This that if a peeress had stood convicted of the crimes mentioned in the first act, the punish ment there specified must have ensued. fixes the sense of these words, in the like case.' 1 am possessed therefore, of this ground, that the act of Edward the 6th did not touch the difference put by the law of clergy between the sexes; nor that of James make any dif'ference as to the quality of the offender. We go entirely upon the act of William and Mary. It is inaccurate to say, this act puts women into the same condition with men ; and still more, with men of the same quality respectively. There is nothing in it about the condition of the person. Where a man, convict of any felony, has clergy, a woman, convict of the like offence, shall not have judgment of death, but suffer the same punishment as a man would suffer, with clergy, in the like case. These words refer altogether to the quality of the of fence. That very crime, which in one record, applied to a man, infers judgment of death, avoidable by his claim of clergy, applied in another to a woman, infers the specific judgment prescribed by the act. Nor are the two sexes put into the same condition, even as to punishment. All women avoided judgment of death; not so of all men. Some were indis pensably incapable of holy orders: such cannot have their clergy at this day; nor had any other exemption from death before the 5th of Anne. Some could not prove their title to clergy by reading. Men could have their clergy but once: women the benefit of this statute toties quoties, till a subsequent act altered the law in this respect. Still less can the words be twisted to create a difference as to the rank of the offender. It is hard, says a learned gentleman, to put the se. verest construction upon an act of this sort. The act is not penal. But the shorter answer is, there are not two constructions to chuse between. If the phrase had been left general, the same punishment as a man should suffer that bad his clergy in the like case,' it might bave been thought uncertain what that punishment should be; because different orders of men were liable to different measure of punishment in the like case; the bulk of men to forfeiture, burning, and discretionary imprisonment; inferior ecclesiastics to forfeiture and imprisonment; lords of parliament to imprisonment only. In such a text there might have been room to contend for a favourable construction; and yet, even then, I should have thought that the measure of punishment allotted to the bulk of mankind, undistinguished by peculiar privileges, must have been deemed the meaning of the legislature. But whatever might have been the construction of such a text, it must have applied equally to all women. They could not have been classed in casts, according to the condition of their respective husbands; the wife of a lord of parliament to be imprisoned; of an inferior ecclesiastic to be imprisoned and to forfeit; of other men to be imprisoned, to forfeit, and be burnt. The statute however has VOL. XX. put an end to all question, by stating expressly the very measure of punishment allotted to all women. Burnt in the hand in open court, it is said, shall not apply to peeresses, because they were never liable to be burnt at all. The position is true, not of peeresses alone, but of all women. But they were liable to judgment of death; for which this slighter punishment was a desirable commutation. My lords, if there be any thing, in the nature of the punishment, unreasonable, or improper to be applied to women in general, or to noblewomen in particular, let the matter come before parliament. It is a legislative consideration, and parliament will entertain it according to the extent of the principle, which certainly will apply to many noblewomen of much bigher rank than some peeresses, who, as the law now stands, are liable to that punishment. So, I think, they ought to remain. Guilt levels rank. A noblewoman, covered with the ignominy of such a conviction, cannot forfeit less than her estimation. My lords, the only question is this: has any positive law granted the exemption now demanded, to wind up such a record as this with perfect impunity, a ridiculous disgrace to public justice? Has this been done in express terms; or in terms, whose necessary construction amounts to express ? My lords, when I have qualified the question in that manner, I have gone to the verge of judicial authority. And I do desire to press this upon your lordships as an universal maxim: no more dangerous idea can creep into the mind of a judge, than the imagination that he is wiser than the law. I confine this to no judge, whatever be his denomina tion, but extend it to all. And, speaking at the bar of an English court of justice, I make sure of your lordships' approbation, when I com prize even your lordships, sitting in Westminster-hall. It is a grievous example to other judges. If your lordships assume this, sitting in judgment, why not the King'sbench? Why not commissioners of Oyer and Terminer? If they do so, why not the Quarter sessions? Ingenious men may strain the law very far-but, to pervert it-to new model it~ the genius of our constitution says, judges have no such authority, nor shall presume to exercise it.. The Lords then adjourned to the Chamber of Parliament;* and, after some time passed there the House adjourned again into West- L. H. S. Madam, the lords have 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 Stew-benefit of the statutes, and the lords allow it ard addressed the prisoner to the following effect: Whereupon the Lord Chief Baron of the Court of Exchequer, having conferred with the rest of the judges present, delivered their unanimous Opinion upon the said Question, with bis reasons, as follow, viz. My lords; the question proposed by your lordships for our opinion is, Whether a peeress convicted by her peers of a clergyable felony, is by law intitled to the benefit of the statutes, so as to excuse her from capital punishment, without being burnt in the hand, or being liable to any imprisonment? My lords, your lordships would probably expect, that on a question of this importance the judges would have desired time to have considered of it; but, as it was easy to foresee from the first appointment of this trial, that a question of this sort would probably arise, we have all looked into the several statutes, from which any light could be expected: and as on such a consideration we have been able to form an opinion, in which we all concur, we thought it our duty to deliver it immediately, and not obstruct the public business by unnecessarily