Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	chief_a	lord_n	plea_n	5,523	5	9.8646	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A59393	The several tryals of Edward, Earl of Warwick and Holland, and Charles, Lord Mohun before the House of Peers in Parliament, upon the 28th and 29th days of March, 1699, for the murder of Mr. Richard Coote : the Right Honourable John, Lord Sommers, Baron of Evesham, Lord High Chancellor of England, being lord high steward upon that occasion / publish'd by command of the House of Peers.	Warwick, Edward Rich, Earl of, 1673-1701.; Mohun, Charles Mohun, Baron, 1677?-1712.	1699 (1699)	Wing S2813; ESTC R37380	126,855	99

in the Hand but the Allowance of Clergie that sets him right in his Credit in the Eye of the Law and he is thereby in the same Condition in that respect that he would have been if he never had had any Conviction upon him Towards the end of the Case his very Words are these Though the Statute saith after Burning in the Hand according to the Statute in that behalf made he shall be discharged and there is no Burning in the Hand that makes nothing for though it be a Case where the Hand ought to be Burnt yet it is not so essential but a Man may have the Benefit of the Stat. though he be not Burnt the King may pardon the Burning for the Burning even in an Appeal is no part of the Judgment nor so much as in the Nature of Punishment but rather a Mark to notifie that he may have his Clergie but once These are his very Words in this Case so that the Statute of Queen Eliz. doth abolish Purgation but gives the Party all the Benefit thereof as if he had gone through it and instead of delivering the Party to the Ordinary to make his Purgation it says he shall be delivered out of Prison but lest it might seem to Repeal the Statute of Hen. 7. as to Burning in the Hand it adds being Burnt in the Hand according to the Statute in that behalf provided By the Statute of Hen. 7th he was first to be Burnt in the Hand and then delivered to the Ordinary to make his Purgation but by the Statute of Eliz. he is first Pardoned his Crime by being allowed the Benefit of his Clergie without making his Purgation and afterwards to be Burnt in the Hand before he be delivered out of Prison so that the Burning in the Hand is only a Condition precedent to his getting out of Prison not to his being restored to his Credit The King may Pardon the Burning in the Hand undoubtedly and he has gone a great way in this Case for he hath given a Pardon as far as the Privy Seal and that is sufficient to shew his Gracious Intention of Pardoning it throughout and if there be need we hope it may pass yet forward What we insist on is not only the Opinion of my Lord Chief Justice Hobbart but he is followed therein by the Opinion of a Man of very great Authority one no less Eminent than he in his Profession and that is my Lord Chief Justice Hale in a Book of his that is Intituled His Pleas of the Crown which is but an Abridgment of what he intended upon that Subject under the Title of Clergy when he comes to treat of the Consequences of the allowance of Clergy and what the several Effects of Clergy allowed shall be he says it gives him a Capacity to purchase Goods and retain the Profits of his Lands and restores him to his Credit according to the Case I have mentioned before in Hobbart of Searle and Williams for that Case is particularly in that Book mentioned and referred to Therefore I hope your Lordships will make no difficulty of Hearing this Witness for we think the having his Clergy allowed him is that which restores him to his Credit If they have any other Objections against him I hope we shall hear it from the King's Councel But if this be stood upon in point of Law as an Objection That though Clergy was allowed he was not Burnt in the Hand nor pardoned I would have observed to your Lordships That my Lord High Steward has told you it is so far gone towards the Pardon that the King has shown his Intention to pardon by the Privy Seal and we hope your Lordships will not let this Noble Lord at the Bar suffer any Prejudice by the not perfecting of the Pardon by actual passing of the Great Seal L. H. St. Mr. Attorney General what say you to the Matters which have been urged Mr. At. Gen. My Lord we have stated our Objection we think there is nothing given as an Answer to it and we submit it to your Lordship's Judgment Marq. of Hallifax My Lords I desire that the Question that is to be decided before your Lordships may be settled truly what it is L. H. St. If there be Six in Company and one of them is killed the other Five are afterwards indicted and Three are Tried and found Guilty of Manslaughter and upon their Prayers have their Clergy allowed and the Burning in the Hand is respited but not pardoned Whether any of the Three can be a Witness upon the Trial of either the other Two Sir T. Powis My Lords with Submission though he were convicted of the Felony yet upon Prayer of his Clergy