OF ARRESTS,.

CHAPTER XXI.

PAGE.

.289-295

an arrest is the apprehending or restraining one's person, in order to be forthcom-

ing to answer an alleged or suspected crime,

it is made, in general,

289

1. by warrant, which, in extraordinary cases, may be granted by the

privy council or secretaries of state,

a general warrant to apprehend all persons suspected or guilty of a

crime, naming none, is void,....

291

if the warrant is fair on its face the officer is justified in executing it, 291

2. by officers without warrant, which may be by a justice in case of fel-

ony or breach of peace in his presence,.

292

or by sheriff or coroner, of any felon in his county,

292

or by constable, in case of breach of peace in his view, or of felony

actually committed, or dangerous wounding,...

292

or by watchmen, of all offenders,

292

...

3. private persons and officers present at the commission of a felony must

arrest the felon,...

293

and may justify breaking doors for the purpose,

and upon probable suspicion in case of felony actually committed

may arrest the supposed felon,

.....

293

.... 293

4. hue and cry is the old common-law process of pursuing, with horn and

voice, felons and such as have dangerously wounded another,.... 294

which may be raised by precept of a justice, or by a peace officer,

any person knowing of a felony,.............

294

and those prosecuting it have the same powers as under a warrant,. 294

rewards sometimes offered for arrests,.

295

CHAPTER XXII.

OF COMMITMENT ON BAIL,

...296-300

when a person is arrested, he is taken before a justice and examined,.

if the charges prove unfounded, he is discharged,

296

296

otherwise, he is committed for safe custody, or held to bail,.

bail must not be refused in bailable cases, nor excessive bail required,

anciently all felonies were bailable, but statutes make some exceptions,...... 298

a prisoner committed to await trial is to be treated with the utmost humanity, 300

prosecution of offenders is either with or without the previous finding of the fact

by inquest or grand jury, ...

the first is either by presentment or indictment,.

a presentment, properly speaking, is the notice taken by a grand jury of an

offence from their own knowledge or observation,

... 301

an inquisition of office is the act of a jury summoned by the proper officer to

inquire of matters relating to the crown,.

301

as in case of felo de se, deodands, &c.,....

301

an indictment is a written accusation of crime, preferred to and presented upon

oath by a grand jury,.

.... 302

which is a tribunal of not less than twelve nor more than twenty-three,. 302

who are charged by the judge, and proceed upon evidence,.

indictments must be certain as to person, place, time, and offence,.

306

though time and place are generally immaterial,

306

informations are either at suit of the king and a subject jointly, or at suit of

the king alone,....

308

the first are a sort of qui tam action,...

308

......

the second are either filed, ex officio, by the attorney-general, or are on

the relation of some private person or common informer,..

308

OF THE SEVERAL Modes of PROSECUTION-(continued.)

the trial must be by jury of the county of the offence,.

these informations are confined to misdemeanors,..

informations in the nature of quo warranto are employed, instead of the writ

of that name,....

formerly there might be an appeal, or a criminal accusation by a private sub-

ject against another, demanding punishment on account of the partic-

ular injury suffered by a crime,....

PAGE.

309

310

312

312

which could be had in case of larceny, rape, arson, and murder,..

trial on which was a bar to indictment, but an appeal might be had after

acquittal on indictment,......

314

315

the king could not pardon in case of appeal, but the appellee might re-

lease,...

316

CHAPTER XXIV.

OF PROCESS UPON AN INDICTMENT,

.318-321

process to bring in an offender, when indicted in his absence, is by venire facias,

distress infinite, capias, and, if he absconds, outlawry,

318

the punishment of outlawry is forfeiture, and, in treason and felony, conviction

of the offence charged,....

by certiorari the indictment and proceedings may be removed into the king's bench

before trial,..

319

320

which is done, 1. to determine the validity of proceedings; 2. to obtain an
impartial trial; 3. to plead a pardon; or, 4. to obtain process of outlawry, 320
in case of a peer the indictment is transmitted on certiorari into parliament, 321

CHAPTER XXV.

OF ARRAIGNMent and its Incidents,.
...322-331

arraignment is calling the prisoner to the bar of the court to answer the indictment, 322

when arraigned the indictment is read to him, and it is demanded whether he

is guilty or not guilty,.....

... 323

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

mute,.

....

which in treason, petit larceny and misdemeanors was equivalent to con-

viction,..

in other cases the prisoner was subjected to the peine forte et dure,

torture illegal in England,...

now if the prisoner stands mute a plea of not guilty is entered,.

if he pleads guilty, judgment is awarded,.....

324

325

325

326

324n

if he confesses and accuses another to obtain pardon, he is called an approver, 329

F PLEA AND ISSUE,.

CHAPTER XXVI.

