L. H. S. My lords, this trial being at an end, nothing remains to be done here, but to deter mine the commission.

Lords. Ay, ay.

L. H. S. Let proclamation be made for dissolving the commission of High Steward.

Serjeant at Arms. Oyez! oyez! oyez! our sovereign lord the king does strictly charge "the statute 1 E. 6, exempts the peers convict approved by the common law :" and page 291, of clergyable felonies from burning in the hand, he says, "the perjuries were sundry in the and virtually repeals the statute, 4 H. 7, as to witnesses and compurgators, in the jury of Bo much; and the statute 18 Eliz. requires clerks, and the judge himself was not clear, all burning in the hand only according to the turning the solemn trial of truth by oath into a statute in that behalf before provided; and ceremonious and formal lie." It is not probathere being no statute then or now in force to ble the parliament, intending a great distinction subject peers to such brand, they are in such in favour of peers, so as to dispense with readcase (upon the allowing the benefit of the said ing and burning in the hand, meant to leave a statute of E. 6, which is as much as clergy peer a prisoner in the custody of the ordinary, without reading or burning) freed from discre- and to have his credit and capacity to acquire dit and other penalties of the felony, as much personal property, and enjoy the profits of his as commoners are by having clergy formally al- lands, to be decided upon in such a mock trial; lowed, and being burnt." Vol. 13, p. 1014. And and in fact there is no instance in any of the he says, "a peer shall have this benefit with- | law books, where a peer convicted of a clergyout either clergy or burning, a clerk in orders able felony has ever been delivered to the ordiupon clergy alone without burning, and a lay-nary, or has made purgation: and the jurisdic elerk not without clergy and burning." Vol. 13, p. 1019. And I believe nobody can dispute but the law is so. The question therefore is, whether a peeress is not entitled to the same privilege? and we are of opinion that she is.

C nec

'Peers' is a word capable of including the whole body of the peerage, females as well as males; and every personal privilege conferred on peers is by operation of law communicated to peeresses whether by blood or marriage, though only males are mentioned. As trial by peers, though recognized in Magna Charta only as belonging to the male sex, super eum ibimus, nec super eum mittemus,' did by construction of law belong to females, as appears by 20 H. 6, which is only a declaratory law; so any other personal privilege, granted or confirmed to peers generally, is com. municated to females, if it is of a nature capable of being communicated to and enjoyed by them; as trial by peers, freedom from arrest : Countess of Rutland's case, Moor 769, and 2 Co. 52. And if those privileges are so communicated, as they certainly are, why should not this given by 1 E. 6, the consequence of which is so reasonable and agreeable to justice, that a female offender shall not undergo a greater punishment than a male of her own rank would do for a crime of the same sort? But it was insisted at the bar, that between 1 E. 6, and 18 Eliz. a peer found guilty of a clergyable offence should be delivered to the ordinary as a clerk convict: and Staunford, 130, is quoted for that purpose, that by the words of this statute a peer ought to make his purgation; and if so, he ought to be delivered to the ordinary to be kept till he has made his purgation. That opinion of Staunford seems contrary to law in many particulars. The 1 E. 6, c. 3, had in effect suspended purgation, even as to commoners: therefore the legislature could never mean to introduce and establish purgation as to a peer, which Hobart says, 289, "is no ordinance of the common law, but is a practice among themselves, i. e. the clergy, rather overseen and winked at than