that being allowed him That restores him to all the Capacities we say that he had before the Conviction and particularly to his Credit and for that we submit our solves to your Lordships Judgment Marq. of Hallifax I suppose your Lordships will have the Opinion of the Judges upon this Point and that must be in the presence of the Prisoner L. H. St. It must certainly be in the presence of the Prisoner if you ask the Judges Opinions Marq. of Hallifax But in these Cases my Lords it is usual to hear the King's Councel to make a Reply I desire to hear what they would say to what has been offered by the Councel for the Noble Lord the Prisoner at the Bar. Mr. Serj. Wright My Lords I did apprehend that the very stating of the Objection would have set this matter in its true light For the first place it is agreed on all hands That this Mr. French that is desired to be a Witness does stand convicted of Felony and by the Law of England while that Conviction remains upon him till he be either purged or pardoned he cannot be a Witness By the Conviction his Credit is lost and till he be restored to his first Condition he stands not so clear in the Eye of the Law that he can be an Evidence The Councel for the Prisoner have objected That if he either be pardoned or Clergy allowed he is put in the same Condition as if he had been acquitted My Lords I must admit a Pardon restores to Credit and I must likewise admit That allowance of the Benefit of Clergy and Burning in the Hand upon it amounts in Law to a Pardon or is equivalent to a Pardon in this matter But the Fact here is not so for here is neither actual Pardon nor-any Burning in the Hand The Benefit of Clergy was prayed and allowed but that alone is not sufficient there must be an actual Burning in the Hand or a Pardon of that Burning in the Hand otherwise it cannot be a Satisfaction in Law such as should put him in the same Condition as if he were acquitted Your Lordships have heard what was said by his Grace my Lord High Steward That as to the Burning in the Hand the King has been pleased to proceed so

let him demand it as often as he would and as often as he offended it was allowed This was thought such a Priviledge as ought to be restrained that Statute of the 4th of Hen. 7. takes notice that an ill use was made of it and therefore does ordain That it should be allowed no more then once unless to Persons within Orders And as a Means to know whether it had been before allowed or not the Act does direct that the Party Convicted shall be Burnt in the Hand that is all the Act does appoint it does no otherwise alter the Case it does not impose it upon the Party as a Punishment for the Offence but only as a Mark of Distinction that if ever he came again before the Court and being Convicted of the like Offence should pray the Benefit of Clergy then upon Inspection it might be known whether before he had been allowed his Clergie or not and so stood the Law without alteration as to the manner of delivery of the Criminal over to the Ordinary to make his Purgation with which the Temporal Law in the manner of doing thereof did not intermeddle and therein consisted with respect to this Matter the Benefit of Clergie Afterwards by the Statute of Edward the 6th the Peers were exempted from the Burning in the Hand and then comes the Act that we rely upon vvhich is that of the 18 Eliz. that takes notice of the former Act of 4 Hen. 7. vvhich only ordered the Burning of the Hand for the purposes aforesaid but left the Party to be delivered over to the Ordinary to make his Purgation vvhich vvas found to be a Matter attended vvith many Abuses and upon the Reformation thought fit to be abolished and taken away because it was only an outward appearance and shew of Purgation and was often the occasion of very great Perjuries therefore it is taken totally away and by this Act the Party shall have the Benefit of Clergie without making Purgation as fully as if he had actually made it But say they There is still left something that the Law requires which is That he should be first Burnt in the Hand and if he be not Burnt in the Hand or at least Pardoned he is not in that Condition that the Law calls for in such a Case to set him Rectus in Curia If he be Burnt in the Hand or Pardoned by the King they agree on the other side that he may be a very good Witness My Lords that Act of Parliament of Queen Eliz. does impower the Court that Tries the Criminal and before whom he is Convicted not only to Burn him in the Hand pursuant to the Act of Hen. 7. but also to detain him in Prison for a year after but yet I think that doth not signifie any thing one way or other to restore him or not restore him to his Credit for I think the Burning in the Hand which is a Mark of Infamy was never intended as a Means any more than Imprisonment for a year of Restoring a Man to his Credit it was only to shew he had his Clergie once and should have it no more The allowance of Clergie by the Statute