...332-341

the defence of the accused is made either by, 1. plea to the jurisdiction; 2. de-

murrer; 3. plea in abatement; 4. special plea in bar; 5. general issue,.... 332

formerly plea of sanctuary and benefit of clergy,...

plea to the jurisdiction is when an indictment is taken before a court that hath no

cognizance of the offence,....

demurrer admits the fact, but denies that in law a crime is charged,

332

333

333

which, if adjudged against the prisoner in case of felony, he shall plead over, 334
plea in abatement is principally for misnomer, and must show how the defect may
be remedied,.......

334

special plea in bar is either autrefois acquit, autrefois convict, autrefois attaint, or a

pardon,.....

which if found against the prisoner he may plead not guilty,.
the general issue is the plea of not guilty,....

the jury consists of twelve, who must be sworn,..

OF TRIAL AND CONVICTION-(continued.)

the methods now in use are:

....

PAGE.

4. in the court of the lord high steward when a peer is capitally indicted,.. 348

5. trial by jury secured by magna charta,

the advantages of which considered,.........

the process to obtain jury,...

the prisoner entitled to a copy of the indictment,.

and list of witnesses against him,......

and compulsory process for his witnesses,.

challenges may be had either by the crown or the prisoner; 1. to the

349.

349

350

array; 2. to the polls,...

352

an alien may have a jury de medietate except in treason,

352

the doctrine of evidence generally the same as in civil cases,

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

counsel in all cases,.......

354

.355n

356

but in treason and misprision of treason two witnesses are required, 356

presumptive evidence of felony to be admitted cautiously,...

the witnesses for the prisoner now examined on oath, .........

the verdict of the jury is either, 1. general, guilty or not guilty, or 2.

special, setting forth the facts and praying the judgment of the

court whether they establish the crime,

... 358

360

360

if not guilty, the prisoner is forever discharged,

361

if guilty, there may be allowance to the prosecutor for expenses,

and restitution of stolen goods,

362

and in some cases the prisoner is allowed to speak (or settle)

with the prosecutor,......

363

...

CHAPTER XXVIII.

OF THE BENEFIT OF CLERGY,

365-374

benefit of clergy had its origin in the usurped jurisdiction of the popish ecclesiastics, 365

originally none but the clergy admitted; afterwards all who could read,...... 367

on plea of clergy the prisoner was burned in the hand and discharged;

by the statute 18 Eliz. might be imprisoned a year,.

subsequent statutory changes, until benefit of clergy means exemption

when the prisoner is brought in to receive judgment, he may move in arrest for

defect in the indictment,....

or plead pardon or pray benefit of clergy,.

if these fail, the court pronounces the judgment prescribed by law,.
punishments in general considered,.....

forfeiture and corruption of blood are consequences of attainder,
forfeiture of real estate to the king was formerly, in treason, of the whole
estate; in felonies, for a year and a day; for misprision of treason,
assault on a judge, &c., for the life of the offender,....

381

....381-385

chattel interests are forfeited absolutely in treason, misprision of trea-

son, felony, excusable homicide, petit larceny, standing mute, assault

upon a judge, &c.,

386

and for flight on accusation of treason or felony, chattels are forfeited,... 387

lands are forfeited upon attainder; goods upon conviction,....

387

the forfeiture of lands is from the offence committed; that of goods has

no relation back,.............

387

by corruption of blood, the party becomes incapable of being heir to
another,or transmitting by descent, or being the medium of descent,.... 388
this rule now modified,..

..389n

OF REVERSAL Of Judgment,

reversal of judgment may be:

1. without writ of error, for matter dehors the record,

2. by writ of error, for errors apparent in the record,..

3. by act of parliament,....

...390-393

390

391

392

the effect of which, after judgment upon conviction, is, that all the pro-

ceedings are set aside,....

393

393

but there may be a new prosecution of the same offence,.

OF REPRIEVE AND PARDON,......

CHAPTER XXXI.

.....394-402

a reprieve is a withdrawing of the sentence for a time, whereby executions is sus-

pended,...

which may be for pregnancy of a female convict,

or on account of insanity, or non-identity,

....

a pardon may be granted by the king in all but a few excepted cases,

which must be under the great seal,.....

394

394

395

398

400

and may be granted by act of parliament, which may not be pleaded as the

king's pardon must be,

402

pardon acquits af all corporal penalties and forfeitures, and restores credit,.... 402

but to purify the blood corrupted by attainder requires an act of parliament, 402

OF EXECUTION,...

CHAPTER XXXII.

...403-406

execution is the completion of human punishment, and must be performed by the

legal officer,.....

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
must be hanged again,..............

OF THE RISE, Progress and GRADUAL IMPROVENENTS OF THE LAWS OF ENGLAND, 407-443