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.
reinforced the Statute 25 E. 3. and reduced all new Treasons to the old Standard of 25 E. 3. and so all Treasons declared between 25 E. 3. and 1 Ma. were abrogate 3. All Treason includes Felony therefore if the Indictment want proditoriè a Pardon of all Felonies discharges it Now concerning the kinds of High Treason Compassing and imagining the death of the King Queen or Prince and declaring the same by some open Deed. I. What is a Compassing the death Declaring by an open act a design to Depose or Imprison the King is an Overt act to manifest the compassing of his Death II. What a King 1. A King before his Coronation a King within this Statute when the Crown descends upon him 2. A King de facto and not de jure a King within this Act and a Treason against him is punishable though the right Heir get the Crown 3. A Titular King that is not Regnant as the Husband of the Queen not a King within this Act and the Stat. 1 2. Ph. Ma. c. 10. but the Queen is 4. The right Heir to the Crown yet not in Possession therefore is not a King within this Act. III. What the King's Wife It extends not to the Queen Dowager IV. What the eldest Son and Heir of the King within this Act The second Son after the death of the eldest within the Act. The eldest Son of the Queen Regnant within the Statute The Collateral Heir apparent as Roger Mortimer 11 R. 2. the Duke of York 39 H. 6. not Son and Heir within this Act yet Quaere V. What an Overt act requisite to make such comparing Treason 1. An Overt act must be alledged in every such Indictment proved 2. Compassing by bare words is not an Overt act as appears by many temporary Statutes against it 1 El. c. 6. 13 El. c. 1. but the same set down by him in writing is an Overt act yet now it has been adjudged that words are an Overt act and the Law taken accordingly 3. Conspiring the death of the King and providing weapons to effect it or sending Letters to second it assembling People to take the King into their power Lord Cobham's writing Letters to a Foreign King to invade an Overt act Conspiring to levy War no Overt act unless levied because relates to a distinct Treason II. Treason levying War against the King 1. Conspiring or compassing to levy War without a War de facto no Treason but if a War levied the Conspirators Traytors as well as the Actors This appears by the Stat. 13 El. c. 1. that made such Conspiracy Treason during the Queens life 2. Raising a Force to burn or throw down a particular Inclosure only a Riot but if it had been to have gone from Town to Town and cast in all Inclosures Bradshaw's case or to change Religion or to inhance the Salaries of Labourers a levying of War because the Enemy publique 3. Joyning with Rebels pro timore mortis and recessed quam cito potuerunt ad Castles no Treason 3 Inst 10. 4. Holding a Force or Castle against the King's Force a levying of War III. Treason adhering to the King's Enemies giving them Aid within the Land and without 1. What adhering Giving Aid and Comfort to them surrendring the King's Castle for reward 2. What an Enemy The Subject of the King becoming a Rebel he that out of the Realm succours him this not adhering to an Enemy within the Clause An Enemy coming hostilely into England shall be dealt with as an Enemy executed by Marshal Law or ransomed but a Subject assisting shall be dealt with as a Traytor The Scots invading England in the Queens time adjudged Enemies though Scotland then in Amity Lord Herris Case 3 Inst p. 11. 3. Within the Land or without how that Foreign Treason shall be tried 1. At Common Law for a Foreign Treason the Indictment and Trial must be where the Land lies 2. Per Stat. 35 H. 8. c. 2. yet in Force it may be tried or inquired of in B. R. or by Commissiion in any County where the King appears the King's Signiture may be either to the Commission or Warrant thereof Treason done in Ireland is within that Statute Perrot's Case Per Stat. 28 H. 8. c. 15. Treason upon the Sea inquirable and triable by Commission in any County at Common Law it must be before the Lord Admiral IV. Treason Violation 1. The King's Wife extends not to a Dowager if she consent 't is Treason in her 2. The Prince's Wife same Law as before 3. The King 's eldest Daughter then living Thus far of Treason that relates to the King's Person and nearest Relations wherein generally 1. There must be an Overt act to manifest the Evidence and word of mouth is Overt act as it has been adjudged vide the Statute of 13 Car. 2. cap. 1. 