Chapter XII: Appendix: Note a (4)

[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.]