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18. When the prisoner has put himself upon upon the general issue, in any capital crunt, and
his trial, (and in what words is this done ?) what upon what principle ? 355.
does the clerk answer? 341.

19. But for what purpose do the judges never

scruple to allow a prisoner counsel ; and what is
CHAP. XXVII.- Of Trial and Conviction.

directed by statute 7 W. III. c. 3 and 20 Geo. IL

c. 30, lest this indulgence should be intercepted
1. What was trial by ordeal; of what two by superior influence, in the case of state cri-
sorts; and what when they were performed by minals? 355, 356.
deputy ? 342, 343.

20. In what five leading points, by several
2. How was fire-ordeal performed ? 343. statutes and resolutions, has a difference been

3. How was water-ordeal; and in what prac- made between civil and criminal evidence ? 356,
tice may relics of it be traced ? 343.

358, 359.
4. How was this trial abolished ? 345.

21. What hath been holden in the construc-
5. What was trial by the corsned? 345. tion of the statute 7 W. III. c. 3, by which it is

6. In what criminal cases may the trial by enacted that the confession of the prisoner, which
battel be demanded; what is the difference be- shall not countervail the necessity of proof of
tween this trial, on a writ of right, and on these treasons by two witnesses, must be in open court?
criminal cases; and therefore who may counter-

357.
plead and refuse the wager of battel, and compel

22. What two rules does Sir Matthew Hale lay
the other party to put himself upon the country; down as to admitting presumptive evidence cau-
and when may the crime itself be sufficient cause tiously? 359.
of such refusal ? 346, 347.

23. What was declared by statute 1 Anne,
7. Wherein do the oaths of the two combatants st. 2, c. 9 as to witnesses for the prisoner ? 360.
differ in waging battel upon appeals, and upon

24. What is the difference between the verdict
writs of right? 347, 348.

in civil and criminal cases ! 360.
8. When shall a peer be tried by the court of

25. What if the verdict be notoriously wrong;
parliament or the lord high steward, and when by a and what hath been done in many instances
jury; and in what two things only does the trial where, contrary to evidence, the jury have found
by these courts differ from the trial per patrium, the prisoner guilty ? 361.
or by jury? 348, 349.

26. What if the jury find the prisoner not guilty;
9. What is the sheriff's duty when a prisoner, but what is he said to be if the jury find him
on his arraignment, has pleaded not guilty, and, guilty ? 361, 362.
for his trial, hath put himself upon the country, 27. In what two ways may conviction accrue ?
which country the jury are; what if the proceed- 362.
ings are before the court of king's bench, and then 28. When shall the prosecutor be allowed the
where is the trial had; and what before commis expenses of prosecution and a compensation for
sioners of oyer and terminer and gaol-delivery? his trouble and loss of time, out of what; and
360, 351.

when shall all persons appearing upon recogni-
10. What is customary when persons indicted zance, or subpæna, to give evidence, be paid their
of smaller misdemeanours have pleaded not guilty charges, and an allowance for their trouble and
or traversed the indictment? 351.

loss of time, by several late statutes ? 362.
11. In cases of high treason (except in coun-

29. When shall the prosecutor have restitution
terfeiting the king's coin or seals, as much of the of his goods, by statute 21 Hen. VIII. c. 11, out
latter act as relates to which is repealed by sta- of what, and by what process ? 362, 363.
tute 16 Geo. III. c. 53) or misprision of treason,

30. Why does this writ of restitution reach the
what is enacted by statutes 7 W. III. c. 3 and stolen goods notwithstanding they have been
7 Anne, c. 21 ? 351, 352.

sold to a third person in market-overt; when may
12. By whom, and what kind, may challenges the party robbed regain the goods without such
of jurors be made when the trial is called on writ of restitution; and what if the felon be con-
352.

victed and pardoned, or be allowed his clergy!
13. What are challenges for cause; and in cri- 363.
minal, or at least in capital, cases, what other

31. When, and why, does the court permit the
species of challenge is allowed to the prisoner, defendant to speak with the prosecutor before judg.
and for what two reasons ? 353.

ment, and, if the prosecutor then declare himself
14. What is enacted as to the denial of this satisfied, inflict but a trivial punishment; but
privilege to the king, by statute 33 Edw. I. st. 4? when should this practice never be suffered, and
353.

why? 363, 364.
15. But what is the boundary of the prisoner's
peremptory challenges by the common law; and CHAP. XXVIII.-Of the Benefit of Clergy.
how does it deal with one who peremptorily chal-
lenges beyond that boundary ? 354.