tion of the ordinary to purge the clerk relates
only to clerks in orders, or such as the common
law considered as clerks; and a peer not being
a clerk, he could not make purgation, the ordi-
nary having no jurisdiction over him; and the
words here," have the privilege of clergy as a
clerk convict that may make purgation, and
shall be adjudged, deemed, taken, and used for
his first time only to all intents, constructions,
and purposes as a clerk convict, and shall be in
case of a clerk convict which may make pur
gation," do not import or direct that he shall
make purgation; but give a peer the same ad-
vantage as a clerk convict who might make
purgation, i. e. an absolute discharge from all
further punishment; and the statute, as to
him, is to be construed to be a pardon and it
seems most probable, that peers never did make
purgation; because, as all who made purgation
were to be tried by a jury of clerks, such trial
would be derogatory to their inherent privilege
of being tried by their peers. Lord chief jus
tice Hale, on this statute (2 H. H. P. C. 376)
says, "I think it was never meant that a peer
of the realm should be put to read, or be burnt
in the hand, where a common person should
be put to his clergy; neither is it said, that he
shall be discharged by his praying of the bene-
fit of this statute, where a common person shall
have the privilege of clergy and may make his
purgation; but only where he may have the
benefit of his clergy in the first clause of the
statute: the other clause shall be in case of
a clerk convict that may make purgation' is
only for his speedier discharge and farther ad-
vantage, and not to restrain the general clause.
But it is objected, that the statute 1 E. 6, c. 12,"
gives this privilege only to "lord and lords of
the parliament, and peer and peers of the realm
having place and voice in the parliament ;" and
that a peeress, not having place and voice in
parliament, cannot have the benefit of this sta-
tute. This expression, "having place and
voice in parliament," cannot mean to exclude
all peers but such as sat in parliament; butto

and command all manner of persons here pre- | sovereign lord the king, for his grace my Lord sent, and that have here attended, to depart High Steward of Great Britain intends now to hence in the peace of God, and of our said dissolve his commission.

tion of such persons to whom clergy shall be allowed, detain and keep them in prison for such convenient time as the same justices in their discretions shall think convenient, so as the same do not exceed one year's imprisonment. This proviso plainly relates only to those persons mentioned in the clause, that is, such persons as had been burnt in the band according to the statute in that case made and provided, meaning 4 H. 7. As peers therefore are not to be burnt in the hand, they cannot be imprisoned; for those only are to be imprisoned who have been burnt in the hand; and the word 'justices,' is more properly applicable to other courts of judicature than to this house. The 21 Ja. 1, c. 7, cannot relate to this question; for it relates to common persons, and was intended to put women on the same footing with men, as to small larcenies; and 3d and 4th W. and M. c. 9, does the same in all clergyable felonies. This shews the justice of allowing to the peeresses the same benefit of 1 E. 6, c. 12, as peers have; and it is natural to suppose, that when the legislature were putting women of inferior rank on the same footing as men, they would have put peeresses on the same footing with peers, had it not been conceived that the same privileges were already extended to both.

Upon the whole therefore, by stat. 1 E. 6, a peer convicted of a clergyable felony is intitled to his immediate discharge, without reading or burning in the hand, or being liable to imprisoument by 18 Eliz.

describe some of the incidents of peerage, or to include bishops, who are lords of parliament though not peers: and if these words should confine the benefit of this statute to those only who actually sat in parliament, it would exclude peers minors, and papist peers, who, by statute 30 Car. 2, stat. 2, c. 1, are now rendered incapable of sitting or voting in parliament: the words therefore are merely descriptive, and not restrictive. And what makes it very plain is, that, in the 4th and 5th P. and M. c. 4, which takes away clergy from accessaries before the fact in murder and several other offences, there is a proviso that every lord and lords of the parliament, and peer and peers of this realm, having place and voice in parliament, upon every indictment for any of the offences aforesaid, shall be tried by their peers, as hath been accustomed by the laws of this realm. Here are the very words used in 1 E. 6, c. 12; yet it could never be doubted, but notwithstanding those words, peeresses must be tried by their peers for offences against that statute; and lady Somerset [see her case, vol. 2, p. 951] was tried by her peers for being accessary to the murder of sir Thomas Overbury, which was an offence against that very statute. What gave rise probably to this statute, 1 E. 6, c. 12, was another statute passed the same year, c. 3, providing for the punishment of vagabonds, by making them slaves for two years; in which act was a clause, that no clerk convict shall make his purgation, but shall be a slave for one year to him who will become bound with two sureties to the ordinary to take him into his service, and he shall be used like a vagabond; and a clerk attainted or convict, which by law cannot make his purgation, may by the ordinary be delivered to any man, who will give security to keep him as his slave for five years; and it shall be lawful to every person, to whom any shall be adjudged slave, to put a ring of iron about his neck, arm, or leg. To avoid all possible question whether a peer could be subject to any of these provisions, this act, 1 E. 6, c. 12, provides for their immediate delivery, on praying the benefit of this statute. This statute 1 E. 6, c. 3, was repealed 3d and 4th E. 6, c. 16, but was in force when 1 E. 6, c. 12, was made. The next statute, 18 Eliz. c. 7, provides, that every person which shall be admitted and allowed to have the benefit of privilege of his clergy, shall not thereupon be delivered to the ordinary, as has been accustomed; but, after such clergy allowed and burning in the hand, according to the statute in that behalf provided, shall forthwith be enlarged and delivered out of prison by the justices, before whom such clergy shall be granted, that cause notwithstanding. Then ateness, see Warton's Life of sir Thomas Pope, follows the proviso, that the justices, before and the passage in Fox cit. by Mr. Walter Scout whom any such allowance of clergy shall be in note 2, to canto 3, of the Lady of the Lake. had, shall and may, for the further correc Voltaire, (Dict. Philos. art. Clerc) notices be

