18. When the prisoner has put himself upon
his trial, (and in what words is this done?) what
does the clerk answer? 341.
CHAP. XXVII.-Of Trial and Conviction.
1. WHAT was trial by ordeal; of what two
sorts; and what when they were performed by
deputy? 342, 343.
2. How was fire-ordeal performed? 343.
3. How was water-ordeal; and in what prac-
tice may relics of it be traced? 343.
upon the general issue, in any capital crime, and
upon what principle? 355.
19. But for what purpose do the judges never
scruple to allow a prisoner counsel; and what is
directed by statute 7 W. III. c. 3 and 20 Geo. IL
c. 30, lest this indulgence should be intercepted
by superior influence, in the case of state cri-
minals? 355, 356.
20. In what five leading points, by several
statutes and resolutions, has a difference been
made between civil and criminal evidence? 356,
358, 359.
21. What hath been holden in the construc-
tion of the statute 7 W. III. c. 3, by which it is
enacted that the confession of the prisoner, which
shall not countervail the necessity of proof of
treasons by two witnesses, must be in open court?
4. How was this trial abolished? 345.
5. What was trial by the corsned? 345.
6. In what criminal cases may the trial by
battel be demanded; what is the difference be-
tween this trial, on a writ of right, and on these
criminal cases; and therefore who may counter-357.
plead and refuse the wager of battel, and compel
the other party to put himself upon the country;
and when may the crime itself be sufficient cause
of such refusal? 346, 347.
7. Wherein do the oaths of the two combatants
differ in waging battel upon appeals, and upon
writs of right? 347, 348.
8. When shall a peer be tried by the court of
parliament or the lord high steward, and when by a
jury; and in what two things only does the trial
by these courts differ from the trial per patrium,
or by jury? 348, 349.
9. What is the sheriff's duty when a prisoner,
on his arraignment, has pleaded not guilty, and,
for his trial, hath put himself upon the country,
which country the jury are; what if the proceed-
ings are before the court of king's bench, and then
where is the trial had; and what before commis-
sioners of oyer and terminer and gaol-delivery?
300, 351.
10. What is customary when persons indicted
of smaller misdemeanours have pleaded not guilty
or traversed the indictment? 351.
11. In cases of high treason (except in coun-
terfeiting the king's coin or seals, as much of the
latter act as relates to which is repealed by sta-
tute 16 Geo. III. c. 53) or misprision of treason,
what is enacted by statutes 7 W. III. c. 3 and
7 Anne, c. 21? 351, 352.
12. By whom, and what kind, may challenges
of jurors be made when the trial is called on?
352.
13. What are challenges for cause; and in cri-
minal, or at least in capital, cases, what other
species of challenge is allowed to the prisoner,
and for what two reasons? 353.
14. What is enacted as to the denial of this
privilege to the king, by statute 33 Edw. I. st. 4?
15. But what is the boundary of the prisoner's
peremptory challenges by the common law; and
how does it deal with one who peremptorily chal-
lenges beyond that boundary? 354.
22. What two rules does Sir Matthew Hale lay
down as to admitting presumptive evidence cau-
tiously? 359.
23. What was declared by statute 1 Anne,
st. 2, c. 9 as to witnesses for the prisoner? 360.
24. What is the difference between the verdict
in civil and criminal cases? 360.
25. What if the verdict be notoriously wrong;
and what hath been done in many instances
where, contrary to evidence, the jury have found
the prisoner guilty? 361.
26. What if the jury find the prisoner not guilty;
but what is he said to be if the jury find him
guilty? 361, 362.
27. In what two ways may conviction accrue?
28. When shall the prosecutor be allowed the
expenses of prosecution and a compensation for
his trouble and loss of time, out of what; and
when shall all persons appearing upon recogni
zance, or subpana, to give evidence, be paid their
charges, and an allowance for their trouble and
loss of time, by several late statutes? 362.
29. When shall the prosecutor have restitution
of his goods, by statute 21 Hen. VIII. c. 11, out
of what, and by what process? 362, 363.
30. Why does this writ of restitution reach the
stolen goods notwithstanding they have been
sold to a third person in market-overt; when may
the party robbed regain the goods without such
writ of restitution; and what if the felon be con-
victed and pardoned, or be allowed his clergy?
363.
