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men, if you were to say, that a peeress con- distribution of it among the subjects at large. victed of a cleruyable offence should either But, taking the law as it stood, it was found inundergo the punishment of burning, or the pu- convenient, incompatible, and shocking to reanishment of imprisonment. No one can say son, that lords of parliament, who were to give upon the statute of Edward the sixth, that they their voices upon the most arduous affairs of a are subject to either. The object of the statute great empire, should do so under apparent of William the third was to make the punish- stigmata and circumstances of open infamy. ment of such offenders precisely the same with I don't rely on the gender of the words, but regard to one sex as the other; and the true on the purpose of the act.
Women are exspirit and great object of that law must be di- cluded by both. They were neither liable to rectly acted against, if a peeress was to be put the stigmata, por held the high office which jn a different situation from that of a peer, and to made them intolerable. Therefore bisbops, have a more severe and cruel punishment ivflict- whom the 28th and 32nd of Henry the 8th bad, ed upon ber, than would be upon him. These are at that time, made liable to the whole case of the only general observations that occur to me other clerks convict, were included : women dow in taking the whole scope of the law: I certainly not. The privilege was given, not to therefore submit to your lordships, that the the peerage, but to the house of parliament, to noble lady at the bar is entitled to the benefit of be claimed by the members as such. It was these statutes.
not substantive; but an ingraftment on the
right to clergy, which women never had. In Attorney Generul. My lords, concerning the truth, I have not heard a bint from the counpoint which is now depending before the House, sel on the other side to question the existence of i fairly confess, that, when your lordships first this difference down to the third and fourth of called upon me to give my reasons why judg- William and Mary, upon which act they have ment of death should not be suspended upon the chiefly relied in argument. They lay it down, prayer of the prisoner, made in the manner in that peers convict of clergyable crimes are exa which that prayer was conceived, and, upon empt from all punishment, not being within the effects and consequences of allowing her the the 18th of Elizabeth ; that peeresses are to be benefit of the statute in a more regular course, tried and judged like peers; that the 3d and I would rather, if I migbt, have been excused 4th of Williain and Mary puts women convict from laying my thoughts before your lordships. in the same condition as men; and that by I had heard a ruinour, that men, whose learn- some tacit reference to the former statutes, ing and authority I greatly reverence, held a peeresses convict are not to be punished at all. different opinion. This could not fail to raise I bave troubled your lordships already with much distrust of my own conclusions, al- my reasons for thinking, that in old time, peers though I had thoroughly considered the sub- enjoyed the benefit of clergy in common with ject; and although I never read any proposi. other men, and upon the same terms; that in tion with more perfect conviction of the truth the 4th of Henry the 7th, burning was inflicted of it, since I learnt to read,
upon them as lay-clerks; that the statute of My lords, that idea, the only one I have been Edward the 6th, in the very moment of exemptable to form, or adopt, is now very much ing them from the penalties incurred at law by strengthened. That cioud, which came over it conviction, adjudges them clerks, and delivers from the rumoured prevalence of contrary no- them for purgation in the bishop's court; that tion, is very much removed. Because, if there the statute of Elizabeth delivers all, who shall be no opinion to the contrary, but what is to be thereafter be admitted to clergy, from purgafounded on tbe argument I have heard to-day tion, and discharges them, subject to such corfrom those wbo are best able to sustain the con- rection by imprisonment for less than a year, trary opinion, I am perfectly satisfied, it is im- as the Court shall think fit. possible this should pass as a point of law, or re- It is not denied, that these words, in their ceive the sanction of your lordships'concurrence. plain and natural sense, embrace the case of