as may be enjoyed by a peeress, is by operation This privilege, given by statute, being such of law communicated to her, and puts her in the same situation as a peer; the consequence of which is, that a peeress, convicted of a clergyable felony, praying the benefit of this statute, is not only excused from capital punish. ment, but ought to be immediately discharged, without being burnt in the hand, or liable to any imprisonment.

illiterateness in the clergy, and in persons of To the mention in vol. 12, p. 632, et seq. of distinction among the laity, may be added from Mr. Barrington," that so late as the year 1525, Adam Gordon earl of Sutherland and his countess, subscribe their names with a pen led by a notary public, as appears in the case of the

countess of Sutherland in Dom. Proc. a. D. [r] 4th edition of 1775. What Mr. Barrington 1770." Observations on 1 H. 5, p. 382, Note prince of Wales I do not thoroughly understand, in the same note says of Edward the 1st when For other particulars respecting such illiter

Lords. Ay, ay.

Then the white staff being delivered to the Lord High Steward by the gentleman usher of the Black Rod on his knee, his grace stood up uncovered, and holding the staff in both his hands, broke it in two, and declared the commission to be dissolved; and then, leaving the chair, came down to the woolpack, and said, Is it your lordships' pleasure to journ to the Chamber of Parliament?

Chamber of Parliament.
L. H. S. This House is adjourned to the

Then the peers and others, returned back to the Chamber of Parliament in the same order they came down, except that his royal highad-ness the duke of Cumberland walked after the lord chancellor.

nefit of clergy. The passage affords an amus-livres sterling. Le criminel qui sait lire deing instance of the ease with which bis senten-mande un bénéfice de clergie: on ne peut le tious flippancy compresses into a very small lui refuser. Le juge, qui était réputé par space a copious mass of false statement and impertinent reflection. "On était si savant vers le dixième et onzième siècle, qu'il s'introduisit une coutume ayant force de loi en France, en Allemagne, en Angleterre, de faire grace de la corde à tout criminel condamné qui savait lire; tant un homme de cette érudi tion était nécessaire à l'état. Guillaume le bâtard, conquérant de l'Angleterre, y porta cette coutume. Cela s'appelloit bénéfice de clergie, < beneficium clericorum aut clergicorum.'

"Nous avons remarqué en plus d'un endroit, que de vieux usages perdus ailleurs se retrouvent en Angleterre, comme on retrouva dans l'ile de Samothrace les anciens mystères d'Orphée. Aujourd'hui même encore ce bénéfice de clergie subsiste chez les Anglais dans toute sa force pour un meurtre commis sans dessein, et pour un premier vol, qui ne passe pas cinq cents

l'ancienne loi ne savoir pas lire lui-même, s'en rapporte encore au chapelain de la prison, qui présente un livre au condamné. Ensuite il demande au chapelain, Legit?' lit-il? Le chapelain répond, Legit ut clericus,' il lit comme un clerc. Et alors on se contente de faire marquer d'un fer chaud le criminel à la paume de la main. On a eu soin de l'enduire de graisse, le fer fume et fait un siflement, sans faire aucun mal au patient réputé clerc."

