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L. H. S. My lords, this trial being at an end, L. H. S. Let proclamation be made för nothing remains to be done here, but to deter• dissolving the commission of High Steward. mine the commission.
Serjeant at Arms., Oyez! oyez! oyez! our Lords. Ay, ay.
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 band, 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 so 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 braud, they are in such in favour of peers, so as to dispense with readcase (apon the allowing the benefit of the said ing and burning in the band, meant to leave a statute of E. 6, which is as much as clergy reer a prisoner in the custody of the ordinary, without reading or burning) freed from discre- and to have his credit aod capacity to acquire dit and other penalties of the felony, as much personal property, and enjoy the profits of bis as commoners are by having clergy formally al- lands, to be decided upon in such a mock trial; Jowed, and being burnt.” Vol. 13, p. 1014. And and in fact there is no instance in any of the be says, “ a peer shall have this benefit with law books, where a peer coovicted 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 bas made purgation : and the jurisdicclerk not without clergy and burning." Vol. tion of the ordinary to purge the clerk relates 13, p. 1019. And I believe nobody can dispute only to clerks in orders, or such as the common but the law is so. The question therefore is, law considered as clerks ; and a peer not being whether a peeress is not entitled to the same a clerk, he could not make purgation, the ordiprivilege and we are of opinion that she is. nary baving no jurisdiction over him; and the
Peers' is a word capable of including the words bere," have the privilege of clergy as a whole body of the peerage, females as well as clerk convict that may make purgation, and males; and every personal privilege conferred shall be adjudged, deemed, taken, and used for on peers is by operation of law communicated bis first time only to all intents, constructions, to peeresses whether by blood or marriage, and purposes as a clerk convict, and shall be in though only males are mentioned. As trial case of a clerk convict which may make purby peers, though recognized in Magna Charta gation,” do not import or direct ibat be shall only as belonging to the male sex, nec make purgation; but give a peer the same ad.
super eum ibimus, nec super eum mittemus,' vantage as a clerk convict who might make did by construction of law belong to females, purgation, i. e. an absolute discharge from all as appears by 20 H. 6, which is only a de- further punishment; and the statute, as to claratory law; so any other personal privilege, bim, is to be construed to be a pardon : and it granted or confirmed to peers generally, is como seems most probable, that peers never did make municated to females, if it is of a nature capa. purgation; hecause, as all who made purgation ble of being communicated to and enjoyed by were to be tried by a jury of clerks, such trial them; as trial by peers, freedom from arrest : would be derogatory to their inherent privilege Countess of Rutland's case, Moor 769, and 2 of being tried by their peers. Lord chief jus. Co. 52. And if those privileges are so commu- tice Hale, on this statute (2 H. H. P. C. 376) nicated, as they certainly are, why should not says, “ I thiuk it was never meant that a peer this given by i E. 6, the consequence of which of the realm should be put to read, or be burnt is so reasonable and agreeable to justice, that a in the band, where a common person should female offender shall not uodergo a greater pu- be put to bis clergy; neither is it said, that he Qishment than a male of her own rank would do shall be discharged by his praying of the benefar a crime of the same sort? But it was insisted fit of this statute, where a common person shall at the bar, that between 1 E. 6, and 18 Eliz. a have the privilege of clergy and may make his peer found guilty of a clergyable offence should purgation; but only where he may have the be delivered to the ordinary as a clerk convict: benefit of his clergy in the first clause of the and Staunford, 130, is quoted for that purpose, statute: the other clause shall be in case of that by the words of this statute a peer ought to a clerk convict that may make purgation' is make bis purgation; and if so, he ought to be only for bis speedier discharge and farther addelivered to the ordinary to be kept till he has vantage, and not to restrain the general clause. made his purgation. That opinion of Staun- But it is objected, that the statule 1 E. 6, c. 12," ford seems contrary to law in many particulars. gives this privilege only to “ lord and lords of The 1 E. 6, c. 3, had in effect suspended pur- the parliament, and peer and peers of the realm gation, even as to commoners: therefore the having place and voice in the parliament ;' and legislature could never mean to introduce and that a peeress, not baving place and voice ja establish purgation as to a peer, which Hobart parliament, cannot have the benefit of this siasays, 289, " is no ordinance of the common iute. This expression, “ having place and law, but is a practice among themselves, i. e. voice in parliament,” cannot mean to exclude the clergy, rather overseen and wioked at than all peers but such as sat id parliament; but to and command all manner of persons here pre- 1 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. describe some of the incidents of peerage, or to tion of such persons to whom