If any offender stand mute of obstinacy,* or challenge preremp-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,**
* 3E. I.e. 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. Quære, whether it
would not be better to consider the supernumerary challenge
as merely void, and to proceed in the trial. Quære too, in
case of silence.
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.*
* ‘Cum Clericus sic de crimine convictus degradetur, non
sequitur aliapoe-na pro uno delicto, vel pluribus ante
degradationem perpetratis. Satis enim sufficit ei pro pcena
degradatio, quse 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 celebrato a bonas memoriae S.
Cantuaren. Archiepiscopo de quodam diacono, qui seapos-
tatavit pro quadam Judaea; qui cum esset per episcopum
degradatus, statim fuit igni traditus per manum laicalem.’
Bract. L. 3. c. 9. § 2. ‘Et mesme eel jugement (i. e. qui
ils soient ars) eye n’t sorcers et sorceresses, et sodomites
et mescreauntz apertement atteyntz.’ Britt. c. 9.
‘Christiani autem Apostatae, sortilegii, et hujusmodi
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 privilege at the Common law, 1. As to the crimes,
seems very obscure and uncertain. 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 insidiatio 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 quoiies. 2 H. P.
C. 374. To nuns also. Fitz. Abr. Coron. 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.
Coron. 233. By the 9 E. 4. 28. b. 34 H. 6. 49. a. b. simple
reading became the evidence. This extended impunity 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. H Co. Rep. 29. b. But a Greek, or other
alien, reading 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 sub-deacons, the inferior
being reckoned Clerici in minoribus. 2 H. P. C. 373. Quære,
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.
No attainder shall work corruption of blood in any case.
In all cases of forfeiture, the widow’s dower shall be saved to her, during her title thereto; after which it shall be disposed of as if no such saving had been.
The aid of Counsel,* and examination of their witnesses on oath, shall be allowed to defendants in criminal prosecutions.
* 1 Ann. c. 9.
Slaves guilty of any offence* punishable in others by labor in the public works, shall be transported to such parts in the West Indies, South America, or Africa, as the Governor shall direct, there to be continued in slavery.
* Manslaghter, counterfeiting, arson, asportation of
vessels, robbery, burglary, house-breaking, horse-stealing,
larceny.