Volume 1

The trial of Elizabeth Duchess Dowager of Kingston for bigamy, before the Right Honourable the House of Peers, in Westminster-Hall, in full Parliament, on Monday the 15th, Tuesday the 16th, Friday the 19th, Saturday the 20th, and Monday the 22d of April, 1776. On the last of which days the said Elizabeth duchess dowager of Kingston was found guilty / Published by order of the House of Peers.

  • Bristol, Elizabeth Chudleigh, Countess of, 1720-1788
Date:
1776
Catalogue details

Licence: Public Domain Mark

Credit: The trial of Elizabeth Duchess Dowager of Kingston for bigamy, before the Right Honourable the House of Peers, in Westminster-Hall, in full Parliament, on Monday the 15th, Tuesday the 16th, Friday the 19th, Saturday the 20th, and Monday the 22d of April, 1776. On the last of which days the said Elizabeth duchess dowager of Kingston was found guilty / Published by order of the House of Peers. Source: Wellcome Collection.

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    relied in Argument. They lay it down, that Peers convid of Clergyable Crimes are exempt from all Punifhment, not being within the Eighteenth of Elizabeth ; that Peerefies are to be tried and judged like Peers ; that the Third and Fourth of William and Mary puts Women convid: in the lame Condition as Men ; and that by fome tacit Reference to the former Statutes, Peereffes convid ar-e not to be puniihed at all. I have troubled your Lordfhips already with my Reafons for thinking, that, in old Time, Peers enjoyed the Benefit of Clergy in common with other Men, and upon the fame Terms; that in the Fourth of Henry the Seventh, Burning was inflided upon them as Lay Clerks ; that the Statute of Edward the Sixth, in the very Moment of exempting them from the Penalties incurred at Law by Convidion, adjudges them Clerks, and delivers them for Purgation in the Bifhop’s Court; that the Statute of Elizabeth delivers all, who (hall thereafter be admitted to Clergy, from Purgation, and difcharges them, fubjed to fuch Corredion by Imprifonment for lels than a Year, as the Court fhall think fit. It is not denied, that thefe Words, in their plain and natural Senfe, embrace the Cafe of Peers. Bur, in this Context, it is fuppofed they do not, becaufe the Clerks convid are to be difcharged after Allowance of their Clergy, and after burning in the Hand according to the Statute. This laft Provifion, they fay, cannot refer to Peers. Nay, One learned Gentleman thought, that, if it fhould be conftrued to include Peers, they muff, by Force of thefe Words, be burnt in the Hand. I cannot follow this Idea. I have no Way of conceiving, how an Ad which inflids, or rather referves a Penalty, according to the Law as it then Hood, can be interpreted to create a new Penalty •, or, by whatChain of Reafoning it is concluded, that where all Convids are to be difcharged upon the Allowance of Clergy, and fuch Burning as the Law direds, thofe are not to be difcharged at all, for whom the Law has not cireded Burning. Suppofe the King fhould pardon the Burning: It was thought, in Lord Warwick's Cafe, that would be a perfed Difcharge. Burning was notfubftituted in the Place of Purgation : That was a meer Slip : It is contrary to the Hiftory : Burning exifted before the Eighteenth of Elizabeth, in juft the fame Extent as after. Imprifonment, at the Difcretion of the Tem¬ poral Judge, was the Subftitute for Purgation •, and is extended exprefsly to all, who are difcharged from Purgation. But it feems too late to argue this. Was it not exprefsly decided in the Cafe of Searl and Williams, when Prohibition went to flay the Deprivation of a Parfon, who had been convided of Manflaughter, and difcharged under the Eighteenth of Elizabeth, although he could not be burnt ? 44 For when the Statute fays after Burning, it “ imports, where Burning ought to be j otherwife the Statute would do no good to Clerks, “ for whom it was moft intended.” The Cafe is reported in Hobart. The Statute fpeaks univerfally of every Body, thofe who were, and thofe who were not liable to Burning*, and difcharges them all, after Allowance of Clergy, and Burning according to Law, as it had flood before ; that is, reddendo fingula fmgulis. The next Objedion is, that the Word Juftices will not apply to your Lordfhips, even while you are fitting merely in the Charaders of Judges. Therefore a Statute, which is to be executed by Juftices, cannot relate to a Peer, who is not triable by Juftices. Is it then ferioufly contended, that your Lordfhips, exercifing your Jurildidion in the Trial of a Peer, will not do all the fame Ads of Juftice, which Judges muft do in the Trial of a Commoner f Upon reading many Ads of Parliament, your Lordfhips will find, either, that you have no Jurifdidion at all, or that you muft exercife it under the Charader and Denomination of Juftices. The fame Objedion might have been made to Lord Ferrers's Execution *, the fame to the Burning a Peer under the Statute of Henry the Seventh. By the Word Juftices I underftand, in our Law, all Manner of Officers, who are intruded with the Adminiftration of Juftice. So Spelman defines the Word. In high Antiquity, the Name went to the greateft Subjed in this Country*, for I take the Jujtitia totius Anglic to have been above the Senefchallus Regis. Your Lordfhips therefore will not difdain the Name ; for you fit here in no higher Charader than that, which, by juft and natural Con- ftrudion, is attributed to the Word Juftices. Therefore, if no better Objedions can be railed than thefe, I apprehend the Words of the Statute fufficiently comprize the Peerage. This alfo was laid clown in the Trial of Lord Warwick. But, my Lords, if thefe are Objedions, whither do they go ? not only to fubvert the Statute of Elizabeth, in this moft realonable Particular of giving fome convenient Corredion, as the Statute calls it, to a Criminal found fo upon Record *, but to reftore a Law, which has now for many Ages been underftood to be at an End ; and I flatter rnyfelf, confidering the Account, which the Books all give of it, that Purgation is at an End. But I am called upon to look at the 20th of H. VI. c. 9. This was a meer declaratory Law ; reciting the 29th Chapter of Magna Charta, Nullus Liber Homo, and lo forth, and a very