coke a poulter case Trin James the offence of arson be felony at commonlaw the  offender be entitle to his clergy but by stat Westminster cap he be not  bailable the stat and Edward have revive the whole Act of Henry concern clergy  and this last Act have take away the benefit of clergy from he who be find  guilty of arson by verdict or confession note as to clergy in case of burglary  robbery in house c one Alexander powlter of Newmarket in the county of  Cambridge of extreme malice and illwill felleo mind do burn a house in the say  town upon which the great part of the say town be burn and consume for which  offence at the assize of Cambridge in autumn last pass he be indict and  convict by verdict and pray his clergy and if he shall have his clergy or not  be the question upon which the justice of assize before who he be arraign will  take advice and now this term all the judge of England meet together for the  resolution of this point and upon the consideration of diverse intricate  illcompiled and compose statute they be in doubt whether he shall have his  clergy or do but it be agree by they all that it be a felony by the commonlaw  as appear by Britton foe and Bracton fol b and I I Henry fol I b and it be  account in law a heinous and exorbitant felony for by the statute of b  Westminster c it be declare that such as be take for houseburning felonious do  or for   the king seal c or for treason touch the king himself shall in no way  be replevisable by which it appear first that it be felony at the commonlaw  and second that it be so heinous that he be not bailable for more than for  high treason coke b but yet it be resolve that for the great favour and  respect which the law do attribute to man of holy church for this felony at  commonlaw the offender a roll see Mod e Vid ante note b b roll Br obligation  Fitzherbert bar c roll Rep Doctrin placit Bulstr mark show lev f Vid note a  Mathewsons case   a a hale pi cor h a Inst cro car Br Coron Jones Stamf pi Cr  a Inst   a b Inst c Stamf pi Cr a Inst coke report a er p who c be not so  disable that he can not be enable by any dispensation which may be make to be  a member of holy church as if he be d blind c or in respect of sex know a  woman as appear in e coroner shall have the privilege of his clergy by the  commonlaw for the commonlaw do not deny kindness clerical office the benefit  of his clergy but in certain case as if a man be convict of any heresy he  shall not have his clergy for any felony c the same law of a Saracen Jew or  other infidel a a G@ravius be eniy of a god how of a time Icedere Majestalem  the same law b in case of high treason against the king and of petit treason  also before the statute of Edward vide c Henry b for high treason accord but a  man excommunicate by holy church for any ecclesiastical cause or outlaw by the  commonlaw for any felony for which he may have his clergy shall have his  clergy also in case of sacrilege a man shall be oust of his clergy b as appear  in d Edward title coroner e ass pl Edward title coroner e ibidem f ass gj ass  at the commonlaw h insidialores a way etdepopulatores productive land have not  their clergy as appear by the statute of Henry and before the statute of I  articuli allotment of land cap he who c confess the felony can not have the  benefit of the clergy because he can not make his purgation and although the  statute speak only in case of adjuration and of a appiover yet the judge in  favor church do extend it to all other confession upon the arraignment of the  offender Edward coroner Edward coroner Henry b m Henry b n Edward a oh Edward  p Edward a Q Edward b Edward coroner r Henry a and clergy not only at the suit  of the king upon indictment but upon approvement and at the suit of the party  in appeal S Edward a ass u two Henry a and general in all case when the life  or any member of the offender as cut off his hand c be not in jeopardy the  offender shall have his clergy as in the case of petit larceny Stanford a so  that ib be resolve that at the commonlaw for this felony for burn of house the  offender shall have the privilege of his clergy quare de hoc c Stamf pi Cr b d  hale pi Cr Inst Stamf p Cr b a Acc hale PC since stat Ann c they be equal  entitle with other to the benefit of clergy Fost black a wing Max fol b hale  pi Cr c Stamf pi Cr a a a Br clergy b Vid hale PC Vol ill that this be  incorrect and that at commonlaw sacrilege be not oust of clergy clergy be oust  by Henry c S and Edward c d Stamf pi Cr b ass Br clergy count e Br clergy f Br  clergy Br cor g Br clergy hale PC contra h Stamf pi Cr a Inst I Inst c king  post a l Fitzherbert cor Br Coron m Fitzherbert cor Br clergy n Br clergy Br  ordinary Fitzherbert fine oh that year have but folia Fitzherbert Coron Br  Coron Fitzherbert chart Br chart de pardon Q Fitzherbert Coron Br Coron r Br  Coron Br ordinary Br charter de pardon S Fitzherbert Coron Br clergy t Br  clergy Br Certifl@ate de evesque u Fitzherbert cor Br cor Br clergy coke  report a er p then ten it be to be consider whether this privilege be take  away by any statute and therefore it must be know that by the statute of Henry  it be enact that no person or person which shall be find guilty of any manner  of petit treason or for wilful murder of malice prepense coke a or for rob of  any church chapel or other holy place or for rob of any person or person in  their dwellinghouse or dwellingplace c or for rob of any person of person in  or near the highway wilful burn of any dwellinghouse or barn wherein any corn  be or the procurer or abettor of the same be admit to the benefit of his or  their clergy such as be within holy order that be to say of the order of  subdeacon or above only except so that this statute ousts the principal  offender aforesaid of the privilege of clergy and their accessary before and  it be to be observe that the the statute do not say that no person or person  that shall upon his or their arraignment plead not guilty and shall be find  guilty for then that must of necessity be take for find guilty by verdict but  the word