1. PROCEEDINGS in criminal courts are, I. Summary. II. Regular. 280

.

2. Summary proceedings are such, whereby a man may be convicted of divers offences, without any formal process or jury, at the discretion of the judge or judges appointed by act of parliament, or common law.

280

3. Such are, I. Trials of offences and frauds against the laws of excise and other branches of the kings's revenue. II. Convictions before justices of the peace upon a variety of minute offences chiefly against the public police. III. Attachments for contempts to the superior courts of justice. 281-288

CHAPTER XXI.

OF ARRESTS.

1. REGULAR proceedings, in the courts of common law, are, I. Arrest. II. Commitment and bail. III. Prosecution. IV. Process. V. Arraignment, and its incidents. VI. Plea and issue. VII. Trial and conviction. VIII. Clergy. IX. Judgment, and its consequences. X. Reversal of Judgment. XI. Reprieve or pardon. XII. Execution.

289

2. An arrest is the apprehending, or restraining, of one's person; in order to be forthcoming to answer a crime, whereof one is accused or suspected.

289

3. This may be done, I. By warrant. II. By an officer, without warrant. III. By a private person, without warrant. IV. By hue and cry. 289-295

CHAPTER XXII.

OF COMMITMENT AND BAIL.

1. COMMITMENT is the confinement of one's person in prison for safe custody, by warrant from proper authority: unless, in bailable offences, he puts in sufficient bail, or security for his future appearance.

296

2. The magistrate is bound to take reasonable bail, if offered; unless the offender be not bailable.

296

3. Such are, I. Persons accused of treason; or, II. Of murder; or, III. Of manslaughter, by indictment; of if the prisoner

was clearly the slayer. IV. Prison-breakers, when committed for felony. V. Outlaws. VI. Those who have abjured the realm. VII. Approvers, and appellees. VIII. Persons taken with the mainour. IX. Persons accused of arson. X. Excom

municated persons.

Page 298 4. The magistrate may, at his discretion, admit or not admit to bail, persons not of good fame, charged with other felonies, whether as principals or as accessaries.

299

5. If they be of good fame, he is bound to admit them to

bail.

299

6. The court of King's Bench, or its judges in time of vacation, may be bail in any case whatsoever.

CHAPTER XXIII.

OF THE SEVERAL MODES OF PROSECUTION.

299

1. PROSECUTION, or the manner of accusing offenders, is either by a previous finding of a grand jury, as, I. By presentment. II. By indictment. Or, without such finding-III. By information. IV. By appeal.

301

2. A presentment is the notice taken by a grand jury of any offence, from their own knowledge or observation.

301

3. An indictment is a written accusation of one or more persons of a crime or misdemesnor, preferred to, and presented on oath by, a grand jury; expressing, with sufficient certainty, the person, time, place, and offence.

302

4. An information is, I. At the suit of the king and a subject, upon penal statutes. II. At the suit of the king only. Either, 1. Filed by the attorney-general ex officio, for such misdemesnors as affect the king's person or government: or, 2. Filed by the master of the crown-office (with leave of the court of King's Bench) at the relation of some private subject, for other gross and notorious misdemesnors. All differing from indictments in this: that they are exhibited by the informer, or the king's officer, and not on the oath of a grand jury. 307-312

5. An appeal is an accusation or suit, brought by one private subject against another, for larceny, rape, mayhem, arson, or homicide; which the king cannot discharge or pardon, but the party alone can release.

312

CHAPTER XXIV.

OF PROCESS UPON AN INDICTMENT.

1. PROCESS to bring in an offender, when indicted in his absence, is, in misdemesnors, by venire facias, distress infinite,

and capias; in capital crimes, by capias only: and, in both, by outlawry. Page 318-320 2. During this stage of proceedings, the indictment may be removed into the court of King's Bench from any inferior jurisdiction, by writ of certiorari facias: and cognizance must be claimed in places of exclusive jurisdiction.

CHAPTER XXV.

OF ARRAIGNMENT, AND ITS INCIDENTS.

320

1. ARRAIGNMENT, is the calling of the prisoner to the bar of the court, to answer the matter of the indictment. 322

2. Incident hereunto are, I. The standing mute of the prisoner; for which, in petit treason, and felonies of death, he shall undergo the peine fort et dure. II. His confession: which is either simple; or by way of approvement. 324-331

CHAPTER XXVI.

OF PLEA, AND ISSUE.

