ject. 57. (a) Sup. c. 23. have an award of reftitution to fuch goods, and to fuch only, (a) in whose hands foever (b) they are found. And it is faid in general in fome books, (c) That in any appeal of larceny there fhall be a reftitution of the goods, upon the appellee's ftanding mute, without faying any thing of any inquiry concerning the property, or fresh fuit: But I take it for granted, That where it is fo omitted, it is taken as a thing known, and done of course, and therefore needlefs to be be exprefsly mentioned. 39. Ab. Fitz. Corone 217. (c) 21 E. 3. 18. Ab. B. Appeal 40. 3 Affize 30. Ab. B. App. 78. F. Corone 225. Sect. 23. But it feems queftionable, Whether the profecutor of an indictment of larceny, be in like manner intitled to a reftitution upon the defendant's ftanding mute? Because it seems agreed, (d) That by the common law there could be no fuch reftitution upon any other profecution but an appeal; and it is certain, That the profecutor of an indictment is not entitled to a reftitution by the exprefs words of 21 (e) Hen. 8. c. 11. which require, "That the felon be found guilty, or otherwife "attainted, &c." And I do not know that he is entitled to it by any other ftatute, or any equitable construction of this. Set. 24. As to the feventh point, viz. Where one who fands mute fhall have the benefit of his clergy. It seems clear, (f) That unless it happen to be otherwife fpecially provided by fome ftatute, wherever he thall be allowed it upon a conviction, by verdict or confeffion, he fhall have it upon his ftanding mute. Alfo I take it to be agreed, (g) That a ftatute taking away the benefit of clergy from thofe who fhall be convicted of a crime, doth not thereby take it away from thofe who ftand mute on an indictment or appeal for fuch crime. But it is enacted by 3 and 4 W. & M. c. 9. fet forth more at latge in the chapter of clergy, That if any perfon fhall be indicted of any offence, for which by virtue of any former "ftature he is excluded from the benefit of his clergy, if he "had been thereof convicted by verdict or confeffion, if he "ftand mute he fhall not be admitted to it." But appeals and offences excluded from the benefit of clergy by fubfequent ftatutes, feem not to be within the purview of this ftatute; for the fuller confideration whereof I fhall refer the reader to the chapter of clergy. + Sec. 25. And it is enacted by 12 Geo. 3. c. 20. "That "if any perfon being arraigned on any indictment or appeal "for felony, or on any indictment for piracy, fhall upon fuch "arraignment ftand mute, or will not anfwer directly to "the felony or piracy, he fhall be convicted of the felony "or piracy charged in fuch indictment or appeal; and the "court before whom he fhall be fo arraigned shall thereupon award judgment and execution against fuch person in 66 "the "the fame manner, and attended with the fame confequences, "as if he had been convicted by verdict or confeffion." CHAPTER THE THIRTY-FIRST. OF CONFESSION AND DEMURRER. A ND now I am to confider what is to be done to a prifoner upon his confeflion; which may be either Exprefs, or Implied. Sect. I. An express confeffion is where a perfon directly confeffes (a) the crime with which he is charged, which is the highest conviction that can be, and may be received (b) after the plea of not guilty recorded, notwithstanding the repugnancy; for the entry is, That the defendant poftea or relicta verificatione, cognovit indictamentum. (a) S. P.C. 141. Lamb. B. 4. c. 9. Finch 38. (b) Kelynge 11. Qu if the law be the fame in civil actions. Affirmed Cro. Eliz. 144. Denied a Jones 156. (9 H. 6. 60. F. Entoppel 24. 11 H. 6. 