« EelmineJätka »
4. What is simple larceny? 229.
27. What is the malicious mischief which the
5. In what cases may a carrier of goods com- law considers as a public crime? 244.
mit the ofence of larceny upon those goods ? 28. What is enacted by statute 22 Hen. VIII.
c. 11 as to destroying the powdike in the fens
6. What is enacted by statutes 33 Hen. VI. c. of Norfolk and Ely; what offence is it to destroy
1 ap 1 21 Hen. VI. c. 7 in cases of servants em- the sea-banks, niver-banks, public navigations,
bezzling their master's goods ? 230, 231.
and bridges erected by virtue of many acts of
7. What is the offence of embezzling goods of parliament ; what does the statute 43 Eliz. c. 13
which the offender had not the possession, but enact for preventing rapine on the northern
only the care or use ? 231.
borders, and what is blackmail; what is enacted
8. Under what circumstances may a man be by the statutes 22 & 23 Car. II. c. 7 as to burn-
guilty of felony in taking his own goods 2 231. ing or destroying corn, hay, &c., or killing cat-
9. What is a sufficient asportation of goods to tle; 4 & 5 W. and M. c. 23 as to burning on any
constitute a larceny? 231.
waste between Candlemas and midsummer; 1
10. Who are indemnified by the requisite to a Anne, st. 2, c. 9 and 4 Geo. I. c. 12 as to de-
Larceny that it must be felonious, that is, done stroying ships to the prejudice of the owners
animo furandi? 232.
and insurers; 12 Anne, st. 2, c. 18 as to damaging
11. Why can no larceny be committed, by the ships in distress; 1 Geo. I. c. 46 as to setting on
rules of common law, of things that adhere to the fire underwood; 6 Geo. I. c. 23 as to defacing
freehold; and why is the severance of them the garments of persons passing in the streets;
merely trespass by common law; but in what by the Waltham Olar k-act, extended to what by
cases may the taking them away amount to 9 Geo. III. c. 29; by 6 Geo. II. c. 37 and 10
Larceny: 232, 233.
Geo. II. c. 32 as to the cutting down banks,
12. And now, by statute 4 Geo. II. c. 32, how cutting hop-binds, or firing coal-mines; 11 Geo.
are what offences of this nature punished; and II. c. 22 as to deterring buyers of corn, seizing
what is enacted by three statutes of Geo. III. as corn-carriages or horses, or spoiling corn; 28
to the offence of stealing any trees, roots, shrubs, Geo. II. c. 19 as to firing furze in any forest or
or plants? 233, 234.
chase; 6 Geo. III. c. 36 & 48 and 13 Geo. III.
13. What instance of stealing out of mines is c. 33 as to destroying trees or plants; 9 Geo.
punished by statute 25 Geo. II. c. 10; and how? III. c. 29 as to the destroying mine-engines or
enclosure-fences; and 13 Geo. III. c. 38 as to
14. Why is it no felony to steal writings re- destroying the Plate-Glass Company's property?
lating to a real estate? 234.
15. Upon what footing are bonds, bills, and 29. What is forgery, or the crimen falsi ? 247.
noles put by the statute 2 Geo. II. c. 25; and 30. What forgeries have been capitally pu
what is enacted as to embezzlements at the Bank nished by a multitude of statutes since the
of England, South Sea Company, and post-office, Revolution, when paper credit was first esta-
by statutes 15 Geo. II. c. 13, 24 Geo. II. c. 11, blished ? 248, 249.
and 7 Geo. III. c. 50! 234, 235.
31. What do several statutes of Geo. III.
16. When may larceny be committed of animals enact as to forgeries of standard plate-marks,
feræ naturæ; and what is enacted on this sub- frauds on the stamp-duties, counterfeiting the
ject by statutes 9 Geo. I. c. 22, 16 Geo. III. c. Plate-Glass Company's seal, and forging the
30, and 5 Geo. III. c. 14? 235, 236.
superscription of a letter in order to avoid the
17. Of what animals domitiæ naturæ can larceny payment of the postage? 249.
be committed ; and what is enacted by statute 32. What is enacted by statute 2 Geo. II. c.