clergy shall be include bishops, who are lords of parliament allowed, detain and keep them in prison for though not peers: and if these words should such convenient time as the same justices in confine the benefit of this statute to those only their discretions shall think convenient, so as who actually sat in parliament, it would exclude the same do not exceed one year's imprisonpeers minors, and papist peers, who, by statute ment. This proviso plainly relates only to 30 Car. 2, stat. 2, c. 1, are now rendered inca- those persons mentioned in the clause, that is, pable of sitting or voting in parliament: the such persons as had been burnt in the band ac words therefore are merely descriptive, and not cording to the statute in that case made and restrictive. And what makes it very plain is, provided, meaning 4 H. 1. As peers therefore ibat, in the 4th and-51h P. and M. c. 4, which are not to be burnt in the hand, ihey cannot be takes away clergy from accessaries before the imprisoned; for those only are to be imprisoned -fact in murder and several other offences, there who have been burnt io the hand; and the is a proviso that every lord and lords of the word “justices,' is more properly applicable to parliament, and peer and peers of tbis realm, other courts of judicature than to ihis house. having place and voice in parliament,' upon The 21 Ja. 1, c. 7, cannot relate to this quesevery indictment for any of the offences afore- tion; for it relates to common persons, and was said, shall be tried by their peers, as hath been intended to put women on the same footing accustomed by the laws of this realm. Here with men, as to small larcenies; and 3d and are the very words used in 1 E. 6, c. 12; yet 415 W. and M. c. 9, does the same in all it could never be doubted, but notwithstanding clergyable felonies. This shews the justice of those words, peeresses must be tried by their allowing to the peeresses the same henefit of peers for offences against that statute ; and I E. 6, c. 12, as peers have ; and it is natural jady Somerset (see her case, vol. 2, p. 951] to suppose, that when the legislature were potwas tried by her peers for being accessary ting women of inferior rank on the same footto the murder of sir Thomas Overbury, which ing as men, they would bave put peeresses on was an offence agaiost that very statute. the same footing with peers, had it not been What gave rise probably to this statute, 1 e. conceived that the same privileges were already 6, c. 12, was another statute passed the extended to both. same year, c. 3, providing for the punish- Upon the whole therefore, by stat. 1 E. 6, ment of vagabonds, by making them slaves for a peer eonvicted of a clergyable" felony is intwo years ; in which act was a clause, that no titled to his immediate discharge, without readclerk convict shall make his purgation, but ing or burning in the hand, or being liable to shall be a slave for one year to him who will imprisoument by 18 Eliz. become bound with two sureties to the ordinary This privilege, giveu by statute, heing such to take him into his service, and he shall be as may be enjoyed by a peeress, is by operation used like a vagabond ; and a clerk attainted or of law communicated to her, and puts her in convict, which by law cannot make his pur- the same situation as a peer; the consequence gation, may by the ordinary be delivered to any of which is, that a peeress, convicted of a clerman, who will give security to keep him as bis gyable felony,, praying the benefit of this staslave for five years; and it shall be lawful to tute, is not only excused from capital punishevery person, to whom any sball be adjudged ment, but ought to be immediately discharged, a slave, to put a ring of iron about his neck, without being burnt in the hand, or liable to arm, or leg. To avoid all possible question any imprisonment. 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 be- illiterateness in the clergy, and in persons of
To the mention in vol. 12, p. 632, et seq. of nefit of this statute. This statute 1 E. 6, c. 3, distinction among the laity, may be added from was repealed 3d and 4th E. 6, c. 16, but was Mr. Barrington, " that so late as the year in force when 1 £. 6, c. 12, was made. The 1525, Adam Gordon earl of Sutherland and his next statute, 18 Eliz. c. 7, provides, that every countess, subscribe their names with a pen led person which shall be admitted and allowed to have the benefit of privilege of his clergy, shall by a notary public, as appears in the case of the
onuntess of Sutherland in Dom. Proc. A. D. not thereupon be delivered to the ordinary, as 1770." Observations on 1 U. 5, p. 382, Note has been accustomed; but, after such clergy [r] 4th edition of 1775. What Mr. Barrington allowed and burning in the hand, according to the statute io that behalf provided, shall forth- prince of Wales I do not thoroughly ouderstand.
in the same note says of Edward the 1st when with be enlarged and delivered out of prison by For other particulars respecting such illiterthe justices, before whom such clergy shall be granted, that cause notwithstanding. Then and the passage in Fox cit. by Mr. Walter Scou
ateness, see Warton's Life of sir Thomas Pope, follows the proviso, that the justices, before in note 2, to canto 3, of the Lady of the Lake. whom any such allowance of clergy shall be bad, stall and may, for the further correc. Voltaire, (Dict. Pbilos. art. Clerc) aotices be
Then the white staff being delivered to
Lords. Ay, ay. the Lord High Steward by the gentleman usher of the Black Rod on his knee, his grace Chamber of Parliament.