1. THE plea, or defensive matter alleged by the prisoner, may be, I. A plea to the jurisdiction. II. A demurrer in point of law. III. A plea in abatement. IV. A special plea in bar; which is 1st, auterfoits acquit; 2dly, auterfoits convict; 3dly, auterfoits attaint; 4thly, a pardon. V. The general issue, not guilty. 332-341

2. Hereupon issue is joined by the clerk of the arraigns, on behalf of the king. 341

CHAPTER XXVII.

OF TRIAL, AND CONVICTION.

1. TRIALS of offences, by the laws of England, were and are, I. By ordeal, of either fire or water. II. By the corsned. Both these have been long abolished. III. By battle, in appeals and approvements. IV. By the peers of Great-Britian. V. By jury. 342-349

2. The method and process of trial by jury is, I. The impanelling of the jury. II. Challenges: 1st, for cause; 2ndly, peremptory. III. Tales de circumstantibus. IV. The oath of the jury. V. The evidence. VI. The verdict, either general or special. 350-361

3. Conviction, is when the prisoner pleads, or is found, guilty: whereupon, in felonies, the prosecutor is entitled to, I. His expenses. II. Restitution of his goods.

361-363

CHAPTER XXVIII.

OF THE BENEFIT OF CLERGY.

1. CLERGY, or the benefit thereof, was originally derived from the usurped jurisdiction of the popish ecclesiastics; but hath since been new modelled by several statutes.

Page 365 2. It is an exemption of the clergy from any other secular punishment for felony, than imprisonment for a year, at the court's discretion: and it is extended likewise, absolutely, to lay peers, for the first offence; and to all lay commoners, for the first offence also, upon condition of branding, imprisonment, or transportation. 371

3. All felonies are entitled to the benefit of clergy, except such as are now ousted by particular statutes. 372

4. Felons, on receiving the benefit of clergy, (though they forfeit their goods to the crown), are discharged of all clergyable felonies before committed, and restored in all capacities and credits.

374

CHAPTER XXIX.

OF JUDGMENT, AND ITS CONSEQUENCES.

1. JUDGMENT (unless any matter be offered in arrest thereof) follows upon conviction; being the pronouncing of that punishment which is expressly ordained by law

375 2. Attainder of a criminal, is the immediate consequence, I. Of having judgment of death pronounced upon him. II. Of outlawry for a capital offence.

380

3. The consequences of attainder are, I. Forfeiture to the king. II. Corruption of blood.

381

4. Forfeiture to the king is, I. Of real estates, upon attainder : -in high treason, absolutely, till the death of the late pretender's sons;-in felonies, for the king's year, day, and waste;-in misprision of treason, assaults on a judge, or battery sitting the courts; during the life of the offender. II. Of personal estates, upon conviction; in all treason, misprision of treason, felony, excusable homicide, petit larceny, standing mute upon arraignment, the above-named contempts of the king's courts, and flight. 381-388

5. Corruption of blood is an utter extinction of all inheritable quality therein so that, after the king's forfeiture is first satisfied, the criminal's lands escheat to the lord of the fee; and he can never afterwards inherit, be inherited, or have any inheritance derived through him.

388-9

CHAPTER XXX.

OF REVERSAL OF JUDGMENT.

1. JUDGMENTS, and their consequences, may be avoided, I. By falsifying, or reversing, the attainder. II. By reprieve, or pardon. Page 390 2. Attainders may be falsified, or reversed, I. Without a writ of error; for matter dehors the record. II. By writ of error; for mistakes in the judgment, or record. III. By act of Parliament; for favour.

390-392

3. When an outlawry is reversed, the party is restored to the same plight, as if he had appeared upon the capias. When a judgment on conviction is reversed, the party stands as if never accused.

392

CHAPTER XXXI.

OF REPRIEVE AND PARDON.

1. A REPRIEVE is a temporary suspension of the judgment, I. Ex arbitrio judicis. II. Ex necessitate legis; for pregnancy, insanity, or the trial of identity of person, which must always be tried instanter. 394-396

2. A pardon is a permanent avoider of the judgment by the king's majesty, in offences against his crown and dignity; drawn in due form of law, allowed in open court, and thereby making the offender a new man.

396

3. The king cannot pardon, I. Imprisonment of the subject beyond the seas. II. Offences prosecuted by appeal. III. Common nuisances. IV. Offences against popular or penal statutes, after information brought by a subject. Nor is his pardon pleadable to an impeachment by the commons in Parliament.

CHAPTER XXXII.

OF EXECUTION.

398

1. EXECUTION is the completion of human punishment, and must be strictly performed in the manner which the law directs. 403 2. The warrant for execution is sometimes under the hand and seal of the Judge; sometimes by writ from the king; sometimes by rule of court; but commonly by the judge's signing the calendar of prisoners, with their separate judgments in the margin.

403