of Eliz. operates as a Pardon only saith the Statute he shall not be delivered out of Prison before he is Burnt in the Hand according to the Statute of Hen. 7. No body can say that the continuing in Prison for a year which the Court may order though Burnt in the Hand would as to restoring of Credit have operated one way or other but that we insist upon is That the allowance of Clergie sets him right in Court since Purgation is abolished and is the same thing as if he had undergone the Ceremonial parts of a formal Purgation It is the allowance of Clergie that makes the alteration or operation in this Case by virtue of this last Act of the 18th of Eliz. for we take it that he is to have the same Benefit of his Clergie as is if he had been delivered to the Ordinary and Purgation had been made and now the allowance of Clergie by this Act gives the same benefit to the Party as Purgation would have done before the Act and he is in the same State and Condition as he would have been in Case of a Purgation or of a Pardon by the King The Authorities are all with us there is a Case that is very well known among the Men of the Law in the Fourth Report of My Lord Cooke Holcroft's Case who was Indicted and Convicted of Manslaughter and he prayed the Benefit of his Clergie The Judges thought fit to respite their Judgment therein but his Prayer was entred upon Record And then an Appeal being brought against him it came to be a Question how far he had had his Clergie for by the Stat. of the 3d of H. 7. an Appeal will lie notwithstanding a Conviction if the Party have not had his Clergie and in this Case it was adjudged that the Party having prayed his Clergie he should have the same benefit as if the Court had ordered every thing to be actually Executed which ought thereupon to be done and surely then it can be no Question whether a Man shall be a Witness or no who has had his Clergie allowed It is so entred upon Record that the Book was administred to him and that he read as a Clerk for the Party has done as much as he can prayed the Benefit of his Clergie and had it allowed and so it is entred upon Record The Respiting of the Burning of the Hand till the King's Pardon be obtained shall not sure put him in a worse Condition than he would have been if he had actually been Burnt in the Hand My Lords I have in my Hand a Book which is of very great Esteem and that is The Reports of My Lord Chief Justice Hobbart wherein he declares his Opinion in this Point and for whose Opinion every one of our Gown ever have testified a very great Veneration and Respect The Case is that of Searle and Williams wherein my Lord Hobbart has spoken so fully to this Matter that I think it ought to put an end to the Question He says the Stat. of Eliz. appointing the Burning in the Hand without Purgation does operate as a Statute Pardon to all intents and purposes and the Party having now the Benefit of his Clergie allowed is in all respects in the same Condition as if he had been acquitted That is the Opinion that he holds throughout that Case I need not trouble your Lordships with Reading all the particular Words that he uses but only those which relate to the thing now in Question Immediately before your Lordships he delivers his Opinion That whosoever speaks Words of Accusation reflecting upon a Man for any Offence for which he was Indicted and Convicted and had had his Clergie allowed an Action lies as if he had been totally acquitted from it 'T is not the Burning

far as to grant a Privy Seal for the Pardon of the Burning in the Hand But your Lordships very well know and it cannot be insisted on to the contrary by the Councel on the other side That it is no Pardon until it be past under the Great Seal of England So that here is no actual Pardon nor is the bare allowance of Clergy without Burning in the Hand equivalent to a Pardon My Lords it must be agreed That at the Common Law Persons that were convicted of Felony were not restored to their Credit meerly by allowing the Benefit of Clergy to them there was something further to be done to regain Credit the Party convicted must undergo another Trial before the Ordinary which was commonly called Purgation when any Man was convicted of Felony he was upon his Prayer of the Benefit of Clergy to have it allowed to him and if he could Read as a Clerk his Life was saved He was not discharged of the Felony and therefore was delivered over to the Ordinary to be kept in Prison until he had by a sort of Trial before the Ordinary made his Innocence appear and purged himself of the Fact charged upon him and if he could not make his Purgation he was to lie perpetually in Prison and notwithstanding the allowance of Clergy and delivery over to the Ordinary yet was not the Credit restored nor his former Capacities he was not a legal Witness until he had purged himself of the Crime It was the clearing themselves of the Guilt that restôred such Persons to their Reputation and Credit not the bare