66 2 
CLERGY. 
ported ; 2nd, by the flat. 19 Geo. III. c. 74. offenders liable 
to tranfportation, may, in lieu thereof, be employed, if 
males, (except in the cafe of petty larceny,) in hard la¬ 
bour, for the benefit of fome public navigation, and in all 
cafes might be confined to hard labour in certain peniten¬ 
tiary houfes, then in contemplation to be eredted; but 
tjiis latter plan of the penitentiary houfes was never car¬ 
ried into execution. By the fame fiat. 19 Geo. III. c. 74. 
in Head of burning in the hand, the court, in all clergy¬ 
able felonies, may impof'e a pecuniary fine, or (except in 
the cafe of manslaughter) may order the offender to be 
once, dr oftener, but not more than thrice, either pub¬ 
licly or privately whipped ; and, in the latter cafe, certain 
provifions are added to prevent collufions or abufe. The 
offender fo fined or whipped, to be equally liable to fub- 
fequent detainer or imprifonment. 
2. All clerks in orders are without any branding, and 
of courfe without any tranfportation, fine, or whipping, 
(for thole are only fubftituted in' lieu of the other,) to be 
admitted to this privilege, or benefit of clergy, and im¬ 
mediately difcharged ; and this as often as they offend. 
2 Hal. P. C. 375. All lords of parliament, and peers of 
the realm, having place and voice in parliament, by fiat. 
1 E. VI. c. 12. (which is likewife held to extend to peer- 
effes, Duchefs of Kingfou’s cafe, 11 State Trials, 198.) 
Hull be difcharged in all clergyable and other felonies, 
provided tor by the act, without any burning in the hand, 
or imprifonment, or other punifhment fubftituted in its 
Head, in the fame manner as real clerks convidt ; but this 
only for the firft offence. All the commons of the realm, 
not in orders, whether male or female, fhall, for the firft 
offence, be difcharged of the capital punilhment of felo¬ 
nies, within the benefit of clergy, upon being burnt in 
the hand, whipped, or fined, or buffering the difcretionary 
imprifonment before Hated; or, in cafe of larceny, upon 
being tranfported for feven years, if the court (hall think 
proper. It is a privilege peculiar only to the clergy, that 
fentence of death can never be palled upon them for any 
number of manflaughters, bigamies, iimple larcenies, or 
other clergyable offences ; but a layman, even a peer, may 
be oufted of clergy, and will be lubjedt to the judgment 
of death, upon a fecond convidlion of a clergyable offence. 
Thus, if a layman has once been convidfed of manfiaugh¬ 
ter, upon produdtion of the convidlion, he may afterwards 
buffer death for bigamy, or any other clergyable felony ; 
which would not therefore be a capital crime to another 
perlbn not fo circufnftanced. 
It has been faid that Jews, and other infidels and here¬ 
tics, were not capable of the benefit of clergy, till after 
the Hat. 5 An. c. 6. as being under a legal incapacity for 
orders ; 2 Hawk. P. C. c. 33. Fof. 306. but it does not leem 
that this was ever ruled for law', fince the re-introdudlion 
of the Jews into England, in the time of the ulurpation 
by Cromwell; for, if that were the cafe, the Jews are Hill 
in the fame predicament, wdiich every day’s experience 
contradicts ; the Hat. of An. having made no alteration 
in this refpedf, it only dilpenfing with the neceffity of 
reading. 4 Comm. 373. But a perfon having once had 
benefit of clergy, {hall not be oufted of his clergy, by the 
bare mark in his hand, or by a parol averment, without 
the record teftifying it, or a tranfcript thereof, according 
to the following flatutes. By Hat. 34 & 35 H. VIII. c. 14. 
the clerk of the crown, or of the peace, or of affile, fit all 
certify a tranfcript briefly of the tenor of the indidtment, 
outlawry, or convidlion, and attainder, into the king’s- 
bench in forty days; and the clerk of the crown, when 
the judges of affile, or juftices of the peace, write to him 
for the names of fuch perfons, fhall certify the fame, with 
the caufes of the convidlion or attainder. 