1. After trial and conviction, what is the
16. But, by statute 22 Hen. VIII. c. 14, how principal intervening circumstance that sus-
many peremptory challenges can any person ar- pends or arrests judgment ? 365.
raigned for felony be permitted to make; and 2. In what had clergy, the privilegium clericale,
what if the prisoner challenge more than that or, in common speech, the benefit of clergy, its
number? 354.

original; and of what two principal kinds were
17. May a tales be awarded in criminal prose- the exemptions which were granted to the church!
cutions ? 354, 355.

365.
18. What is done when the jury is sworn, if 3. When was it finally settled in the reigu of
it be a cause of any consequence; but when only Hen. VI. that the prisoner might claim his benefit
shall counsel be allowed a prisoner upon his trial, of clergy? 366.

4. In process of time, who was accounted a case the defendant be found guilty of a misde
clerk, or clericus ; and what distinction was there- meanour, the trial of which happens in his ab-
fore drawn by statute 4 Hen. VII. c. 13, and sence? 375.
virtually restored, after a temporary abolition 2. But, whenever he appears in person, what
by two statutes of Hen. VIII., by statute 1 Edw. may he offer in arrest or stay of judgment at
VI. c. 12, which enacted what ? 367.

this period ? 375.
5. What became of the offenders after they 3. Is not a defective indictment aided by a ver-
had had the benefit of their clergy and were dis- dict, as defective pleadings in civil cases are ? 375.
charged from the sentence of the law in the 4. What is the effect of a pardon when pleaded
king's courts ? 368.

in arrest of judgment; and what when it is not
6. But what happened when, upon very hei- pleaded till after sentence ? 376.
nous and notorious circumstances of guilt, the 5. What if all motions in arrest of judgment
temporal courts delivered over to the ordinary the fail? 376.
convicted clerk, absque purgatione facienda? 369. 6. Of what parts of capital judgments has the

7. For avoiding these perjuries and abuses, humanity of the English nation authorized an
what does the statute 18 Eliz. o. 7 enact; and almost general mitigation ? 376, 377.
how long did the law continue thus altered only, 7. How far is the punishment for every offence
by an indulgence to whom of the benefit of clergy ascertained by our English law ? 377, 378.
without the test ? 369, 370.

8. What has the bill of rights declared as to
8. What was enacted by statute 5 Anne, c. fines and punishments? 378, 379.
upon the considerations that learning was no 9. What has magna carta, c. 14, determined
extenuation of guilt, and that the lenity of clergy concerning amercements for misbehaviour by the
was an encouragement to commit the lower de- suitors in matters of civil right; and what has it
grees of felony; in what cases did the statutes directed in order to ascertain this amercement ?
4 Geo. I. c. 11 and 6 Geo. I. c. 23 give the courts 379.
a discretionary power to commute the penalties 10. Who were affeerors; what is the difference
of burning in the hand, or whipping, for transpor- between an amercement and a fine; what is the
tation for seven years ? 370.

reason why fines in the king's courts are fre-
9. But now, by statute 19 Geo. III. c. 74, for quently denominated ransoms; and what is
what have the judges a discretionary power to holden where any statute speaks both of fine and
commute the penalty of transportation (with ransom? 379, 380.
what exception?); what if the offenders escape a 11. Upon judgment of either of what two
first, and what if a second, time; and for what things, on a capital crime, shall a man be said to
(with what exceptions ?) may the court commute be attainted (attinctus, stained or blackened)? 380,
the penalty of burning in the hand? 370, 371. 381.

10. To what persons is the benefit of clergy to 12. What are the incapacities of a man at-
be allowed at this day? 371, 372.

taint? 380.
11. For what crimes is the benefit of clergy to 13. What is the great difference between a
be allowed ? 372, 373.

man convicted and attainted? 381.
12. What is declared by statute 28 Hen. VIII. 14. What are the two consequences of al.
c. 15 as to the allowance of the benefit of clergy tainder ? 381.
in the marine law ? 373.

15. How is forfeiture twofold ? 381.
13. Unless what is clergy now allowable in 16. How far backwards does forfeiture of reul
all felonies, whether new-created or by common estates relate ? 381.
law ? 373.