552. Proceedings against JOHN HORNE, Clerk, on an Information in the King's-Bench by the Attorney-General, for a Libel: 17 GEORGE III. A. D. 1777.

In this Case, the report of the proceedings said present sovereign lord the king prosecutes had upon the Trial at Guildhall, and upon in this behalf, in his proper person comes into the Attorney-General's Motion for Judgking before the king himself, at Westminster, the court of our said present sovereign lord the ment in the Court of King's-bench at Westminster, was published by the Defendant, Mr. Horne. I have subjoined an account, (compiled from Mr. Cowper's Reports and Brown's Cases in Parliament) of the subsequent proceedings before the House of Lords.

1. THE TRIAL AT GUILDHALL.

in the county of Middlesex, on Thursday next after fifteen days from the day of St. Martin in this same term, and for our said lord the king giveth the court here to understand and be informed, that John Horne late of London, clerk, being a wicked, malicious, seditious, and ill disposed person, and being greatly disaffect · ed to our said present sovereign lord the king and to his administration of the government of this kingdom and the dominions thereunto belonging, and wickedly, maliciously, and seditiously intending, devising, and contriving to stir up and excite discontents and seditions* * With the following title: The Trial at among his majesty's subjects, and to alienate large of John Horne, esq., upon an Informa- and withdraw the affection, fidelity, and alletion filed Ex Officio by his majesty's attorney-giance of his said majesty's subjects from his general, for a Libel, before the right hon. William earl of Mansfield, in the court of King's-bench, Guildhall, on Friday the 4th of July, 1777. Published by the defendant from Mr. Gurney's short-hand notes.

London, to wit. BE it remembered, That Edward Thurlow, esq. attorney general of our present sovereign lord the king, who for our

-Nec bellua tetrior ulla est.
Quam servi rabies in libera colla furentis.'

said majesty, and to insinuate and cause it to be believed that divers of his majesty's innocent and deserving subjects had been inhumanly

*As to the operation of these words, see lord Ellenborough's Judgment in the Case of the King against Phillipps, 6 East, 464.

at

EL

hate

康

wicked, malicious, scandalous, and seditions libel, of and concerning his said majesty's government and the employment of his troops, according to the tenor and effect following; that is to say, King's Arms tavern, Cornbill, June 7, 1775. At a special meeting this day of several members of the Constitutional Society, during an adjournment, a gentleman * proposed that a subscription should be immediately entered into by such of the members 'present who might approve the purpose, for raising the sum of 100l. to be applied to the relief of the widows, orphans, and aged pa

murdered by his said majesty's troops in the province, colony, or plantation of the Massachusets-Bay in New-England, in America, belonging to the crown of Great-Britain, and unlawfully and wickedly to seduce and encourage his majesty's subjects in the said province, colony, or plantation, to resist and oppose his majesty's government, on the 8th day of June, in the 15th year of the reign of our present sovereign lord George the third, by the grace of God of Great-Britain, France, and Ireland, king, defender of the faith, &c. with force and arms at London aforesaid, in the parish of St. Mary-le-Bow, in the ward of Cheap, wickedly,rents of our beloved American fellow-subjects,