My lords, what are the arguments ? First, peers. But, in this context, it is supposed they do it is utterly inconceivable, that the law should not, because the clerks convict are to be disput such difference between the two sexes. charged after allowance of their clergy, and My lords, if the subject was laid by for a mo- after
burning in the hand according to the stament, only to make a bandsome compliment to tute. This last provision, they say, cannot a very respectable part of this assembly, which refer 10 peers. Nay, one learned gentleman well deserves all the attention it commands, it thought, that, if it should be construed to inis impossible to quarrel with a turn of gallantry clude peers, they must, by force of these But, resuming the subject, we are all agreed, words, be burnt in the hand. that the law did actually put that very diffe- I cannot follow this idea. I have no way of rence between the sexes for many centuries. conceiving, bow an act which inflicts, or rather And this uncourtly statute of Edward the sixth, reserves a penalty, according to the law as it proceeding upon the law as it found it, did not then stood, can be interpreted to create a new ibink of abolishing the distinction. It was penalty; or, by wbat chain of reasoning it is quite beside the purpose of that act, which did concluded, that where all convicts are to be not mean to quality the severity of the criminal discharged upon the allowance of clergy, and law in general, much less to make an equal such burning as the law directs, those are not to be discharged at all, for whom the law has as the statute calls it, to a criminal found so not directed burping. Suppose the king should upon record; but to restore a law, which has pardon the burning ; it was thought, in lord now for many ages been understood to be at an Warwick's case, that would be a perfect dis- end ; and I Aatter myself, considering the accharge. Burning was not substituted in the count wbicb the books all give of it, that purplace of purgation : that was a mere slip: it is gation is at an end. contrary to the history: burning existed before But I am called upon to look at the 20th of the 18th of Elizabeth, in just the same extent H. o, c. 9. This was a mere declaratory law; as after. Imprisonment, at the discretion of reciting the 29th chapter of Magna Charta, the temporal judge, was the substitute for pur. nullus liber homo,' and so forth, and a very gation; and is extended expressly to all, who absurd doubt, whether . homo' included both are discharged from porgation. But it seems genders ; aod declaring, that “ ladies shall be too late to argue this. Was it not expressly put to apswer, aod judged before such judges decided in the case of Searl and Williams, and peers” (here by the way judges and peers whea probibition went to stay the deprivation are synonymous) " as peers should be.” 'But of a parson, who had been convicted of man. though, by Magoa Charta, peeresses were to slaughter, and discharged under the 18th of be tried by their peers, as other women were Elizabeth, although he could not be burnt ? by theirs, ihere the privilege ends. All were, “ For when the statute says after buruing, it upon conviction, to receive the like judgment imports, where burning ought to be ; other and execution : and, in the exemption from wise the statute would do no good to clerks, for death, the difference was not between the whom it was most intended.” The case is ranks, but the sexes, of the convicts. And so reported in Hobart. The statute speaks uni- the law undoubtedly continued, notwithstandversally of every body, those who were, and ing this statute. ibose who were not liable to burning; and dis- But it was said, that, by the equity of this charges them all, atter allowance of clergy, statute, marchionesses and viscountesses were and burning according to law, as it had stood included, though not named. This was to give before ; that is, reddendo singula singulis.' countenance to the rule, that all statutes in pari
The next objection is, that the word justices' materiá shall be construed alike. There is will not apply to your lordships, even while great good sense in the rule. Marchionesses you are sitting merely in the characters of aod viscountesses were clearly within the law judges. Therefore a statute, which is to be declared; and copsequently withio the reason executed by justices, cannot relate to a peer, of declaring it: therefore duchesses, countesses, who is not triable by justices.