be that no person that shall be find guilty of petit treason c and  that may extend as well to confession of record for t court find he guilty  upon his own confession before they as to a find by verdict of twelve man when  the offender deny the fact and plead not guilty and the case of confession be  the strong case for although he be find guilty by verdict yet he may be  innocent and therefore he may have his clergy at commonlaw and make his  purgation but if he have confess the offence upon record he shall not have his  clergy by the commonlaw because he can make purgation when the court find his  confession on record for in intendment of law he can against his express and  voluntary confession in court be innocent acknowledged admitted fact in  judgment projudicato habetibr et in a certain way thirst opinion to adjudge  guilty and therewith agree a proviso in the say Act of Henry which have make  he who confess the felony in equipage with he who be adjudge for felony the  word of which be provide that this Act extend not to give any benefit to any  such person which after their confession or judgement give against they of or  for felony c vide Edward b and Stanf c attainder by confession be the strong  attainder that can be for the vehement presumption that the law have of the  truth for it will be absurd to say that he have not do such a felony when the  party himself have confess it to the destruction a of he and all his offspring  and where the statute of Henry enact that if the party grieve recover by  assize or by action of trespass and it be find by verdict or in other manner  in due form of law that the defendant enter with force c that the plaintiff  shall recover Triple damage in such case if the defendant confess the action  or make default or nothing to say or plead a insufficient plea and upon  demurrer judgement be give against him in all these case it be a find within  the statute for there be one find by the jury and another by the judge and  when coke b the defendant confess it c the judge find sufficient matter before  they to give judgement vide for this sergeant Bendloes report that it be so  take in Henry and in and Phil and mary in a writ of error and so I hear the  Lord dyer vouch a judgement accord in diverse of the say case upon the statute  of Henry c and therefore the opinion of Stamford fol that in case of  confession the offender in these great and heinous offence shall have their  clergy be not take for law and the constant and continual experience of the  judge in their circuit have be to the contrary also this Act of Henry c extend  as welI to appeal c and approvement as to indictment but yet in this statute  there be find diverse great defect for the say offender and their accessary  before may by a easy mean and equivocation have have their clergy  notwithstanding this statute for if the offender have upon his arraignment  stand mute or will not direct answer which be all one or will have challenge  peremptory above the number of twenty he shall have the benefit of clergy  notwithstanding the purview of this statute for ten hale pi cor Stamf pi cor b  a yet such a case happen e Fitzherbert coroner post a b be in kelw and pl and  pl dyer pl n be pl Benl in ash pl post a c appeal abolish stat Geo cap coke  report a er p in these case they be not find guilty of the felony as the  statute speak but shall have judgement Jort et detre for their contumacy  because they will not answer accord to law nor put themselves upon their  country d also if the offender have not appear but have be outlaw for any of  these offence yet notwithstanding this statute he shall have his clergy for he  be not find guilty of the felony but outlaw for his default also although the  offender have commit burglary yet if it be without robbery he shall have his  clergy notwithstanding this statute and so shall the accessary as well before  as after and so as to oust the accessary before of their clergy in all the say  offence the word be be find guilty so that the same defect be also in this  clause as in the former it be afterward ordain by the statute of Henry cap  which recite the Act of Henry and further enact that if in those case the  person arraign stand mute or will not direct answer or challenge above the  number of twenty shall lose the benefit of his clergy in like manner and form  as if he have direct plead c and thereupon have be find guilty accord to the  law of the land by which word the intention of the maker of the Act appear  that he who be find guilty of any of the say offence which extend as well to  confession as to verdict shall lose his clergy and therefore although the Act  of h cap be not revive yet there be sufficient word in the Act of Henry cap to  oust he who be find guilty of his clergy and this also appear be the intention  of the maker of the Act of and Edward for if the Act of Henry have not extend  to he who be find guilty by verdict or confession they will not have revive it  to oust coke a the offender of the privilege of his clergy only in case when  he stand mute or will not answer or challenge above the number of twenty and  not where he be find guilty by verdict or confession also the word of the Act  of e be that t say Act of h shall remain and be in full strength and virtue in  such manner and form as it do before the make of the Act of e and before the  same Act without question he who be find guilty by verdict or confession be  oust of his clergy but this Act of h have not by any word in any case take  away clergy from the accessary before which be a great defect for if he be  find guilty accord to h as well the accessary before as the principal before  be oust of his clergy but if he stand mute or answer not direct or challenge  above twenty in which case the principal be oust of his clergy by h yet in the  same case the accessary before be not oust of his clergy and the Act of h do  not extend to appeal or approvement but only to indictment for the word be if  any person be indict c it be enact by the same statute that if any be indict  for felony for