6. Lamb. B. 4. c.9. Sect. 2. Such a confeffion carries with it fo ftrong a prefumption of guilt, that an entry (c) on record quod cognovit in. dicamentum, &c. in an indictment of trefpafs, eftops the defendant to plead not guilty to an action brought afterwards against him for the fame matter. But it feems queftionable, Whether fuch entry of a confeffion of an indictment of a capital crime, will in the like manner estop a defendant to plead not guilty to an appeal, because in cafe of life, the court will be very tender in going upon presumptions. And where a perfon upon his arraignment actually confefles (d) himfelf guilty, or ()s. P. C. 141 unadvisedly difclofes the special (e) manner of the fact, fuppofing a Hale 225. that it doth not amount to felony, where it doth, yet the judges, (e) 22 A 71. upon probable circumitances, that fuch confeffion may proceed 27 Adize 40. from tear, menace, or duress, or from weakness or ignorance, may refuse to record fuch confeffion, and fuffer the party to plead not guilty. Sect. 3. An implied confeffion is where a defendant in a cafe not capital, doth not directly own himself guilty, but in a manner admits it by yielding to the king's mercy, and defiring to lubmit to a small fine: in which cafe, if the court think fit to accept of fuch fubmifion, and make an entry that the defendant pofuit fe in gratiam regis, without putting him to a direct confeffion, or plea (which in fuch cases feems to be left to difcretion), the defendant fhall (f) not be eftopped to plead not Hh3 2 Ab. F.Cor. 180. (f) 9 H 6. 60, Ab. F. Estoppel 24. Lamb. B 4 c.9 11 H.4 65. 21. guilty Farrelly 40 (a) Sup. § 2. (6) 1 Salkeld 77, 78. Farrefly 100. guilty to an action for the fame fact, as he fhall (a) be where the entry.is quod cognovit indictamentum, Sect. 4. I take it for granted, That no confeffion whatever fhall, before final (t) judgment, deprive the defendant of the (6) Finch 226. privilege of taking exceptions in arrest of judgment to faults apparent in the record; (c) for the judges muft ex officio take notice of all fuch faults, and any one, as amicus curiæ, may inform them of them. 2 Danv. Ab. 282. 2 Levinz 223. (d) B. Peremp tory 86. (e) S. P. C. 150. (f) 2 Inf. 178. (g) Sum. 243. 2 Hale 315. Hale fays, this authority must be taken cum grano falis. 2 Hale 257. Vide alfo 225 and 4 Comm. 328, where it is Sect. 5. It feems to be taken for granted, both by (d) Brook and (e) Staundforde, (f) Coke and (g) Hale, fpeaking, as I fuppofe, of a general demurrer, That it amounts fo far to a confeffion of the indictment as laid, that if the indictment be good, judgment and execution fhall go against the prifoner. But it is obfervable, That no adjudged cafe is cited for the maintenance of this opinion, nor any authority from the old books except the year book of 14 Edw. 4. 7 a. pl. 10. (1) in which it is reported to have been faid by Choke, That if a defendant demur to a plea, he fhall be hanged, quod fuit conceffum. But to this it may be faid, That it was only fpoken incidentally, and not a point adjudged; and befides that it is fo fhort and obfcure that is fearce intelligible, which appears by Brook's abridging it in different fenfes; for in one place (b) he feems to understand it of a demurrer by a defendant to a plea in bar, which feems impoffible; and in fer him by fuch another (i) place he feems to understand it in a different fenfe. niceties to lofe his And therefore perhaps the meaning of it may be only this, life, However, That after a defendant hath pleaded fuch a bar as confeffes the demurrers to in- fact, and concludes him to plead the general iffue afterwards, dictments are fel as fome pleas are faid (k) to do; if he afterwards demur to a the fame advan- replication to fuch plea, he fhall be condemned, if the