protracting this trial, which has already taken up so much of your lordships' time. I am therefore authorized by my brothers to say, we all concur in opinion, that a peeress convicted by her peers of a clergyable felony is by law intitled to the benefit of the statutes, so as to excuse her from capital punishment, without being burnt in the hand, or being liable to any imprisonment. you. But, Madam, let me add, that although very ladies so indicted shall be put to answer and be judged: our said lord the king, willing to put out such ambiguities and doubts, hath declared by authority aforesaid, that such ladies so indicted, or hereafter to be indicted of any treason or felony by them done or hereafter to be done, whether they be married or sole, that they thereof shall be brought to answer, and put to answer and judged before such judges and peers of the realm, as peers of the realin should be, if they were indicted or impeached of such treasons or felonies done or hereafter to be done, and in like (autiel) manner and form, and none otherwise." Your lordships will observe, that this statute does not introduce a new law, but is a declarative law, explaining what the true meaning of Magna Charta was. Peers' in that statute means equals; and therefore any of the nobility must by Magna Charta be tried by the nobility who are their peers; for all nobility, whether barons the lowest, or dukes the highest degree of nobility, are all equals in this respect and lord Coke, 2d lust. 45, says, though duchesses, countesses, and baronesses are only named in this declaratory statute, and marchionesses and viscountesses are omitted, notwithstanding, they are also comprehended in this 29th chapter of Magna Charta." Peers,' though originally meaning only equals, is now by common use applied to a particular part of the nation, distinguished from the rest by superior rank and privileges, which they derive from the king originally by writ or letters patent granted to them or their ancestors ; and in cases of such ladies as are not so ennobled, they obtain that nobility by marriage to those who are so ennobled. My lords, the question depends on several acts of parliament. The first I shall trouble your lordships with, is the 29 Hen. 8,† c. 9, which recites," that by Magna Charta no freeman shall be taken, or imprisoned, or disseised 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 his 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 Jawful judgment of his peers, or by the law of the land; in which statute, (that is, Magna Charta,) no mention is made how women, ladies of great estate in respect of their husbands peers of the land, married or sole, that is to say, duchesses, countesses, or baronesses, shall be put to answer, or before what judges they shall be judged upon indictments of treasons or felonies by them committed or done; in regard whereof, it is a doubt in the law of England, before whom and by whom such *See Leach's Hawkins's Pleas of the Crown, bk. 2, c. 33, s. 8. The stat. 20 H. 6, seems to be here intended, Christianity granted the clergy exemptions of places consecrated to religious duties from arrests for crimes, which was the original of sanctuaries; and secondly, exemptions of their persons from criminal proceedings in some cases capital before secular judges, which was the true original of this privilegium clericale. The clergy increasing in wealth, power, honour, number, and interest, claimed as a right what they at first obtained by the favour of princes and states, and by degrees extended these exemptions to all that had any kind of subordinate ministration relative to the church." These exemptions never rose to so great an height in this kingdom as in other places; and therefore the clergy were not exempted here from civil suits, nor was this privilegium little punishment, or none, can now be inflicted, the feelings of your own conscience will supply that defect. And let me give you this information likewise, that you can never have the like benefit a second time, but another offence of the same kind will be capital. Madam, you are discharged, paying your fees. 1 be made by the gaoler openly in the court be. fore the judge, before that such persons be delivered to the ordinary." This statute prevented laymen having their clergy more than once; and the branding answered the purpose of discovering whether they had had the benefit of their clergy before, though it was necessary to prove it by other means, to prevent their having clergy a second time. The 1 E. 6, c. 12, will come next to be considered; which, after repealing several newcreated treasons and felonies, and taking away clergy in several other felonies, in sec. 14, of the king's majesty's subjects shall and may, upon his prayer, have the privilege of clergy as a clerk convict that may make purgation; in all these cases and every of them, and also in all and every case and cases of felony, wherein the privilege and benefit of clergy is restrained, excepted, or taken away by this statute (wilful murder and poisoning of malice prepensed only excepted) the lord and lords of the parliament, and peer and peers of the realm, having place and voice in parliament, shall by virtue of this present act, of common grace, upon his or their clericale allowed in the lowest crimes not capital, nor wherein they were not to lose life or limb, nor in high treason touching the king himself, or his royal majesty: but by 25 E. 3, c. 4, de Clero, in all other felonies the ordinary might demand the prisoner as a clerk, or the prisoner himself might demand the benefit of the clergy. "The canon law gave the privilege only to men in holy orders: our law, in favour to learning and the desire of the English bishops, extended it to lay clerks, i. e. any layman, that by reason of his ability to read was in a possibility of being made a priest." C. J. Treby, See vol. 13, p. 1015. The means of try-enacts, that " in all and every case, where any ing whether he was entitled to it was by reading. If he could read, he was delivered to the ordinary, that is, the bishop or the person who had ordinary jurisdiction there but the ordinary was so much the minister of the temporal courts, and so subordinate to them, that if the ordinary refused to let the prisoner read, the temporal court could control, and order a book to be delivered to him; and if the ordinary said he could read when he could not, or vice versa, that he could not read when in reality he could, the temporal courts gave judgment according 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 delivered to the ordinary with