trial upon indictments, since the abolition of ordeal; and, therefore, what, if the prisoner refuse to put himself upon the inquest in the usual form? 340, 341. 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 practice may relics of it be traced? 343. 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 between this trial, on a writ of right, and on these criminal cases; and therefore who may counterplead 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 patriam, or by jury? 348., see Mr. J. Christian's note (3) at this page, and 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 proceedings are before the court of King's bench, and then where is the trial had; and what, before commissioners of oyer and terminer and gaol delivery? 550, 351. 10. What is customary, when persons indicted of smaller misdemesnors have pleaded not guilty, or traversed the indictment? 351. 11. In cases of high treason (except in counterfeiting the King's coin or seals, as much of the latter act, as relates to which, is repealed by statute 16 Geo. III. c. 53.) or misprision of treason, what is enacted by statutes 7 W. III. c. 3. and 7 Ann. 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 criminal, 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.? 353. 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 challenges beyond that boundary? 354. 16. But by statute 22 Hen. VIII. c. 14. how many peremptory challenges can any person arraigned 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 prosecutions? 354, 355. 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, 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. II. c. 30., lest this indulgence should be intercepted by superior influence, in the case of state criminals? 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 construction 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? 357. 22. What two rules does Sir Matthew Hale lay down, as to admitting presumptive evidence cautiously? 359. 23. What was declared by statute 1 Ann. 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? 362. 28. When shall the prosecutor be allowed the expences of prosecution, and compensation for his trouble and loss of time, out of what; and when shall all persons appearing upon recognizance, or subpoena, 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 convicted and pardoned, or be allowed his clergy? 363. 31. When, and why, does the court permit the defendant to speak with the prosecutor before judgment, 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 suspends or arrests judgment? 365. 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 Henry 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 therefore 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 discharged from the sentence of the law in the King's courts? 368. 6. But what happened, when upon very heinous 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 on ly, by an indulgence to whom, of the benefit of clergy, without the test? 369, 370. 8. What was enacted by statute 5 Ann. 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 degrees of felony; in what cases did the statute Geo. I. c. 11. and 6 Geo. I. c. 23. give the court a discretionary power, to commute the penalties of burning in the hand or whipping, for transportation 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 principal, is it from the accessory? 373. 16. Where clergy is taken away from the offence, is a principal in the second degree excluded 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. 17. What are the consequences of allowing this benefit of clergy, which affect the present interest and future capacity of the party, whether commoner and layman, or peer and clergyman? 374. 18. What does be 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 statute 8 Eliz. c. 4. and 18 Eliz. c. 7.? 374. CHAP. XXIX.-Of Judgment and its Consequences. 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 case the defendant be found guilty of a misdemesnor, the trial of which happens in his absence? 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 verdict, as defective pleading in civil cases are? 375. 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 authorised 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 inisbehaviour 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 frequently 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 attainder? 381. 15. How is forfeiture two-fold? $81. 16. How far backwards does forfeiture of real estates relate? 381. 17. What is forfeited from the wife, if the husband be attainted of treason, by the express provision 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 justice of forfeiture, or confiscation of property, founded? 382. 20. What is provided in certain treasons relating to the coin; and in order to abolish hereditary punishment entirely, what was enact ed by statute 7 Ann. c. 21., and how was the operation of the indemnifying clauses in this statute still farther 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 profits 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 accusation of treason, felony, or petit larciny, 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 traitor's or felon's chattels be collusively, and not bonâ 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 Ann. (the operation of which is postponed 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, reversed, 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 reverse judgment in case of misdemesnors; 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 judg⚫ ment upon conviction? 392, 393. 8. Upon the latter event taking place, what if the party's estates have been granted away by the crown? 393. 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 afterwards become pregnant again? 395. 5. What is the second cause of regular reprieve? 395, 596. 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, excepting 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 irrevocable 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 conviction 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. & 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? 402. 21. But what only can restore or purify the blood, if the pardon be not allowed till after attainder; 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 execution, 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? 404. 4. Can the sheriff alter the manner of the execution, 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 gradual Improvements, of the Laws of England. 1. WHAT few points, which bear a great af finity and resemblance to some of the modern doctrines of our English law, may be collected from Cæsar's account of the tenets and discipline of the ancient 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. 11. What did Richard I.? 423. 12. What did John and Henry III.; and what were the effects of magna carta and carta de foresta? 423-425. 13. What did Edward I.; to what principal fifteen general heads may the regulations of this king be reduced; and what is the best proof of the excellence of his constitution? 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, 430. 17. What did the reformation effect; and what was done with regard also to our civil polity by Henry VIII.? 430, 431. 18. What did Edward VI. and Mary? 431, 432. 19. What did Elizabeth for the religious liberties of the nation; and what for the political? 432-435. 20. What did Jarnes I.? 436. 21. What did Charles I.? 436-438. 22. What was done, upon the restoration of Charles II. 438-440. 23. What has been done from the revolution in 1688 to the present time; and what have been the chief alterations of moment in the administration of private justice, during that period? 440. 442. The large numerals denote the Books; the ciphers the Pages of the Commentaries. Abatement of freehold, III. 168 molesting their possessors, IV. 116 Abbreviations, III. 323 Abduction of child, III. 140. and n or kidnapping IV. 219. and n when freehold cannot be put in, II. 107. n. 8 Abjuration, oath of, I. 368 of the realm, IV. 56. 124. 332 377 rights and duties, I. 125 Abstract of a fine, II. 351. 532 after the fact, IV. 57. and n Account books, when evidence, III. 369 Accroaching royal power, IV. 76 Act of bankruptcy, III. 477. and n when pleaded, IV. 396 parliament, I. 85 disobedience to, IV. 122 Actual right of possession, II. 196 cum testamento annexo, II. 504 durante absentia, II. 503 8 durante minore aetate, II. 503. n. 23 granted to creditor when executor out of coun on death of bastard intestate, without wife or taken out within six months, II. 508. n. 32 debtor administering no discharge of debt, II. Administrator, II. 496. IV. 428 when privileged from arrest, III. 289. n. 13 Admiralty canses, III. 106 court of, III. 69. IV. 268. and a no appeal from, to privy council, I. 230. n. 5 letters of marque granted by, ib notice of erecting pier, wharf, &c. near har- Admission of a clerk, I. 390 to copyholds, II. 870 Admittendum clericum, writ ad, III. 250 Ad quod damnum, writ of, II. 271 rights, &c. of wife guilty of, I. 441 jointure not forfeited by, II. 138. n. 56 annuity on separation not forfeited by, ib Advocate, III. 26. see Counsel canon law forbids clerks becoming, L. 15. 20.n.4 endeavouring to repeal is treason, IV. 82. Advowson, IV. 426 n. 8 8 in general, II. 21 cannot pass without deed, 11. 21. p. 2 is assets in hands of heir, II. 22. n. S to hold to bail in action, III. 287 Affirmance of judgments, III. 411 Age, action suspended by, III. 300 of consent to marriage, I. 436 98 99 |