Statute limitted to be heard before Justices of the Peace they may proceed at Sessions and consequently may bind over Informers and certifie Examinations at Sessions But such Felonies by Statute as are specially limitted to Justices of Oyer and Terminer or other Justices and not to them the Justices of Peace cannot proceed to take Indictments as upon Stat. 3 H. 7. c. 18. for contriving to destroy the King c. upon Stat. 33 H. 8. 12. Murderers in Kings Palace upon Stat. 18 H. 6. c. 12. of razing or imbezelling Records upon Stat. 13 H. 6. c. 1. secret imbezelling goods upon St. 2 3 Ed. 6. c. 24. striking in one City and dying in another City But in former cases it seems they may take Examinations and commit the Offenders and bind over Prosecutors If any Indictment be taken before Justices of Oyer and Terminer Goal Delivery or Coroner they cannot proceed upon them but upon Indictments taken before Sheriff in his Turn they may proceed by St. 1 E. 4. c. 2. In cases of Treason Misprision of Treason Premunire regularly Justices of Peace have no Jurisdiction yet two things may be done 1. In any case of Treason because 't is a breach of the Peace they may upon complaint imprison Offenders take Examinations bind Prosecutors over and certifie their proceedings into Kings Bench or Goal Delivery 2. In some cases they are enabled to take Indictments but not hear and determine the same but certifie the same into Kings Bench upon Stat. of 5 23 El. c. 1. 1. 1. The Maintainer of the Authority of the Sea of Rome 2. Obtaining Bulls c. 3. Withdrawing from Allegiance 4. Bringing in Agnus Dei A person brings one before Justice suspected of Felony and refuses to be bound to prosecute may be committed if it appear he can testifie materially They may Enquire of any Felony within the County though within the Verge 4 R. Wigg's Case Coroner CORONER Hath power in three Cases 1. To take Indictment of Death but this he can only do super visum corporis otherwise void Hence 1. If Body be interred before he comes the Township amerced and he must digg up the Body so if Township suffer Body to lie long to Putrefaction without sending for Coroner The like of one lying in Prison 2. If Coroner be remiss and comes not when sent for he shall be fined and imprisoned 3. He may enquire of flight and such Presentment not Traversable 4. If Body cannot be seen Justice of Peace may enquire thereof Nota The Record of the Coroner of great Authority if he Record a Confession of a Felony by Approver or a Confession of breach of Prison or an Abjuration it shall not be Traversed And it seems by some he hath power to enquire of Rapes breach of Prison He hath Jurisdiction upon Arms of the Sea where a man may see from side to side 2. Concerning Appeals Coroner together with Sheriff hath power in County Court to receive Appeals of Robberies and other Felonies but then it must be of a Felony in the same County Upon this Appeal they may grant Process till Outlary but it seems they cannot send an Exigent because prohibited by St. 6 M. c. 17. Such Appeal may be by Bill and it may be removed into Kings Bench by Certiorari but it must issue both to Sheriff and Coroner It appears By St. 3 H. 7. c. 1. That an Appeal of Murder by Bill lies before Sheriff and Coroner 3. The Coroner alone may take the Appeal of an Approver of a Felony in any County But then he cannot make Process thereupon but enter it in his Roll and send it to the Justices of Goal Delivery who thereupon may issue their Process to the Sheriff of the foreign County to take the Appellor 4. To take the Abjuration of him that acknowledges a Felony done in the same County or any other And note That though more Coroners than one in any County yet any one may execute any of the powers before But the Presentment of him that is first taken stands Abjuration dit esse toll oue Sanctuary per 21 Jac. Sheriff THE power of the Sheriff to take Indictments was either Virtute Commissionis or Officii which are taken away per Stat. 28 E. 3. c. 9. His Power and Office in the Turns 1. His Turn must be held infra mensem Paschae Michaelis otherwise the Indictments there are void per St. 31 E. 3. c. 15. 2. Indictments must be under Seal of the Jury by Stat. of West 2. c. 13. indented per Stat. 1 E. 3. c. 17. and the same for Lord of Franchises 3. Indictors must be of good name having 20 s. Freehold or 26 s. 8 d. Copyhold otherwise Sheriff punishable by Stat. 1 R. 3. c. 4. 