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his expenses, and to make him some private amends, without the trouble and circuity of a civil action. But it is a dangerous practice, and though it may be entrusted to the judges of the superior courts of record, it ought never to be allowed in local or inferior jurisdictions, such as the quarter sessions; where prosecutions for assaults are often commenced rather for private gain than from public motives. Above all, it should never be suffered, where the testimony of the prosecutor himself is necessary to convict the defendant; for by this means, the rules of evidence are subverted, and the prosecutor becomes in effect a plaintiff. For though a private citizen may dispense with satisfaction for his private injury, he cannot remove the necessity of public example. The right of punishing belongs not to the individual, but to society, or to the sovereign, who represents that society, and a man may renounce that right, as to himself, but he cannot yield the right of others.
CHAPTER XXVIII.-BENEFIT OF CLERGY.
1. Origin. The privilegium clericale, benefit of clergy, originated from the pious regard paid by Christian princes to the church. Two exemptions were granted to the church: (1) Exemption of places consecrated to religious duties from criminal arrests, which was the foundation of sanctuaries. (2) Exemption of the persons of clergymen from criminal process before the secular judge in a few particular cases.
Claims of the Clergy. The clergy, increasing in power, claimed as a right and jure divino, that which had been awarded them as a favor; and by their canons and constitutions, sought a vast extension of these exemptions, as well in regard to the crimes themselves, as to the persons exempted ; among whom at length was every subordinate officer belonging to the church, and even certain laymen. The total exemption of the clergy from secular jurisdiction in England was sought, but never thoroughly effected, though allowed in some capital cases.
1 The benefit of clergy is now abolished.
When Benefit cf Clergy Claimed. In the reign of Henry VI, it was finally settled, that the prisoner should first be arraigned, and might either then claim the benefit of clergy, by way of declinatory plea; or, after conviction, by way of arresting judgment. This latter way is most usually practiced, as it is more to the satisfaction of the court to have the crime previously ascertained by confession or the verdict of a jury; and better for the prisoner himself, who may possibly be acquitted, and so have no need of the benefit of clergy.
Its History. Originally no man was admitted to the benefit of clergy, but such as had the habitum et tonsuram clericalem. In process of time, every one who could read, being accounted a clerk or clericus, was allowed the benefit of clerkship, though not initiated in holy orders. But when learning, by means of printing, began to be generally disseminated, it was found that as many laymen as divines were admitted to the privilegium clericale, and therefore by statute of Henry VII, a distinction was drawn between mere lay scholars and clerks in orders.
All laymen, who were allowed this privilege, were burnt with a hot iron on the thumb. By statute of Edward VI, the peers of the realm, having a voice in parliament, may have the benefit of peerage, equivalent to that of clergy, for the first offence, although they may not be able to read; and without being burnt in the hand for all offences then clergyable to commoners, and also for housebreaking, highway robbery, horse-stealing, and robbery of churches.
Mode of Trial. Such privileged parties were discharged from the sentence of law in the king's court, and delivered over to the ordinary, to be dealt with according to ecclesiastical canons. The trial was held before the bishop or his deputy, and by a jury of twelve clerks. The party himself was first required to make oath of his own innocence; next, there was to be the oath of twelve compurgators, who swore, they believed he spoke the truth; then witnesses were to be examined on oath, but on behalf of the prisoner only; and lastly, the jury were to bring in their sworn verdict, which was usually one of acquittal ; otherwise, if a clerk were found guilty, he was disgraced, or subjected to penance. There was much perjury in this solemn farce of a mock trial ; the delinquent party, though convicted before in the king's court on the clearest evidence, being almost compelled to swear to his innocence. And yet by this purgation, the party was restored to his credit, his liberty, and his lands.
Offender Delivered to the Ordinary. This almost constant acquittal of clerks by purgation, caused the temporal courts, on proof of the heinous guilt of an offender, to deliver him to the ordinary, absque purgatione fucienda, in which situation the clerk convict could not make purgation, but was to continue in prison during life, and was incapable of acquiring personal property or receiving the profits of his lands, unless he was pardoned.
Penalty by Burning the Hand. The statute of Elizabeth discontinued this delivery to the ordinary, but released the offender, who had been allowed his clergy, upon such allowance and burning of the hand; but the judge, at his discretion, could imprison the party for any time not exceeding a year. Women, convicted of simple larceny, could be burned in the hand, whipped, stocked, or imprisoned. The punishment, by burning the hand, being deemed ineffectual, the burning of the left cheek was substituted. This change lasted but seven years. Those men who could not read, if under the degree of peerage, who were convicted of clergyable felonies, were banged.
