By 10 Hen. 6. c. 6. the second capias required by 8 Hen. 6. c. 10. shall be awarded upon indictment removed by certiorari. ib. s. 123 Observations upon these statutes. 427. s. 124 A capias, directed to and returned by the chancellor of such county, shall be awarded into a county palatine, when the defendant is named of any place in such county. 428 s. 125 What shall be done if the chancellor does not return such writ. If a peer absent himself, and cannot be found, Outlawry in a personal action is not a good ex- cord. ib. Notes in Marg. In London, judgment of outlawry is given by How such judgment shall be entered on the reib 428. s. 125 If the judgment appear not to have been given if a defendant be named both of the county by the coroner, it is erroneous. in which the indictment is found and in. which he dwells, there is no need of a capias with proclamation according to 8 Hen. 6. ib. s. 126 No capias need be awarded to the county of which it is stated the defendant lately was. ib. But if a defendant be named late of B. late of C. &c. a capias shall go to each county, different from that in which the prosecution is commenced. ib. An outlawry contrary to the statutes above mentioned is not void, but voidable by writ of error. ib. s. 127 By 31 Eliz. c. S. three proclamations shall be made. 429 By 4 & 5 Will. & Mary, c 22. a proclamation shall be made when the exigent issues. ib. Decisions on these statutes. By stat. West. which extends to indictments as well as appeals, none shall be outlawed as accessary unless the principal be attainted, but the exigent shall continue till the priucipal be attainted. 480 ib. 431. s. 128 Where some of the defendants are charged as principals, and others as accessaries, before the award of this erigent, the outlawry of the accessaries is reversable. 432. s. 130 Quare, Whether if an appellant take out the exigent at the same time against all the defendants, he must not, when they appear, count against them as principals? If when he comes to the exigent he counts against some as principals and others as accessaries (which is the safest way), he must take out the exigent only against the principals, and a capias against the accessa ries. ib. Where there is more than one principal, the exigent ought not to issue till all of them are attainted. 433. s. 182 A person outlawed shall have his clergy in the same manner as if he had been otherwise convicted. And quare, If the party is not equally attaint- 636 Whether an outlawry may be reversed, upon a defendant coming in upon the capias utlagatum the same Term the exigent is returnable, without a writ of error for faults apparent on the record. 650 By 26. Hen. 8. c. 13. and 5. & 6. Edw. 6. c. 11. judgment of outlawry for treason against persons abroad at the time it is pronounced shall be good, but the party within a year may appear in the king's bench, and traverse the indictment, &c. 652 These statutes extend to treason, subsequent 477 to the 25 Edw. 3. ib. s. 8 A statute taking clergy from those who shall Any outlawry may be avoided by the defendant coming in upon the capias utlagatum and pleading a misnomer, &c. &c. &c. 653 OYER & TERMINER. By the common law as well as 27 Hen. 8. c. 24. none shall create justices of oyer and terminer, &c &c. except the king 17. s. 1 By what kind of instruments such justices must be constituted. (See COMMISSIONS.) 18 How the authority of such justices may be suspended, revived, or determined. 19 Their power is wholly suspended by the court of king's bench sitting in the same county for which they are commissioned; but it revives without procedendo upon the absence of the king's bench. 20. s. 3. Their authority may be suspended by supersedeas on proof that their commission was unduly granted, but it may be again revived by procedendo. ib. A commission once determined cannot be revived without a new commission. ib. Commission of oyer and terminer, &c. was, before 7 and 8 Will. 3. c. 27. and 1 Ann. c. 8. impliedly determined by the demise of the king, and before 1 Edw. 6. c. 7. by the justice's acceptance of a new name of dignity. ib. s. 5, 6 The authority of such justices is also impliedly determined by holding a session without adjourning it, &c. ib s. 7 So also by granting a new commission to other persons of the same nature. ib. In what manner notice of such new commission shall be said to be given. 21. s. 9, 10 By 1 Edw. 6. c. 7. the process made by the old commissioners shall be continued by new ones. proceed against any persons but those who are indicted before themselves. 