4. The Turn can take no Indictment but of that which is Felony by Common Law or of such matters as are particularly by Act of Parliament limited to them and therefore an Indictment of Escape void there 5. Upon any Indictment of Felony before Sheriff in his Turn they can make out no Process but must remand them to Justices of Peace who have power to proceed thereupon as if taken before themselves by St. 1 E. 4. c. 2 The Court-Leet in effect hath the same Jurisdiction with the Turn but Presentments of Felony before them are to be sent before Justices of Goal Delivery 3 H. 4.18 Appeal HAving considered the Courts of Justice now we come to consider the way of bringing Capital Offenders to Trial and that is Regularly by one of these 3 ways Appeal Approver Indictment And herein some things are proper to each proceeding some things are common to them all which come to be considered after particulars proper to either dispatched viz. Process Arraignment and therein of Principal and Accessary Demeanour of the Party Arraigned Standing Mute Confessing Pleading and Pleas. Declinatory Sanctuary Clergy In Barr Pardon Auterfoits Acquit Anterfoits Convict To the Felony Trial per Battel per Jury And therein Process against Jury Challenge Verdict Per Peers in case of Nobility Judgment in the several Cases Capital Execution Reprieve Falsifier Per Errour Per Plea Appeal Appeals in respect of the manner of proceeding are of two kinds By Writ By Bill Touching Appeals by Bill they may be prosecuted 1. In the King's Bench against any that is in custod ' Marr ' or let to Bail They are Sovereign Coroners 2. In the Court before Commissioners of Goal Delivery against a Prisoner or one let to Bail but not to one let to Mainprize But if one of Appellees absent remove in B. R. by Certiorari 3. By some before Justices of Peace quod Quaere 44 E. 3. Coron 95. 4. Before Sheriff and Coroner as before and it may be removed by Certiorari in B. R. 3 H. 7. c. 1. 5. Before Constable and Marshal of a Felony done out of the Realm 1 H. 4. c. 14. Appeals are in matter 1.
wage Battel 5. Clerk Convict may 3. In what cases 1. None can approve but a person Indicted therefore if only in Prison upon suspicion he may indeed confess the Felony but such Confession amounteth not to an Attainder or Conviction though it be an Evidence and therefore cannot approve 2. The Appellee in Appeal cannot be an Approver 3. The Appellee of Approver cannot be Approver for that would be infinite 4. Though a person Indicted approve yet if after Appeal be against him Approver ceaseth 5. He that hath once pleaded to the Felony cannot be an Approver but shall be hanged for he is found false 4. Of what Offences It must be only of the Offences contained in the Indictment be it Felony or Treason and therefore not of another Offence nor of an Accessary before or after to the same yet his Oath general therefore as to other Offences it is but a Detection not an Approvement 5. Before whom Before such Judges only as can assign as Kings Bench Goal Delivery Oyer and Terminer High Steward but not before Justices of Court Baron or County Court. But it is in the discretion of the Court to suffer him to be Approver or to respite Judgment and Execution till he hath Convicted all his Partners 6. How Demeasned after Appeal 1. After Felony confessed upon Arraignment a Coroner assigned and sworn in Court to discover Offenders 2. A day prefixt within which he is to perfect his Appeal before the Coroner and in every of these days he must Appeal for if he fail and Court record it to be hanged The limit to perfect his Appeal by 5 E. 3. c. 34. 183 days but that Repealed 15 El. 3. During time limited for his Appeal he shall be at large and have 1 d. per diem till Appeal perfected 4. If he Appeal persons beyond Sea or if Appeal such as are not in rerum natura and that appear by Testimony of County or by Retorn of Sheriff quod non fuit invent ' he shall be hanged 5. After his Appeal formed before Coroner he must repeat it verbatim to Court and if he fail thereof and Court Record it he shall be hanged 7. Process in Appeal 1. In the same County Coroner may award Process to Sheriff till Exigent 2. If Appellee be in a foreign County yet the Judges before whom the Appeal is may grant Process viz. B. R. or Itinerant by Common Law And by Stat. 28 E. 3.1 de Appellis the Justices of Goal Delivery may send Process into a foreign County as well to apprehend the Appellee as a Venire Facias to try the Issue 8. Proceedings upon Trial. The Appellee may put himself upon County or wage Battel If five Appellees and they wage Battel he must fight them all If two approve against one Appellee if the Appellee vanquish the first he is acquitted against the rest though Appellor retract his Appeal or be vanquished yet if Offence be within Clergy he shall have it and so of Appellee 9. Proceedings after Trial. If Appellor convict Appellee either by Battel or Verdict the King ex merito justitiae is to pardon him and from the time of his Appeal till his Pardon or Conviction ought to have wages Indictments THESE things considerable 1. Where an Indictment requisite in cases Capital where not 2. What the quality of the Indicator 3. Of what matters they may Enquire 4. Before whom found 5. What requisite in the manner of them 1. Where an Indictment requisite for party to be Arraigned at King's Suit 1. By