For matter of Law, my Lords, I am not capable of ſpeaking to it, but I deſire my Councel may.

That which Mr. Attorney propoſes by way of Objection is Matter of Fact, and the Matter of Law does not ariſe till the Fact be ſettled, which muſt fall within your Lordſhips own Knowledge, who produce him as a Witneſs, and therefore you muſt Anſwer to that Fact your ſelf.

I deſire to know of your Lordſhips if a Man be Convicted of Felony, that is within Clergies, and Prays his Clergie, and it is allowed him, but the Burning of the Hand is reſpited, and there is a Warrant for his Pardon; whether he cannot be a good Witneſs, that his Clergie was allowed, and the Burning of the Hand reſpited; I have the Record here to ſhew.

My Lords, my Noble Lord at the Bar, inſiſting upon a Warrant for a Pardon, I muſt acquaint you with ſomething that has happened during your Lordſhips Sitting here this day; Since I came hither a Privy Seal was delivered to me, in order to paſs a Pardon for the Burning in the Hand of Mr. French for the Man-ſlaughter, for which he was Convicted at the Old Baily; ſo far I can acquaint your Lordſhips as to Matter of Fact.

My Lord, I am adviſed by my Councel, that he is a good Witneſs without a Pardon, or without Burning in the Hand.

What ſay you Mr. Attorney, to the Law? now you underſtand what the Fact truly is.

Yes, my Lord and I do apprehend, with ſubmiſſion to your Lordſhip's Judgment; That a Man Convicted of Felony, tho' he Prays his Clergie, and has it allowed him, but is not Burnt in the Hand, nor has any Pardon, can be no Witneſs.

That is the Caſe upon which you are to form your Objections; Here is a Man produced as a Witneſs, who has been Convicted of Felony, within the Benefit of Clergie, has craved his Clergie, has had it allowed, but has not been Burnt in the Hand, nor Pardoned.

Then my Lords, with Humble ſubmiſſion upon the Matter of Fact ſo ſtated, I make this Objection, That he is no Witneſs in point of Law; He has been Convicted in one Reſpect, for the very Offence for which the Noble Lord the Priſoner at the Bar ſtands Indicted: tho' not in the ſame Degree as the Indictment ſets it forth, yet it is for the ſame Fact. Upon this Indictment Mr. French was Indicted at the Seſſions at the Old Baily, and there he was found Guilty of Man-ſlaughter, upon which he Prayed the Benefit of his Clergie, which was allowed him, but he was not Burnt in the Hand; thus ſtands the Caſe in Fact. Now, my Lords, the allowance of Clergie of it ſelf, does not diſcharge the Party from the Offence, ſo far as to ſet him Rectus in Curia, and make him in all Reſpects a Perſon fit to have the benefit and priviledges of a Probus & Legalis Homo, till he has paſt through thoſe Methods of ſetting himſelf Right in the Eye of the Law, that the Law hath preſcribed, and in order to ſet this matter in its true Light before your Lordſhips, it will be neceſſary for me to open to your Lordſhips, as far as I can, the Nature of this Benefit of Clergie, and what advantage did accrue to the Party, by having that Benefit allowed him, and likewiſe what Benefit he had by the Act that Enacted the Burning in the Hand, which was the Statute of 4. Hen. 7. And by that Act the Burning in the Hand was to be of no more effect, but only to ſhew that he had had his Clergy allowed him; that unleſs he were within Orders, he ſhould have it no more than once. Before that Act of Parliament, a Perſon might have had the Benefit of Clergie ſeveral times, but that Act limits it as to time, that it ſhall be but once: and therefore in order to the having of it known, whether a Man once had his Clergie allowed him, that did not produce his Orders, that Act provides there ſhall be a mark ſet upon him at the time of the allowance of this Clergie, as a Token that it was allowed him, and he was never to have it allowed afterwards, but even at that time he was to be delivered over to the Ordinary to make his Purgation: but ſince that Act ſeveral Statutes have been made about this Matter, I ſhall mention one that relates to your Lordſhips, and that is the Statute of Edward the 6th, which indeed does Enact, That in Caſe where a Peer is Convicted of Felony within the Benefit of Clergie, he ſhall be Diſcharged without being Burnt in the Hand, but then, and thus the Law ſtood till the Statute of 18 Eliz. Cap. 7. by which 'tis Enacted, That after the Burning in the Hand the Priſoner ſhall not be delivered to the Ordinary, but he ſhall be diſcharged; by virtue of which Act, after Burning in the Hand, the Priſoner hath made full Satisfaction to the Law, without that ſort of Purgation which was before requiſite to be made, but till he be Burnt in the Hand, or has his Pardon, he is not to be Diſcharged; it may be he may be Bailed out by the Judge, in order to get a Pardon, but ſtill he remains in ſtatu quo, as to his being a Witneſs, or any thing of that nature; his Credit is gone till it be reſtored by the King's Pardon, or his undergoing the Puniſhment that the Law requires; and no Man would ſay, that where one lies under a Conviction of Felony undiſcharged by Burning in the Hand, or Pardon, that he can be a Witneſs; he remains juſt as he was before, the Conviction remains upon him, which diſabled him to be a Witneſs; and that we ſubmit to your Lordſhips as the Caſe of this Perſon Capt. French.