2. That it must be made appear by manifest proof and not by conjectures 3. He must be lawfully attaint thereof either by Confession or by his Peers in his life time And therefore if a Person be slain in open War he forfeits nothing neither can he be attaint in such case but by Parliament Thus far of Treasons relating to the King immediately now follows that which is interpretative Treason Killing the Chancellor Treasurer Justice of one Bench or other Justice in Eyre or of Assise or Oyer and Terminer in their place doing their Offices 1. This extends but to the Persons here named not to the Lord Steward Constable or Marshal or Lords of Parliament 2. It extends to those only during their Office 3. It extends only to killing not wounding without death But by Stat. 3 H. 7. c. 14. compassing to kill the King or any of his Councel made Felony Counterfeiting the Great Seal or Privy Seal 1. It must be an actual counterfeiting thereof compassing to do it no Treason 2. Affixing the Great Seal by Chancellor without Warrant no Treason 3. Fixing a new Great Seal to to another Patent is a great Misprision but no Treason nor a Counterfeiting within this Statute 4. Aiders and Consenters to such Counterfeiting are within this Act. 5. The Counterfeiting of the Privy Sign or Sign Manual no Treason within this Act but made so by the Statute 1 Ma. c. 6. V. Treason concerning the Coyn. 1. Counterfeiting the Kings Coyn this was Treason at Common Law and Judgment only as of Petty Treason But whereas Clipping c. is made Treason by subsequent Statutes the Judgment is to be hang'd drawn and quartered because introductive of a new Law Herein considerable 1. What shall be a Counterfeiting Clipping Washing and Filing of Mony for lucre or gain any of the proper mony of the Realm or of other Realms allowed to be current by Proclamation not within this Statute but made High Treason by Stat. 18 El. c. 1. but without corruption of blood or loss of Dower 2. What is Mony
Pardons ARE either of Course or Right such are 1. For a person Convict of Manslaughter or se defendendo 2. An Approver that vanquisheth Appellee Pardons of Grace some things requisite to their allowance per Stat. 1. Per Stat. 13 R. 2. c. 1. Pardon of Murder Rape or Treason must be especially expressed in the Pardon otherwise it ought not to be allowed in such cases 2. Per Stat. 10 E. 3. c. 2. there must be Surety of good bearing otherwise Charter void but special Non obstante may prevent it Matter at Common Law considerable 1. Charter of Pardon no barr of an Appeal and if party be Out-lawed in Appeal and King pardon he shall have a Scire Facias against Appellor who may pray Execution notwithstanding such Pardon but if ret ' feci and appears not that Appellee shall upon Pardon be discharged 2. Pardon of all Felonies is no barr to Exceptions if the Felon be Attaint yet an Exception of all Burglaries except the Burglary for which the party is Attainted 3. Pardon of all Attainders not good with a Pardon of the Felony 4. The Pardon of Felony reciting in the Pardon that the party is Indicted and he is not this is void 5. King may pardon the burning in the hand in Appeal Pleading the Pardon HE that pleads a General Pardon by Parliament wherein are Exceptions must averr that he is none of the persons excepted But of General Pardon by Parliament without Exception Court ex Officio must take notice He that pleads a Particular Pardon 1. Must shew it under Seal 2. Must have a Writ of Allowance 3. If vary must averr that the same person Thus far of Pleas in Barr upon Indictments or Appeals now we come to Pleas to the Fact Not Guilty 1. Regularly he that pleads any special matter in Barr in Cases Capital that confesseth not the Felony notwithstanding the Plea found against him the Felony shall be enquired of and therefore he shall plead over to the Felony 2. The immediate consequent to this Plea is Trial and that is either By Countrey Peers Battel 1. Concerning Trial per patriam and therein 1. Where Issues tried 2. What Process against Jury 3. Before whom 4. Challenge 5. Evidence to be given 6. Verdict Trial. 