steal any good in any county and thereupon arraign be find  guilty or upon malice stand mute or challenge peremptory above the number of  twenty or will not direct answer to the law they shall lose the benefit of  their clergy in the same manner and form as they shall if they have be indict  arraign and find guilty in the same county where the robbery or burglary be do  or commit if it shall appear to the justice before who any such felon or  robber be arraign by evidence give before they or by examination that the same  felony whereupon they be so arraign have be such robbery or burglary c  wherefore by the say statute they have lose the benefit of their clergy if  they have be find guilty thereof in the same shire and there be also defect in  this branch for it do not extend to the case when the offender for any of the  say offence be outlaw c also it do not extend to accessary before in such case  and it be to be know that when the offender confess the indictment or stand  mute or challenge above the number of twenty although no evidence can be give  against he yet the word of the statute be or by examination which word have  relation when the offender do confess the offence or stand mute or challenge  above the number of then be the stat of I e by which it be enact d now by Geo  c every person who be arraign for felony or piracy shall stand mute or not  answer direct to the offence shall be convict of the same and the same  judgement and execution with all their consequence in every respect shall be  thereupon award as if the person have be convict by verdict or confession coke  report b er p that no person that shall be in due form of law attaint or  convict of murder of malice prepense poison of malice prepense break coke b of  any house by day or night any person be then in the same house and put in fear  and dread or for rob of any person in or near the highway or for felonious  steal of horse gelding or mere or for felonious take of any good out of any  church c or be thereof indict or appeal and thereupon find guilty by verdict  of twelve man or shall confess the same upon his or their arraignment or will  not answer direct or stand mute shall not be admit to have the benefit of  clergy or sanctuary a and that in all other case of felony other than such as  be before mention all person that shall be arraign and find guilty or shall  confess the same or stand mute in form aforesaid or will not direct answer  shall have the privilege of clergy or sanctuary as they may have have before  the first year of king Henry and this Act of e have make diverse great  alteration for by this b general clause clergy be restore to he who offend in  burn of house and to his accessary before c all accessary before in case of  petit treason murder burglary or other offence mention in the Act of h be  restore to their clergy by the say general clause and therefore they err who  hold that the accessary to a burglary shall be oust of his clergy for at that  time as well every accessary in burglary as well before as after shall have  his clergy and that appear by the judgement of the whole parliament of Phil  mark by which it be enact that the benefit of clergy shall be take from  Benedict smith c for the murder of Rufford if the say Benedict shall be find  guilty as accessary to the murder c notam the say murder be so barbarous and  so heinous that clergy be take from he and other be but accessary be re after  the offence commit vide Phil mark dyer pl where mention be make that he be  oust of his clergy by the same Act of Phil mark which prove that if the same  Act have not be make he may have his clergy by this general clause clergy be  restore to heinous offender in piracy upon the sea e which be take away by the  statute of Henry cap and in diverse other case the word concern attainder of  break of house only will be repugnant and very absurd unless they be supply by  a reasonable intendment and good construction for as Stamford a well observe  if any break any house by night without intent to commit felony it be not  burglary nor felony and therefore these word with felonious intent be want  also if he break a house in the day although he have a felonious intent coke a  if he carry away nothing it be not felony and therefore in that case these  word and steal good felonious be want and yet Stamford hold that these general  and uncertain word ought to be supply with a d intendment videlicet where he  be attaint and convict of break the house in the night e burglariter or of  break the house in the day and steal the good there within but as to the case  of burglary this Act have make a alteration more strict than h have for this  Act take away clergy in case of burglary without any steal of good this Act of  I e add a thing not material and omit a thing much material which be comprise  in the act of h for it take away clergy from he that a poison another of  malice prepense which without question be wilful murder and for that the  offender be oust of his clergy by the act of h and it omit the heinous offence  of burn house and yet take away clergy from he who commit burglary although he  impair the house little or nothing and imvlicit allow clergy to he who burn  the whole house and not only one house but the great a Fitzherbert Inst a  Stamf pi Cr a b Stamf pi Cr a c Stamf pi Cr b hale pi Cr e contra king v curl  and other ru sacred scripture Ry c c r the original be desire d Stamf pi Cr b  a e   b Doctrin placit Cr Elizabeth   a Inst a Stamf pi Cr a Fost coke report  b er p part of the town as it be in the case now in question there be a great  defect in this Act in the clause of ousting offender of their clergy for it do  not extend where the offender challenge above the number b of twenty which be  include in the Act of h but this be remedy by the revive of the Act of h by  the statute of e as shall hereinafter appear there be a great repugnancy in  the say general clause for notwithstanding that if any offender who be to be  restore to the benefit of his clergy whereof he be oust by any former statute  challenge