10 Geo. III. c. 18 as to dog-stealing? 236. 25 as to the forgery of deeds, wills, notes, &c.;
18. Can larceny be committed if the owner be and by statutes 7 Geo. II. c. 22 and 18 Geo. III.
c. 18 as to acceptances of bills of exchange, or
19. When only is stealing a corpse felony ? the number or principal sum of any accountable
receipt for any security for money, or any order
20. How is simple larceny, whether grand or for the payment of money for the delivery of
petit, punished; and how is the punishment for goods ? 249, 250.
the latter offence mitigated ? 238, 239.
21. But in what cases of simple larceny is the CHAP. XVIII.-Of the Means of preventing Of-
benefit of clergy taken away by statute; and why?
22. What is mixed, or compound, larceny? 240. 1. How may crimes and misdemeanours be pre-
23. What is larceny from the house ; in what vented ? 251.
four domestic aggravations of larceny above the 2. In what does this security consist ? 252,
value of twelvepence is the benefit of clergy 253.
denied, and to whom ; in what two larcenies to the 3. Who may demand it; to whom may it be
value of five shillings, and in what one to the granted; what is a writ called a supplicavit ; and
value of forty shillings? 241, 242.
6. How may such recegnizance be forfeited ; | missions of oyer and terminer, and general gaol.
when does a trespass upon the lands or goods delivery, directed; who are of the quorum, and
of another, and when do mere reproachful what are they empowered to do? 270.
words, forfeit such recognizance ? 255, 256. 16. When are special commissions of oyer and
7. Whom are the justices empowered by the terminer and gaol-delivery issued ? 271.
statute 34 Edw. III. c. 1 to biad over to their 17. Can a man act as judge, or other lawyer, in
good abearance, or behaviour, towards the king and these commissions, within his own county, where
his people; who are holden to be comprised under he was born or has inhabited ? 271.
the general words of this expression; and what 18. When, and before whom, must the cout.
if the justice commit a man for want of sureties? of general quarter sessions of the peace be held ;
and what is its jurisdiction and mode of pro-
8. How may such recognizances be forfeited ? ceeding; is there any appeal from its orders,
upon motion ; and who has the custody of its
records or rolls ? 271, 272.
CHAP. XIX. - Of Courts of a Criminal Juris-
19. What other quarter sessions are kept in
most corporation towns; and in what one instance
only have they, by statute 8 & 9 W. III. c. 30,
1. In discussing the method of inflicting pu- the same authority as the general quarter ses-
nishments, what two things are to be considered ? sions of the county; and for what purposes, in
both corporation towns and counties, is a special or
2. Of what two natures are the several courts petty session held, by whom? 272, 273.
of criminal jurisdiction? 258.
20. What is the sheriff's tourn, or rotation; and
3. In what degree are these criminal courts in- when is it held ? 273.
dependent of each other; and why are they so; | 21. What is the court-leet, or view of frank-
and which are the twelve public ones, ranking pledge; when, and before whom, is it held;
them for this reason according to their dignity? whence is its origin; what is the jurisdiction of
258, 259, 261, 265, 268, 269, 271, 273-275. both the sheriff's tourn and this court; who are
4. Who are tried by the high court of parliament, obliged to attend them; what has occasioned
how, and for what offences ; and what is enacted them to grow into disrepute; and where hath
by statute 12 & 13 W. III. c. 2 as to any plea of their business greatly devolved ? 273, 274.
pardon under the great seal ? 259–261.
22. What is the object of the jurisdiction of
5. For what is the court of the lord high stew the court of the coroners ? 274.
ard of Great Britain instituted; how, and to 23. To what is the court of the clerk of the
whom, is the office now granted; what is the market incident; what is the object of its juris-
only plea a peer may plead in the court of king's diction; whence is the officer called the clerk;
bench; what is the form of proceeding in case and what punishments has he authority to in-
of a trial in the court of the lord high steward; flict ? 275.
and what does the statute 7 W. III. c. 3 enact 24. What are the three private or special courts
98 to the number of peers who shall vote on the of criminal jurisdiction ? 276, 277.
