certain offenses. A milder form of punishment was substituted for that provided for by law, in favor of those entitled to such benefit.1

A clergyman was exempt from capital punishment as often as he repeated the offense; but the laity, provided they could read, were exempted only for the first offense, but peers or peeresses were discharged for their first offense, without any reading at all, or any punishment being inflicted, but women commoners had no right to invoke the benefit of clergy. Instead of the punishment provided by law as to commoners who could read, a substituted punishment of burning the hand, was assessed under this privilege. Although the benefit of clergy originally extended only to the clergy, in time it came to be extended to all who could read, whether clergymen or not. This privilege, however, was never extended to those guilty of treason, or of misdemeanors inferior to felony.3

2

Cade construed the inability to read as constituting the offense for which the subjects had been put to death, but his harangue, although wrong, was no doubt intended, by the Poet, to present the injustice of such a plea; merely because a man was unable to read, he was punishedregardless of the irrelevancy of such fact to his guilt or innocence-while one possessing this accomplishment, was subjected to a lighter form of punishment, or allowed to go free. This plea was evidently abhorrent to the Poet's sense of justice.

11 Chitty, Cr. Law, 667-668.

24 Bl. Comm. ch, 28.

31 Bishop's Cr. Law, secs. 622-624.

This privilege, improperly given to the clergy and others possessing learning, was abolished by statute, in England, by 7 Geo. IV, c. 28. And the benefit of clergy was abolished by Act of Congress as to offenses punishable with death, in 1790.

Cade attempted to reverse the law and make the benefit of

clergy a crime, instead of a defense, as evidenced by the following:

"Cade. Here's a villain.

Smith. H'as a book in his pocket, with red letters in it.
Cade. Nay, then he is a conjuror.

Dick. Nay, he can make obligations and write court-hand. Cade. I am sorry for't: the man is a proper man, on mine honour; unless I find him guilty, he shall not die,-Come, hither, sirrah, I must examine thee; What is thy name?

Clerk. Emanuel.

Cade.

Dost thou use to write thy name? or hast thou a mark to thyself, like an honest plain dealing man?

Clerk. I thank God, Sir, I have been so well brought up, that I can write my name.

All. He hath confessed: away with him, he's a villain and a traitor.

Cade. Away with him, I say; hang him with his pen and inkhorn about his neck." (2' Henry VI, Act IV, Scene II.)

Lord Say was also pronounced a traitor, because he could speak French.

(idem.)

And Dick, the butcher, said: "The first thing that we do, let's kill all the lawyers." (Act IV, Scene II.)

In 2' Henry VI, Dick, the butcher, a follower of Cade, is made to say: "Dick. But, methinks, he should stand in fear of fire, being burnt i'the hand for stealing of sheep." (Act IV, Scene II.)

For interesting cases, wherein this privilege was invoked in the English courts, see 1 Salk. 61; Hale's Pleas of the Crown, by Amos, p. 24; Kelyng's Rep. (18 Car. 11.)

Reeves, in his History of English Law, thus describes how the benefit of clergy was taken away from accessories before the fact in case of murder and other crimes, during the reign of Philip and Mary: "The statute of Edw. VI, which took away clergy from the principals in murder, had left accessories to enjoy the capacity they derived at common law from the benefit of clergy. It happened, in 3' and 4' Phillip and Mary, that one Smith had hired two persons to murder one Rufford. The wife of Rufford petitioned the House of Commons that Smith might, by act of Parliament, be deprived of his clergy. Upon this the Commons sent to the Queen, praying that she would order Smith to be brought from the Tower to the bar of the house. He was accordingly brought and the other parties confessing the whole matter, and Smith at length doing the same, the bill was passed.

Sec. 298. Determining causes.—

"Say. Long sitting to determine poor men's causes Hath made me full of sickness and diseases."1

Determining poor men's causes, was the function that Lord Say complains had brought upon him the diseases that he was afflicted with. A cause, is used in the sense of a cause of action, which accrues to a person when a wrong has been committed, or a duty violated. As one of the justices in eyre of the realm, it had been the duty of Lord Say to go over the kingdom, yearly, to hear the causes of the subjects and this, he claimed, had broken down his health.

Sec. 299. Maiden rent.—

"Cade.

The proudest peer in the realm shall not wear a head on his shoulders, unless he pay me tribute; there shall not a maid be married, but she shall pay to me her maidenhead ere they have it: Men shall hold of me in capite: and we charge and command that their wives be as free as heart can wish, or tongue can tell."3

This is a reference to the old custom of exacting what was known as maiden rent, from the tenant, by the lord, in lieu of the latter's privilege of spending the first night with the wife of the tenant.

Such rent, known to the old English law, as maiden rent, was in the nature of a fine, paid to the lord of the

But when it was sent up to the Lords, it was there strongly opposed, particularly by the clergy, who would not consent to any diminution of their ancient privileges; however, at last, it got through that house, and received the royal assent." And the next year there was a general law passed, taking clergy away from accessories before the fact in murder and other crimes. V Reeves' History Eng. Law, p. 158.

12' Henry VI, Act IV, Scene VII.

"Crabb's Eng. Law, 103-104; 3 Bl. Comm. 58.

manor, in consideration of the lord's relinquishment of his customary right of lying the first night with the bride of his tenant.1

Cade proclaims that he will enforce his right, as lord, to this barbarous custom, and makes a play upon the word capite, in connection with such custom.2

Sec. 300. Bail.

"York.

birth,

The sons of York, thy betters in their

Shall be their father's bail; and bane to those
That for my surety will refuse the boys."s

Bail, in practice, are those persons who become surety for the appearance of a defendant, in court, at his trial day.*

Bail was first introduced, in English law, to mitigate the hardship imposed upon offenders, while in the custody of the sheriff, under arrest, the security thus offered standing to the sheriff in the place of the body of the offender, until his day of trial.

Taking bail was made compulsory upon the sheriff by the statute 23 Hen. VI, c. 9,5 and the privilege of the defendant was rendered more valuable by subsequent statutes.

1Cowel; Bouvier's Law Dictionary.

As capite, in Latin, means head, his meaning is clear that the subjects of the realm should hold by him, through the concession made by their wives, in accordance with this old custom, or, otherwise, they should lose their heads, i. e., maidenheads. III Reeve's History Eng. Law, 510.

*2' Henry VI, Act V, Scene I.

5

1 Chitty, 286.

See Statutes 23 Hen. VI, c. 9; III Reeve's Hist. Eng. Law,

p. 481.

See Statutes, 12 Geo. I, c. 29; 21 Geo. II, c. 3; 19 Geo. III,

c. 70.

The Poet here makes York demand that his sons be accepted as his bail, as if he knew of the statutes giving him the right to demand bail, enacted in the reign of King Henry VI.

The Poet concludes that the dagger thrust into the pure breast of the loyal wife, Lucrece, "did bail it from the deep unrest Of that polluted prison where it breathed." (1725, 1726.)

In the LXXIV' Sonnet, the Poet thus discourses as to death: "But be contended: when that fell arrest

Without all bail, shall carry me away,

My life hath in this line some interest,

Which for memorial still with thee shall stay." (1, 4.)

The Poet tells his friend, in the CXXXIII' Sonnet:

"Prison my heart in thy steel bosom's ward,

But then my friend's heart let my poor heart bail." (9, 10.)