L. H. S. This House is adjourned to the stood up uncovered, and holding the staff in both his hands, broke it in two, and declared Then the peers and otbers, returned back to the commission to be dissolved ; and then, the Chamber of Parliament in the same order leaving the chair, came down to the woolpack, they came down, except that his royal bighand said, Is it your lordships' pleasure to ad- ness the duke of Cumberland walked after ihe journ to the Chamber of Parliament?
lord chaneellor. 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 up bénéfice de clergie : on ne peut le Lious flippancy compresses into a very small lui refuser. Le juge, qui était réputé par space a copious mass of false statement and l'ancienne loi pe savoir pas lire lui-même, s'en impertinent reflection. “ On était si savant rapporte encore au chapelain de la prison, qui vers le dixième et onzième siècle, qu'il s'intro- présente un livre au condamné. Ensuite il deduisit une coutume ayant force de loi en mande au chapelain, ' Legit?' lit-il? Le chape. France, en Allemagne, en Angleterre, de faire laio répond, Legit ut clericus,' il lit comme grace de la corde à tout criminel condamné ua clerc. Et alors on se contente de faire qui savait lire; tant un homme de cette érudi marquer d'un fer chaud le criminel à la paume Lion était nécessaire à l'état. Guillaume le bâ- de la main. On a eu soin de l'enduire de tard, conquérant de l'Angleterre, y porta cette graisse, le fer fume et fait un siflement, sans coutume. Cela s'appelloit bénéfice de clergie, faire aucun wal au patient réputé clerc.” • beneficium clericorum aut clergicorum.'
" Nous avons remarqué en plus d'un endroit, Concerning the doubt (mentioned, p. 640 que de vieux usages perdus ailleurs se retrou. and afterwards), whether homo' included both vent en Angleterre, comme on retrouva dansgenders, see Barrington's Ohserv. on 10 Ed. 3, l'île de Samothrace les anciens mystères d'Or. stat. 3; 20 A. 6, c. 9, and 1 Edw. 6. phée. Aujourd'hui même encore ce bénéfice de clergie subsiste chez les Anglais dans toute sa For more concerning trials of Peers and force pour un meurtre commis sans dessein, et Peeresses, see the Case of lord Ferrers, vol. pour un premier vol, qui ne passe pas cinq ceots 19, p. 886.
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,
in this behalf, in bis proper person comes into the Attorney-General's Motion for Judg. king before the king bimself, at Westminster,
the court of our said present sovereign lord the ment in the Court of King's-bench at West in the county of Middlesex, on Thursday next minster, was published* by the Defendant, after fifteen days from the day of St. Martin Mr. Horne. I have subjoined an account, in this same term, and for our said lord the (compiled from Mr. Cowper's Reports and be informed, that John Horne late of London,
king giveth the court here to understand and Brown's Cases in Parliament) of the subse. clerk, being a wicked, malicious, seditious, and qnent proceedings before the House of Lords. ill disposed person, and being greatly disaffect 1. THE TRIAL AT GUILDHALL.
ed to our said present sovereign lord the king
and to his administration of the government of London, to wit. Be it remembered, That this kingdom and the dominiops thereupto beEdward Thurlow, esq. attorney general of our longing, and wickedly, maliciously, and sedipresent sovereigó lord the king, who for our tiously 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 • Jarge of John Horne, esq., upon av loforma and withdraw the affection, fidelity, and alle• tion filed Ex Officio by his majesty's attorney-giance of bis said majesty's subjects from his • general, for a Libel, before the right hon. said majesty, and to insinuate and cause it to be
William earl of Manstield, in the court of believed ibat divers of his majesty's innocent • King's-bench, Guildhall, on Friday the 4th and deserving subjects had been inbumanly
of July, 1777. Published by the defendant • from Mr. Gurney's short-band potes.