above the number of twenty or if he be outlaw for the same felony he  shall not be restore to his clergy for this clause do not extend but where the  offender be find guilty by verdict or confession or stand mute or will not  direct answer he who commit c robbery or burglary in one county and carry the  good steal into another county c who be oust of his clergy by h be restore to  his clergy by these general word this Act extend to all person videlicet as  well to those who be within holy order who be except out of h as to other lie  people this Act of I e in other point have supply some of the defect which be  in the former statute concern the offence mention in the same Act for the  other statute do not extend as appear before where the offender be outlaw for  any of the offence mention in coke b they but this Act extend to man outlaw  attaint by battle abjure attaint by parliament for the word be if any  hereafter shall in due form of law be attaint which word extend to every  manner of attainder this Act extend by express word to the case of confession  for the next word of this Act be or convict and that be by verdict or  confession so the clause for ousting of clergy be better pen as to these point  than the general clause for restitution of clergy as appear before and it be  to be observe that this Act of I e extend as well to appeal and approvement as  to indictment and afterwardsthe statute of e cap be make the title of which be  that such as rob in one shire and fly into another shall not have the benefit  of clergy this Act first recite the say Act of h which recite the other Act of  h and in which mention be make of burn of house and further the addition which  the Act of h make and also the branch concern the steal of good in one county  and carry the theft into another county and the say Act of e recite also the  purview of the say Act of I e de word in word in which the omission of burn of  house appear and also the say general and beneficial branch for clergy of the  Act of I e and then after the recital of these three statute the word of the  Act of e be by reason whereof diverse and many person since the say first year  have commit such robbery and burglary and after have be take with the manner  in another county and there indict arraign and find guilty have have and enjoy  their clergy which they can not have have if the say statute of h have stand  in force for redress whereof be it enact that the say Act make in the say five  and twenty year touch put of such offender from their clergy and every article  clause and sentence contain in the same touch clergy shall from henceforth  touch such offence from henceforth to be commit and do stand remain and be in  full strength and virtue in such manner and form as it do before the make of  the say Act of I e any clause article or sentence comprise in the say Act make  in the say first year to the contrary notwithstanding and the whole scruple of  this case do consist upon these word of the body of the Act of e and of a qure  which Stanford make lib cap fol a that the Act of h be not revive in all but  only in that part which concern the steal coke a of good in one county and the  carry of they afterward into another county by reason of these word such  offender c and such offence c which have relation only to that offender who be  express before in the same Act hereunto other add two other objection that the  title or style of this Act be particular videlicet that such as rob in one  county and fly into another shall not have benefit of clergy whereby the  intent of the maker of the Act appear to what thing the say Act shall extend  and this the case of straddle and Morgan Plowd b Stamf pi Cr a c Stamf pi Cr a  coke report b er p Com b prove where the particular style of the Act of Edward  concern the revenue of the king limit and qualify the general word of the body  of the Act videlicet any receiver to extend only to the king receiver accord  to the title of the Act another objection be make by some that admit the say  Act of Edward have revive the whole Act of Henry yet forasmuch as the Act of  Henry be not revive the say Alexander powlter in the case now in question  shall have his clergy for as it have be say the Act of Henry extend only when  the offender be find guilty which be our case and the Act of Henry recite the  say Act of Henry and make addition when the offender stand mute or will not  answer or challenge above the number of twenty so that the Act of Henry extend  not to the case where the offender be find guilty by verdict or confession  because the Act of Henry have provide for that and inasmuch as the general  word of the say Act of Edward have take away the force but in one special case  as aforesaid of both the statute of Henry and Henry and the Act of Edward have  revive only the Act of Henry for this reason in the case now in question the  benefit of clergy be not take away against which it be argue by other justice  first that the statute of Edward have revive the whole Act of Henry concern  clergy dly that the Act of Henry have take away the benefit of clergy from he  who be find guilty of burn house by verdict or confession dly they cite a  judgement in parliament to prove it thly they confirm it by a constant opinion  and proceed of the justice of assize in their circuit as to the first it be  say that this relative such refer rather to the precedent matter than to the  particular form of word and to the end that the remedy intend by the maker of  the Act shall be of as great extent as the malady and mischief be such shall  be take such in mischief and such in inconvenience and to such as in form of  word coke b be mention before and therefore the statute of a W cap be cum quis  law prsentandi non to have prsentaverit ad aliquan church c per quod horedes  infra celatem exislentes per fraud et heedlessness jailer c to cause to stand  be quod of this sort prsentationes c non to be hujusmodi reclis hredibus c ita  prjudiciales and the case in b Edward a b that a infant have a advowson by  descent and avoid a