25. For what purpose was the court of the
6. Where is the trial of an indicted peer pro- lord steward, treasurer, or comptroller of the king's
perly during the session of parliament; and what household instituted by statute 3 Hen. VII. c. 14;
different authority has the lord high steward when and what is the course of its proceedings : 276.
he sits in the high courts of parliament, and when 26. For what purpose was the court of the
he sits in his own court? 263.
lord steward of the king's household, or, in his
7. Have bishops a right to sit in the court of absence, of the treasurer, comptroller, and steward
the lord high steward; and what do they, in point of the marshalsea, erected by statute 33 Hen.
of fact? 264, 265.
VIII. c. 12; and what is the course of its pro-
8. What is the cognizance of the crown side ceedings ? 276.
of the court of king's bench; and what is the 27. What is the jurisdiction of the criminal
effect of the coming of this court into any county ? courts of the two universities, or their chancellors'
Fay by justices of the peace; and to what three prosecution; and what if it be wantonly an]
mischievous effects does the system give rise! maliciously raised witbout cause ? 293, 294.
9. What rewards and immunities are bestowed
5. What is the process of these summary con- on such as apprehend felons; by statutes 4 & 5
victions ; but what check has the common law W. and M. c. 8 and 8 Geo. II. c. 16, as to highway.
thrown upon them which is now held to be an men; by statutes 6 & 7 W. III. c. 17 and 15 Geo.
absolute requisite to them? 282, 283.
II. c. 28 as to offenders against the coinage, ky
6. Of what two sorts are the contempts which statutes 10 & 11 W. III. c. 23 and 5 Anne, c. 31
are immemorially punished in the summary way as to burglars; by statute 6 Geo. I. c. 23 as to
of attachment by the superior courts of justice ? 283. helpers of others to their stolen goods, for re-
7. Of what seven kinds are the principal in- ward; by statutes 14 Geo. II. c. 6 and 15 Geo.
stances of either sort ? 284, 285.
II. c. 34 as to sheep-stealers; and by statutes
8. Why is the attachment for the species of 16 Geo. II. c. 15 and 8 Geo. III. c. 15 as to pre-
contempt arising from the disobedience to any mature returners from transportation ? 295.
rule or order of court by parties to any proceeding
not affected by a general act of pardon; and
CHAP. XXII.-Of Commitment and Bail.
how may obedience, by statute 10 Geo. III. c.
50, be enforced against any person having pri- 1. What is the justice before whom a prisoner
vilege of parliament ? 285.
is brought bound to do by statute 2 & 3 Ph. and M.
9. What does the statute of Westminster 2, c. 10; and in what cases only is it lawful totally
13 Edw. I. c. 39, ordain as to resistance of the to discharge him? 296.
process of the king's courts ? 288.
2. When must he be committed to prison; and
10. What if the contempt be committed in the when ought bail to be taken? 296, 297.
face of the court; and what is the course of 3. What offence is it by the common law, as well
proceeding in matters that arise at a distance ? as by the statute Westminster 1 and the habeas
corpus act, to refuse or delay to bail any person
11. What if the party refuse to answer the bailable ; and what is expressly declared as to
interrogatories upon oath of the court? 287. excessive bail by statute 1 W. and M. st. 2, c. 1 ?
12. What if the party can clear himself upon 297.
path; but what if he perjure himself ? 287. 4. On the other hand, what if the magistrate
take insufficient bail? 297.
CHAP. XXI.-Of Arrests.
5. Upon what ten accusations are persons
clearly not admissible to bail by the justices ?
1. UNDER what twelve general heads, following 298, 299.
each other progressively, may the regular and 6. Upon what three accusations do persons
ordinary proceedings in the courts of criminal ju- seem to be in the discretion of the justices whe-
risdiction be distributed ? 289.
ther bailable or not? 299.
2. What is arrest; who are liable to it in 7. Upon what three accusations must persons
criminal cases; what charges will justify it; and be bailed upon offering sufficient security ?
in what four ways may it be made ? 289.
3. By whom may a warrant be granted, and in 8. But who may bail for any crime whatsoever,
what cases ordinarily; upon what only should except only persons committed by whom? 299,
it be granted; what is requisite to its legality; 300.
what is a special, and what a general, warrant; 9. This imprisonment being only for safe cus
and when, by statute 24 Geo. II. C. 44, is the tody, what is the gaoler not justified in doing?
officer who executes a warrant indemnified ? 290, 300.