maliciously, and seditiously did write and pub- who, faithful to the character of Englishmen, lish, and cause and procure to be written and preferring death to slavery, were for that reapublished, a certain false, wicked, malicious, son only inhumanly murdered by the king's' scandalous, and seditious libel of and concern- (again meaning his majesty's) troops at or ing his said majesty's government and the em- near Lexington and Concord, in the province ployment of his troops, according to the tenor ' of Massachusets' (meaning the said province, and effect following: King's-Arms tavern, colony, or plantation of the Massachusets Cornbill, June 7, 1775. At a special meeting Bay in New England, in America) on the 'this day of several members of the Constitu- 19th of last April; which sum being immetional Society, during an adjournment, a gen- 'diately collected, it was thereupon resolved 'tleman proposed that a subscription should be that Mr. Horne' (again meaning himself the 'immediately entered into by such of the mem- said John Horne) do pay to-morrow into the 'bers present who might approve the purpose, 'hands of Mess. Brownes and Collinson, on for raising the sum of 100l. to be applied to the account of Dr. Franklin, the said suin of 'the relief of the widows, orphans, and aged 100/. and that Dr. Franklin be requested to 'parents of our beloved American fellow sub- apply the same to the above-mentioned pur'jects, who, faithful to the character of Eng- pose; John Horne' (again meaning himself 'lishmen, preferring death to slavery, were for the said John Horne) in contempt of our said that reason only inhumanly murdered by the lord the king, in open violation of the laws of 'king's' (meaning his said majesty's) troops at this kingdom, to the evil and pernicious examor near Lexington and Concord, in the pro-ple of all others in the like case offending, and vince of Massachusets' (meaning the said probvince, colony, or plantation of the Massachusets-Bay in New-England, in America,) on 'the 19th of last April; which sum being im'mediately collected, it was thereupon resolved that Mr. Horne' (meaning himself the said John Horne) do pay to-morrow into the hands of Mess. Brownes and Collinson, on account of Dr. Franklin, the said sum of 100l. and that Dr. Franklin be requested to apply the 'same to the above-mentioned purpose; John Horne' (meaning himself the said John Horne) in contempt of our said lord the king, in open violation of the laws of this kingdom, to the evil and pernicious example of all others in the like case offending, and also against the peace of our said present sovereign lord the king, bis crown and dignity and the said attorney-general of our said lord the king for our Said lord the king further gives the court here to understand and be informed, that the said John Horne being such person as aforesaid, and again unlawfully, wickedly, and seditiously intending, devising, and contriving as aforesaid, afterwards, to wit, on the 9th day of June in the 15th year aforesaid, with force and arms at London aforesaid, in the parish and ward aforeid, wickedly, maliciously, and seditiously printed and published, and caused and procured to be printed and published, in a certain newspaper, intitled, The Morning Chronicle and London Advertiser, a certain other false,

word

Ma and !

against the peace of our said lord the king, his crown and dignity: and the said attorney general of our said lord the king for our said lord the king further gives the Court here to understand and be informed, that the said John Horne being such person as aforesaid, and contriving and wickedly and maliciously devising and intending as aforesaid, afterwards, to wit, on the 9th day of June, in the 15th year aforesaid, with force and arms at London aforesaid, in the parish and ward aforesaid, wickedly, maliciously, and seditiously did print and publish, and cause and procure to be printed and published, in a certain other news-paper, entitled, The London Packet, or New Lloyd's Evening Post, a certain other false, wicked, scandalous, malicious, and seditious libel of and concerning his said majesty's government and the employment of his troops, according to the tenor and effect following; that is to say,

King's Arms tavern, Cornhill, June 7, 1775. At a special meeting this day of several • members of the Constitutional Society, during 'an adjournment, a gentleman proposed that "a subscription should be immediately entered

into (by such of the members present who might approve the purpose) for raising the "sum of 100l. to be applied to the relief of the "widows, orphans, and aged parents of our

beloved American fellow-subjects, who, faithful to the character of Englishmen, preferring 'death to slavery, were for that reason only

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in the like case offending, and against the peace of our said lord the king, his crown and dignity: and the said attorney general of our said present sovereign lord the king for our said lord the king further gives the Court here to understand and be informed, that the said John Horne being such person as aforesaid, and contriving and wickedly and maliciously devising and intending as aforesaid, afterwards, to wit, on the 9th day of June in the 15th year aforesaid, with force and arms at London aforesaid, in the parish and ward aforesaid, wickedly, maliciously, and seditiously did print and publish, and cause and procure to be printed and published, a certain other false, wicked, malicious, scandalous, and seditious libel of and concerning his said majesty's government and the employment of his troops, according to the tenor and effect following; that is to say, King's Arms tavern, Cornhill, June 7. At a special meeting this day of several mem

