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have it a second


royal majesty, shall have the privilege of holy church. And by the 4 Hen. 4. c. 2. E. & I. if any clerks shall be 4 Hen. 4. c. 2. indicted, arraigned, or appealed, and their indictments, &c. do comprehend the effect of the words insidiatores viarum and depopulatores agrorum, or other words to the like effect, yet they shall have the privilege of holy church. But the 4 Hen. 7. c. 13. E. & I. is the foun- 4 Hen. 7. c.13. dation of the law respecting the privilege or benefit of £. & I. clergy, as it stands at the present day. This statute Anylayman enacts, that every person, not being within holy orders, one wameted to

the benefit of who hath been admitted to the benefit of his clergy, clergy, shall not eftsoons arraigned of any such offence, shall not be ad- time. mitted to the benefit of clergy: And every person so convicted for felony, shall be marked upon the brawn of the left thumb, with a T. and such mark to be made

Persons paying by the gaoler openly in the court before the judge. the benefit of

clergy hure Provided that if any person at the second time of asking his clergy, because he is within orders, hath not then and there ready his letters of his orders, or a certificate of bis ordinary witnessing the same, then the justices

Clerical persons before whom he is arraigned, shall give him a day, by to produce lettheir discretion, to bring in bis letters or certificate ; terenie corders or

certificate of and if he bring not at such day his said letters, &c. then odiraiy. such person to lose the benefit of clergy, as he shall do that is without orders. And the 'i Edw. 6. c. 12. 1 Exłw. 6. c.19. Eng. (which is held to supersede the 28 Hen. 8. c. 1. $. 14. Eng.

8. s. 7. Eng. and 32 Hen. 8. c. 3. s. 8. Eng. by which the

Lords and peers distinction between learned laymen and real clerks in how ard in rehut orders was abolished) enacts, (s. 14.) that in every case to the benefit of where any of the king's subjects may, upon his prayer,


, have the privilege of clergy as a clerk convict, that may make purgation; and also in all cases of felony wherein the privilege of clergy is restrained by this act: (viz. house-breaking, highway-robbery, horse-stealing, and robbing of churches, vide p. 922. 977. 995. 1000.) wilful murder and poisoning of malice prepensed excepted, every lord of parliament, and peer of the realm, having place and voice in parliament, shall, upon bis request or prayer, alleging that he is a lord or peer of the realm, and claiming the benefit of this act, though he



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cannot read, without any burning in the hand, loss of inheritance, or corruption of his blood, be adjudged, taken and used, for the first time only, as a clerk convict, without any further benefit at any time after. No Irish statute contains any provision similar to this of the 1 Edw. 6. c. 12. supra: but it seems that by one of the articles of the act of union (vide vol. 1. p. 357-8.) this pri

vilege of British peers is extended to the peers of IreEdw, 1.c.2. land. It was provided by the 3 Edw. 1. c. 2. E. & I.

that when a clerk was found guilty of felony, and deCanonical trial manded by the ordinary, he should be delivered to him or purgation for clerks in unders. according to the privilege of holy church : and the pre

lates were thereby enjoined not to deliver them without

due purgation. But by the 18 Eliz. c. 7. s. 2. Eng. s. 2. Eng.

every person that shall be admitted to the benefit of Canonical trial, clergy, shall not thereupon be delivered to the ordinary,

as bath been accustomed, but after such clergy allowed, and burning in the hand according to the statute in that behalf provided, shall forthwith be enlarged out of prison by the justices before whom such clergy shall be granted. Provided (s. 3.) that the justices before whom

such allowance of clergy shall be had, may, for the furimprisonment of ther correction of such persons, detain them in prison persons er ons praying for such time as such justices shall think convenient, so the benefit of clergy.

as the same do not exceed one year's imprisonment. And the 11. 12 & 13 Jac. 1. c. 3. Ir. contains the like provisions. And with respect to the unlearned laity;

the 5 Ann. c. 6. Eng. enacts (s. 4.) that if any person be § 1. ling.

