 2 Hale's Hist. 325.

This privilege therefore being no farther in force here than as it hath been received, and is consistent with the common or statute law; it will be proper to show how far it hath been received, and is consistent with those laws. 2 Hawk. c. 33.

S. 2.

And herein it will be proper to shew:

1. What persons may demand the benefit of clergy.
2. For what crimes it may in general be demanded.

3. At what time it is demandable; and by whom it is to be
granted.

4. What shall ie done to one allowed the benefit of clergy; and the consequences thereof.

1. What persons may demand the benefit of clergy.]-By the statute pro clero, 25 Ed. 3. c. 4, All manner of clerks, as well secular as religious, which shall from henceforth be convict before secular judges, for any treasons or felonies, touching other persons than the king himself, or his royal majesty, shall from henceforth have and enjoy the privilege of holy church.

It seems that by a favourable interpretation of this statute, not only those actually admitted into some inferior order of the clergy, but also those who were never qualified to be admitted into orders (which was tried by putting them to read a verse) have been taken to have a right to this privilege, as much as persons in holy orders. 2 Hauk. c. 33. s. 4.

And by 4 Hen. 7. c. 13. "Every person, not within orders, which once hath been admitted to the benefit of his clergy, cftsoons arraigned of any such offence, shall not be admitted to the benefit of clergy and if any person at the second time of asking his clergy, because he is within orders, hath not ready his letters of orders, or a certificate of his ordinary, the jus

tices shall give him a day to bring in the same, and if he fail he shall lose the benefit of his clergy, as he shall that is without orders."

But by 28 Hen. 8. c. 1. s. 7, " Persons within holy orders shall be under the same pains and dangers for the offences re ferred 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, " Pers ns 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, as lay persons admitted to their clergy be or ought to be."

But by 1 Ed. 6. c. 12. s. 10, 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 directly answer, shall have the benefit of his clergy, in like manner as before, 24 April, in 1 Hen. 8."

want it.

Therefore, where lay persons are not excluded from the but to persons benefit of clergy the first time, persons in holy orders may in orders as of have it as often as they want it, in the same manner as they ten as they might under 4 Hen. 7. c. 13, except they shall be outlawed, or challenge above the number of twenty, in which case they are not within the purview of 1 Ed. 6, which extends only to those who shall be found guilty, or confess, or stand mute. Hawk. c. 33. s. 13.

But, where the crime itself charged against a person in holy unless the sta orders is by any statute generally excluded from clergy, such tute excludes person shall no more have the benefit of it than if he were a mere clergy generallayman. 2 Hawk. c. 33. s. 13.

Women could not have the benefit of clergy by the common law, but now by 3 & 4 Will. & Mar. c. 9. & 5, If any woman be convicted of an offence, for which a man might have benefit of clergy, upon her prayer to have the benefit of this statute, judgment of death shall not be given against her, but she shall suffer the same punishment that a man should suffer.

But by 4 and 5 Will. & Mar. c. 24. s. 13, If any woman shall be convicted of any felony, for which a man might have benefit of clergy, and upon her prayer shall once have the bonefit of the statute 3 & 4 Will. & Mar. c. 9, and shall be again convicted of any other felony, for which a man might have benefit of clergy, such woman shall be excluded from any benefit of the said statute.

ly.

Women may

have benefit of clergy,

only once.

But no one shall be ousted of clergy a second time by the Burning no bare mark in the hand, or by a parol averment, without the evidenceof for

*See Burglary, Robbery, and other Titles, under Fetoxy (without Clergy)

and Murder, under title HOMICIDE.

mer conviction.

Vol 11.

Ff

Conviction how certified.

Transcript ci

dente.

record testifying it, according to the following statutes. 2 Hule's Hist. 373.

By 34 & 35 Hen. 8. c. 15, "The clerk of the crown, clerks of the prace, and clerks of assize, where any attainder, outlawry, or conviction of clerks shall be had, shall certify a transcript, containing the tenor of such indictment, outlawry or conviction, and the name, surname, and addition of every person so indicted and outlawed, convicted, or clerk attainted, and the certainty of the offence, and the day and place of his outlawry, conviction, and attainder, and the day and place where the offence shall be done, before the king in his bench at Westmin. ster; there to remain of record for ever, within forty days after such attainder if the term be then, and if not then within twenty days after the term next following the said forty days, on pain of 40s. one moiety to the king, and the other to him that will sue, and the clerk of the crown in the King's Bench shall receive the same without fee, under the like pain." s. 2.

"If there be any more persons named in such indictment, other than such persons so attainted, convicted, or outlawed, such clerk shall certify such transcript only concerning such persons so attainted, convicted, or outlawed, which shall be as effectual as if the very record were present." s. 3.

"And the said clerk of the crown in the. King's Bench, at such times as the justices of gaol delivery or justices of peace write unto him for the names of such persons attainted or convict, shall certify such names, upon pain to forfeit for every name 40s." s. 4.

"But this act shall not extend to Wales, Chester, Lancaster, or Durham," s. 5.

The justices may, by force of this act, write in their own names to the clerk of the crown for a certificate of the transcript, and need not do it by writ in the king's name. 2 Hawk. c. 33. s. 18.

And by 3 & 4 Will. & Mar. c. 9, "A transcript certified by the clerk of the crown, of the peace, or of the assizes, briely containing the tenor of the indictment, and the names of the persons having had the benefit of clergy, or of this act, to the judges in any other county, shall be a sufficient proof that such person hath had the benefit of his clergy, or of this act." s. 6.