demurrer be adjudged against him, and the indictment or appeal be good. faid, that al though a man may in fome cafes iofe his property, yet the law will not fuf upon this doubt dom used: fince tages may be taken upon not guilty or in arrest of judgment. (1) See the pre- (m) Vide B Per- () Vide B. Per emptory 86. (2) Dyer 38, 39. Cro. Eliz. 196. (p) As it was (b) B. Demurrer 17. (i) B. Peremptory 86. (*) Vide fup. c. 23. fect. 137. Sec. 6. But howsoever the law may ftand in relation to a (1) general demurrer concluding in bar of an appeal, or indictment, as in common demurrers in civil actions, or a demurrer to a plea in bar, (m) which admits the fact, or to a (n) replica tion to fuch a plea: It hath been adjudged, That if an appellee demur in law to an appeal by reafon of the (o) infufficiency of the declaration, or generally demur to the declaration, with a (p) conclufion et petit judicium de narratione illa et quod narra tio illa caffetur ; or having prayed (g) oyer of the writ and procefs, demand judgment of the appeal, quia dicit quod breve de appello prædi&t. et proceff. inde minus fufficient' in lege exiftunt, ad ipVide Salkeld 59. Jum IV. C. ad dictum breve de appello refpondere compellend; et (7) As it was dore in the cafe hoc parat. eft verificare prout cur', &c. unde petit judicium de of Widdrington brivi de appello predict. et petit inde allocationem, et quod breve illud de appello caffetur; fuch demurrer fhall not conclude him done in the cafe of Smith v. Bowen, Mich. 7 Ann. and Chariton, Hill, 10 Ann. from from pleading over to the felony, either at the fame time (a) (a) Smith and with the demurrer, or (6) after it fhall be adjudged againit Bowen, Mich. him. 7 Annæ; In which cafe the demurrer was continued on the record with a ceffet triatio exitos, &c. and after the demurier was determined against the defendant, a venire was awarded. (b) Dyer 38. Salkeld 59, 60. Cro. Eliz. 196. Sect. 7. But it feems, That in criminal cafes not capital, if the defendant demur to an indictment, &c. whether an abatement or otherwife, the court will not give judgment against him to answer over, but final (c) judgment. For it feems, That in (c) Vide Salk, such cases there can be no demurrer properly in abatement, Salk. 218. except (d) it be to a plea in abatement, or to a (e) replication (e) Raftal 160. to fuch a plea. Sect. 8. A demurrer to an appeal hath been (f) received after iffue joined: But it hath been adjudged, (g) That a demurrer to an indictment ought not to be received after verdict. 220. 611. (f) Cro. Eliz. 196. (g) Sider. 208. wherein the pre cedent in Co. Ent. 363. to the contrary is denied to be law. CHAPTER THE THIRTY-SECOND. OF SANCTUARY. B EFORE I confider in the third place, how a prifoner is to he demefned upon his pleading, I fhall examine the nature of the feveral kinds of pleas in criminal cafes; which are either Dilatory, or in Chief. Dilatory pleas are either Declinatory, or, in Abatement. Declinatory pleas are either, Firft, Of the privilege of fanctu ary; or, Secondly, Of the benefit of clergy. 27 Hen. 8. c. 19. 32.8.c. 12. Peere Will. 39. Comm. 326. 38-429. 4 Vide allo 9 Geo. 1. c. 18. for fuppreffing the pre Selt. I. As to the plea of the privilege of fanctuary, the learning relating to it being made in a great measure ufelefs by the ftatute of 21 Jac. 1. c. 28. f. 7. by which it is enacted, "That no fanctuary, or privilege of fanctuary, fhall after that "time be admitted or allowed in any cafe:" I fhall but briefly confider it under the following heads, 1. What was tended privileged place in Saint George's Fields called the Mint. And alfo 11 Geo. 1. c. 22. for fuppreffing another pretended fanctuary of the fame nature in the hamlet of Wapping, Stepney, by which acts all refiftance is made felony and transportation for feven years. Vide alfo 8 and 9 Will. 3. c. 27. for fuppreffing many other pretended fan&tuaries from civil process, where the same punishment is inflicted upon the offenders. Hh 4 the (a) Finch 374. S. P. C. 108. Hale 323, 324. 