In Case of Larceny. Afterwards, it was considered, that education was no extenuation of guilt, but quite the reverse. By statute of Anne, it was enacted, that benefit of clergy should be granted to those entitled to ask it, without requiring them to read. Subsequent statutes, in cases of larceny, substituted transportation in some cases, and in others commitment of the offender to the house of correction, or to certain penitentiary houses, which were reformatory in their nature. By statute of George III, the court, in all clergyable felonies, instead of burning the hand of the offender, may impose a fine, or may order the offender to be whipped.
2. Who are Entitled to the Benefits of Clergy. All clerks in orders, without any branding, and of course, without any transportation, fine or whipping, which are substituted in lieu of the other, are to be thus privileged, and immediately discharged ; and this, as often as they offend. All lords of parliament and peers of the realm shall be discharged in all clergyable and other felonies provided for by the act, without any burning in the hand, or imprisonment, or other punishment; but this is only for the first offence. Lastly, all the commons of the realm, not in orders, male or female, shall for the first offence, be discharged of the capital punishment of felonies, within the benefit of clergy ; upon being burnt in the hand, whipped or fined, or suffering imprisonment, or in case of larceny, upon being transported. It has been said, that infidels and heretics, were not capable of the benefit of clergy, until after the statute of Anne, as being under a legal incapacity for orders.
3. For what Crimes the Benefit of Clergy is Allowed. Neither in high treason, nor in petit larceny, nor in any mere misdemeanors, was the benefit of clergy permitted at common law; hence, as a rule, it was allowable only in petit treason and capital felonies. But yet the benefit of clergy was not allowable in all felonies, for in some, it was denied even by the common law; as for lying in wait for one on the highway, destroying and ravaging a country, or arson, that is, the burning of houses; all of which border in some degree on treason.
In Marine Cases. So tender is the law as to inflicting capital punishment in the first instance for any inferior felony, that notwithstanding by the marine law of Henry VIII, the benefit of clergy is not allowed in any case, whatsoever; yet when offences are committed within the admiralty jurisdiction, which would be clergyable when committed on land, the constant course is to acquit and discharge the prisoner.
Rules. (1) In all felonies, clergy is now allowable, unless taken away by express acts of parliament.
(2) That, where clergy is taken away from the principal, it is not of course taken away from the accessory, unless he is particularly included in the words of the statute.
(3) That, when the benefit of clergy is taken away from the offence, as in the cases of murder, robbery, rape and burglary, a principal in the second degree being present, aiding and abetting the crime, is properly excluded from his clergy.
(4) That, where it is only taken away from the person committing the offence, as in the case of stabbing, or of larceny in a dwelling, or privately from the person, his aider and abettor are not excluded.
4. Consequences of the Benefit of Clergy. Branding, fine, whipping, imprisonment or transportation, are rather concomitant conditions, than consequences of receiving this indulgence. The consequences are such as affect his present interest and future credit and capacity; as having been once a felon, but now purged from that guilt by the privilege of clergy, which operates as a kind of statute pardon.
1 By later statutes, offences on the high seas are punished in the same manner, as if they had oceurred on shore.-Chitty.
Results to the Party. (1) By this conviction, he forfeits all his goods to the king.
(2) That, after conviction, and till he receives the judgment of the law, by branding or some of its substitutes, or else is pardoned by the king, he is to all intents and purposes a felon, and subject to the disabilities of a felon.
(3) That, after burning, or its substitute, or pardon, he is discharged forever of that and other felonies before committed, within the benefit of clergy, but not of felonies, from which such benefit is excluded.
(4) That, by the burning, or its substitute, or the pardon of it, he is restored to all capacities and credits, and the possession of his lands, as if he had never been convicted.
(5) That such advantages, as pertain to commoners and laymen, subsequent to the burning in the hand, are equally applicable to all peers and clergymen, although never branded at all, or subjected to a substituted punishment.
CHAPTER XXIX.--JUDGMENT AND ITS CONSEQUENCES.
Proceedings after the verdict. When, upon a capital charge, a verdict of guilty is rendered, in the presence of the prisoner; he is asked by the court, if he has anything to offer, why judgment should not be awarded against him. In the case of a misdemeanor, and a verdict of guilty, a capias may be awarded to bring in the prisoner to receive his judgment; and if he absconds, he may be prosecuted, even to outlawry.
Arrest of Judgment. The prisoner, at this juncture, as well as at his arraignment, may offer any exceptions to the indietment, in arrest or stay of judgment; as for want of sufficient certainty in setting forth either the person, the time, the place, or