usurpation without averment that he be in ware because  this word c hujusmodi I e such shall be take such in mischief videlicet to  provide for all the mischief and have a advowson by descent which be the  substance it matter not whether he be in ware or not so the statute of d W cap  the preamble say per appellant nothing to have c and the body of the Act be  statulum be quod cum some such appellee c yet without question if the appellor  be sufficient notwithstanding this word such the statute extend to it and  where the statute of e Henry speak in the preamble of lease make for great  fine for the income c and the purview be that all such termors shall or may  falsify it have be always take that the statute extend to lease make either  for a small fine or for no fine so the preamble of the statute of f Henry cap  speak of disseizins with strength force and the body be that the die seize of  any such seize c it extend to a seize without force for that be such in  mischief and so it be hold in Phil and mary dyer pl and so in many other case  and as to the style or title of the Act that be no parcel of the Act f and  ancient statute be without any title and many a Inst c b Inst Statham quare  hinder c Inst d Inst Stamf pi Cr c e Inst   a f n b I e   a   light f a f      light a a Plowd a hob Keble f in chance v Adam I l ray it be hold that a  misrecital of the title of a public Act in a declaration be not fatal but in  mill v Wilkins Mod SC salk this case be overrule and holt CJ observe that  although the title of a Act be no part of the law or enact part and therefore  it be not necessary coke report a er p act be of great extent than the title  be as the statute of use year Henry cap io the title be a Act express a order  for use and will and yet the body of the Act extend to jointure and dower of  woman and so in this case the argue that the body of the Act of Edward be more  spacious than the title but not more spacious than the preamble for the  preamble extend to two mischief one iml to be for sale by recital and the  other ex fold by express word implicate by the recital of Henry which extend  to burn of house and by recital of Edward in which be the omission of burn of  house which be think to be by the negligence of the writer for it be a more  heinous offence than many other which be there mention explicate of robbery c  in one county and carry into another county than when the word be for redress  whereof be it enact c it refer not only to the latter which be the offence of  commission but also to the omission of the offence of burn of house in the  statute of Edward coke a and then this word such shall have reference to burn  of house as well in the statute of Henry as in the say Act of Henry both which  be before recite in the same Act of Edward another reason be add that the  purview of the Act of Edward have a double sentence see that the say Act of h  touch the put of such offender from their clergy if that shall be admit to  extend only to robbery in one county and carry into another yet there be  another sentence in the same Act and every article clause and sentence contain  in the same touch clergy shall from henceforth touch such offence remain and  be in full strength and virtue and it be argue that this latter clause shall  extend to the whole Act of h for diverse reason because the first sentence  have be sufficient for the robbery in one county and carry into another and  then this latter sentence which have more general word see and every article  clause and sentence c will be vain and superfluous et a viperina be exhibition  quo to gnaw viscera textus there be but one clause or sentence concern robbery  in one county and carry into another and this branch of Edward say all and  every article clause and sentence concern clergy so that it will be hard that  these general word shall be restrain to one particular clause and sentence but  the good expositor make every sentence have its operation to suppress all the  mischief before the say Act and chief those which be specify in the Act itself  as it be in the case in question and although the latter word in the sentence  be shall from henceforth concern such offence remain in force in good  construction these word such offence ought to have reference to such offence  as be contain in any article clause or sentence of the Act of Henry touch  clergy and by this construction such heinous offence will not pass in effect  with impunity and malefactor will not be encourage to burn not only house but  town and city and pass with a little burn in the hand and all the statute will  by this construction stand together and be well reconcile and agree with the  constant and continual experience of the judge and a it be frequent in our  book that penal statute have be take by intendment to the end they shall not  be illusory but shall take effect accord to the express intention of the maker  of the Act and for that it be enact by the statute of b e cap l that he who  draw any to the court of Rome in a plea which may be determine in the king  court or of thing whereof judgement be give in the king coke b court or who  sue in any other court to defeat or impeach the judgement give in the king  court shall have day c contain the space of two month c and if they come not  at the same day in proper person they shall be put out of protection c a  question be move in d Edward b which be within three year after the make of  this Act if the offender do not make default but appear and plead and be  condemned if he shall to set it forth yet by set it out the justification be  tie to a Act so entitle Vid note g holland case   a a Bulstr hawk Max a blow  Com a b e a b Inst c   c Inst d   a coke report a er p have the high and penal  judgement of pr?nunire give by the say Act but afterward in e e a b judgement  be give against the bishop of Chichester who appear that he shall be put out  of protection c and yet the letter of the statute be that if they do not come  at the same day c they shall be put out of protection a strong when he appear  and say nothing