convicted of any felony for which he ought to have had Peneliturclerzu the benefit of clergy if this act had not been made, and

of four neri letso shall pray to have the benefit of this act, he shall not be

required to read, but, without any reading, shall be re

puted to be, and punished as a clerk convict. And the Ain. c. 6.

same provision is contained in the 9 Ann. c. 6. Ir. With respect to female convicts, the 21 Jac. 1. c. 6. Eng. enacts, that any woman being convicted by con

fession or verdict, of the felonious taking any money or I'unishment of goods above the value of 12d. and under the value of our cred of lar- 10s. or as accessary to such offence, (the said offence tlo ruble. being no burglary nor robbery in or near the highway,

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5 Ann. c. 6.

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SW. & M.c.9.

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nor the felonious taking of any money or goods from the person of any man or woman privily, without their knowledge, but only such offence as in the like case a man might have his clergy) shall, for the first offence, be branded or marked in the hand upon the brawn of the left thumb, with a hot burning iron having a Roman T. upon said iron ; the said mark to be made by the gaoler openly in court before the judge ; and also to be further punished by imprisonment, whipping, stocking, or sending to the house of correction, in such manner, and for such time, (not exceeding a year) as the judge before whom she shall be so convicted, or who shall have authority in the cause, shall think meet, ac. cording to the quality of the offence, and then to be delivered out of prison. The 10 Car. 1. st. 3. c. 16. Ir. 10 Car, 1. st. 3. is the corresponding statute in Ireland. The 3 W. & M.

9. Eng. further enacts, (s. 6.) that where a man being s. 6. Eng. convicted of any felony for which he may demand the benefit of clergy; if a woman be convicted of the same the benefit of or like offence, úpon her prayer to have the benefit of clergy us mer this statute, judgment of death shall not be given against her upon such conviction, or execution awarded upon apy outlawry for such offence, but she shall suffer the same punishment as a man should suffer that has the benefit of clergy allowed bim in the like case : viz. to be burned in the hand by the gaoler in open court, and further to be kept in prison for such time, not exceeding a year, as the justices shall think fit. And the 9 W.3,

9 W.3. c. . c. 7. Ir. contains the like provision. And the 4 & 5 W. s.6. Ir. & M. e. 24. Eng. explains the 3 & 4 W. & M. c. 9. 48 5 W. & M.

c.24.s. 13. Eng. supra, by declaring and enacting, that if any woman shall be convicted of any felony, for which a mau might Iomen having have the benefit of clergy, and upon her prayer shall nefit of the stahave once had the benefit of the said statute, and shall

tule, nol admilo be again convicted of any other felony, for which a man second lime, might have the benefit of his clergy, such woman shall be excluded from the benefit of said statute, and shall suffer death as if said statute had not been made. And che 9 Ann. c. 6. Ir, also enacts, that no woman convict 9 Ann. c. 8. of felony, who shall bave had the benefit of the 9 W. S.

once had the bo

ted thereto a


c. 7. Ir.

s. 7. Ir.


IS Eliz. c. 7.

Nor for any

party shall

c. 7. Ir. supra, shall be entitled to the benefit of the said last mentioned act again, but shall suffer such pains and penalties as slie would have been liable unto if said

act had not been made. And it is a provision of the 8 Eliz. c. 4.

8 Eliz. c. 4. Eng. which extends to all descriptions of s. 4. Eng.

persons, and to felovies in general, that every person Allowance of

which shall, upon his arraignment for any felony, be benefit of clergy for one offence, admitted to the benefit of clergy, and shall before such receberament en puo- admission have committed any other such offence wheresecution for a capital felony previously cum- upon clergy is not allowable, and not being thereof be

fore indicted and acquitted, convicted or attainted, or pardoned, may be indicted or appealed for the same, and thereupon put to answer, and ordered, &c. in like manner as though no such admission of clergy had been.

