OF THE SEVERAL MODES OF PROSECUTION (continued.) PAOR the trial must be by jury of the county of the offence,. Informations in the nature of quo warranto are employed, instead of the writ 809 810 formerly there might be an appeal, or a criminal accusation by a private sub- 812 which could be had in case of larceny, rape, arson, and murder.. trial on which was a bar to indictment, but ar appeal might be had after the punishment of outlawry is forfeiture, and, in treason and felony, conviction by certiorari the indictment and proceedings may be removed into the king's bench which is done, 1. to determine the validity of proceedings; 2. to obtain an impartial trial; 8. to plead a pardon; or, 4. to obtain process of in case of a peer the indictment is transmitted on certiorari into parliament, 821 OF ARRAIGNMENT AND ITS INCIDENTS,.. arraignment is calling the prisoner to the bar of the court to answer the indictment, 822 when arraigned the indictment is read to him, and it is demanded whether he If he makes no answer, or answers foreign to the purpose, or, after pleading not guilty, refuses to put himself upon the country, he is said to stand in other cases the prisoner was subjected to the peine forte et duro, 325 326 now if the prisoner stands mute a plea of not guilty is entered,. if he pleads guilty, judgment is awarded,. if he confesses and accuses another to obtain pardon, he is called an approver, 329 ..824n 329 demurrer admits the fact, but denies that in law a crime is charged,. rer; 3. plea in abatement; 4. special plea in bar; 5. general issue,..... 832 838 which, if adjudged against the prisoner in case of felony, he shall plead over, 884 834 838 838 which if found against the prisoner he may plead not guilty,. and compulsory process for his witnesses. the jury consists of twelve, who must be sworn,. ... challenges may be had either by the crown or the prisoner; 1. to the an alien may have a jury de medietate, except in treason,. 852 852 852 at common law the prisoner may have 35 peremptory challenges,..353, 354 if by reason of challenges the jury be not full a tales is issued,. the prisoner is now, though not formerly, allowed a full defence by the doctrine of evidence generally the same as in civil cases, but in treason and misprision of treason, two witnesses are presumptive evidence of felony to be admitted cautiously,. the witnesses for the prisoner now examined on oath,... if guilty, there may be allowance to the prosecutor for expenses, 862 benefit of clergy had its origin in the usurped jurisdiction of the popish ecclesi- originally none but the clergy admitted; afterwards all who could read,.... 867 subsequent statutory changes, until benefit of clergy means exemption when the prisoner is brought in to receive judgment, he may move in arrest for or plead pardon or pray benefit of clergy,. if these fail, the court pronounces the judgment prescribed by law,. 876 876 ..876-380 880 ... 881 attainder is a consequence of judgment of death, chattel interests are forfeited absolutely in treason, misprision of trea- son, felony, excusable homicide, petit larceny, standing mute, as- lands are forfeited upon attainder; goods upon conviction,. the forfeiture of lands is from the offence committed; that of goods by corruption of blood, the party becomes incapable of being heir to this rule now modified, 888 but there may be a new prosecution for the same offence,. 893 CHAPTER XXXL and may be granted by act of parliament, which may not be pleaded as the 402 pardon acquits of all corporal penalties and forfeitures, and restores credit,.. 402 CHAPTER XXXIL execution is the completion of human punishment, and must be performed by the and one mode of death cannot be substituted for another, but the king may remit a part of the sentence,... in capital cases, if the first effort at execution is ineffectual, the prisoner CHAPTER XXXIIL OF THE RISE, PROGRESS AND GRADUAL IMPROVEMENTS OF THE LAWS OF England, 407-448 COMMENTARIES ON THE LAWS OF ENGLAND. BOOK THE THIRD. OF PRIVATE WRONGS. CHAPTER I. OF THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE PARTIES. AT the opening of these Commentaries (a) municipal law was in general defined to be, "a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong."(b) From hence, therefore, it followed, that the primary objects of the law are the establishment of rights, and the prohibition of wrongs. And this occasioned (c) the distribution of these collections into two general heads; under the former of which we have already considered the rights that were defined and established, and under the latter are now to consider the wrongs that are forbidden, and redressed by the laws of England. *In the prosecution of the first of these enquiries, we distinguished rights into two sorts: first, such as concern, or are annexed to, the [*2] persons of men, and are then called jura personarum, or the rights of persons; which, together with the means of acquiring and losing them, composed the first book of these Commentaries: and secondly, such as a man may acquire over external objects, or things unconnected with his person, which are called jura rerum, or the rights of things: and these, with the means of transferring them from man to man, were the subject of the second book. I am now, therefore, to proceed to the consideration of wrongs; which for the most part convey to us an idea merely negative, as being nothing else but a privation of right. For which reason it was necessary, that before we entered at all into the discussion of wrongs, we should entertain a clear and distinct notion of rights: the contemplation of what is jus being necessarily prior to what may be termed injuria, and the definition of fas precedent to that of nefas. Wrongs are divisible into two sorts or species: private wrongs, and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals; and are thereupon frequently termed civil injuries: the latter are a breach and violation of public rights and duties, which affect the whole community, considered as a com (a) Introduc. § 2. (b) Sanctio justa, jubens honesta, et prohibens contraria. Cic. 11. Philipp. 18. Bract. I. 1, c. &. (c) Book 1, ch. 1. |