* As to the operation of these words, see Nec bellua tetrior ulla est, lord Ellenborough's Judgment io the Case of Quam servi rabies in libera colla furentis.' | the King against Phillipps, 6 East, 464.
murdered by his said majesty's troops in the wicked, malicious, scandalous, and seditious province, colony, or plantation of the Massa- | libel, of and concerning his said majesty's gochusets-Bay in New. England, in America, be- verument and the employment of his troops, Jonging to the crown of Great-Britain, and un- according to the tenor and effect following: lawfully and wickedly to seduce and encourage that is to say, 'King's Arms tavern, Cornhill, his majesty's subjects in the said province, co- • June 7, 1775. At a special meeting this lony, or plantation, to resist and oppose his ma- • day of several members of the Constitutional jesty's goveromeni, on the 8th day of June, in • Society, during an adjonroment, a gentleman the 15th year of the reign of our present sove- proposed that a subscription should be immereign Jord George the third, by the grace of diately entered into by such of the members God of Great Britain, France, and Ireland, present who might approve the purpose, for king, defender of the faith, &c. with force and • raising ibe som of 100l. to be applied to the arms at London aforesaid, in the parish of St. relief of the widows, orphans, and aged paMary-le-Bow, in the ward of Cheap, wickedly, rents of our beloved American fellow-subjects, maliciously, and seditiously did write and pub- • who, faitbful to the character of Englisbmen, lish, and cause and procure to be written and preferring death to slavery, were for that reapublished, a certain false, wicked, malicious, .gon only inhumanly murdered by the king's' scandalous, and seditious libel of and concern (again meaning bis 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' (areaning the said province, and effect following: King's-Arms tavern, colony, or plantation of the Massachusets Cornhill, 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 imme. itional 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 sum of • the reliet of the widows, orphans, and aged · 1001. and that Dr. Franklin be requested to
parents of our beloved American fellow.sub. apply the same to the above-mentioned purjects, 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 • kioy's' (meaning bis said majesty's)' troops at this kingdom, to the evil and pernicious exam6 or near Lexington and Concord, in the pro- ple of all others in the like case offending, and
vince of Massachusets' (meaning the said pro- agajost the peace of our said lord the king, his vince, colony, or plantation of the Massachu- crown and dignity: and the said attorney ge. sets- Bay in New-England, in America,) on neral of oor said lord the king for our said lord • the 19th of last April ; wlich sum being im- the king further gives the Court here to un.mediately collected, it was thereupon resolved derstand and be informed, that the said John that Mr. Horne' (meaning himself the said Horne being such person as aforesaid, and conJohn Horne) do pay to-morrow into the hands triving and wickedly and maliciously devising of Mess. Brownes and Collioson, on account and intending as aforesajd, afterwards, to wit, of Dr. Franklin, the said sum of 1001. and on the 9th day of June, in the 15th year aforethat Dr. Franklin be requested to apply the said, with force and arms at London aforesaid, same to the above-mentioned purpose; John in the parish and ward aforesaid, wickedly, • Horne' (meaning himself the said John maliciously, and seditiously did print and pubHorne) in contempt of our said lord the king, lish, and cause and procure to be printed and in open violation of the laws of this kingdom, published, in a certain other news-paper, entito the evil and pernicious example of all others tled, The London Packet, or New Lloyd's in the like case offevding, and also against the Evening Post, a certain other false, wicked, peace of our said present sovereigu lord the scandalous, malicious, and seditions libel of and king, his crown and dignity : and the said at concerning his said majesty's government and torney-general of our said lord the king for our the employment of his troops, according to the said lord the king further gives the court here tenor and effect follo ng; that is to say, to understagd and be informed, that the said King's Arms tavern, Corphill, June 7, 1775. Jobu Horne being such person as aforesaid, • At a special meeting this day of several and again unlawfully, wickedly, and seditiously members of the Constitutional Society, during intending, devising, and contriving as aforesaid, au adjournment, a gentleman proposed that afterwards, to wit, on the 9th day of Juve in a subscription should be immediately entered the 15th year aforesaid, with force and arms at «into (by sucb of the members present who London aforesaid, in the parish and ward afore- might approve the purpose) for raising the saill, wickedly, maliciously, and seditiously sum of 100l. to be applied to the relief of the printed and published, and caused and procured widows, orphans, and aged parents of our to be prioted and published, in a certain news. • beloved American Fellow-subjects, who, faithpaper, intitled, The Morning Chronicle and • ful to the character of Englishmen, preferring London Advertiser, a certain other false, · death to slavery, were for that reason only