4. Whither does a warrant from a justice of the CHAP. XXIII.-Of the seven al Modes of Prose-
court of king's bench extend; and where is it
teste'd, or dated ? 291.
5. But what must take place before the war- 1. In what two ways are ofenders prosecuted,
rant of a justice of the peace in one county can be or formally accused ? 301.
executed in another; and what is enacted on 2. By one of what two proceedings is the former
this subject by statute 13 Geo. III. c. 31 ? 291, way of prosecution ? 301.
3. What is a presentment, properly speaking ?
6. By what five officers may arrests be exe- 301.
cuted withou. warrant ? 292.
4. What is an inquisition of office; and of what
7. When is any private person bound to make two kinds ? 301, 302.
an arrest, on what pain; and what is he justified 5. What is an indictment ? 602.
in doing in order to such arrest; but what if 6. Of whom are the grand jury composed ; by
the arrest to only upon suspicion ? 293.
whom are they instructed, or charged ; and what
8 What is arrest by hue (from huer, to shout) evidence only are they to hear? 302, 303.
and cry (hutesium et clamor); what does the sta- 7. In what case only can the grand jury in-
tute of Winchester, 13 Edw. I. c. 1 & 4, direct quire of a fact done out of that county for which
relative to this matter; what is the foundation they are sworn; and what is enacted by the sta-
of an action against the hundred in case of any tute 2 & 3 Edw. VI. c. 24 when a man is wounded
loss by robbery; what does the statute 27 Eliz. in one county and dies in another; by statute 2
c. 13 enact as to the sufficiency of hue and cry; Geo. II. -. 21 if the stroke or poisoning be in
and what that of Geo. II. c. 16 if an officer re- Englapıl and the death out of it, or vice versa ;
fuge or neglect to make it; by whom may it be by several statutes of Hen. VIII. and Edw. VI.
raised: what powers has the constable in its' where treason is committed out of the realm; by
two statutes of Hen. VIII. as to offences against 24. What are the only two appeals Low iL
the coinage committed in Wales; by statute 33 force ? 314.
Hen. VIII. c. 23 as to trials for murder by the 25. For what crimes against the parties then-
king's special commission ; by statute 10 & 11 w. selves may appeals be instituted; what is the
III. c. 25 as to capital crimes committed in New- only crime against one's relation for which an
foundland; by statute 9 Geo. I. c. 22 as to offences appeal can be brought; and by what relations
against the black-act; by statutes 8 Geo. II. c. 20 only can this be brought ? 314.
and 13 Geo. III. c. 84 as to felonies in destroying 26. What if the wife marry again, before,
turnpikes or river-works ; by statute 26 Geo. II. c. pending, or after judgment of her appeal; when
19 as to stealing from vessels wrecked or in distress ; shall the heir, and when shall the wife, not have
by statute 12 Geo. III. c. 24 as to destroying the the appeal ; what if there be no wife, and the
king's ships out of this realm; and by statute 13 heir be accused of the murder; and within what
Geo. III. c. 63 as to misdemeanours committed in time, by the statute of Gloucester, must all ap-
India? 303, 305.
peals of death be sued ? 314, 315.
8. In what cases is the offence to complete in 27. If the appellee be acquitted, can be be
two counties or parts of the kingdom, that the afterwards indicted for the same offence; and if a
offender may be indicted in either ? 305.
man be acquitted on an indictment of murder, or
9. What do the grand jury if, having heard found guilty, and pardoned by the king, what, in
the evidence, they think the accusation ground. strictness, ought to happen, by virtue of the sta-
less; may a fresh bill be preferred; and what tute 3 Hen. VII. c. 1; but what if he have been
do they if they be satisfied of the truth of the found guilty of manslaughter on an indictment,
and have had the benefit of clergy and suffered
10. But what number of the grand jury must the judgment of the law ? 315.
agree in order to find a bill ? 306.
28. What shall the appellor suffer, by virtue
11. What three things must be precisely and of the statute of Westminster 2, if the appelle!
sufficiently ascertained in an indictment? 306. be acquitted ? 316.
