132
If any offender stand mute of obstinacy,* or challenge peremp- torily more of the jurors than by law he may, being first warned of the consequence thereof, the court shall proceed as if he had confessed the charge. †
Pardon and Privilege of clergy, shall henceforth be abolished, that none may be induced to injure through hope of impunity. But if the verdict be against the defendant, and the court before whom the offence is heard and determined, shall doubt that it may be untrue for defect of testimony, or other cause, they may direct a new trial to be had.‡
- 3 E. I.c. 12.
† Whether the judgment of penance lay at Common law. See 2 Inst. 178. 2 H. P. C. 321. 4 Bl. 322. It was given on standing mute : but on challenging more than the legal number, whether that sentence, or sentence of death is to be given, seems doubtful. 2 H. P. C. 316. Quaere, whether it would not be bet- ter to consider the supernumerary challenge as merely void, and to proceed in the trial ? Quaere too, in case of silence ?
‡ 'Cum Clerieus sic de crimine convictus degradetur, non sequitur alia poe- na pro uno delicto, vel pluribus ante degradationem perpetratis. Satis enim sufficit ei pro poena degradatio, quae est magna capitis diminutio, nisi forte convictus fuerit de apostatia, quia hinc primo degradetur, et postea per manum laicalem comburetur, secundum quod accidit in concilio Oxoni celebrate a bonae memoriae S. Cantuanen. Archiepiscopo de quodam diacono, qui se apos- tatavit pro quadam Judaea; qui cum esset per episcopum degradatps, statim fuit igni traditus per manum laicalem.' Bract. L. 3. c. 9. § 2. 'Et mesme eel jugement (i. e. qui ils soient ars) eyent sorcers et sorceresses, et sodomites et mescreauntz apertement atteyntz. Britt. c.9. 'Christian! autem Apostatae, sortilenii, et hujusrnodi detractari debent et comburi'. Fleta, L. 1. c. 37. § 2. see 3. Inst. 39. 12. Rep. 92. 1. H. P. C. 393. The extent of the clerical privi- lege at the Common law, 1. As to the crimes, seems very obscure and uncer- tain. It extended to no case where the judgment was not of life, or limb. Note in 2. H. P. C. 326. This therefore excluded it in trespass, petty larceny, or killing se defendendo. In high treason against the person of the King, it seems not to have been allowed. Note 1. H. P. C. 185. Treasons, therefore, not against the King s person immediately, petty treasons and felonies, seem to have been the cases where it was allowed ; and even of those, not for insi- diatio viarum, depopulatio agrorum, or combustio domorum. The statute de Clero, 25. E. 3. st. 3. c. 4. settled the law on this head. 2. As to the persons, it extended to all clerks, always, and toties quoties. 2. H. P. C. 374. To nuns also. Fitz. Abr. Corone. 461.22. E. 3. The clerical habit and tonsure were considered as evidence of the person being clerical. 26. Assiz. 19. 20. E. 2. Fitz. Corone. 233. By the 9. E. 4. 28. b. 34. H. 6. 49 a. b. simple reading be came the evidence. This extended iuipunity to a great number of laymen, and toties quoties. The stat. 4. H. 7. c. 13. directed that real clerks should, upon a second arraignment, produce their orders, and all others to be burnt in the hand with M. or T. on the first allowance of clergy, and not to be admitted to it a second time. A heretic, Jew, or Turk (as being incapable of orders^ could not have clergy. 11. Co. Rep. 29. b. But a Greek, or other alien, read ing in a book of his own country, might. Bro. Clergie. 20. So a blind man, if he could speak Latin. Ib. 21. qu. 11. Rep. 29. b. The orders entitling the party, were bishops, priests, deacons and subdeacons, the inferior being reck oned Clerici in minoribus. 2. H. P. C. 373. Quaere, however, if this distinction is not founded on the stat. 23. H. 8. c. 1. 25. H. 8. c. 32 By merely dropping all the statutes, it should seem that none but clerks would be entitled to this privilege, and that they would, toties quoties.