inhumanly murdered by the king's' (meaning his said majesty's) troops at or near Lexing 'ton and Concord, in the province of Massa'chusets' (meaning the said province, colony, or plantation of the Massachusets Bay in New England, in America) on the 19th of last April; which sum being immediately collected, it was thereupon resolved, that Mr. Horne' (again meaning himself the said John Horne) do pay to-morrow into the hands of Mess. Brownes and Collinson, on the account of Dr. Franklin, the said sum of 100l. and that Dr. Franklin be requested to apply the 'same to the above-mentioned purpose; John 'Horne' (again meaning himself the said John Horne) in contempt of our said lord the king, in open violation of the laws of this kingdom, to the evil and pernicious example of all others in the like case offending, and also against the peace of our said lord the king, his crown and dignity and the said attorney general of our said lord the king for our said lord the kingbers of the Constitutional Society, during further gives the Court here to understand and 'an adjournment, a gentleman proposed that be informed, that the said John Horne being a subscription should be immediately entered such person as aforesaid, and contriving and into (by such of the members present who wickedly and maliciously devising and intend-might approve the purpose) for raising the sum ing as aforesaid, afterwards, to wit, on the 9th of 100%. to be applied to the relief of the widay of June in the 15th year aforesaid, at 'dows, orphans, and aged parents of our belovLondon aforesaid, in the parish and ward afore-ed American fellow-subjects, who, faithful to said, wickedly, maliciously, and seditiously did the character of Englishmen, preferring death print and publish, and cause and procure to be 'to slavery, were for that reason only inhuprinted and published, in a certain other news-manly murdered by the king's' (again meanpaper, entitled, The Public Advertiser, a cer- ing his said majesty's) troops at or near Lextain other false, wicked, scandalous, malicious, 'ington and Concord, in the province of Masand seditious libel of and concerning his said majesty's government and the employment of his troops, according to the tenor and effect following; that is to say, 'King's Arms tavern, Cornhill, June 7. At a special meeting this day of several members of the Constitutional Society, during an adjournment, a gentleman proposed that a subscription be immediately entered into (by such of the members present 'who might approve the purpose) for raising the sum of 100l. to be applied to the relief of the widows, orphans, and aged parents of our beloved American fellow-subjects, who, faith'ful to the character of Englishmen, preferring death to slavery, were for that reason only 'inhumanly murdered by the king's' (meaning his said majesty's) troops at or near Lexing'ton and Concord, in the province of Massa'chusets' (meaning the said province, colony, or plantation of the Massachusets Bay in New England, in America) on the 19th of last April; which sum being immediately 'collected, it was thereupon resolved that Mr. • Horne' (again meaning himself the said John Horne) do pay to-morrow into the hands of Mess. Brownes and Collinson, on the account of Dr. Franklin, the said sum of 100l. and that Dr. Franklin be requested to apply the same to the abovementioned purpose; John • Horne' (again meaning himself the said John Horne) in contempt of our said lord the king, in open violation of the laws of this kingdom, to the evil and pernicious example of all others

་

sachusets' (meaning the said province, colony, or plantation of the Massachusets-bay in NewEngland, in America) on the 19th of last April; which sum being immediately collected, it was thereupon resolved that Mr. • Horne' (again meaning himself the said John Horne) do pay to-morrow into the hands of 'Mess. Brownes and Collinson, on account of Dr. Franklin, the said sum of 100%, and that Dr. Franklin be requested to apply the same to the above-mentioned purpose; John Horne' (again meaning himself the said John Horne) in contempt of our said lord the king, in open violation of the laws of this kingdom, to the evil and pernicious example of all others in the like case offending, and also against the peace of our said present sovereign lord the king, his crown and dignity: and the said attorney-general of our said present sovereign lord the king for our said lord the king further gives the Court here to understand and be informed, that the said John Horne being such person as aforesaid, and contriving and wickedly and maliciously devising and intending as aforesaid, afterwards, to wit, on the 9th of June in the 15th year aforesaid, with force and arms at London aforesaid, in the parish and ward aforesaid, wickedly, maliciously, and seditiously did print and publish, and cause and procure to be printed and published, a certain other false, wicked, malicious, scandalous, and seditious libel, in which said last-mentioned libel are contained, amongst other things, divers false,