the appellant becomes recreant, and pronounces the horrible word craven, he fhall lofe his liberam legem, and become infamous; and the appellee fhall recover his damages, and also be for ever quit, not only of the appeal, but for all indictments likewife for the fame offence.

COPY OF RECORD OF INDICTMENT. In cafes where the prifoner or defendant is acquitted by a jury, the court fometimes grants him a copy of the record of his indictment and acquittal, as a foundation for a legal procefs against the profecutor; but this is frequently denied where there is any the leaft probable caufe to found fuch profecution upon. But an action on the cafe for a malicious profecution may be founded upon an indictment, whereon no acquittal can be had; as, if it be rejected by the grand jury, or be coram non judice, or be infufficiently drawn; for it is not the danger of the plaintiff, but the fcandal, vexation, and expence, upon which his action is founded.

CLERGY. The privilegium clericale, or, in common speech, the benefit of clergy, had its origin from the pious regard paid by christian princes to the church in its infant state; and the ill ufe which the popifh ecclefiaftics foon made of that pious regard. The exemptions which they granted to the church were principally of two kinds: 1. Exemption of places, confecrated to religious duties, from criminal arrefts, which was the foundation of fanctuaries. 2. Exemption of the perfons of clergymen from criminal procefs before the fecular judge in a few particular cafes, which was the true original meaning of the privilegium clericale. Among their other encroachments the Romish clergy endeavoured to obtain a total exemption from the fecular jurifdiction, but in this they failed; and although the ancient privilegium clericale was in fome capital cafes, yet it was not univerfally allowed. In thofe particular cafes, the bishop or ordinary was used to demand his clerks to be remitted out of the king's courts, as foon as they were indicted: concerning the allowance of which demand there was for many years a great uncertainty; till at length it was finally fettled in the reign of Henry VI. that the prifoner should first be arraigned; and might either then claim his benefit of clergy, by way of declinatory plea; or, after conviction, by way of arrefting judgment. Originally the law was held, that no man fhould be admitted to the privilege of clergy, but fuch as had the clerical habit and tonfure; but in procefs of time, a much wider and more comprehenfive criterion was eftablished, every one that could read being accounted a clerk, and allowed the benefit of clerkship. But when learning began to be more generally diffeminated

than

than formerly, it was found that as many laymen as divines. were admitted to the privilege: and therefore by 4 Hen. VII. c. 13. a diftinction was once more drawn between mere lay fcholars and clerks that were really in orders; and, although it was thought reafonable ftill to mitigate the feverity of the law with regard to the former, yet they were not put upon the fame footing with actual clergy; for the ftatute directs, that no perfon once admitted to the benefit of clergy, fhall be admitted thereto a second time, unless he produces his orders; and in order to distinguish their perfons, all laymen who are allowed this privilege fhall be burnt with a hot iron in the brawn of the left thumb. This diftinction between learned laymen and real clerks in orders, was abolished for a time by the ftatutes 28 Hen. VIII. c. 1. and 32 Hen. VIII. c. 3. but is held to have been virtually restored by 1 Edw. VI. c. 12. which alfo enacs, that lords of parliament and peers of the realm, having place and voice in parliament, may have the benefit of their peerage equivalent to that of clergy, for the first offence, (although they cannot read, and without being burnt in the hand) for all offences then clergyable to commoners, and alfo for the crimes of houfe-breaking, high-way robbery, horfcftealing, and robbing of churches. After clergy had been allowed, it was ufual for the ordinary to bring offenders to a new canonical trial, replete with abfurdity and grofs perjury; but this difgraceful fupplementary trial was abolished by the 18 Eliz. c. 7. which directs, that after allowance of clergy and burning in the hand, the prifoner fhall forthwith be enlarged, with provifo, that the judge may, if he thinks fit, continue the offender in jail, for any time not exceeding a year. And thus the law continued, for above a century, unaltered; except only that the 21 Jas. I. c.6. allowed that women convicted of fimple larcenics under the value of ten fhillings fhould (not properly have the benefit of clergy, for they were not called upon to read, but) be burned in the hand, and whipped, fet in the ftocks, or imprifoned for any time not exceeding a year. And a fimilar indulgence, by the flats. 3 and 4 W. and M. c. 9. and 4 and 5 W. and M. c. 24. was extended to women guilty of any clergyable felony whatever; who were allowed to claim once the benefit of the ftatute, in the like manner as men might claim the benefit of clergy, and to be discharged upon being burned in the hand, and inprifoned any time not exceeding a year. The punishment of burning in the hand being found ineffectual, was alfo changed by 10 and 11 W. III. c. 23. into burning in the most visible part of the left check, nearest the nofe: but, fuch an indelible ftigma being found by experience to render offenders defperate, this provifion was re