such judgement shall be give for in equal mischief a much  strong when the defendant in such case appear and plead and be find guilty he  shall have judgement on the say statute as it be adjudge in Ferebys case in  Edward a b and yet it be out of the word of the Act which speak only of  default and infinite judgement on the statute of e have be give accord and  therefore f who hret in litter hret in made from bark which case it be say  have great defect of word than the case now in question g by the statute of g  h cap it be ordain that if any record or any parcel thereof c be voluntary  carry away withdraw c by reason whereof any judgement be reverse that such  stealer carrier away withdrawer and avoider c be adjudge for felon and in a r  a a action of debt be bring against I b whereas in truth his name e Inst f   b    light b b Bulstr wing Max hawk Max g in Alexander poulter case the point be  but whether powlter for malicious burn a house at Newmarket shall have his  clergy to draw in his own conceit of another matter nothing pertinent to the  point three question he fall upon the exposition of the statute of e cap of  Preemunire against they which sue in any other court to defeat or impeach the  judgement give in the court of the king that they shall have day contain the  space of two month c and if they come not the same day in proper person they  shall be out of protection a question say the reporter be move e b which be  within three year after the make of the Act if the offender do not make  default but appear and plead and be condemned whether he shall have the high  and penal judgement of prmunire give by the say Act but after say the reporter  in the e f judgement be give against the bishop of Chichester who appear that  he shall be put out of protection but if these two book be examine they prove  not the matter for which they be wrest in for neither of they say that if the  party appear within two month give by the statute of e and be after condemned  that the judgement shall be to be out of the king protection for in e c h no  such judgement at all can be because the party be not condemned in any writ  bring upon the statute of ProBmunire but only upon a attachment of prohibition  at the commonlaw and in e f the judgement be that he shall be out of  protection because he appear not at all in person but by attorney which in  this suit be no appearance and where the chief justice in the same place set  Ferebys case e a b to be adjudge that when the defendant in case of prmunire  appear within the two month and plead and be find guilty that he shall have  judgement upon the say statute of e to be out of protection the book itself  prove no such matter for it be this in a writ sue for the king upon the  statute of provisor in king b at the suit of William Beverly against t process  be sue till the defendant offer to aver that he have sue no plea c and  thereupon at nisi prius at saint Martin before Ingleby it be find against the  defendant whereupon he have judgement in KB to be out of the king protection  and his body to be take but that he come within the two month after warning  which be the point the chief justice insist upon appear not at all by the book  and by the book of Edward and h a where Gascoigne give the rule it appear that  the forfeiture of his land and good grow only upon his contempt in not appear  within two month after warning give he by the sheriff who in his return must  set down the very day that he warn the person that the court may see whether  he be warn accord to the statute and so be the book express e a Lord  Ellesmeres observation pp g Inst dalt just keb just Stamf pi Cr b Fitzherbert  just b a Br Coron Br treason Stamf pi Cr b coke report a er p be w b process  continue till he be outlaw and the original be raze and the three capiass and  make accord this act be and make W b and the roll raze a resolve to be felony  by all the justice and yet by that the outlawry be make good c so by the  statute of Edward the kill of his master be adjudge treason and this extend by  construction to b the mistress h as it be hold in h a and in many other case  penal statute have be take by intendment to remedy the mischief in advancement  of justice and in suppression of crime and heinous offence as to the second  the statute of h have take away clergy from he who be find guilty of burn of a  house for the say Act of h take away clergy from he who in such case upon his  arraignment stand mute or will not plead or challenge above the number of  twenty in like manner and form coke a as if he be find guilty after the law of  the land which be affirmative word and take away the clergy from he who be  find guilty accord to the law of the land as to the three point the maker of  the statute of c Phil mark c know that by the say statute of h which be revive  by the statute of e clergy be take from the principal offender in the say case  of burn of a house and not from any accessary have provide that the accessary  before in such case shall be oust of their clergy which be take by diverse of  the justice to be a good interpretation by the whole parliament of all the say  act concern this matter for if the principal shall have his clergy it will be  absurd and never see in the whole law that the clergy shall be take from the  accessary only and leave the principal offender at large to have his clergy  second it will be in vain by the say Act of a Phil mark to take away clergy  from the accessary before and leave the principal to have bisclergy for if the  b principal have his clergy before judgement the accessary shall not be  arraign as it be hold in the that part of my report fol b a notam bene reader  the say Act of Phil mark take away clergy from he who be accessary before the  offence of burn of a house c extend where the accessary be outlaw or otherwise  attaint or convict or stand mute or deny to answer direct or challenge above  the number of twenty which be well and perfect as to that but this Act do not  extend to every burglary or break of house c but only when robbery be commit  