and baronesses were, by a sort of synechdocbe, Is it then seriously contended, that your put for all peeresses
. So where a privilege lordships, exercising your jurisdiction in the is saved to certain denominations of people, all trial of a peer, will not do all the same acts of others, who were before within the same prijustice, which jauges must do in the trial of a vilege, will be within the saving, if there be commoner? Upon reading many acts of par nothing in the context to raise a distinction liament, your lordships will find, either, ibat against them; particularly, if the saving be you have no jurisdiction at all, or that you must only declaratory, and pot a positive exception, exercise it under the character and denomina- Nay, in a new law, things, equally within the tion of justices. The same objection might reason of it, bave been comprized in it by conhave been made to lord Ferrers's execution ;* struction. But this borders upon arhitrary : the same to the burning a peer under the sta- parliament seems the properest judge of this tute of Henry the 71h. By the word justices' reasou. If peers, disqualified to vote, should I understand, in our law, all manner of officers claim the benefit of the 1st of Edward the oth, who are entrusted with the administration of it might be argued with some plausibility, that justice. So Spelnfan defines the word. In high they are within the reason of ibe act. They antiquity, the name went to the greatest subject are so certainly, in every point, except that of in this country; for I take the • Justitiarius voting ; and yet I should think it too much to totius Angliæ to have been above the • Senes- overlook so material a distinction made by the cballus regis.' Your lordships therefore will statute itself. But if wonen, who were not not disdain the name ; for you sit here in no concerned in any part of the subject matter, bigher character than that, which, by just and make the same claim, it would be making a natural construction, is attributed to the word perfectly new law to include them. Wbere justices.'. Therefore, if no better objections iben is ihe paritas materia between the act of can be raised than these, I apprehend the William and Mary, for exempting women from words of the statute sufficiently comprize the capital punishment, and the 20th of Henry peerage. This also was laid down in the trial the 6th, which had nothing to do with punishof lord Warwick.
ment; or the 1st of Edward the 6th, which But, my lords, if these are objections, whi- bad nothing to do with women? ther do they go? Not ouly to subvert the sta- I did propose two statutes to be considered tute of Elizabeth, in this most reasonable par- in pari materiá, the acts of James and of ticular of giving some convenient correction, William and Mary; the only two which coue
fer upon any woman any exemption from caSee his case, vol. 19, p. 885. pital punishment. I have not heard it denied,
that if a peeress bad stood convicted of the put an end to all question, by stating expressly crimes mentioned in the first act, the punish the very measure of punishineut allotted to all ment there specified must have ensued. This fixes the sense of these words, in the like case.? Burnt in the hand in open court, it is said, I am possessed therefore, of this ground, that shall not apply to peeresses, because they were the act of Edward the oth did not touch the never liable to be burnt at all. The position is difference put by the law of clergy between true, pot of peeresses alone, but of all women. the sexes ; nor ibat of James make any dif- But they were liable to judgment of death; for 'ference as to the quality of the offender. We which this slighter punishment was a desirable go entirely upon the act of William and Mary. commutation. It is inaccurate to say, this act puts women My lords, if there be any tbing, ia tbe nainto the same condition with men ; and still | ture of the punishment, unreasonable, or immore, with men of the same quality respec- proper to be applied to women in general, or to tively. There is nothing in it about the condi. noblewomen in particular, let the matter come tion of the person.
Where a man, convict of before parliament. It is a legislative consideany felony, has clergy, a woman, convict of the ration, and parliament will entertain it accordlike offence, shall not have judgment of death, ing to the extent of the principle, wbich cerbut suffer the same punishment as a man would tainly will apply to many noblewomen of much suffer, with clergy, in the like case. These bigher rank than some peeresses, who, as the words refer altogether to the quality of the of- law now stands, are liable to that punishment, fence. That very crime, which in one record, So, I think, they ought to remain. Guilt levels applied to a man, infers judgment of death, rank. A noblewoman, covered with the ignoavoidable by his claim of clergy, applied in miny of such a conviction, cannot forfeit less another to a woman, infers the specific judg. than her estimation. ment prescribed by the act. Nor are the two My lords, the only question is this: bas any sexes put into the same condition, even as to positive law granted the exemptiop now depunishment. All women avoided judgment of manded, to wind up such a record as this with death ; not so of all men. Some were indis perfect impunity, a ridiculous disgrace to pube pensably incapable of holy orders: such can- lic justice? Has this been done in express not have their clergy at this day; nor bad any terms; or in terms, whose necessary construcother exemption from death before the 5th of tion amounts to express ? Anne, Some could not prove their title to My lords, wben I have qualified the ques. clergy by reading. Men could have their tion in that mabner, I bave gone to the verge clergy but once: women the benefit of this of judicial authority. And I do desire to press statute toties quoties, till a subsequent act alter. this upon your lordships as an universal ed the law in this respect.