1. WHERE Tried 1. For Trial of foreign Treasons and foreign Accessaries or strokes in one County and death in another v. supra in Indictments For Trial foreign Pleas per Stat. 20 H. 8. c. 14. made proper to all 32 H. 8. c. 3. Foreign Pleas pleaded by a person Indicted of Felony and Triable per County shall be tried where party is Arraigned but it is now in Treason triable in foreign County by vertute of Stat. 1 2 Ph. Ma. Process against Jury 1. Justices of Goal Delivery have their Pannel returned by Sheriff without any Precept by a bare Award but Justices of Oyer and Terminer not 2. Per bon Opinion Justices of Peace and Oyer and Terminer cannot make their Venire Facias to try any Issue retornable the same Sessions but Justices of Goal Delivery clearly may 3. If several persons Arraigned upon an Indictment or Appeal and they severally plead Not Guilty Plaintiff may take out one Venire Facias or several 4. If Venire Facias be joint and Challenge by one drawn against all 5. Though Pannel be joint and Tales awarded yet Court of Goal Delivery may after send the Pannel to prevent that Incumbrance 6. In Appeals if after Issue Plaintiff tries it not a Venire Facias by Proviso may be for Defendant yet upon a Venire Plaintiff may have a Tales Tales 1. If a full Jury appear not or be Challenged in Indictment or Appeal Plaintiff may have a Tales 2. Upon Indictment or Appeal because Defendant may challenge peremptorily Tales may be granted larger then principal Pannel as forty Tales 14 H. 7.7 3. But succeeding Tales must be less than former unless the former be quashed and then the same number with that which is quashed 4. If any of Jury die before sworn a new Tales grantable Before whom 1. A Nisi prius not grantable where King Party unless prayed by Attorney 2. Per Stat. 14. H. 6. c. power to Justices of Nisi prius to give Judgment in Felony and Treason tried before them 3. Per Stat. 42 E. 3. c. 7. Enquest in Assize and Goal Delivery may be taken before the Pannel returned in that Court but not in other Cases Challenge of Array or Polls 1. EX parte Regis per Stat. 33 E. 1. c. King shall not Challenge without Cause but yet he is not compellable to shew cause till Pannel perused 2. Ex parte prisonarii the Challenge is either Peremptory or upon Cause I. Peremptory Challenge 1. Peremptory Challenge not allowable but when life of Prisoner comes in question and therefore not upon Collateral Issues 2. At Common Law he might have challenged peremptorily 35 under three full Juries and if he challenged above he should have Judgment to be hanged 3 H. 7. 12. But per Stat. 22 H. 8. c. 4. made perpetual by 32 H. 8. c. it is reduced to 20 and now if he Challenge above 20 he shall not be hanged but his Challenge Over-ruled and he put upon his Trial yet vid. Statham Coron ' contr ' 3. In Cases of Treason and petty Treason the Challenge of 35 restored per Stat. 1 2 P. M. c. 10. II. Challenge for Cause we mention but 1. Cause of insufficiency per St. 2 H. 5. c. 3. 40 s. per Ann. required in County but this as to Aliens corrected by 8 H. 6. and ultra in Cities by Stat. 23 H. 8. c. 13. Goods to value of 40 l. 2. Unindifferency Indictors not to be of Jury per Stat. 25 E. 3. c. 3. 3. In reference to an Alien medietat ' linguae where 1. In no Case Indicator ought to be de medietat ' linguae 2. In Treason trial per medietat ' linguae rep per St. 1 2 Ph. Ma. quaere ad Appeal 28 E. 3. in that Case 3. In Appeal an Alien against an Alien no medietat ' linguae 4. Scot no Alien to have medietat ' linguae 5. Jurors need not be of same Nation but any Aliens 6. He that will have advantage of Trial per medietat ' linguae must pray it otherwise he cannot have benefit by way of Challenge Dy. 304.357 7. Egyptians excluded from the Trial per 1 2 Ph. Ma. c. 4. Evidence to petty Jury 1. IN Case of Treason There must be two Accusers or Witnesses per Stat. 1 E. 6. c. 12. 5 E 6. c. 7. and this stands notwithstanding Stat. 1 2 Ph. Ma. c. 11. but only in Case of Treason for Counterfeiting Coin Those Witnesses must be only by hearsay 2. In Case of Felony 1. What allowed as Evidence per Stat. 1 2 Ph. Ma. c. 13. 2 3 Ph. Ma. c. 10. the Justices have power to
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