purgation, or without purgation. In the last case they were to be kept in the ordinary's prison for life: if delivered with purgation, then the ordinary tried him for the fact whereof he was accused, by a jury of twelve clerks; and if he was ac quitted, as was generally the case, he was discharged out of prison. Purgation was the convict's clearing himself of the crime by his own oath, and the oaths or verdict of an inquest of twelve clerks as compurgators. The proceeding was before the ordinary; and old books speak of their making proclamation for persons to come in against his purgation, and of their enquiring into his life, conversation, and fame, and of other formalities; in all which, several statutes say, there were great abuses. The statute 4 H. 7, c. 13, reciting that "upon trust of the privilege of the church divers persons have been the more bold to commit murder, rape, robbery, theft, and all other mischievous deeds, because they have been continually admitted to the benefit of the clergy, as oft as they offended:" it enacts, that "every person not being within orders, which hath once been admitted to the benefit of his clergy, being again arraigned of any such offence, be not admitted to have the benefit or privilege of the clergy; and that every person so convicted for murder (which was then a clergyable offence) should be marked with an M on the brawn of the left thumb; and if he be for any other felony, to be marked with a T in the same place of the thumb; and those marks to peer of this realm, and claiming the benefit of this act, though he cannot read, without any burning in the hand, loss of inheritance, or corruption of his blood, 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 purgation, without any further or other benefit or privilege of clergy to any such lord or peer from thenceforth at any time after for any cause to be allowed, adjudged or admitted; any law, statute, usage, or custom, or any other thing to the contrary notwithstanding: provided always, that if any of the said lords of the parliament, or any of the peers of this realm for the time being, shall fortune to be indicted of any of the offences limited in this act, that then they and every of them shall have his or their trial by their peers, as it hath been used heretofore in cases of treason." From the time of this statute, whenever a peer has been convicted of any felony, for which a commoner might have the benefit of clergy, such peer, on praying the benefit of this statute, has always been discharged without burning or delivering to the ordinary and there are a series of precedents from lord Morley's case, 1666, [vol. 6, p. 769], till one in this reign as late as 1765;* and C.J. Treby says, * See the Case of lord Byron in this Collection, vol. 19, p. 1178. See also more concerning benefit of clergy in vol. 12, p. 631, and the other cases and books there referred to, 1 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 för dissolving the commission of High Steward. Serjeant at Arms., Oyez! oyez! oyez! our sovereign lord the king does strictly charge approved by the common law :" and page 291, he says, "the perjuries were sundry in the witnesses and compurgators, in the jury of clerks, and the judge himself was not clear, all turning the solemn trial of truth by oath into a ceremonious and formal lie." It is not probable the parliament, intending a great distinction in favour of peers, so as to dispense with reading and burning in the hand, meant to leave a peer a prisoner in the custody of the ordinary, and to have his credit and capacity to acquire personal property, and enjoy the profits of his lands, to be decided upon in such a mock trial; and in fact there is no instance in any of the law books, where a peer convicted of a clergyable felony has ever been delivered to the ordi "the statute 1 E. 6, exempts the peers convict of clergyable felonies from burning in the hand, and virtually repeals the statute, 4 H. 7, as to so much; and the statute 18 Eliz. requires burning in the hand only according to the statute in that behalf before provided; and there being no statute then or now in force to subject peers to such brand, they are in such case (upon the allowing the benefit of the said statute of E. 6, which is as much as clergy without reading or burning) freed from discredit and other penalties of the felony, as much as commoners are by having clergy formally allowed, and being burnt." Vol. 13, p. 1014. And he says, "a peer shall have this benefit without either clergy or burning, a clerk in orders upon clergy alone without burning, and a lay-nary, or has made purgation: and the jurisdicclerk 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. '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, 'nec 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 puuishment 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 ordinary baving 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 bis 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 purgation," do not import or direct that he shall make purgation; but give a peer the same advantage 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 justice 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 benefit 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 advantage, 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 statute. This expression, “having place and voice in parliament," cannot mean to exclude all peers but such as sat in parliament; but to 1 649] for Bigamy. and command all manner of persons here pre- 1 describe some of the incidents of peerage, or to sovereign lord the king, for his grace my Lord tion of such persons to whom clergy shall be 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 imprisonment by 18 Eliz. This privilege, giveu by statute, being such as may be enjoyed by a peeress, is by operation 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 punishment, but ought to be immediately discharged, without being burnt in the hand, or liable to any imprisonment. To the mention in vol. 12, p. 632, et seq. of illiterateness in the clergy, and in persons 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. 1770." Observations on 1 H. 5, p. 382, Note [r] 4th edition of 1775. What Mr. Barrington in the same note says of Edward the 1st when prince of Wales I do not thoroughly understand. For other particulars respecting such illiterateness, see Warton's Life of sir Thomas Pope, and the passage in Fox cit. by Mr. Walter Scott in note 2, to canto 3, of the Lady of the Lake. Voltaire, (Dict. Philos. art. Clerc) notices be |