17. What is forfeited from the wife, if the hus-
14. Where clergy is taken away from the prin- band be attainted of treason, by the express pro-
cipal, is it from the accessory? 373.

vision of statute 5 & 6 Edw. VI. c. 11; and if
15. Where clergy is taken away from the the wife be so, shall the husband be tenant by the
offence, is a principal in the second degree ex- curtesy of the wife's land ? 381, 382.
cluded from his clergy? 373.

18. But what if a traitor die before judgment
16. Where it is taken away only from the pronounced, or be killed in open rebellion, or
person committing the offence, are his aiders and hanged by martial law ? 382.
abettors excluded from the clergy? 373.

19. In what consideration is the natural jus-
17. What are the consequences of allowing tice of forfeiture, or confiscation of property,
this benefit of clergy, which affect the present founded ? 382.
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.

reditary punishment entirely, what was enacted
18. What does he forfeit by his conviction ; | by statute 7 Anne, c. 21; and how was the ope-
and to what is he restored by the burning its ration of the indemnifying clauses in this sta-
substitute, or pardon? 374.

tute still further suspended by statute 17 Geo.
19. Of what felonies is he not discharged by II. c. 39? 384, 385.
the burning its substitute, or pardon, by statutes 21. What does the offender forfeit in petit
8 Eliz. c. 4 and 18 Eliz, c. 77 374.

treason and felony; and what is called the king's

year, day, and waste? 385.
CHAP. XXIX.-Of Judgment and its Conse- 22. Do these forfeitures actually take place;
quences.

are they incident to a felo de se; and how far

backwards do they relate ? 386.
1. What, upon a capital charge, is the prisoner 23. To what two other instances besides those
asked by the court when the jury have brought already spoken of does the forfeiture of the pro.
in their verdict guilty; and what happens in fits of land during life extend ? 386.

rape ? 400.

24. When does the forfeiture of goods and what if the party plead diversity of person, that
chattels accrue? 386.

he is not the same that was attainted, and the
25. How is forfeiture for flight, on an accusa- like ? 396.
tion of treason, felony, or petit larceny, now looked 7. When only, in these collateral issues, shall
upon ? 386, 387.

time be allowed the prisoner to make his defence
26. What three remarkable differences are or produce his witnesses ; and what is held as to
there between the forfeiture of lands and that of challenges of the jury by the prisoner ? 396.
goods and chattels, the second as to outla and 8. What is declared by statute 27 Hen. VIIL
the third as to its relation backwards; but what c. 24 as to pardon ? 397.
(particularly by statute 13 Eliz. c. 5) if a trai- 9. What offences may the king pardon, except-
tor's or felon's chattels be collusively, and not ing what four? 398, 399.
bonâ fide, parted with, merely to defraud the 10. What restriction is there that affects the
crown, and why? 387, 388.

prerogative of pardoning in case of parliamentary
27. What are the consequences of corruption impeachments ? 399, 400.
of blood? 388.

11. What must be the form of a complete irre-
28. In what offences is corruption of blood vocable pardon ; and what will be the effect of a
saved; what will be the virtual effect of the warrant under the privy seal or sign-manual ? 400.
statute of 7 Anne (the operation of which is post- 12. What circumstance will vitiate the whole
poned by the statute 17 Geo. II.); but why will pardon? 400.
the corruption of blood still continue for many 13. Will a pardon of all felonies pardon a con-
sorts of felony ? 389.

viction or attainder of felony ? 400.

14. What is enacted by the statute 13 Ric. II.
CHAP. XXX.–Of Reversal of Judgment.

st. 2, c. 1 as to the pardon of treason, murder, or
1. In what two ways may judgments, with 15. Under these restrictions, how is it s
their several consequences, be set aside ? 390. general rule that a pardon shall be taken ? 401.

2. By what three means may a judgment and 16. What is a conditional pardon ? 401.
attainder be reversed? 390-392.

17. What is the difference between a pardon
3. For what may a judgment be falsified, re- by act of parliament, and by the king's charter of
versed, or avoided, without a writ of error; why pardon? 402.
cannot these matters be assigned for error in the 18. When has a man waived the benefit of his
superior court; and when may a diminution of pardon ? 402.
the record be alleged ? 390.