maxim: no more dangerous idea can creep Sill less can the words be twisted to create a into the mind of a judge, than the imaginadifference as to the rank of the offender. It is tion that be is wiser than the law. I confine hard, says a learned gentleman, to put the se. this to no judge, whatever be his denominaverest construction upon an act of this sort. tion, but extend it to all. And, speaking at the The act is not penal. But the shorter answer bar of an English court of justice, I make sure is, there are not two constructions to chuse be of your lordships' approbation, when I com, tween. If the phrase had been left general, prize even your lordships, sitting in Westthe same punishment as a man should suffer minster-hall. It is a grievous example to that bad his clergy ip the like case,' it might other judges. If your lordships assume this, bave been thought uncertain what that punish- sitting in judgment, why not the King's ment should be; because differeut orders of bench? Why not commissioners of Oyer and men were liable to different measure of pupish-Terminer? If they do so, why not the Quarter mient in the like case; the bulk of men to fur- sessions ? Ingenious men may strain the law feiture, burning, and discretionary imprison- very far-but, to pervert it-10 new model it ment; inferior ecclesiastics to forfeiture and im- the genius of our constitution says, judges prisonment; lords of parliament to imprisonment bave no such authority, por sball presume to only. In such a text there might have been exercise it. , room to contend for a favourable construction ; and yet, even then, I should have thought that
The Lords then adjourned to the Chamber the measure of punishment allotted to the bulk of Parliament;* and, after some time passed of mankind, undistinguisbed by peculiar privileges, must have been deemed the meaning * Die Lunæ, 22 Aprilis, 1776. of the legislature. But wbatever might have been the construction of such a text, it must in parliament aseinbled, that the following
Ordered by the Lords spiritual and temporal bare applied equally to all women. They could not have been classed in casts, according to the question be put to the Judges, viz. condition of their respective husbands; the Whether a peeress, convicted by her peers of wife of a lord of parliament to be imprisoned ; a clergyable felony, is by law iotitled to the of an ioferior ecclesiastic to be imprisoned and benefit of the statutes, so as to excuse her from to forfeit; of other men to be imprisoned, to capital punishment, without being burnt in the forfeit, and be burnt. The statute however has hand, or being liable to any imprisonment ? VOL. XX,
there the House adjourned again into West- L. H. S. Madam, the lords bare considered minster-hall; when, after the usual proclama- of the prayer you have made, to have the tion for silence, his grace the Lord High Siew- benefit of the statutes, and the lords allow it ard addressed the prisoner to the following you. effect :
But, Madam, let me add, that althougb very Whereupon the Lord Chief Baron of the ladies so indicted shall be put to answer and be Court of Exchequer, having conferred with judged: our said lord the king, willing to put the rest of the jndges present, delivered their out such ambiguities and doubts, hath declared unanimous Opinion upon the said Question, by authority aforesaid, that such ladies so inwith bis reasons, as follow, viz.
dicted, or hereafter to be indicted of any treason My lords; the question proposed by your or felony by them done or hereafter to be done, lordships for our opinion is,
whether they be married or sole, that they Whether a peeress convicted by her peers of thereof shall be brought to answer, and put to a clergyable felony, is by law intitled to the answer and judged before such judges and benefit of the statutes, so as to excuse ber from peers of the realm, as peers of the realın sbould capital punishment, without being burnt in the be, if they were indicied or impeached of such hand, or being liable to any imprisonment?* treasons or felonies done or bereafter to be done,
My lords, your lordships would probably and in like (uu!iel) manner and form, and none expect, that on a question of this importance otherwise." the judges would have desired time to have Your lordships will observe, that this statute considered of it; but, as it was easy to foresee does not introduce a new law, but is a declarafrom the first appointment of this trial, that a tive law, explaining wirat the true meaning of question of this sort would probably arise, we Magna Charta was. • Peers' in that statute have all looked into the sereral statutes, from means equals; and therefore any of the nowhich any light could be expected : and as on bility must by Magna Charta be tried by the such a consideratio we have been able to form nobility who are their peers; for all nobility, an opinion, in which we all concur, we thought whether barons the lowest, or dukes the it onr duty to deliver it immediately, and not highest degree of nobility, are all equals in this obstruct the public business by unnecessarily respect : and Jord Coke, 2d lost. 45, says, protracting this trial, which has already taken though duchesses, countesses, and baronesses vp so much of your lordships' time.