ancient Common Law if a man was taken in Larceny with the manner and that brought into Court with Prisoner Prisoner shall be Arraigned thereupon without Indictment St. P.C.f. 148. And such was the use of the Manner that had infang Thief Ibid. f. 29. v. 1 E. 3.17.17 Ass 99. but this disused 2. If Trespass be brought de muliere abductâ cum bonis viri and the Defendant found Guilty or if in Trespass for Goods the Defendant be found that he stole them this in the King's Bench equivalent to an Indictment and the Defendant be put to answer Felony 3. In some Cases upon Appeals by Appellors or Approvers not prosecuting c. Defendant Arraigned at King's Suit because it carries a presumption of truth and therefore if Defendant be both Appealed and Indicted upon a non prosecution of the Appeal the party shall be Arraigned upon the Appeal not the Indictment 4 E. 4.10 Wherein 1. If Plaintiff in Appeal by Writ be Nonsuit before Declaration he shall not be Arraigned at King's Suit 1. Because not certainty 2. Writ may be at anothers Suit but if it be by Bill either by Appellor or Approver it seems he shall because the certainty appears therefore in the former Case if there be no Indictment against him he is dismissed 2. If Plaintiff release his Appeal after he hath commenced it party shall be Arraigned at Kings Suit But if before it was commenced then not 3. If Plaintiff or Approver after Appeal commenced confess it false Appellor hang'd and Appelle discharged because amounts to a vanquishment 4. If Appeal abate by Act of Plaintiff as taking Husband or act in Law as death Appellee Arraigned at King's Suit but if it abate by insufficiency in the Appeal as by false Latin Misnomer or because Plaintiff disabled to commence Appeal as Utlary of Felony or Trespass or the year or day past or Plaintiff not Wife or Heir of Defendant not Arraigned upon Appeal but may be Indicted 5. If King pardon after Battel joined in Appeal by Approver no Arraignment at King's Suit but Appellee discharged And note where Prisoner Arraigned upon the Appeal a Cesset Process is entred upon the Indictment The return of the Sheriff of Rescue or Escape of a Felon not sufficient to put the party to answer the Felony 2. The second considerable is the quality of the Indictor Concerning Indictments in Leets and Turns v. ante upon Stat. W. 2. c. 13. 1 E. 3. c. 17. 1 R. 3. c. 4. 1 E. 4. c. 3. There is a general Statute that refers all Indictments as well in case of Felony as Treason 11 H. 4. c. 9. which requires 1. Indictors not to be 1. Persons fled to Sanctuary for Felony or Treason 2. Not outlawed 3. Not Indicted or Attainted 4. Not by Conspiracy 2. That Indictors be the King's Liege people 3. Returned by the Sheriff as Bailiff of Franchises 4. Not at the Denomination of any person And all Indictments taken contrary are void Hence it follows 1. That Prisoner upon Arraignment may plead this matter or any point of it and may plead over to the Felony Vide Scarle's Case 2. Though there be twenty of the grand Jury yet if one was outlawed or taken at the Denomination of another it voids the whole Indictment By Stat. 3 H. 8. c. 12. Justices of Goal Delivery or of Peace whereof one of the Quorum in open Sessions may reform the Pannel
Examine Offenders and Informers 2. The Examination of the Offender not upon Oath but Subscribed by him 3. Examination of others must be upon Oath 4. This must be certified by Justices 1. If it be a small Felony to Sessions 2. If it be a great Felony c. to next Goal Delivery 5. These Examinations if persons dead or absent may be given in Evidence But Prudence to have the Justice or his Clerk sworn to truth of Examinations 6. But Examinations taken upon Cause of Divorce for a forcible Marriage not allowed to be read upon an Indictment upon 3 H. 7. for same Marriage 2. By whom 1. Wife or her Examination not to be used for or against her Husband 2. The Examination of an Infant of Thirteen nay of Nine allowed in some Cases 3. One Attaint of Conspiracy Forgery or Perjury not allowed a Witness 4. One duly set on Pillory 3. In what manner 1. Evidence for King always upon Oath but Evidence for Prisoner not upon Oath yet no known Law that restrains it But by some Statutes in some Cases Evidence for Prisoner upon Oath as 31 El. c. 4. 