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pealed about seven years afterwards, by 5 Ann. ç. 6. and, till that period, all women, all peers of parliament and peereffes, and all male commoners who could read were discharged in all clergyable felonies; the males abfolutely, if clerks in orders; and other commoners, both male and female, upon branding; and peers and peereffes without branding, for the firft offence; yet all liable (excepting peers and peerefles,) if the judge faw occafion, to imprisonment not exceeding a year. And those men who could not read, if under the degree of peerage, were hanged. Afterwards indeed it was confidered, that education and learning were no extenuations of guilt, but quite the reverse: and that, if the punishment of death for fimple felony was too fevere for those who had been liberally inftructed, it was, a fortiori, too fevere for the ignorant alfo; and thereupon by the fame ftatute 5 Ann. c. 6. it was enacted, that the benefit of clergy should be granted to all those who were intitled to afk it, without requiring them to read by way of conditional merit; but experience having fhewn, that fo univerfal a lenity was frequently inconvenient, and an encouragement to commit the lower degrees of felony; and that, although, capital punishments were too rigorous for these inferior offences, yet no punishment at all (or next to none) was as much too gentle; it was farther enacted by the fame statute, that when any perfon is convicted of any theft or larceny, and burnt in the hand for the fame, according to the ancient law, he fhall alfo at the difcretion of the judge be fentenced to the house of correction or public work-houfe, to hard labour in penitentiary houses, and in some cases to transportation. At this day the benefit of clergy is allowed to all clerks in orders, without branding, transportation, fine, or whipping, and this as often as they offend; but clergymen have no privilege in petty larcenies; they are liable to be whipped or tranfported like other perfons, though they are fubject to no corporal punishment on being convicted of a grand larceny, or any clergyable felony. All lords of parliament, and peers of the realm having place and voice in parliament, by the ftat. 1 Edw. VI. c. 12. (which is likewife held to extend to peereffes,) fhall be difcharged in all clergyable and other felonies, provided for by the act, without any burning in the hand, or imprisonment, or other punishment; but this only for the first offence. Laftly, all the commons of the realm, not in orders, whether male or female, are for the firft offence difcharged of the capital punishment of felonies within the benefit of clergy, upon being burnt in the hand, whipped, or fined, or fuffering a difcretionary imprisonment in the common jail, the house of correction, one of the penitentiary houses, or in the places of labour for the benefit

of

of fome navigation; or in cafes of larceny, upon being transported for seven years, if the court fhall think proper. A layman, who has once had the benefit of clergy, may be precluded from obtaining it a fecond time, by a counter plea on the part of the profecution, averring the identity of the prifoner's perfon, and that he had before been allowed the benefit of his clergy, though the fecond crime be quite different from the firft; as, a perfon convicted of bigamy is liable to suffer death for a manflaughter, or any other clergyable felony. The benefit of clergy is not allowed either in high treason, petit larceny, or in any mere misdemeanors at common law; and therefore it may be laid down for a rule, that it was allowable only in petit treafon and capital felonies, which for the moft part became legally intitled to this indulgence by the ftatute de clero, 25 Edw. III. ft. 3. c. 4. But yet it was not allowed in