are only named in this declaratory statute, and I am therefore authorized by my brothers marchionesses and viscountesses are omitted, to say, we all concur in opinion, that a peeress notwithstanding, they are also comprehended convicted by her peers of a clergy able felony in this 29th chapter of Mayna Charta.” is by law intitled to the benetit of the statutes,
· Peers,' though originally meaning only so as to excuse her from capital punishment, equals, is now hy common use applied to a parwithout being burnt in the hand, or being liable ticular part of the nation, distinguished from the to any imprisonment.
rest by superior rank and privileges, which they My lords, the question depends on several derive from the king originally by writ or leiacts of parliament. The first I shall trouble ters patent granted to them or their ancestors; your lordships with, is the 29 Hen." 8,7 c. 9, and in cases of such ladies as are not so enwhich recites, “ that by Magna Charta no nobled, they obtain that nobility by marriage freeman shall be taken, or imprisoned, or dis- to those who are so ennobled. seised of his freehold, or his liberties or free As the next statute, 1 E. 6, c. 12, s. 14, customs, or shall be outlawed, or in any wise speaks of the benefit of clergy, it will be nedestroyed, that is, forejudged of life or limb, cessary to say something upon that subject. or put to death, or shall be condemned at the Lord Hale, in bis second volume of his History king's suit, either before the king in his bench, of Pleas of the Crown, page 323, says, that that is, the King's-bench, or before any other "anciently princes and states converted to commissioner or judge whatsoever, but by the Christianiiy granted the clergy exemptions of lawful judgment of his peers, or by the law of places consecrated to religious duties from arthe land ; in which statute, (that is, Magna rests for crimes, which was the original of sancCharta,) no mention is made how women, tuaries; and secondly, exemptions of their petladies of great estate in respect of their hus- sons from criminal proceedings in some cases bands peers of the land, married or sole, that is capital before secular judges, which was the to say, duchesses, countesses, or baronesses, truie original of this privilegium clericale. The shall be put to answer, or before what judges clergy increasing in wealth, power, honour, they shall be judged upon indictments of trea- number, and interest, claimed as a right what sons or felopies by them committed or done; they at first obtained by the favour of princes in regard whereof it is a doubt in the law of and states, and by degrees extended these exEngland, before whom and by whom such emptions to all that had any kind of subordi
nate ministration relative to the church." * See Leach's Hawkins's Pleas of the Crown, These exemptions never rose to so great bk. 2, c. 53, s. 8.
