Under the English law, however, there are instances in which, by anticipation, exemption from punishment is granted; that is to say, before the punishment is inflicted.Thus, from the policy or weakness of the temporal sovereign, the English clergy obtained in times of barbarism an exemption in all cases from capital and several other kinds of punishment: an exemption which being by statute law confined, in regard to causes on the one hand, while by common law it was extended, with regard to persons on the other, has left this part of the penal branch of the law in the confusion under which it still labours.[3]
The nobility followed the example of the clergy.
In almost every country of Europe they have found themselves invested with exemptions of this nature.Ancient Rome set the example.No citizen could be put to death: Verres, convicted of the most atrocious crimes, atoned for them by enjoying at distance from Rome the fruits of his plunder.
When Catherine II., empress of Russia, convened together deputies from all the provinces of that immense empire, under the pretence of their assisting her in the formation of a code of laws (a sort of parody of the legislative assemblies of free states, which was not however without its use, in so far as it contributed to the spread of enlightened ideas,) she conferred upon them, amongst other privileges, an exemption from all corporal punishment, cases of high treason excepted.
This species of distinction, which as a reward for legislators, could scarcely be imagined in any other state than one just emerging from a state of barbarism, had doubtless for its object the increasing their self importance, and the conferring upon them a sort of rank which should last beyond the duration of their duties.
As a man may be punished in his person, his reputation, his property,---in like manner, through necessity, and with the view of punishing him, he may be burthened.An exemption from a burthen is an exemption from the obligation of rendering service: services are either services of submission, in the rendering of which the will of the party has no share---or services of behaviour.
Of exemption from services of submission, not exacted in the way of punishment, we shall not find a great variety of examples.
In Great Britain, members of the upper house of Parliament and other peers constantly, and members of the lower house at certain periods, are exempted from arrests: this privilege they may be considered as enjoying partly on the grounds of satisfaction, partly that they may not he diverted from the exercise of their functions, and partly because, being members of the sovereign body, they would have it so.
Among services performed by action, are some which may be styled services of respect.It is a service of respect exacted by usage in every kingdom in Europe not to wear a hat, or what is equivalent, in the presence of the king.In Spain, some families among the nobility enjoy the privilege of remaining covered in the presence of the king.In Ireland, the head of one family (the family of the De Courcys, earls of Kinsale) enjoys the like exemption, us a reward for some service rendered by an ancestor.