inhumanly murdered by the king's' (meaning in the like case offending, and against the peace bis said majesty's) * troops at or near Lexing of our said lord the king, bis crown and dig. • ton and Concord, in the province of Massa- pity : and the said attorney general of our said
chusets' (meaning the said province, colony, present sovereign Jord the king for our said or plantation of the Massachusets Bay in New Lord the king further gives the Court here 10 England, in America) on the 19th of last understand and be informed, that the said John · April; which sum being immediately col. Horne being such person as aforesaid, and • lected, it was thereupon resolved, that Mr. contriving and wickedly and maliciously de• llorne' (again meaning himself the said John vising and intending as aforesaid, afterwards, Horne) do pay to-morrow into the haods of to wit, on the 9th day of June ju the 15tb year
Mess. Brownes and Collinson, on the account aforesaid, with force and arms at London aforeof Dr. Franklin, the said sum of 100l. and said, in the parish and ward aforesaid, wickthat Dr. Franklin be requested to apply the edly, maliciously, and seditiously did print and • same to the above-mentioned purpose ; John publish, and cause and procure to be printed • Horne' (again meaning himself the said John and published, a certain other false, wicked, Horne) in contempt of our said lord the king, malicious, scandalous, and seditious libel of and in open violation of the laws of this kingdom, to coucerning his said majesty's government and the evil and pervicious example of all others in the employment of his troops, according to the the like case offending, and also against the tenor and effect following ; that is to say, peace of our said lord the king, his crown and King's Arms tavern, Corobill
, June 7. At a dignity: and the said attorney general of our special meeting this day of several memsaid 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 1001. to be applied to ihe relief of the wi. day of June in the 15th year aforesaid, at /dows, orphans, and aged parents of our belov. London 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 inhu. printed and published, in a certain other news. : manly murdered by the king's' (again mean. paper, entitled, The Public Advertiser, a cer- ing his said majesty's)' troops at or near Lex. tain other false, wicked, scandalous, malicious, ington and Concord, in the provioce of Masand seditious libel of and concerning his said * sacbusets' (meaning the said province, colony, majesty's government and the employment of or plantation of the Massachusets-bay in New. bis troops, according to the tenor and effect England, in America) on the 19th of last following; that is to say, · King's Arms tavern, April; which sum being immediately col• Cornbill, June 7. At a special meeting this lected, it was thereupon resolved that Mr. • day of several members of the Constitutional Horne' (again meaning bimself the said Joho
Society, during an adjouroment, a gentleman Horne) do pay to-morrow into the hands of • proposed that a subscription be immediately · Mess. Brownes and Collinson, on account of • entered into (by such of the members present • Dr. Franklin, the said sum of 1001. and that • who might approve the purpose) for raising Dr. Franklin be requested to apply the same
the sum of 100l. to be applied to the relief of to the above mentioned purpose ; John Horde' " the widows, orphans, and aged parents of our (again meaning himself the said John Horne) • beloved American fellow-subjects, who, faith in contempt of our said lord the king, in open • ful to the character of Englishmen, preferring violation of the laws of this kingdom, to the death to slavery, were for that reason only evil and pernicious example of all others in the
inbumanly murdered by the king's' (meaning like case offending, and also against the peace his said majesty's) · troops at or near Lexing- of our said present sovereigu lord the king, his *ton and Concord, in the province of Massa - crown and dignity: and the said attorney-ge. chusets' (meaning the said province, colony, neral of our said present sovereign lord the or plantation of the Massachusets Bay in king for our said lord the king further gives New England, in America) on the 19ih of the Court bere to understand and be informed, • last April; which sum being immediately that the said John Horne being such person . collected, it was thereupon resolved that Mr. as aforesaid, and contriving and wickedly and • Horne' (again meaning himself the said Jobo maliciously devising and intending as aforesaid, Horne) do pay to-morrow into the hands of afterwards, to wit, on the 9th of June in the • Mess, Brownes and Collinson, on the account 15th year aforesaid, with force and arms at . of Dr. Franklio, the said sum of 1001, and London aforesaid, in the parish and ward afore
that Dr. Franklin be requested to apply the said, wickedly, maliciously, and seditiously did * same to the abovementioned purpose ; John print and publish, and cause and procure to be • Horne' (again meaning himself the said John printed and published, a certain other false, Horne) in contempt of our said lord the king, wicked, malicious, scandalous, and seditious in opeo violation of the laws of this kingdom, libel, in which said last-mentioned libel ara to the evil and pernicious example of all others contained, amongst other things, divers false,