VII. A female shall in all cases receive the same judgment, and stand in the same condition, with respect to the benefit of clergy, as a male.

VIII. A slave shall in all cases receive the same judgment, and stand in the same condition, with respect to the benefit of clergy, as a free negro or mulatto.

IX. Nothing in this act contained shall be construed to take away the benefit of clergy from any offence in which it is now allowed by any act of the General Assembly, or to allow it in any offence, from which it is now expressly taken away by any act of the General Assembly.

Besides the offences particularly enumerated in the foregoing law, there are several others, in which clergy was taken away by express acts of the legislature; which may be seen under title "LARCENY," and the respective titles interspersed throughout this volume.

By the statute 4 H. 7. c. 13, a person convicted of murder, and admitted to clergy, was directed to be burned with the letter M in the brawn of the left thumb; but in cases of other felony, with the letter T; probably from the word Tyburn, the general place of execution. But it had long been customary to burn the offender with any piece of iron scarcely heated; which Sir Michael Forster considers rather as a matter of absurd pageantry, than even a slight punishment.

But no man shall be ousted of his clergy a second time, by the bare mark in his hand, or by a parol averment, without the record testifying it; and it seems, that if he deny he is the same person, issue must be joined upon it, and tried to be the same person, before he can be ousted of clergy. 2 Hale 373.

If the law enacts generally, that it shall be felony without benefit of clergy, or that he shall suffer as in cases of felony without benefit of clergy, this excludes it in all circumstances and to all intents. 2 Hale 335.

In all cases where a subsequent law ousteth clergy in case of any felony created by statute, the indictment must precisely bring the party within the case described by the statute; otherwise, although possibly the fact itself be within the statute, and it may so appear upon the evidence, yet if it be not so alledged in the indictment, the party, though convict, shall have his clergy. 2 Hale 336.

But although the case be so laid in the indictment as to bring it within the statute, and oust the prisoner of clergy, yet, if upon the evidence it appears to be without the statute, and a felony only, the jury ought to find him guilty of the felony only, and not of the matter laid in the indictment, and thereupon the prisoner shall be admitted to his clergy. And this is commonly done." Ibid.

However, if the offence was capital at common law, and a statute only excludes it from clergy, the indictment, in such case, need not conclude, against the form of the statute, because the statute doth not alter the nature of the offence, but leaves it to its proper judgment, and only takes away a personal privilege or exemption from such judgment. Haw. B. 2. c. 33. sect. 25.

Where an act taketh away clergy from the principal, and saith nothing of the accessory, the accessories before as well as after the fact shall have their clergy. 11 Co. 37. Fost. 355.

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III. AT WHAT TIME IT MUST BE DEMANDED.

By the ancient common law, the benefit of clergy was demanded as soon as the prisoner was brought to the bar, before any indictment or proceeding against him. But this was found a great inconvenience to the prisoner, because possibly he might have been acquitted of the felony; or if not, yet in case of an inquest of office he lost his challenge to such inquest, and upon such inquest found, he lost his goods and the profits of his land. And therefore, C. J. Prisot, with the advice of the other judges, in the reign of Henry VI. for the safety of the innocent, would not allow the prisoner the benefit of clergy before he had pleaded to the felony, and (having the benefit of his challenges and other advantages) had been convicted thereof; which course hath been generally observed ever since. 2 Inst. 164. 2 Hale 378.

And this benefit of clergy may be allowed by the court in discretion, though the party challenge it not. Summ. 239.

IV. THE EFFECT OF CLERGY ALLOWED.

A person receiving the benefit of clergy, by being burnt in the hand, is restored to his credit, and may be a good witness. Haw. B. 2. c. 33. sect. 129.

And it is holden, that after a man is admitted to his clergy it is actionable to call him felon; because his offence being pardoned by the statute, all the infamy and other consequences of it are discharged. Ibid. sect. 132.

COIN.

See title "COIN," in Appendix No. 2, to this work.

TO counterfeit, aid or abet in counterfeiting, any coin made cur rent in this commonwealth, or to make, or assist, aid or abet in making base coin, or to pass any such counterfeit or base coin, knowing it to be counterfeit or base, was felony without benefit of clergy. (See 1 Rev. Code, p. 249, sec. 1.) But it is now punishable by confinement in the penitentiary, for not less than four nor more than fifteen years. Ibid. p. 356, sect. 9.

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COMMITMENT.

WHEN a person is arrested, by any of the means mentioned under title ARREST, and brought before a magistrate, he should, after examining into the nature and circumstances of the crime alledged, either discharge, bail, or commit him. 4 Bl. Com. 296.

II. The

I. Who may be committed, and to what place.
form of the commitment. III. That the jailor shall
receive the prisoner. IV. Shall certify the commit-
ment. V. Commitment discharged. VI. Precedents
of commitments.

I. WHO MAY BE COMMITTED, AND TO WHAT PLACE.

If the offence be not bailable, or the party cannot find bail, he is to be committed to the county jail by the mitimus of the justice, or warrant under his hand and seal, containing the cause of his commitment; there to abide till delivered by due course of law. 4 Bl. Com. 300.

And wheresoever a justice is empowered by any statute to bind a person over, or to cause him to do a certain thing, and such person being in his presence shall refuse to be bound or to do such thing, the justice may commit him to the jail, to remain there till he shall comply. Haw. B. 2. c. 16, sect. 2.

If a prisoner be brought before a justice, expressly charged with felony upon oath, the justice cannot discharge him, but must bail or commit him. 2 Hale 121.