12. What is enacted by statute 1 Hen. V. c. 5 29. If the appellee be found guilty, what judg.
as to the identification of the person ; in what ment shall he suffer, with what remarkable dif-
case is a mistake in the time and place not held ference from the consequences of a conviction by
to be material; but when is it very material that indictment? 316.
the indictment should name the time? 306.
13. In what crimes must particular words of CHAP. XXIV.-Of Process upon an Indictment
art be used which are so appropriated by law to
express the precise ideas which it entertains of 1. If the offender have fled, or secrete himself,
the offence that no other words, however syno- in capital cases, or have not, in smaller miede-
nymous they may seem, are capable of doing meanours, been bound over to appear at the as-
it ? 307.
sises or sessions, may an indictment be preferred
14. In what cases, in indictments for murder, against him in his absence; can he be tried
need not the length and depth of the wound be although he do not personally appear; and what
expressed ; and when is it necessary that the is the express provision of statute 28 Edw. III.
thing which is the subject or instrument of the c. 3? 318.
offence should be expressed ? 307.
2. What is the proper process to bring in an
15. By one of what two proceedings is the offender, or an indictment for any petty misdemea-
method of prosecution without any previous find nour or on a penal siatute ? 318.
ing by a jury? 308, 312.
3. What if, by the return to such process, it
16. What was the proceeding when a thief was appear that the party hath lands in the county ;
taken with the mainour; and when does a simi- and what if the sherif return that he hath nons
lar process remain to this day? 307, 308. in his bailiwick? 318, 319.
17. Of what two sorts are informations; and 4. But what happens on indictments for treason
what are the limitations of prosecutions upon or felony; and what is now the usual practice in
penal statutes, by statute 31 Eliz. c. 5? 308. the case of misdemeanours? 319.
18. Of what two kinds are the informations 5. When shall the offender be put in exigent,
which are exhibited in the name of the king in order to his outlawry; and what is the form
alone; by whom are they respectively filed; and consequence of this proceeding? 319.
what are their respective objects; and by whom 6. What is the punishment for outlawries upou
must they be tried, and by whom punished ? 308, indictments for misdemeanours; but to what does
an outlawry in treason or felony amount ? 319.
19. But to what are these informations con- 7. Who may arrest an outlaw, on a criminal
prosecution ; and when is the whole outlawry il-
20. What is enacted by statute 4 & 5 W. and legal and may be reversed ? 320.
M. c. 18 as to informations exhibited by the 8. When may a writ of certiorari facias be had;
master of the crown-ofice; but what as to informa- what is its effect; and for what four purposes is
tions at the king's own suit, filed by the attorney- this frequently done ? 320, 321.
general ? 311, 312.
9. At whose instance may a certiorari be
21. Is there not still another species of in- granted; and when is it generally refused ! 321.
formation ? 312.
10. When, and how, must indictments found by
22. What is the method of criminal prosecution the grand jury against a peer, or in places of es.
which is merely at the suit of the subject by ap- clusive jurisdiction, be delivered into the cour!
peal; and why has it fallen into disuse ? 312, 313. of parliament, or into that of the lord high steam
23. What is the origin of an appeal ; and what ard, or to the courts of such exclusive jurisdio
Vas a weregild? 313, 314.
tion ? 321.
CHAP. XXV.-Of Arraignment and its Inci- 4. What is a plea to the jurisdiction, and when
may it be made ? 333.
5. When is a demurrer to the indictment in-
1. What is arraignment (ad rationem ponere; cident to criminal cases; what if the point of
in French, ad reson, or, abbreviated, a resne) ? law be adjudged against the prisoner; and why
are demurrers to indictments seldom used ? 333,
2. Why is the prisoner called upon to hold up 334.
his hand; and what if he refuse to do so ? 6. For what principally is a plea in abatement;
but why, in the end, does little advantage accrue
3. In what cases, by statute 1 Anne, c. 9, to the prisoner by means of these dilatory pleas ?
may the accessory be proceeded against as if the 334, 335.
principal felon had been attainted; and why? 7. What are special pleas in bar; of what four
kinds as applicable to both appeals and indict.
4. One of what two circumstances is incident ments ? 335.
to every arraignment ? 324.