an height in this kingdom as in other places ; + The stat. 20 A1: 6, seems to be here in- and therefore the clergy were not exempted
here from çivil suits, nor was tbis privilegium
little panishment, or none, can now be ipflicted, like benefit a second time, but another offence of the feelings of your own conscience will sup- the same kind will be capital. ply tbat detect. Aod let me give you this in- Madam, you are discharged, paying your formation likewise, that you can never have the fees. clericale allowed in the lowest crimes not ca- be made by the gaoler openly in the court be. pital, nor wherein they were not to lose life or fore the judge, before that such persons be delimb, nor in bigh treason touching the king livered to the ordinary.” himself, or his royal majesty : but by 25 E. 3, This statute prevented laymen having their C. 4, de Clero, in all other felonies the ordinary clergy more than once; and the branding anmight demand the prisoner as a clerk, or the swered the purpose of discovering whether they prisoner himself might demand the benefit of had had the benefit of their clergy before, though the clergy. “The capon law gave the privilege it was necessary to prove it by other means, to only to men in holy orders: our law, in favour prevent their having clergy a second time. to learning and the desire of the English bishops, The 1 E. 6, C, 12, will come next to be conextended it to lay clerks, i. e. any layman, that sidered; which, after repealing several newby reason of bis ability to read was in a possi- created treasons and felonies, and taking away bility of being made a priest.” C. J. Treby, clergy in several other felonies, in sec. 14, See vol. 13, p. 1015.' The means of try. enacts, that " in all and every case, wbere any ing whether he was entitled to it was by of the king's majesty's subjects shall and may, reading. If be could read, he was delivered to upon his prayer, bave the privilege of clergy as the ordinary, that is, the bishop or the person a clerk convict that may make purgatiou ; in who had ordinary jurisdiction there : but the all these cases and every of them, and also in all ordinary was so much the minister of the tem- and every case and cases of felony, wherein the poral courts, and so subordinate to them, that if privilege and benefit of clergy is restrained, the ordinary refused to let the prisoner read, tbe excepted, or taken away by this statute (wilful temporal court could control, and order a book nurder and poisoning of malice prepensed only to be delivered to him ; and if the ordinary said excepted) the lord and lords of the parliament, he could read when he could not, or vice versa, and peer ad peers of the realm, having place that he could not read when in reality he could, and voice in parliament, shall by virtue of this the temporal courts gave judgment according present act, of common grace, upon his or their to the truth of the case; and those courts like request or prayer, alledging that he is a lord or wise directed, whether the prisoner should be peer of this realm, and claiming the benefit of delivered to the ordinary with purgation, or this act, though he cannot read, without any without purgation. In the last case they were burning in the hand, loss of inberitance, or to be kept in the ordinary's prison for life: if corruption of bis blood, be adjudged, deemed, delivered with purgation, then the ordinary taken, and used, for his first time only, to all tried bim for the fact whereof he was accused, intents, constructions, and purposes as a clerk by a jury of twelve clerks; and if he was ac. convict, and shall be in case of a clerk conquitted, as was generally the case, he was vict wbich may make purgation, without any discharged out of prison. Purgation was the further or other benefit or privilege of clergy convict's clearing bimself of the crime by his to any such lord or peer from thenceforth at own oath, and the oaths or verdict of an inquest any time after for any cause to be allowed, adof twelve clerks as compurgators. The pro- judged or admitted ; any law, statute, usage, ceeding was before the ordinary; and old books or custom, or any other thing to the contrary speak of their making proclamation for persons notwithstanding: provided always, that if any to come in against bis purgation, and of their of the said lords of the parliament, or any of enquiring into his life, conversation, and fame, the peers of this realm for the time being, sball and of other formalities ; in all which, several fortune to be indicted of any of the offences statutes say, there were great abuses.
limited in this act, that then they and every The statute 4 H. 7, c. 13, reciting that of them ishall bave his or their trial by their “ upon trust of the privilege of the church di- peers, as it hath been used beretofore in cases vers persons have been the more bold to commit of treason." murder, rape, robbery, theft, and all other mis- From the time of this statute, whenever a chievous deeds, because they have been con- peer has been convicted of any felony, for tipually admitted to the benefit of the clergy, which a commoner might bare the benefit of as oft as they offended :” it enacts, that every clergy, such peer, on praying the benefit of person not being within orders, which hath this statute, has always been discharged withOnce been admitted to the benefit of his clergy, out burning or delivering to the ordinary: and being again arraigned of any such offence, be there are a series of precedents from lord Mornot admitted to bave the benefit or privilege of ley's case, 1666, (vol.6, p.769), till one in this the clergy; and that every person so convicted reigu as late as 1765;* and C. J. Treby says, for murder (which was then a clergyable offence) should be marked with an M on the * See the Case of lord Byron in this Collecbrawo of the left thumb; and if he be for any tion, vol. 19, p. 1178. See also more concern. other felony, to be marked with a T io the ing benefit of clergy in vol. 12, p. 681, and same place of the thumb; and those marks to the other cases and books there referred to.