Another method is given by the Hat. 3 W. & M. c. 9. 
which enadfs, that the clerk of the crown, clerk of the 
peace, or clerk of affile, where a perfon admitted to clergy 
under that adt fhall be convidfed, fhall, at the requeft of 
the profecutor, or any other on the king’s behalf, certify 
a tranfcript briefly and in few words 3 containing the elfedfc 
and tenor of the indidfment and convidlion, of his hav¬ 
ing the benefit of clergy, and the addition of the party, 
and the certainty of the felony and convidtion, to the 
judges where fuch perfon fhall be indidted for any fubfe- 
quent offence. Alfo it feems, that if the party deny that 
he is the fame perfon, ifihe muff be joined upon it; and 
it mult be found upon trial that he is the fame perfon, 
before he can be oufted of clergy. Againlt the defen¬ 
dant’s prayer of clergy, the profecutor may file a ccunter- 
plea; alleging fome fadt, which in law deprives the de¬ 
fendant of the privilege he claims. It is a good counter¬ 
plea to the prayer of clergy, that the offender is not en¬ 
titled to the benefit of the Hatute, becaufe he was before 
convidted of an offence, and thereupon prayed the benefit 
of the Hatute, which was allowed to him; alleging the 
truth of the fadt, and praying the judgment of the court, 
that he may die according to law; which fadt is to be 
tried by the record in purfuance of the flat. 34&35H. VIII. 
c. 14. above-ilated. Divers other counter-pleas alfo, by 
which an offender may be deprived of clergy, may be 
framed from a confideration of the perfons to whom it is 
allowed or denied by the common law ; and of the cir- 
cumftances under which that allowance or denial of it 
has been placed by divers flatutes. The ufe of tnis coun¬ 
ter-plea, however, had long become obfolete and out of 
pradtice, no traces of it appearing in any of the books 
fince Staunforde’s time, who was chief jultice of K. B. 
temp. Eliz. But the daring pradtiees of fome money- 
coiners occafioned its revival; and, in the cafe of K.-x;. 
Marlton Rothwell, and Mary Child, convidfed for coin¬ 
ing at the Old Bailey, in September feflions, 1783, before 
judge Afhurft, a counter-plea of record was fiied on the 
part of the profecution, alleging that the convidts had 
been before allowed the benefit of the flatute, &c. And 
they were thereby oulted of their clergy. Leach's Hawk. 
P.C. 2. c. 33. 
3. Privilege of clergy was not indulged at common law, 
either in high treafon, or in petit larceny, nor in any mere 
mifdemeanors; and therefore it may be laid down fora 
rule, that it was only allowable in petit treafons, and ca¬ 
pital felonies; which, for the molt part, became legally 
entitled to this indulgence by the flat, de clero, 25 E. Ilf. 
c. 4. which provides, “ that clerks convidt for treafons or 
felonies, touching other perfons than the king himfelf, 
fhall have the privilege of holy church.” But yet it was 
not allowable in all felonies wiiatfoever ; for, in fome it 
was denied even by the common law, viz. infidiatio <via- 
rum , or lying in wait for one on the highway; depopulatio 
agrorum, or destroying and ravaging a country ; 2 Hal. 
P. C. 333. but in thele two cafes it was exprefsly remedied, 
by flat. 4 H. IV. c. 2. as to clerks only;) and comhufio 
domorum, or arfon, the burning of houfes; 1 Hal. P. C. 346. 
all which are a kind of hoftile adts, and in fome degree 
border on treafon. And further, all thefe identical crimes, 
together with petit treafon, and very many other adds of 
felony, are oufted of clergy by particular adts of parlia¬ 
ment. All the flatutes for excluding clergy, are, in fadd, 
nothing elfe but the reftoring of the law to the fame ri¬ 
gour of capital punifhment in the firft offence, that was 
exerted before the privilegium clerlcale was at all indulged; 
and fo tender is the law of inflidting capital punifhment, 
in the field inftance, for any inferior felony, that, notwith- 
ldanding, by the marine law, as declared in flat. 28 H. VIII. 
c. 15. benefit of clergy is not allowed in any cafe what¬ 
ever; yet, when offences are committed within the admi¬ 
ralty jurifdiddion, which would be clergyable if commit¬ 
ted by land, the conftant courfe is to acquit and difeharge 
the prifoner. Moor 756. Fof. 288. 
As there is no necefiity that the ordinary fliould de¬ 
mand the benefit of the clergy for a clerk, l’o neither is 
there any that the prifoner himfelf fliould demand it, 
where it fulficiently appears to the court that he hath a 
right to it, in refpedd of his being in orders, &c. In which 
cafe, if the prifoner does not demand it, it is left to the 
diferetion of the judge, either to allow, or not to allow. 
