[72] 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?
[73] "Cum Clericus sic de crimine convictus degradetur non sequitur alia poena 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 celebrato a bonae memoriae S. Cantuanen. Archiepiscopo de quodam diacono, qui se apostatavit pro quadam Judaea; qui cum esset per episcopum degradatus, statim fuit igni traditus per manum laicalem." Bract. L. 3. c. 9. § 2. "Et mesme cel jugement (i. e. qui ils soient ars) eyent 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 varium, 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 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. 11. 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 subdeacons, 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.
[74] 1. Ann. c. 9.
[75] Manslaughter, counterfeiting, arson, asportation of vessels, robbery, burglary, house-breaking, horse-stealing, larceny.
[76] In a newspaper, which frequently gives good details in political economy, I find, under the Hamburgh head, that the present market price of Gold and Silver is, in England, 15.5 for 1: in Russia, 15: in Holland, 14.75: in Savoy, 14.6: in France, 14.42: in Spain, 14.3: in Germany, 14.155: the average of which is 14.675 or 14 5-8. I would still incline to give a little more than the market price for gold, because of its superior convenience in transportation.
[77] [It appears, from a blank space at the bottom of this paper, that a continuation had been intended. Indeed, from the loose manner in which the above notes are written, it may be inferred, that they were originally intended as memoranda only, to be used in some more permanent form.]
[78] From this designation of the ancient metropolis, it would seem even then to have been no favorite with him.
[79] The lady here alluded to is manifestly the Miss Rebecca Burwell mentioned in his first letter; but what suggested the quaint designations of her is not so obvious. In the first of them, Belinda, translated into dog Latin, which was there, as elsewhere, among the facetiæ of young collegians, became campana in die, that is bell in day. In the second, the name is reversed, and becomes adnileb, which, for further security, is written in Greek characters, and the lady spoken of in the masculine gender.
[80] Probably Mr. William Fontaine, of Hanover county.
[81] By this term, he no doubt designated Mr. Dabney Carr, his brother-in-law.