as to the four point upon conference have with diverse clerk of assize and  other ancient clerk and upon the sight of diverse and many record it appear  that the principal and accessary before have be d oust of their clergy in the  case of burn of house for their manner of entry when clergy do not lie be to  say cul sus per coll but when clergy lie then the entry be petit scales c and  all the precedent but one and that be before sir John puckering and his  companion justice of assize in the county of Essex be cul sus per collum  without the word petit scales b hale pi Cr Stamf pi Cr b Inst ass Fitzherbert  just b dalt just Br Coron Br treason Fitzherbert cor h in Plowd it be say to  be within the word and to be a declaration of the word of the statute rather  than a equitable construction of it I a Act may be penal in one part and  remedial in another and the remedial part shall receive a liberal construction  hide v Cogan dougl but the penal part which act upon the offender shall not be  take by equity Vid black command Com dig parliament r vin ab statute e c jenk  cent dalt just hale pi Cr Fitzherbert just b a Savil b Cr Elizabeth h Br  coroner Br clergy Fitzherbert coroner h b blow b r b Stamf pi Cr a b more e b  Br coroner Inst Inst   a Cr car h b Fitzherbert Cr Br coroner Br clergy hale  pi Cr dalt just Fitzherbert just b a vet n b b e b Br Coron   b roll hale pi  Cr d Inst Cr car Jones Fitzherbert just b Stamf pi Cr a coke report b er p  upon all which matter and upon view of the say precedent it be resolve that  the say offender in the case now in question shall be oust of his clergy and  accord at the last assize in the county of Cambridge although the offender can  read well king judgement be give upon he and execution do accord and order  give that he shall be hang in chain near the place where he offend ita to be l  coke b notam reader as to burglary and robbery in house c forasmuch as doubt  and question may arise upon what have be say I have think it necessary by way  of appendix to make a short explanation of it and of some other thing to the  intent that of the one side great offence shall not pass unpunished nor of the  other side the subject be deprive of the privilege which the law give he by  the statute of Elizabeth cap it be enact that if any person shall commit any  felonious burglary and shall be find guilty by verdict or shall be outlaw or  upon his arraignment shall confess the same in every such case he shall be  oust of his clergy by this Act it be common hold and so publish in some print  book that none shall have clergy who commit any felonious burglary and that be  true if it be well understand and the secret thereof be worthy your  apprehension and knowledge for this statute of Elizabeth extend only to three  case videlicet where the offender be outlaw or be find guilty by verdict or  confess it and therefore if any one be indict of burglary general at the  commonlaw without something special and without any allegation accord to  certain statute in such case provide if the offender be outlaw or if upon not  guilty plead he be find guilty by verdict or if he confess the same he shall  be oust of the privilege of clergy by this statute but if he be arraign upon  such general indictment and stand mute or will not answer or challenge above  the number of twenty in such case upon such indictment he shall have his  clergy m and therefore it will be wise do for the indictment to say accord to  the statute of h I e that some person be in the house and put in fear c for in  such case the same Act ousts he of his clergy or accord to the statute of  Edward the owner his wife or child be sleep or wake for if any such special  matter be contain in the indictment then if the offender stand mute or will  not direct answer or challenge above the number of twenty he shall be oust of  his clergy but also the say act of I e be necessary to be explain videlicet  the Act of Edward ought to be expound as it have be before and although this  Act extend to a single burglary without robbery yet it require that some  person be then in the house that be put in fear for if the party be there and  not put in fear as if he be sleep or awake or in another part of the house and  not put in fear then notwithstanding such burglary he shall have his coke a  clergy notwithstanding the statute of h S join robbery with burglary in such  case and the statute of Edward which extend to single burglary but both agree  that the person ought to be put in fear and the say Act also of Edward be  worthy of exposition for first it join robbery with burglary so that if the  offender break the house in the night with a felonious intent without take  anything although the person be put in fear yet he shall have his clergy  second this Act extend only when the offender be find guilty of the felony and  not when the offender be outlaw or stand mute or will not answer or challenge  above the number of twenty and therefore the sure way be in the indictment to  follow the statute of Edward for that as to burglary be the most siire and  complete law as to ground a indictment of burglary but what have be say extend  to the principal offender in burglary and it be requisite that something shall  be say in what case the accessary in this offence king the Ann c abolish the  ceremony of read vide note b write v Wigges   b l Vid in foster et seq a full  commentary upon poulter case the point discuss be now since Geo c immaterial  in foster it be say the judgement in poulter case be find on sound sense and  upon legal principle though not upon those which the learned reporter have  choose to find it upon m this be provide for by W m c S and the offender be  not now entitle to clergy coke report b er p shall have their clergy and in  what not n the statute which take away the privilege of clergy in this and  diverse other case be the say statute of Phil mark for the Act of h which deny  clergy to the accessary before be as have be say take away as to that by the  say general clause of Edward and the Act of Elizabeth extend but to the  