My Lords, if your Lordſhips pleaſe to ſpare me one Word of the ſame ſide; ſure at Common Law there would be no difficulty at all, that a Perſon Convicted of Felony within the benefit of Clergy, unpardoned, and undiſcharged, could be no Witneſs; and ſince thoſe ſeveral Statutes that have been mentioned by Mr. Attorney, unleſs there be an actual Burning in the Hand, or a Pardon for that Burning in the Hand, ſure it cannot be pretended, that one Convicted of Felony can be admitted as a Witneſs; If my Lord of Warwick does inſiſt upon his Evidence a Matter of Right, we for the King do inſiſt upon it, that there is no Right at all in the Caſe; for French muſt be taken to be one Convicted of Felony, and not diſcharged without either Burning in the Hand, or Pardon, and then we are ſure it cannot be pretended in Law that he can be a Witneſs.

My Lords, the King's Councel have Stated their Objection, what is your pleaſure to have done in it?

I ſuppoſe, my Lords, that it will be neceſſary to hear what Anſwer my Lord of Warwick gives to this Objection.

Is it your Lordſhips pleaſure then, that the Councel aſſigned for my Lord Warwick be heard what they have to ſay to this Matter?

Ay, Ay, Ay.

May it pleaſe your Lordſhips, I am by the Order of this Honourable Houſe Aſſigned of Councel for this Noble Lord at the Bar, in Point of Law; and, my Lords, as to the preſent Queſtion that has been ſpoken to by the King's Councel, I am a little ſurprized to hear it ſhould be wondered at, that my Lord of Warwick ſhould inſiſt upon it, that this Gentleman ſhould be Examined for him as a Witneſs, becauſe, with humble Submiſſion to your Lordſhips, I think the Authorities of Law will make for the Opinion on the other ſide. Mr. Attorney General ſays true, the firſt Statute that was made for Burning in the Hand, was that in 4 Hen. 7. before that time the Benefit of Clergy, even for Murder, was uſed to be allowed upon the Prayer of the Party, and he was thereupon delivered over to the Ordinary to make his Purgation, and that not only once, but toties quoties, 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; 'Tis not the Burning 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.

Mr. Attorney General, what ſay you to the Matters which have been urged?

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.

My Lords, I deſire that the Queſtion that is to be decided before your Lordſhips, may be ſettled truly what it is.

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.

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.

I ſuppoſe your Lordſhips will have the Opinion of the Judges upon this Point, and that muſt be in the preſence of the Priſoner.

It muſt certainly be in the preſence of the Priſoner, if you ask the Judges Opinions.

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.

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 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 the Hand, but that was reſpited in favour to him, which was done with intention, 〈…〉 to get the King's Pardon for the Burning of the Hand, which is nor yet obtained, and conſequently I take it he is not entitled to that Benefit which the 〈◊〉 would give him, if he was either Pardoned or Burned in the Hand; he is not 〈…〉 of the Conviction, and therefore I think he ought not to be 〈…〉 .

What is the Reſolution your Lordſhips pleaſe to take upon this matter? Is it your Lordſhips pleaſure to have the Opinion of my Lords the Judges, who 〈◊〉 preſent, upon this Point.

Ay ay, by all means have the Judges Opinions.

Two things have been mentioned at the Bar, which, I think, ought to be laid out of the Queſtion.

The Con ••••• tion of a Peer, with reſpect to Burning in the Hand.

I ſuppoſe 〈◊◊◊〉 (I am ſure it ought not to be) inſinuated, that, if any of your Lordſhips Degr •• 〈…〉 have the Misfortune to fall into 〈…〉 the like Condition as the Gentleman now produ ••• 〈◊〉 to be once 〈◊〉 of a Clergyable Felony, there could be any 〈…〉 ſuch Peer, as 〈…〉 without his having been Burnt in the 〈◊〉 . Certainly, there could 〈…〉 Statute of 1 E. 6. exempts the Peers 〈…〉 , and vir •• lly 〈…〉 •• tute of 4 H. 7. as to ſo much. 〈…〉 Statute of 18 Eliz. 〈…〉 Hand only, According to the Statute in that behalf (before) 〈…〉 no Statute Then, or Now, in force to subject Peers to ſuch 〈…〉 in ſuch eaſe, upon the Allowing the Benefit of the ſaid Statute 〈…〉 6. (which is as much as Clergy without Reading or Burning) freed from 〈◊〉 and other Penalties of the Felony, as much as Commons are by having Clergy formally allowed and being Burnt.