But if he be charged with suspicion only of felony, yet, if there be no felony at all proved to be committed, or if the fact charged as a felony be in truth no felony in point of law, the justice may discharge him: as, if a man be charged with felony for stealing a parcel of the frechold, or for carrying away what was delivered to him, and such like, for which though there may be cause to bind him over as for a trespass, the justice may discharge him as to felony, because it is not felony. But if a man be killed by another, though it be by misadventure, or self defence (which is not properly felony) or in making an assault upon a minister of justice in the execution of his office (which is not at all felony) yet the justice ought not to discharge him, for he must undergo his trial for it; and therefore he must be committed, or at least bailed. Ibid.

But commitment by the justices of the peace almost in all cases except for the peace, good behaviour, felony, or higher offences) is

but to retain the party till he hath made fine; and therefore, if he offer to pay it, or find sureties by recognizance to pay it, he ought not to be committed, but to be delivered presently. Dalt. c. 170.

II. THE FORM OF THE COMMITMENT.

1. It must be in writing, either in the name of the commonwealth, and only tested by the person who makes it, or it may be made by such person in his own name, expressing his office, or authority, and must be directed to the jailor, or keeper of the prison. Haw. B. 2. c. 16. sect. 13, 14.

Yet the mention of the name and authority of the justice in the beginning of the mittimus is not always necessary, for the seal and sub. scription of the justice to the mittimus is sufficient warrant to the jailor, for it may be supplied by averment, that it was done by the justice. 2 Hale 122.

2. It should contain the name and surname of the party committed, if known; if not known, then it may be sufficient to describe the person by his age, stature, complexion, colour of his hair, and the like, and to add, that he refuseth to tell his name. 1 Hale 577.

3. It is safe, but not necessary, to set forth, that the party is charged upon oath. Haw. B. 2. c. 16. sect. 17.

4. It ought to contain the cause, as for treason, or felony, or suspicion thereof; otherwise, if it contain no cause at all, if the prisoner escape, it is no offence at all: whereas, if the mittimus contained the eause, the escape were treason or felony, though he was not guilty of the offence. 2 Inst. 52.

And hereupon it appeareth, that a warrant or mittimus to answer to such things as shall be objected against him is utterly against law. 2 Inst. 591.

Also it ought to contain the certainty of the cause; and therefore if it be for felony, it ought not to be generally for felony, but it must contain the special nature of the felony, briefly, as, for felony, for the death of such an one, or, for burglary, in breaking the house of such an one: and the reason is, because it may appear to the judges, upon an habeas corpus, whether it be felony or not. 2 Hale 122. See 3 Bl. Com. 134.

But the want hereof seems not to make the commitment absolutely void, so as to subject the jailor to a false imprisonment; but it lies in averment to excuse the jailor or officer, that the matter was for felony. 1 Hale 584.

5. It must have an apt conclusion; as, if it is for felony, to detain him till he be thence delivered by law, or by order of law, or by due course of law. 2 Hale 123. Haw. B. 2. c. 16. sect. 18.

But if the conclusion be irregular, it doth not seem to make the warrant void, but the law will reject that which is surplusage, and the rest shall stand; so that if the matter appear to be such for which he is to remain in custody, or to be bailed, he shall be bailed or committed, as the case requires, and not discharged; but the wrong conclusion shall be rejected. 1 Hale 584.

It is also to be observed, that a commitment grounded on a statute ought to be conformable to the method prescribed by it. As where the overseers were committed for refusing to account, and the warrant concluded in the common form, until they be duly discharged according to law; upon the return of an habeas corpus, the court held the commitment void, because the warrant ought to have concluded, there to remain until he shall account as the 43. El. c. 2. doth appoint. And a difference is, where a man is committed as a criminal, and where only for contumacy; in the first case, the commitment must be, until discharged according to law; but in the latter, until he comply. 2 Haw. Not. 33.

Where a statute appoints imprisonment, but limits no time how long, in such case the prisoner must remain at the discretion of the court. Dalt. c. 170.

6. It must be under seal; and without this the commitment is unlawful, the jailor is liable to false imprisonment, and the wilful escape by the jailor, or breach of prison by the felon, makes no felony, 1 Hale 583.

But this must not be intended of a commitment by the sessions, or other court of record; for there the record itself, or the memorial thereof, which may at any time be entered of record, is a sufficient warrant, without any warrant under seal. 1 Hale 584.

It should also set forth the place at which it is made (that it may appear to be within the jurisdiction of the justice.) Haw. B. 2. c. 16,

sect. 13.

It must also have a certain date, of the year and day. 2 Hale 122. But although the above circumstances are proper and fit, yet it seems that a commitment is not void, which does not contain all of them. 2 Hale 123.

III. THAT THE JAILOR SHALL RECEIVE THE PRISONER.

If the jailor shall refuse to receive a felon, or take any thing for receiving him, he shall be punished for the same by the justices. Dalt. c. 170.

It seems that regularly no one can justify the detaining a prisoner in custody out of the common jail, unless there be some particular reason for so doing; as, if the party be so dangerously sick, that it would apparently hazard his life to send him to jail, or there be evident danger of a rescous from rebels, or the like. Haw. B. 2. c. 16. sect. 9.

IV. SHALL CERTIFY THE COMMITMENT.

The jailor being an officer bound to give his attendance at court, to bring thither his prisoners, and to receive such as may be committed,' (Dalt. c. 195) ought always to certify his commitment with the prisoner.