31. When, and why, does the court permit the
defendant to speak with the prosecutor before judg-
ment, and, if the prosecutor then declare himself
satisfied, inflict but a trivial punishment; but
when should this practice never be suffered, and
why? 363, 364.
CHAP. XXVIII.-Of the Benefit of Clergy.
1. AFTER trial and conviction, what is the
principal intervening circumstance that sus-
16. But, by statute 22 Hen. VIII. c. 14, how
many peremptory challenges can any person ar-pends or arrests judgment? 365.
raigned for felony be permitted to make; and
what if the prisoner challenge more than that
number? 354.
17. May a tales be awarded in criminal prose-
cutions? 354, 855.
18. What is done when the jury is sworn, if
it be a cause of any consequence; but when only
shall counsel be allowed a prisoner upon his trial,
2. In what had clergy, the privilegium clericale,
or, in common speech, the benefit of clergy, its
original; and of what two principal kinds were
the exemptions which were granted to the church?
365.
3. When was it finally settled in the reign of
Hen. VI. that the prisoner might claim his benefit
of clergy? 366.
4. In process of time, who was accounted a
clerk, or clericus; and what distinction was there-
fore drawn by statute 4 Hen. VII. c. 13, and
virtually restored, after a temporary abolition
by two statutes of Hen. VIII., by statute 1 Edw.
VI. c. 12, which enacted what? 367.
5. What became of the offenders after they
had had the benefit of their clergy and were dis-
charged from the sentence of the law in the
king's courts? 368.
6. But what happened when, upon very hei-
nous and notorious circumstances of guilt, the
temporal courts delivered over to the ordinary the
convicted clerk, absque purgatione facienda? 369.
7. For avoiding these perjuries and abuses,
what does the statute 18 Eliz. c. 7 enact; and
how long did the law continue thus altered only,
by an indulgence to whom of the benefit of clergy
without the test? 369, 370.
8. What was enacted by statute 5 Anne, c. 6
upon the considerations that learning was no
extenuation of guilt, and that the lenity of clergy
was an encouragement to commit the lower de-
grees of felony; in what cases did the statutes
4 Geo. I. c. 11 and 6 Geo. I. c. 23 give the courts
a discretionary power to commute the penalties
of burning in the hand, or whipping, for transpor-
tation for seven years? 370.
9. But now, by statute 19 Geo. III. c. 74, for
what have the judges a discretionary power to
commute the penalty of transportation (with
what exception?); what if the offenders escape a
first, and what if a second, time; and for what
(with what exceptions?) may the court commute
the penalty of burning in the hand? 370, 371.
10. To what persons is the benefit of clergy to
be allowed at this day? 371, 372.
11. For what crimes is the benefit of clergy to
be allowed? 372, 373.
12. What is declared by statute 28 Hen. VIII.
c. 15 as to the allowance of the benefit of clergy
in the marine law? 373.
13. Unless what is clergy now allowable in
all felonies, whether new-created or by common
law? 373.
14. Where clergy is taken away from the prin-
cipal, is it from the accessory? 373.
15. Where clergy is taken away from the
offence, is a principal in the second degree ex-
cluded from his clergy? 373.
16. Where it is taken away only from the
person committing the offence, are his aiders and
abettors excluded from the clergy? 373.
case the defendant be found guilty of a misde
meanour, the trial of which happens in his ab-
sence? 375.
2. But, whenever he appears in person, what
may he offer in arrest or stay of judgment at
this period? 375.
3. Is not a defective indictment aided by a ver-
dict, as defective pleadings in civil cases are? 875.
4. What is the effect of a pardon when pleaded
in arrest of judgment; and what when it is not
pleaded till after sentence? 376.
5. What if all motions in arrest of judgment
fail? 376.
6. Of what parts of capital judgments has the
humanity of the English nation authorized an
almost general mitigation? 376, 377.
7. How far is the punishment for every offence
ascertained by our English law? 377, 378.
8. What has the bill of rights declared as to
fines and punishments? 378, 379.
9. What has magna carta, c. 14, determined
concerning amercements for misbehaviour by the
suitors in matters of civil right; and what has it
directed in order to ascertain this amercement?
379.
10. Who were affeerors; what is the difference
between an amercement and a fine; what is the
reason why fines in the king's courts are fre-
quently denominated ransoms; and what is
holden where any statute speaks both of fine and
ransom? 379, 380.