If the reſt of my Lords the Judges be of the ſame Opinion, ſo; and I hope you will not oblige them to deliver their Opinions at large to take up your Lordſhips time with Arguments of any length, for the Matter has been, I think, ſufficiently debated.

My Lords, I am of the ſame Opinion.

And ſo am I.

My Lord Warwick, Have you any thing more to ſay to this Queſtion?

No, my Lord.

Then what is your Lordſhip's Pleaſure? Is this Man to be admitted a Witneſs, or not?

No, no; we think by Law he can't be a Witneſs.

My Lord Warwick, my Lords are of Opinion, That this Perſon cannot be admitted as a Witneſs for you.

My Lords, I ſubmit to your Lordſhips Judgment in the Matter.

My Lords, I am very glad your Lordſhips have had this Matter debated by the Councel, that ſo it might be ſettled: All my Lords the Judges that are here, it ſeems, are of Opinion, that this Man can be no Witneſs, and therefore his Teſtimony muſt be rejected. But there is another Propoſal that I have to make to your Lordſhips, of a Point that I think ought to be conſidered of: My Noble Lord at the Bar did ſuppoſe that he had proved before your Lordſhips, that he went into the Field not to fight on the ſide of the Party that was killed, but on the other ſide; and indeed that he went not to fight, but to prevent a Quarrel, and thereupon he did ſtart a Queſtion, Whether it ſhould not be a Preſumption in Point of Fact and Law, that he, being on the ſide of the Party that was killed, ſhould not be reputed Innocent of his Death? Now I confeſs, upon the ſtarting of this Objection, I doubted of it, Whether if any one were preſent at the killing of a Man, where ſeveral People were engaged in fighting, on what ſide ſoever ſuch a Perſon were, either on the ſide of the Party that was killed, or on the other ſide, yet whatſoever Crime • it was in thoſe that killed him it was the ſame Crime in thoſe that were preſent at the Action. My Lord of Warwick did deſire, that his Councel might be heard upon that Point, if there be any Queſtion with your Lordſhips in that Caſe, and my Lord deſires his Councel may be heard to that Matter; it may occaſion a Matter of Debate, which cannot be in this place openly, but muſt be between your Lordſhips among your ſelves: Indeed I think it reaſonable, that Councel ſhould be heard upon the Caſe.

My Lords, I think you are not arrived at that Queſtion yet; you are not to take for granted any part of the Fact, but are to debate among your ſelves, after the Proof is over, what that Proof doe amount to.

Indeed, my Lords, I hope you will not ſuppoſe any thing, and ſo take it for granted, that may occaſion any Debate, becauſe that is not to be done here in this place, but we muſt adjourn to another place for it: The bare putting of a Caſe by a Priſoner at the Bar, does not make that to be the Caſe truly in Point of Fact; for as far as I heard and underſtood the Noble Lord's Propoſal at the Bar, what he deſired to have his Councel heard to was, That he being one of Six that went into the Field, but going with a Deſign to part them, and not with any intention to promote the Quarrel ch •• ld not be in equal degree of Guilt with thoſe that were on the other ſide, who kille • the Party: But now, my Lords, I take it, it is far from being granted o • the other ſide that that is the State of the Fact; nay, my Lord himſelf owns that he was in the Field, and that he was engaged in the Combat with Mr. James, and then the Queſtion muſt the that is to be debated, Whether a Party that is concerned in a Quarrel where a Perſon is killed, is in equal degree guilty with thoſe that were on the other ſide againſt the Perſon that was killed? And then the Queſtion would be far different from what it would be otherwiſe, and as his Lordſhip did propoſe it; and if there be a Doubt in Matter of Fact, That ought to be ſettled here in this place, that afterwards it may be conſidered in another.

My Lords, I cannot but agree with that Noble • ord, that the Matter of Fact ought to be ſettled, and then if any Debate ariſes thereupon, your Lordſhips are to return to your own Houſe, and there to debate what is your Judgment upon that Matter of Fact: But whatſoever Motion is made by the Noble Lord at the Bar, wherein he deſires to have his Councel heard; that I ſuppoſe may be conſidered here; and this Point having been ſtarred by my Noble Lord at the Bar as a Point of Law and not of Fact, I deſire to remind him of it, to know whether he does inſiſt upon it; if he does not move to have the Matter argued, then there is an end.