all felonies whatsoever: for in fome it was denied even in the common law, viz. infidiatio viarum, or lying in wait for one on the high-way; depopulatio agrorum, or deftroying and ravaging a country; and combuftio domorum, or arfon; all which are a kind of hostile acts, and in fome degree border upon treason. And further, all these identical crimes, together with petit treafon, and many other acts of felony, are oufted of clergy by particular acts of parliament, which have for the most part been mentioned. In general it may be obferved, 1. That in all felonies, whether new created or by common law, clergy is now allowable, unless taken away by exprefs words of an act of parliament. 2. That where clergy is taken away from the principal, it is not of courfe taken away from the acceffary, unlefs he be also particularly included in the words of the ftatute. 3. That, when the benefit of clergy is taken away from the offence, (as in case of murder, robbery, and burglary,) a principal in the fecond degree, being prefent, aiding and abetting the crime, is excluded from his clergy'; but 4. That, where it is only taken away from the perfon committing the offence, (as in the cafe of stabbing, or committing larceny in a dwelling-house, or privately from the perfon,) his aiders and abettors are not excluded. The confequences to the party of allowing him his clergy, exclufive of branding him, &c. are, 1. That by his conviction he forfeits all his goods to the king, which, being once vested in the crown, fhall not afterwards be restored to the offender. 2. That after conviction, and till he receives the judgment of the law, by branding, or fome of its fubftitutes, or elfe is pardoned by the king, he is, to all intents and purposes, a felon, and fubject to all the difabilities and incidents of a felon. 3. That after burning or its fubftitute, or pardon, he is difcharged for ever of that, and all other felonies before commit

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ted within the benefit of clergy; but not of felonies of which fuch benefit is excluded, and this by ftats. 8 Eliz. c. 4., and 18 Eliz. c. 7. 4. That by the burning or its fubftitute, or the pardon of it, he is reftored to all capacities and credits, and the poffeflion of his lands, as if he had never been convicted. 5. That what is faid with regard to the advantages of commoners and laymen, fubfequent to the burning in the hand, is equally applicable to all peers and clergymen, although never branded at all, or fubjected to other punishment in its ftead. For they have the fame privileges, without any burning, or other substitute for it, which others are intitled to after it.

IMPRISONMENT. The ordinary incidents attending imprifonments have been mentioned; when it is inflicted by way of punishment, the county jail is not always the place felected; but houfes of correction, work-houfes, or penitentiary houses are frequently chofen. In forming the plan of thefe penitentiary houfes, the principal objects have been, by fobriety, cleanlinefs, and medical affiftance, by a regular feries of labour, by folitary confinement during the intervals of work, and by religious inftruction, to preferve and amend the health of the unhappy offenders, to inure them to habits of industry, to guard them from pernicious company, to accuftom them to ferious reflection, and to teach them both the principles and practice of every chriftian and moral duty.

BURNING IN THE HAND AND WHIPPING. By the 19 Geo. III. c. 74. inftead of burning in the hand, which was fometimes too flight, and fometimes too difgraceful a punifhment, the court in all clergyable felonies may impofe a pecuni ary fine, or, except in the cafe of manflaughter, may order the offender to be once or oftener, but not more than thrice, either publicly or privately whipped; fuch private whipping, to prevent collufion or abufe, to be inflicted in the prefence of two witneffes; and in the cafe of female offenders, in the prefence of females only. Which fine or whipping fhall have the fame confequences as burning in the hand; and the offender shall be equally liable to a fubfequent detainer or imprisonment.

FINES. Fines and the term of imprisonment are often difcretionary; for, whatever may be urged in favour of certain and equal punishments, it must be evident that equality in thefe refpects would be the greateft injuftice; as fome men would pay a fixed fine with contempt, and others would wreak their malice in defiance of an imprisonment, of which they knew the definite end. Courts are however prevented from inflicting exceffive fines both by Magna Charta and the Bill of Rights. PILLORY. For fome offences the punishment is to stand for a given time in and upon the pillory. This punishment was

formerly