11. Upon judgment of either of what two
things, on a capital crime, shall a man be said to
be attainted (attinctus, stained or blackened)? 380,
381.
12. What are the incapacities of a man at-
taint? 380.
13. What is the great difference between a
man convicted and attainted? 381.
14. What are the two consequences of at-
tainder ? 381.
15. How is forfeiture twofold? 381.
16. How far backwards does forfeiture of reul
estates relate? 381.
17. What is forfeited from the wife, if the hus-
band be attainted of treason, by the express pro-
vision of statute 5 & 6 Edw. VI. c. 11; and if
the wife be so, shall the husband be tenant by the
curtesy of the wife's land? 381, 382.
18. But what if a traitor die before judgment
pronounced, or be killed in open rebellion, or
hanged by martial law? 382.
19. In what consideration is the natural jus-
tice of forfeiture, or confiscation of property,
founded? 382.
17. What are the consequences of allowing
this benefit of clergy, which affect the present
interest and future capacity of the party, whe- 20. What is provided in certain treasons re-
ther commoner and layman, or peer and clergy-lating to the coin; and, in order to abolish he-
man? 374.
18. What does he forfeit by his conviction;
and to what is he restored by the burning its
substitute, or pardon? 374.
19. Of what felonies is he not discharged by
the burning its substitute, or pardon, by statutes
8 Eliz. c. 4 and 18 Eliz. c. 7? 374.
CHAP. XXIX.-Of Judgment and its Conse-
quences.
1. WHAT, upon a capital charge, is the prisoner
asked by the court when the jury have brought
in their verdict guilty; and what happens in
reditary punishment entirely, what was enacted
by statute 7 Anne, c. 21; and how was the ope-
ration of the indemnifying clauses in this sta-
tute still further suspended by statute 17 Geo.
II. c. 39? 384, 385.
21. What does the offender forfeit in petit
treason and felony; and what is called the king's
year, day, and waste? 385.
22. Do these forfeitures actually take place;
are they incident to a felo de se; and how far
backwards do they relate? 386.
23. To what two other instances besides those
already spoken of does the forfeiture of the pro-
fits of land during life extend? 386.
24. When does the forfeiture of goods and
chattels accrue? 386.
25. How is forfeiture for flight, on an accusa-
tion of treason, felony, or petit larceny, now looked
upon? 386, 387.
26. What three remarkable differences are
there between the forfeiture of lands and that of
goods and chattels, the second as to outlawry, and
the third as to its relation backwards; but what
(particularly by statute 13 Eliz. c. 5) if a trai-
tor's or felon's chattels be collusively, and not
bona fide, parted with, merely to defraud the
crown, and why? 387, 388.
27. What are the consequences of corruption
of blood? 388.
28. In what offences is corruption of blood
saved; what will be the virtual effect of the
statute of 7 Anne (the operation of which is post-
poned by the statute 17 Geo. II.); but why will
the corruption of blood still continue for many
sorts of felony? 389.
CHAP. XXX.-Of Reversal of Judgment.
1. In what two ways may judgments, with
their several consequences, be set aside? 390.
2. By what three means may a judgment and
attainder be reversed? 390-392.
3. For what may a judgment be falsified, re-
versed, or avoided, without a writ of error; why
cannot these matters be assigned for error in the
superior court; and when may a diminution of
the record be alleged? 390.
4. Where does a writ of error lie, and for what
may it be brought? 391, 392.
5. On what are writs of error allowed to re-
verse judgment in case of misdemeanours; and
how, in capital cases, to reverse attainders,
when by whom are they generally brought? 392.
6. When is an act of parliament to reverse the
attainder granted; and how is its effect different
from that of a reversal by writ of error? 392.
7. What is the effect of falsifying or reversing
an outlawry; and wherein does it differ from
that of falsifying or reversing a judgment upon
conviction? 392, 393.
8. Upon the latter event taking place, what
if the party's estates have been granted away by
9. Is he liable to another prosecution for the
same offence? 393.
CHAP. XXXI.-Of Reprieve and Pardon.
1. WHAT is a reprieve, from reprendre, to take
back; and on what two accounts may it be? 394.
2. What is a reprieve ex arbitrio judicis; and
when may it be granted or taken off? 394.