My Lords, I do not think you will hear Councel upon a Matter of Fact, and therefore it is not ripe (till the Fact be ſettled) for you to hear Councel.

My Lords, I humbly pray, That you will hear my Councel as to that Point.

My Lord, this is a Matter of Fact indetermin'd, and not a Matter of Law: What Opinion their Lordſhips will be of when they have conſidered the Proofs as to the Fact, is one Step; when that is over, it will be the proper time, if any Doubt be remaining with their Lordſhips in Point of Law, to hear Councel, but upon bare Matter of Fact Councel is not to be allowed.

My Lords, if there be any Debate among the Lords, Whether it be a Matter of Fact, or a Matter of Law, we muſt go up to our own Houſe; but upon any Point of Law where Councel is to be heard, it muſt be in this Place in the Preſence of the Priſoner, and afterwards your Lordſhips will Debate it among your ſelves.

I hope, my Lords, the Councel would not ſtate the Caſe otherwiſe than as it is really in Point of Fact; nor can this Noble Lord hope, that any thing will make an Impreſſion upon my Lords, but what from the Fact rightly ſtated, but what is ſupported from the Evidence; and that which my Lord propoſes, is to have his Councel heard to a Matter of Law, which your Lordſhips will be Judges of after you have heard it, whether there be any weight in that which he ſuppoſes to be his Caſe, That a Perſon aſſiſting in a Combat on the ſide of him that is killed, is in equal degreee of Guilt with them that are on the other ſide; That poſſibly, if the Fact be agreed, may be a Point ſit to hear Councel to, before your Lordſhips go to Debate it amongſt your ſelves.

If I am not miſtaken, my Lord of Warwick owns his being one of them that fought, for he has offered Witneſſes to prove, That he received a Wound in his Hand by fighting: If my Lord of Warwick thinks, that there is a difference between his being on Mr. Coote's ſide, and theirs that were on the other ſide, he would have his Councel heard, how far it will difference his Guilt and the Nature of the Crime from what it was with them on the other ſide, I cannot think that can be to any great purpoſe to have that Argued, but if your Lordſhips pleaſe, you may hear his Councel what they have to ſay to that Matter, but otherwiſe I cannot think, but that his Lordſhip will acknowledge that the Matter of Fact, that he was engaged in the Quarrel.

My Lords, I deſire, if this be a Point, that my Lords Councel ſhould be heard to that; it ſhould be ſtated as a Point of Law, and then your Pordſhips will conſider of it.

As well as I could apprehend it, as it was offered by my Lord Warwick, this was what he deſired to have his Councel heard to: Tho the Perſons engaged in the Quarrel on the oppoſite Party to Mr. Coote have been tried, and found guilty of Manſlaughter, yet he is not in equal degree of Guilt with them, he being engaged on Mr. Coote's ſide, and therefore his Lordſhip's Caſe differs from theirs who fought againſt Mr. Coote. This Point he would have Argued by his Councel before your Lordſhips, as a Matter of Law founded upon the Fact; now the Fact of the Caſe muſt ariſe from the Evidence as it has been given, which has not yet been debated or ſettled by your Lordſhips, and till that be agreed to be the Caſe, no Queſtion of Law does properly ariſe.

My Lords, if poſſible I would put this Matter into its true Method, for indeed I think we have been all this while out of the way. The Noble Lord at the Bar has deſired to have his Councel heard, this Houſe has allowed him Councel in Matters of Law, I would deſire that the Councel would ſtate the Caſe ſo to your Lordſhips, that it may appear to be a Caſe fit to be Argued, that ſo it may receive your Lordſhip's Judgment thereupon. My Lord's own bare propoſing of ſuch a thing, will not be enough to encline your Lordſhips to be of Opinion, perhaps, one way or other; but I would pray your Lordſhips, That you would direct the Councel that are aſſigned for my Noble Lord at the Bar, to propoſe that to your Lordſhips as a Point of Law that he ought to inſiſt upon; I think it is apparent to every body, that no Point of Law can ariſe but upon Matter of Fact, which is agreed to be Proved in any Caſe; now the Proofs of the Fact we have heard; now that which I would propoſe to your Lordſhips is; That inſtead of Hearing his Councel to Argue in Point of Fact what is not yet agreed upon to be the Fact, they ſhould ſtate ſuch a Point of Law as they would Argue upon; and then whether you would think it a Point of Law, or not a Point of Law, we muſt go into another place, where it may be debated, whether it be ſuch a Point of Law as that Councel ſhould be heard to it.