principal and therefore the word of the say Act of Phil mark be to be consider  and they as to this purpose be all and every person and person that shall  malicious command hire or counsel any person or person to do any robbery in  any dwell house or house shall lose the benefit of his clergy and of such  effect be the statute of h and the statute of h extend only to the principal  by which it appear that if the commandment be to do any felon and robbery of  good that such accessary before shall have his clergy vide Stamford lib cap by  what other felony burglary may be commit but let we leave burglary which ought  to be do in the night and let we see in what case a man shall be oust of his  clergy when he break any dwell house in the day upon statute of h h Edward cap  e it be clear that there ought to be a actual felony do beside the break of  the house in the day for the break of the house only in coke b the day  although it be with a felonious intent without take away something be not  felony and therefore no clergy be necessary in the case upon the say statute  of and Henry there ought to be the owner his wife or some of his child or  servant then there and put in fear and by Edward some person ought to be in  the house and put in fear by Edward cap if the owner wife or some of his child  or servant be in any part of the house sleep or wake and all the other point  concern the attainder conviction stand mute c in case of burglary extend also  to robbery in a dwell house in the daytime and he who rob any person in a any  booth or tent in any fair or market the owner his wife child or servant then  there be sleep or awake shall be oust of his clergy by the statute of Edward  cap Edward cap but two thing in the case of robbery in a dwell house in the  day be to be observe nun of these statute ousts the party of his clergy in  case of robbery in a dwell house in the day but in two case if any person be  put in fear upon the statute of Edward cap and other statute before a if the  owner his wife his child or servant be then in another part of the same house  although they be not put in fear the offender shall be oust of his clergy by  the statute of Edward cap but if a stranger be there by the owner leave the  offender shall have his clergy for it be out of the word and of such opinion  be Stamf b who vouch the opinion of all the justice accord but a doubt be  conceive upon these statute if any in the daytime have break a outhouse as a  barn stable c if that shall be say as to oust the offender of his clergy a  dwellinghouse and afterward the statute of Elizabeth cap be make by the which  it be enact that he who rob to the value of five shilling in any dwellinghouse  or outhouse in the daytime although no person be there within it shall be oust  of his clergy and it be to be know that none of the say statute extend to any  accessary before the robbery in a house in the daytime but only as it have be  often say the statute of h and the statute of Phil mark and the statute of h  as to this point be take away by the statute of Edward cap then let we see in  what case the accessary before shall have his clergy and in what not and  therefore the say Act of coke a the p m be to be again review and consider as  to this point for in case where the clergy be take away from the principal in  case of rob in any dwellinghouse in the day before the say Act of b Phil mark  in such case the clergy be oaken from the accessary before by the stat of Phil  mark but this Act do not extend to accessary before in case of rob in a n  accessary before the fact be deprive of clergy upon conviction attainder stand  mute or challenge above or be outlaw by stat W m c S a Stamf pi Cr a Inst  Fitzherbert just a dalt just a Godbolt Stamf pi Cr a Fitzherbert just a   a b  say p m escape dalt just coke report b er p booth or tent be it in the day or  in the night for these be not esteem in law for a dwellinghouse as the statute  of p m speak and as well appear in the recital of Edward cap also the statute  of p m do not extend to the offence within the Act of Elizabeth which be make  long time after the Act of Ph mark and the Act itself of c Elizabeth take away  clergy from the principal offender only and you may take this for a general  rule that d every Act which take clergy from the principal and speak nothing  of the accessary that the accessary as well before as after shall have their  clergy as it be hold by all the justice I mark fol a e dyer another general  rule be f in all case where a man be oust by any statute for any offence from  the benefit of his clergy the same offence ought to be contain in the  indictment or appeal in such manner and form and with the same a circumstance  as be contain in the statute or otherwise the offender shall have his clergy  because the statute which ousts he of his clergy not be pursue the offender be  leave to the commonlaw for example upon the say Act of Phil mark the word be  all and every person and person that shall malicious command hire or counsel  any person to commit or do any petit treason wilful murder or to do any  robbery in any dwellinghouse c or wilful to burn a dwellinghouse c b and  thereupon the case in year regime Elizabeth dyer c be that a man be indict of  robbery of another in his mansionhouse he be in the say house and put in fear  and another be indict because he felonious before the say robbery procure and  counsel the principal to commit that robbery in which indictment of the  accessary this word d malicious be omit and by the opinion of all the justice  of assize in their assembly except the chief justice and a brown for want of  this word malicious in the indictment the party have his clergy because the  word of the statute of I Philip mary be not pursue also in Elizabeth a servant  of the coke b lady Laxston of London be indict for felonious procure the  robbery of his mistress by one Crompton but in the indictment there want to  meet and consider to draw together well prcepit and also malicious and  therefore clergy be allow he after judgement per belief justice