allowance of Clergy Some Criminals were delivered to the Ordinary generally those might make their Purgation others were specially delivered or delivered with a special Charge to the Ordinary not to admit them to Purgation Absque purgatione facienda These latter could never be restored to Credit except by the King's Pardon for the Liberty of Purgation which was the means of regaining their Credit was taken from them their Guilt occasioned their loss of Credit taking away that Guilt doth consequentially restore Credit again and this Benefit of Clergy was to be allowed as often as any Man had occasion for it Thus the matter of Benefit of Clergy stood in Common Law in respect of Purgation and restoring of Credit till the Stature of 18 Eliz. c. 7. which was cited on the other side by Sir Thomas Powis by which Statute Purgation is absolutely taken away and set aside And the Party being Burnt in the Hand according to the Statute of 4 H. 7. is appointed by this Statute 18 Eliz. to be discharged and not to be delivered over to the Ordinary as was before that time used The delivering over to the Ordinary was in order to Purgation and that by the last Statute is quite taken away and the Party is to have the same Benefit by the having the Benefit of his Clergy and Burning in the Hand as if he had made his Purgation he shall be discharged It is not his Reading as a Clerk and that pronounced by the Ordinary that gives him the Benefit of a Discharge as if he had been pr●●●● of the Crime but there must be the Burning in the Hand that is the very Terms of the Statute upon which he is to be discharged that must actually be done before he can be put into the same Condition that he was in before the Conviction and consequently make him capable of being a Witness As for the Case of Searle and Williams that was cited by Sir Thomas Powis that Case doth not oppose in this matter there it was not needful to Burn the Person convicted he was a Clerk in Holy Orders and by Law exempt from Burning in the Hand so it was not needful to Burn him the Statute of 18 Eliz. not requiring any Person to be Burned in the Hand that were not so liable before then The most that is said in that Case by the Chief Justice Hobbart is That in case where the Hand ought to be Burnt it is not essential but the Party may have the Benefit of the Statute i. e. be discharged without Burning and the King may pardon the Burning and no doubt if the King pardons the Burning it is as good and effectual as if the Hand had been actually Burnt The King might par●●n the whole and consequently any part the Pardon of the Punishment supplies the Effect of it no question but a Pardon may supply the want of Burning in the Hand Chief Justice Hales in his Book of Plea● of the Crown Fol. 240 which I have here says expresly That Burning in the Hand is now since the Statute 18 Eliz. the Consequent upon the allowance of Clergy which hath this Effect First it enables the Judges to deliver him Secondly ●e resto●●● him to former Capacities Thirdly It restores him to his Credit and so it puts him in the same Condition as if he were acquitted What is it that hath this effect Tho' Allowance of Clergy and Burning in the Hands There is not 〈◊〉 be an Allowance of Clergy till all be done which is required by Law The Law requires that the Party be Burnt in the Hand or that the King do 〈◊〉 the Burning in the Hand before the Party be discharged and with humble Submission it was never yet pretended that any Person could have the full Advantage of the Benefit of Clergy since the Statute of 4 H. 7. till he was Burnt in the Hand or the Burning in the Hand was pardoned Now my Lords to apply this to the 〈◊〉 in Question it is on all Hands admitted That Mr. French was convicted of Felony and Manslaughter and is neither Burnt in the Hand nor pardoned but he has prayed 〈◊〉 Benefit of the Clergy and has had the Book given to 〈◊〉 to try if he can Read and he certified he can Read this is all that is done I think it cannot be pretended he ought to be discharged until he is Burned in the Hand or that Burning pardoned as the Act requires and if the Reading as a Clerk without Burning in the Hand or pardon of it be not sufficient in Law to entitle him 〈…〉 discharged Why should it be sufficient to restore his Credit 〈◊〉 whole together works the Discharge and restores the Party In the Case of Burroughs and 〈◊〉 that has been cited there a Man was convicted of Manslaughter and prayed his Clergy the Court did not allow his Clergy but did advise upon it This was held sufficient to ●●r an Appeal for if Clergy had been allowed it had clearly been a good Bar and the Act of the Court in Advising upon the Peayer and not allowing Clergy where it ought to be shall not prejudice the Party convicted but he shall be in the same state as if the Clergy had been actually allowed But that has no likeness to the Case now before your Lordships for here it is not pretended that Mr. Frenth ever desured to be Burnt in