Howa counterAgainst the defendant's prayer of clergy the prosecutor may plea may be file a counter-plea, alieging some fact which, in law, deprives filed onst an the defendant of the privilege he claims. Thus, it is a good

vilenderof

clergy.

counter-plea to the prayer of clergy, that the ofender is not entitled to the benefit of the statute in such case made and provided, because he was before convicted of an offence, and there upon prayed the benefit of the statute, which was allowed to him, alleging the truth of the fact, and praying the judgment of the court, that he may die according to law, which fact is to be

tried by the record in pursuance of 34 & 35 Hen. 8. c. 14. Staundforde 135..

Divers other counterpleas also, by which an offender may be deprived of clergy, may be framed from a consideration of the persons to whom it is allowed or denied by the common law, and of the circumstances under which that allowance or denial of it has been placed by divers acts of parliament. Staundforde, 138.

The use of this counter-plea, however, had for many years become obsolete and out of practice; no traces of it appearing in any of the books since the time of Sir. Wil. Staundforde, who was chief justice of the King's Bench in the reign of queen Elizabeth, but the daring practices of some money-coiners have occasioned its revival, and accordingly in the case of The King v, Marston Rothwell and Mary Child, who were convicted of coining, a counter-plea was filed of record on the part of the prosecution, alleging that they had been before allowed the benefit of the statute, and the offenders were thereby ousted of their clergy. 2 Hawk. 8vo. edit. 478, 479.

And if the party deny that he is the same person, issue must How the idenbe joined upon it, and it must be found upon trial that he is tity of the per the same person before he can be ousted of clergy. 2 Hale's Hist. 373.

son is tried.

ufable homi

2. For what crimes it may in general be demanded. Clergy Not in treason, was never allowed in this kingdom in cases of high treason: trespass, petty neither was it allowed on indictments in cases criminal, but larceny, or jus not capital, and which did not extend to the loss of life or limb; therefore, it is not allowable in indictments of trespass, petit larceny, or homicide se defendendo. Staundjorde's P. C. fo. 124. a. 2 Hale's Hist. 326.

cide.

But the above statute 25 Ed. 3. de ceroy c. 4, Having pro- All felonies vided that clerks convict for treasons or felonies touching other within clergy. persons than the king himself or his royal majesty, shall have the privilege of holy church; mere felonies of all kinds, in consequence thereof, became entitled to clergy Fostere Cr. L. 190.

ed by statute,

Therefore it may be laid down as a good general rule, that Unless excludwherever a person is denied the benefit of his clergy as he is in petit treason, murder, robbery, burglary, and arson;rsach denial must be grounded on some act of parliament made since 25 Ed. 3, which excludes him from the benefit of it. 2 Hawlos tene c. 33. s. 23.

expressly taken

It is also a general rule, that where an offence is made felony and it must be by statute it shall have the benefit of clergy, unless it be expressly excluded from it. 2 Hawk. c. 33. s. 24. Forster's Cr.

L. 190.

But if the statute enacts without benefit of clergy,

generally, that it shall be felony or that he shall suffer as in case of

away thereby.

What evidence will oust the of fender of clergy.

Clergy not taken from accessaries, unless

felony without benefit of clergy, this excludes it in all circumastances, and to all intents. 2 Hale's Hist. 335.

So, wherever a person is denied the benefit of the clergy in respect of a statute excluding it from the crime charged against him, the indictment, or appeal, and the evidence thereon, must expressly bring his case within the words of such statute. 2 Hawk. e. 33. s. 25.

Otherwise, although possibly the fact itself be within the sta tute, and it may so appear upon the evidence, yet if it be not so alleged in the indictment, the party, though convict, shall have his clergy. 2 Hale's Hist. 236.

But although the case be so laid in the indictment that it comes within the statute, to exempt the prisoner from clergy, yet if upon the evidence it fall out, that though it be a felony, yet it is not so qualified as laid in the indictment, the jury ought to find him guilty of the felony simply, but not as to the matter laid in the indictment, and thereupon the prisoner shall be admitted to his clergy; and this is commonly done. 2 Hale's Hist. 336.

A statute by excluding principals from their clergy doth not thereby exclude the accessaries before or after; and a staexpressly men- tute, generally excluding those who shall be found guilty of murder, robbery, or burglary, or other crime, without saying any thing of accessaries, shall be construed to intend principals Upon what at- only. 2 Hawk. c. 33. s. 26.

tioned.

tainder allow

able.

After conviction.

Where clergy is allowable, those who stand mute or challenge above twenty, or are outlawed, are as much entitled to it as those who are convicted. 2 Hawk. c. 33. s. 27.

Also a statute, by taking away clergy from those who shall be found guilty, doth not thereby take it from those who stand mute, or challenge above twenty, or are outlawed, but a statute taking it from those who shall be found guilty,extends as well to those, who shall confess themselves guilty upon record, as to those who shall be found guilty by verdict. 2Hawk. c. 33. s.28,

3. At what time it is demandable; and by whom it is to be granted.] It might be demanded, by the ancient common law, as soon as the prisoner was brought to the bar, before any indictment or other proceeding against him; but this being found inconvenient to prisoners it hath been the general practice, ever since the reign of Hen. 6, to oblige those who demand the benefit of clergy to plead and put themselves upon their trial, under pain of being dealt with as those that stand mute, whereby they forfeit their goods, without any inquiry concerning their crime, but yet cannot be denied their clergy where they should be entitled to it, in case they were convicted, unless they be specially excluded by some statute. 2 Hawk. c. 33. s. 110.

And a person may demand his clergy after judgment given against him, whether of death or of outlawry, as well as before