A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

CLERGY.

Clergy, is defined to be an antient liberty of the* 1.1 Church confirmed in divers Parliaments. It is when a man is arraigned of selony, and such like before a temporal Judg, and the Prisoner pray∣eth his Clergy, that is, to have his book, then the Judg shall command the Ordinary to try if he can read as a Clerk in such a book and place, as the Judg shall appoint, and if the Ordinary cer∣tine the Judg that he can, then the prisoner shall not have judgment to lose his life. The Book was* 1.2 allowed to the Clergy, for the scarcity of them to be disposed of in religious houses; it was allow∣able in antient times for all offences whatsoever they were, except treason and robbing of Churches of their goods and ornaments. But by many Statutes made since, the Clergy is taken away, for mur∣ther, burglary, robbery, purse-cutting * 1.3 horse∣stealing

If the indictment be only murdravit, without adding ex malitia praecogitata, the offender shall have his Clergy. If he will read as a Clerk, he ought to read all the verse, but although he do not read at the beginning, but first spell, and after read, yet he shall have allowance as a Clerk. in savo∣rem vitae.

Fortescue saith, that if a selon ••ail to read, for which he is judged to be hanged, yet in savorem ••i••ae, if he demand a Book afterward under the Gallows, and read, he shall have the be∣nefit of his Clergy. And yet it is to be supposed, he had no Ordinary at that time to demand whe∣ther he could read, but this Case ought to be specially taken, viz. where the selon is judged

before the Justices of the Kings Bench, for if he be judged before the Justices o•• the Goal delivery it is otherwise, because the••r Com〈…〉〈…〉on •••••••• with the••r Session.

Clergy was allowed to an accessory to the* 1.4 stealing of Horses and 〈…〉〈…〉, because the Sta••ute shall be taken most 〈…〉〈…〉, which speak•• ex∣pressly but of the princi••••ll.

Although he hath been i••stru••••ed and taught in the Goal to know his Letters, and to read, this shall serve him for hi〈…〉〈…〉, but the Goaler shall be punished for this.

Clergy is grantable but once, to one person, ex∣cept* 1.5 he be within holy orders, for such a man may have it often. 4. H. 7. c. 13. and 1 Ed. ••. 12 Lord Stamford.

Notes

• * 1.1

  Cook on Lit. l. 2. c. 11. sect. 209. T. of Law.
• * 1.2

  Bacons use of the Law. p. 22.
• * 1.3

  Horse or mare-stea••∣ers shall not have their Clergy, be∣cause horses are for pub∣lick service and com∣merce. 2. The thief by them is armed to do mischief. Stamford pl. of Cr. l. 2. c. 43. Id. C. ••4. Stamford ib. c. 45.
• * 1.4

  Dyer term. Pasch. ann. Mariae p. 99 L. Dyer term. Mi∣chael. Annis 3. & 4 Reg. Eliz.
• * 1.5

  Frust•• a Legi▪ au••ilium implo••at, qui com∣mi••tit in legem.