19. What discretionary power does the statute
4. Where does a writ of error lie, and for what | 5 & 6 W. and M. c. 13 give the judges of the
may it be brought ? 391, 392.

court over a criminal pleading pardon of felony?
5. On what are writs of error allowed to re- 402.
verse judgment in case of misdemeanours; and 20. What is the effect of a pardon by the king!
how, in capital cases, to reverse attainders, 402.
when hy whom are they generally brought? 392. 21. But what only can restore or purify ihe

6. When is an act of parliament to reverse the blood, if the pardon be not allowed till after at-
attainder granted; and how is its effect different tainder ; yet when may the attainted's son be his
from that of a reversal by writ of error ? 392. heir $ 402.

7. What is the effect of falsifying or reversing
an outlawry; and wherein does it differ from

CHAP. XXXII.--Of Execution.
that of falsifying or reversing a judgment upon
conviction? 392, 393.

1. By whom must execution be performed; and
8. Upon the latter event taking place, what under what warrant in the court of the lord high
if the party's estates have been granted away by steward, under what in the court of the peers in
the crown? 393.

parliament, and under what at the assises? 403.
9. Is he liable to another prosecution for the 2. Within what time is the sheriff to do eze-
same offence 393.

cution in the country; but what is the form of

proceeding, and what is the warrant, in London,
CHAP. XXXI.-Of Reprieve and Pardon.

and what if the prisoner be tried at the bar of,

or brought by habeas corpus into, the court of
1. What is a reprieve, from reprendre, to take king's bench ? 404.
back; and on what two accounts may it be? 394. 3. And, throughout the kingdom, what is

2. What is a reprieve ex arbitrio judicis ; and enacted by 25 Geo. II. c. 37 in case of murder ?
when may it be granted or taken off ? 394.

404.
3. What is the first case of reprieve granted

4. Can the sheriff alter the manner of the exe-
ex necessitate legis; and what must the judge direct cution, by substituting one death for another?
in case the plea of pregnancy, in a woman capitally 404.
convicted, be made in stay of execution ; when is 5. May the king, or may he, remit ang part
it a sufficient stay; and how long ? 395.

of the sentence? 405.
4. What if the woman have once had the benefit 6. What if, upon execution of judgment to be
.f this reprieve, and been delivered, and after- hanged by the neck till he is dead, the criminal
wards become pregnant again ? 395.

revives? 406.
5. What is the second cause of regular re-
prisve? 395, 396.

CHAP. XXXIII. Of the Rise, Progress, and Gro
6. What is it the invariable rule to demand of dual Improvements of the Laws of England.
the prisoner when any time intervenes between
the attrinder and the award of execution; and 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 Vruids in Gaul, who were sent over to the excellence of his constitutions ? 425-427.
Britain to be instructed ? 408.

14. What did Edwards II. and III.? 428.
2. Why is it impossible to trace out when the 15. What was done from this time to that of
several mutations of the common law were made; Henry VII. ; and what two things do we owe to
and whence the great variety of our ancient the civil wars and disputed titles to the crown?
established customs? 408-410.

428, 429.
3. What did Alfred for the constitution and 16. What was done by Henry VII. ? 429,
laws? 410; 411.

480.
4. What was the Dane-lage, what the West- 17. What did the Reformation effect; and what
Sazon-lage, and what the Mercen-lage? 412. was done with regard also to our civil polity by

5. What did Edgar; and what is the most Henry VIII. ? 430, 431.
probable original of the common law ? 412. 18. What did Edward VI. and Mary? 431,

6. What nine may be reckoned among the 432.
most remarkable of the Saxon laws? 412-414. 19. What did Elizabeth for the religious liber-

7. What five alterations in our laws did the ties of the nation; and what for the political ?
Norman invasion work? 415–418.

432–435.
8. What did William Rufus; and what did 20. What did James I.? 436.
Henry I.? 420, 421.

21. What did Charles I. ? 436–438.
9. What did Stephen ? 421.

22. What was done upon the restoration of
10. What did Henry II. ; and what four things Charles II. ? 438–440.
peculiarly merit the attention of the legal anti- 23. What has been done from the revolution in
quary in the reign of this king ? 421-423. 1688 to the present time; and what have been
11. What did Richard I.? 423.

the chief alterations of moment in the admi.
12. What did John and Henry III. ; and what nistration of private justice during that period ?
were the effects of magna carta and carta de fo- 440-442.
resta) 423-425.

709

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