8. Upon what universal maxim of the common
5. In what three cases is a prisoner said to law is the plea of autreforts acquit grounded; is
stand mute? 324.
an acquittal on an appeal a good bar to an indict-
6. What ought the court to do if the prisoner ment on the same offence, and vice versā, taking
say nothing; and what if he appear to be dumb into consideration what was enacted by the sta-
ex visitatione Dei, in which case, can judgment of tute 3 Hen. VII. c. 1 to prevent the practice of
death be given against him? 324, 325.
not trying any person on an indictment of homi-
7. But what hath long been clearly settled if cide till after the year and day within which
he be found to be obstinately mute, in high treason, appeals may be brought were past, by which
petit larceny, and all misdemeanours; and what, time it often happened that the witnesses died or
by the ancient law, in appeals or indictments for the whole was forgotten ? 335, 336.
other felonies or petit treason? 325.
9. When, and of what, is the plea of autrefoits
8. What was trina admonitio ; was the benefit convict a good plea in bar ? 336.
of clergy allowed to an obstinate mute; and what 10. Of what is the plea of autrefoits attaint a
was the sentence of peine (prisone) forte et dure? good plea in bar; and wherefore does it differ
from the former two pleas? 336.
9. Was the trial by rack ever attempted to be 11. But what four exceptions are there to this
introduced into England ? 326.
general rule, wherein, cessante ratione, cussat et
10. To what did standing mute amount, in all ipsa lex; and from these instances what inve-
cases, by the common law ; did the prisoner derive riable requisite to the validity of a plea of autre-
any advantage from suffering death by the sen- foits attaint may we collect ? 336, 337.
tence of peine forte et dure over that of judgment 12. What is one advantage that attends plead-
upon trial; and what was enacted in abolition ing a pardon in bar or in arrest of judgment before
of this sentence by statute 12 Geo. III. c. 20? sentence is past, which gives it by much the pre-
ference to pleading it after sentence or attainder ?
11. What is the consequence of the prisoner's | 337.
simple confession of the indictment? 329..
13. Wherein do special pleas in bar differ in
12. But what is confession by way of approve criminal prosecutions and in civil actions, and why;
ment; who is the approver or prover, probator, and when a prisoner's plea in bar is found or ad-
and who is the appellee ; in what offences only judged against him, what shall he have ; for
can an approvement be; to what does it amount; what is the only plea in consequence whereof
and what if the appellee be acquitted ? 329, 330. death can be inflicted ? 338.
13. Why has the admission of approvements 14. In cases of what indictments can there be
been long disused by courts of justice; and how no special justification put in by way of plea, and
is all the good arising from the method of ap: why; and why is the general issue not guilty, non
provements provided for by several statutes in culpabilis or nient culpable, the most advantageous
the cases of coining, robbery, burglary, house- plea for a prisoner ? 338, 339.
breaking, horse-stealing, and larceny to the value 15. How does the commentator explain the
of 58. from shops, stables, &c., and by statute abbreviations of “non cul.,” which was formerly
29 Geo. II. c. 30 in case of metal-stealing ? 330, used to be written upon the minutes when the
prisoner had pleaded not guilty, and “cul. prit.,"
14. What is the usual practice, too, of justices the replication on behalf of the king, by which
of the peace as to admitting what is generally issue was joined, and which, from the circum-
termed king's evidence ? 331.
stance of the clerk of the arraigns immediately
inquiring of the prisoner, “cul. prit, how wilt
CHAP. XXVI. Of Plea and Issue. thou be tried ?" is commonly understood as it
he had fixed an opprobrious name on the pri-
1. What is the plea of the prisoner ; in what soner ? 339, 340.
cases does he plead, and of what five kinds is 16. But what is Mr. J. Christian's conjec-
che plea? 332.
ture as to the word prit? See his note to this
2. What was the plea of sanctuary; when chapter.
might a criminal claim sanctuary; what did it 17. To what only has this form of inquiry
Buperinduc.; and when was the whole privilege reference at present; what can be the only trial
abolished ? 332, 333.
upon indictments since the abolition of ordeal;
3. Was there not another declmatory plea, and therefore what if the prisoner refuse to put
which was used to be pleaded before trial or con- bimself upon the inquest in the usual form? 340.
viction 2 333.