6) What thole precincts were, Keilway 189. 191. 9 H. 7. 20. B. Sanctuary 10. (d) 32 H. S. c. 72. Finch 388. 3 H. 7. 12. Ab. F. Cor. 54. 21 E. 3. 17. Ab. B. Sanct. 2. 44. he nature of the privilege of fanctuary. 2. What authority was neceffary for the creating it. 3. To what matters it extended. 4. At what time, and in what manner it was to be pleaded. Sect. 2. As to the first point, viz. What was the nature of the privilege of fanctuary. It feems to be agreed, (a) That fo far as a place was allowed to have it, it gave all thofe that filed to it for fafeguard, and continued within its (b) precincts, a (c) freedom from being apprehended, or compelled to answer in any court of juftice, and a right to be remanded if taken out against their will. 189, 190, 191. 8 H. 6. 4. Ab. F. Cor. 5. 1 H. 7. 23. Ab. F. Cor. 49. 9 E. Cor. 32. Keilway 107. 188. Sect. 3. As to the fecond point, viz. What authority was neceffary for the creating it. It feems, that it belonged of common (d) right to every church and churchyard, for the space of forty days, but could not be claimed for a longer time, either by force of any bull from the (e) Pope, nor even by (f) prefcription, (g) efpecially in the cafe of high treafon; but only by a grant () from the king, made, or at leaft confirmed (i) or allowed (k) in Eyre, fince the time of memory. But it is faid, That it did not gain (1) the name of a fanctuary till it had the Pope's bull, though it had the (m) full privilege of one, as to (e) Keilw. 129, all exemption from temporal courts, by the king's grant only. $. P. C. 110, 111. B. Sanet. 6. 15. 5 Coke de jure Regis Ecclef. 26. (f) 1 Inft. 114. Keilway 188, &c. But Quære if fuch prefcription were confirmed by king, or allowed in Eyre fince time of memory. Keilway 188, 189, 190, 191, (g) S. P. C. 112, 1 H. 7. 23. 25, 26. Ab. Prefcrip. 20. Vide Raital 584. (b) S. P. C. 108. 110, 111. 1 H. 7. 25. 26. B. Sanct. 7. Keilw. 189, 190, 191. (i) Keilw. 189, 190. 2 R. Abr. 268, 269. (k) Keilw. 189, 190. 2 R. Abr. 268,269. 1 H. 7. 23. B. S. P, C. 112. (1) Finch 375. (m) Finch 374, 375. B. Sanct. 11. 14. 16. Raftal 583. 190, 191. F. Cor. 49. (x) B. Sanct. 3. 378 7 H. 6, 8. 34. Ab. F. Jur. z. Dver 295. Denied 29 Aff. 74. (0) 21 E. 3. 17. Ab. F.Grant 77. Y H. 7. 23. Sanct. 7. 15. this is made a quære, Sect. 4. As to the third point, viz. To what matters it extended: It seems agreed, That it never was any farther a protection against any action merely civil, (n) than to fave the defendant from execution of his body. Alfo it feems to be generally agreed, That if it were granted by general words, it extended not to (o) high treafon. But it feems agreed, (p) That in fuch cafe it extended to all felonies except (4) facrilege, and B. Sanctuary 6, to all inferior crimes except fuch as were committed by a fanctu H. 7. 23. 25, ary man (r) within the fanctuary, or even (s) out of it, sub spe Ab. F. Cor.49. redeundi. Prefcription 20. Cont. Keilway 190, 191. Qu. Finch. 374. (p) See the books cited to the other parts of this fec tion. Quære if in fuch cafe it extended to petit treafon. B. Sanct. 2. (9) 3 Init. 815. Fitz, (r) Agreed by all the canonifts, Keilway 191. (5) Denied by many of the canonifts. Kellway 191. 26. 420. 1 Sec. 5. As to the fourth point, viz. At what time, and in what manner it was to be pleaded: It feems agreed, That the defendant loft the benefit of it, unless he pleaded it before any |