3. What is the first case of reprieve granted
ex necessitate legis; and what must the judge direct
in case the plea of pregnancy, in a woman capitally
convicted, be made in stay of execution; when is
it a sufficient stay; and how long? 395.
4. What if the woman have once had the benefit
of this reprieve, and been delivered, and after-
wards become pregnant again? 395.
5. What is the second cause of regular re-
prieve? 395, 396.
6. What is it the invariable rule to demand of
the prisoner when any time intervenes between
the attainder and the award of execution; and
what if the party plead diversity of person, that
he is not the same that was attainted, and the
like? 396.
7. When only, in these collateral issues, shall
time be allowed the prisoner to make his defence
or produce his witnesses; and what is held as to
challenges of the jury by the prisoner? 396.
8. What is declared by statute 27 Hen. VIII.
c. 24 as to pardon? 397.
9. What offences may the king pardon, except-
ing what four? 398, 399.
10. What restriction is there that affects the
prerogative of pardoning in case of parliamentary
impeachments? 399, 400.
11. What must be the form of a complete irre-
vocable pardon; and what will be the effect of a
warrant under the privy seal or sign-manual? 400.
12. What circumstance will vitiate the whole
pardon? 400.
13. Will a pardon of all felonies pardon a con-
viction or attainder of felony? 400.
14. What is enacted by the statute 13 Ric. II.
st. 2, c. 1 as to the pardon of treason, murder, or
rape? 400.
15. Under these restrictions, how is it a
general rule that a pardon shall be taken? 401.
16. What is a conditional pardon? 401.
17. What is the difference between a pardon
by act of parliament, and by the king's charter of
pardon? 402.
18. When has a man waived the benefit of his
pardon? 402.
19. What discretionary power does the statute
5 & 6 W. and M. c. 13 give the judges of the
court over a criminal pleading pardon of felony ?
402.
20. What is the effect of a pardon by the king?
21. But what only can restore or purify the
blood, if the pardon be not allowed till after at-
tainder; yet when may the attainted's son be his
heir? 402.
CHAP. XXXII.-Of Execution.
1. By whom must execution be performed; and
under what warrant in the court of the lord high
steward, under what in the court of the peers in
parliament, and under what at the assises? 403.
2. Within what time is the sheriff to do exe-
cution in the country; but what is the form of
proceeding, and what is the warrant, in London,
and what if the prisoner be tried at the bar of,
or brought by habeas corpus into, the court of
king's bench? 404.
3. And, throughout the kingdom, what is
enacted by 25 Geo. II. c. 37 in case of murder?
4. Can the sheriff alter the manner of the exe-
cution, by substituting one death for another?
404.
5. May the king, or may he, remit any part
of the sentence? 405.
6. What if, upon execution of judgment to be
hanged by the neck till he is dead, the criminal
revives? 406.
CHAP. XXXIII.-Of the Rise, Progress, and Gra
dual Improvements of the Laws of England.
1. WHAT few points which bear a great affinity
and resemblance to some of the modern doctrines 13. What did Edward I.; to what principal
of our English law may be collected from Cæsar's fifteen general heads may the regulations of this
account of the tenets and discipline of the an-king be reduced; and what is the best proof of
cient Druids in Gaul, who were sent over to
Britain to be instructed? 408.
2. Why is it impossible to trace out when the
several mutations of the common law were made;
and whence the great variety of our ancient
established customs? 408-410.
3. What did Alfred for the constitution and
laws? 410; 411.
4. What was the Dane-lage, what the West-
Saxon-lage, and what the Mercen-lage? 412.
5. What did Edgar; and what is the most
probable original of the common law? 412.
6. What nine may be reckoned among the
most remarkable of the Saxon laws? 412-414.
7. What five alterations in our laws did the
Norman invasion work? 415-418.
8. What did William Rufus; and what did
Henry I.? 420, 421.
9. What did Stephen? 421.
10. What did Henry II.; and what four things
peculiarly merit the attention of the legal anti-
quary in the reign of this king? 421-423.
11. What did Richard I.? 423.
the excellence of his constitutions? 425-427.
14. What did Edwards II. and III.? 428.
15. What was done from this time to that of
Henry VII.; and what two things do we owe to
the civil wars and disputed titles to the crown?
428, 429.
16. What was done by Henry VII.? 429,
12. What did John and Henry III.; and what
were the effects of magna carta and carta de fo- | 440-442.
resta? 423-425.
|