4 Jac. c. 2. The Confession of the Offender taken upon Examination Evidence with Oath not of the Informer 4. Where Evidence maintains the Indictment 1. If the Indictment be of a Felony at one day though the Evidence be of another day the Jury may find generally against Prisoner and leave the person that is interessed in point of time to falsifie or the Jury may find the true day upon their Verdict and then the forfeiture shall relate thither 2. If the Indictment lay the Felony at one place the Evidence proving the Fact at another place in the same County maintains the Indictment 3. If the Indictment and Evidence differ in specie mortis then it maintains it not as Indictment of Poisoning Evidence of stabbing maintains it not But if the Indictment be of poisoning with one kind of Poison and the Evidence of another or if the killing with a Dagger and the Evidence is of killing with a Staff there it maintains the Indictment for it agrees in substance and kind The like of Accessary before though Poison or Weapon differ 4. Indictment that A. gave a mortal blow and B. C. and D. were presentes abettantes Evidence that B. gave the blow and A. C. and D. presentes abettantes yet it maintains the Indictment 5. Indictment of A. as Accessary to B. and C. Evidence proves him only Accessary to B. maintains the Indictment 6. Indictment of Murder ex malitia praecogit ' Evidence of malice in Law as killing an Officer without provocation yet maintains the Indictment 7. Evidence upon Statute of stabbing 21 Jac. Evidence that the dead stroke first yet Evidence to mantain Indictment 23 Car ' Howards 8. Two Indicted as Principals Evidence proves one as Accessary before he shall be discharged of that Indictment 28 H. 8.5 9. Vid. Stat. 21 Jac. c. 27. Mother endeavouring to conceal the death of her Bastard-child shall suffer death as in case of Murder unless she prove by one Witness that Child was born dead Vide Act. 17 Car. infine for the further Relief of his Majesties Army in the Northern parts Act continued till end of next Sessions continued over till some Act of Parliament for their continuance or discontinuance Verdict VERDICT in Cases Capital 1. It must be given and Jury cannot be discharged till it be given 2. It must be given openly in Court and no privy Verdict 3. It may be found Specially as an Indictment of Murder the Jury may find him Guilty 1. Of Manslaughter 2. Per Infortunium 3. Se Defendendo But then it must find the manner of it that Court may Judge thereof so to the value or manner of the Larceny Now we should come to Trial By Battel Process Vide the whole Process there of C.P.C. 27. Judgment in several Cases I. IN High Treason In all Cases except Counterfeiting Coin Drawn Hang'd Entrals taken out and burnt Head cut off Body quartered and Quarters hang'd up 2. In Counterfeiting Coin Drawn and Hang'd but the Judgment of Women in those Cases is Drawn and Burnt II. In Petty Treason 1. For a Man Drawn and Hang'd 2. For a Woman Drawn and Burnt III. In Felony Hang'd till Dead and this cannot be altered by King to Beheading IV. In Petty Larceny To be Whipt Forfeits Goods V. Death per Infortunium No express Judgment yet Forfeits Goods VI. Death se defendendo No express Judgment yet Forfeits Goods Misprision of Treason Forfeits Goods Forfeits Profits of Land during Life perpetual Imprisonment Vide for Seisure of Goods 1. Not before Indictment 2. Not removed before Attainder 1 R. 3. c. 3. Falsifying of Attainders 1. BY the Party by Writ of Error 2. What others may falsifie it 1. A Purchaser may falsifie an Attainder of the Felon by Outlary or Confession in this point if he Purchase before Attainder and after time of Felony supposed 2. A Purchaser mesne between the time of Felony committed and the Attainder by Verdict cannot falsifie in point of Offence but he may for the times 3. If Attainder was by such as had no good Commission the Party himself may falsifie Attainder Cas Com. Leicest 4. If the Principal Attainted and then Accessary and Principal reverse the Attainder the Attainder of the Accessary is eo ipso avoided and his Heirs may have Mortdanc ' against Lord per Escheat 5. Attaint of Treason and then the Treason is pardoned by Act of Parliament the Party or his Heir shall falsifie Attainder 6. In Case of Goods 1. Fugam fecit found by Coroner cannot be falsified though upon his Arraignment it be found he did not fly but if Indictment be void or insufficient no Forfeiture 2. A man Indicted before Justices of Oyer and Terminer acquit by Verdict and found he fled and the particulars of his Goods found they may be Traversed 3. Default till Exigent though after acquitted Goods Forfeited for it is a fugam fecit in Law But if the Indictment Appeal or Process insufficient their Forfeiture saved so if it be reversed by Errour or pardoned before Exigent Memorandum Flight or Exigent in case of Petty Larceny Forfeits Goods Execution and Reprieve 1. EXECUTION must be pursuant to Judgment and cannot be altered by King as from Beheading to Hanging 2. But King may pardon part of the Execution as in Treason he may pardon all but Beheading 3. It must be done by proper Officer 4. If a Woman Convict of Treason and Felony be quick with Child she shall have one Reprieve but not second time Vn est trove culp ' de Treason Felony c. Reprieve devant Judgment Roy Mort ' uncore Judgment poit FINIS Books printed for Richard Tonson THE Courtiers Calling shewing the ways of making a Fortune and the Art of Living at Court By a Person of Honour Price 1 s. 6 d. Don Carlos