And by the 18 Eliz. e. 7. s. 5. Engevery person which 8. 5. Eng.

shall be admitted to the benefit of clergy, shall, notwith

standing such admission, be put to answer all other felaother felony whereof the nies whereof he shall not be before acquitted, convicted, not be before attainted, or pardoned, and shall in such manner be ara. acquitted, &* raigned, tried, adjudged, and suffer such execution for

the same, as if as clerk convict he had been delivered

to the ordinary, and there had made his purgation: To 15 Car. 1. c. 7. which clause of the 18 Eliz. c. 7. the 15 Car. !. c. 7. Ir.

! Intains a corresponding provision.

And for that it hath not been known certainly whither crown, &gcshall to resort for the records of attainders and convictions, certify in!

because they were not certified into any place certain, king's bench a transcript of in- such offenders had often had the benefit of clergy where diciment, &c. containing they ought not, &c.;" the 34 & 35 Hen. 8. c. 14. Eng.

. of parties convici enacts, that the clerk of the crown, clerks of the peace, ed, &c.

and clerks of assize, where any such attainder or convicc. 14. s. 2 & 3. tion of clerks, &c. shall be had, shall certify a tranEng

script briefly containing the effect of every such indictment, outlawry or conviction, and clerk attainted before them, that is to say, the name, surname, and addition of every such person so indicted, &c. and the certainty of the offence, &c. and the day and place of his outlawry, conviction and attainder, and the day and place where such offence, &c. was done, before the king in his bench at Westminster, there to remain of


&. 1. Ir.

Clerks of the

34 & 35 Hen. 8.

s. 4.

record for ever, within 40 days after such attainder, &c. if the term be then, and if not, then within 20 days after the next term following the said 40 days, upon pain to forfeit 40s. one moiety to the king, and the other to him that will sue for the same by action of debt, &c. in any court of record. And the clerk of the crown in the king's bench shall receive the said certificates and transcripts without taking any thing for the same, upon pain of 40s, to be recovered by action of debt, &c. in any court of record. And by s. 3. if there be more persons named in such indictment, other than such person so attainted, convicted, or outlawed, such clerk of the crown, &c. shall certify the transcript of such indictment, &c. only concerning such persons so indicted, attainted, outlawed, or convicted, into the king's bench. And by s. 4. the clerk of the crown in the king's benchi, at such times as the justices of gaol-delivery, or justices

Clerk of the of peace, write unto bim for the names of such


crown to certified attainted by outlawry, or clerks attainted or convict, names of concuts

to justices. shall certify sucha names, upon pain to forfeit for every name 40s. By s. 5. this act shall not extend to Wales, Chester, Lancaster, and Durham. And forasmuch as

Prouisons to men and women who have once had their clergy, &c. M'ales, &c. may

be indicted for an offence committed afterwards in some other county, the 3 W. & M.c. 9. Eng. enacts, that the clerk of the crown, clerk of the peace, and clerk of c. 9. s. 7. Eng. the assizes, where such man or woman shall be convicted,

Clerk of crow's shall, at the request of the prosecutor, or any other in &c. of comty his majesty's behalf, certify a transcript in a few words, had the benefit containing the effect and tenor of every indictment and clergy or star

tuleto it conviction of such man or woman, of his or her having to the county the benefit of clergy, &c.and addition of every such per- quent felony son, and the certainty of the felony and conviction, to the judges and justices in such other county where suclı person shall be indicted; which certificate being produced in court shall be sufficient proof that such person hath before had the benefit of clergy, &c. The 9.9 W.3.c. 7. W.3. c. 7. Ir, contains a clause corresponding to this of the 3 W. & M. c. 9. Eng. And the 9 Ann. c. 6. Ir. 9 Am. c. 6. more generally provides, that the clerk of the crown, Qr clerks of the peace, or their deputies, then officiat

s. 5.

3 W. & M.

where person has

where subsen


s. 7. Ir.

s. 5. Ir,


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