25. s. 32 But they may be authorised by the wording of their commission to hear and determine indictments found elsewhere. ib. Where a statute prohibits a thing, and does not appoint in what court it shall be punished, the offender may be indicted before justices of oyer and terminer. ib. s. 33 To what persons and on what occasions commissions of oyer and terminer are grantable. 26. s. 34 By stat. West. no writ of trespass ad audiendum et terminandum shall be granted, except to the justices of either bench, or justices in eyre, &c. ib, s. 34 By 2 Edw. 3. c. 2. oyers and terminers shall not be granted but before justices of the one bench or the other, or justices itinerant. 27 By 34 Edw. 3. c. 1. justices of oyer and terminer shall be named by the court and not by the party. ib. s. 36 These statutes only relate to special commissions granted upon particular occasions at the request of the party, and not to the king's general commission of oyer and termi ner. 27 Justices of oyer and terminer cannot assign a coroner, and therefore they cannot receive the appeal of an approver. 285. s. 16 Quare, If justices of oyer and terminer may award a venire for the trial of an issue joined before them, returnable the day on which the party is arraigned, unless the crime amount to felony, or the party cousent to be tried immediately. 562. s. 4 ib. A By 2 & 3 Phil. and Mary, c. 18. commissions of oyer and terminer, &c. &c. &c. shall not invalidate commissions of the peace. ib. s 13 How far the precise letter of commissions of oyer and terminer, &c. &c. must be observed by the justices. 22. s. 14 What form is to be observed in the adjourn ment of such commissions. ib. s. 15 How far the power given by commissions of oyer and terminer may be altered, enlarged, abridged, or divided. ib. Whether justices of oyer and terminer, &c. may sit in one county to try offences committed in another. The award of a venire returnable before justices of oyer and terminer, &c. need not expressly mention before what justices it shall be returnable. 563. s. 7 Justices of oyer and terminer cannot have a jury returned for the trial of any issue joined before them by force of a bare award: they ought to make a particular precept to the sheriff for that purpose under their seals. 561 23 In what cases they may award a tales. (Vide JURORS.) By 9 Edw. 3. c. 5. justices of oyer and termi ner, &c. &c. shall send their records, &c. into the exchequer every Michaelmas. ib. s. 20 24. s. 21 By 5 Edw. 3. c. 11. justices of oyer and termi ner may award process into any county of England in relation to persons indicted or appealed before them of felony. 392. s. 1, PAIN FORT ET DURE. 463. s. 16 Justices of oyer aud terminer and gaol delivery may proceed in the execution of both com missions at the same time. Commissions of oyer and terminer are either The nature of the judgment. general or special. ib. Judgment of pain fort et dure in one felony, is The form of a general commission of oyer and no bar to a prosecution for another. terminer. ib. s. 22 Whether it extends to suits between party and party. PALATINE. 526 ib. s. 23 By 22 Hen. 8. c. 24. process for treason, felony, or trespass, in every county palatine, shall be in the name of the king only, &c. tested in the name of him who hath the franchise. An enumeration of special commissions of oyer and terminer. ib. Justices of oyer and terminer have no power to 394. s. 7 235 In what manner an approver who convicts the appellee is entitled to a pardon. 286 If petit treason be pardoned by parliament, the heir can bring no appeal; for the pardon of the petit treason pardous the murder also Though an appeal be determined by the marriage of the widow, the appellee shall not be discharged without the king's pardon. 234 s. 38 If the king pardon the approver hanging the appeal, the appellee shall be discharged. 286. s. 25 Anciently the right of pardoning was claimed by certain lords; but by 27 Hen. 8. c. 24. no person whatsoever shall have power to pardon treason and felony except the king. 529 WHERE A PARDON IS MATTER OF RIGHT. 530 s. 2 8. 1 By stat. Gloucester, c. 9. where persons are indicted for murder, and the jury find it per infortunium or se defendendo, upon the report of the justices the king shall pardon him if it please him. ib. The words if it please the king, are only spo ken out of reverence to him, and do not render the right of the subject to a pardon precarious. ib. The forfeiture of goods by such homicide is saved by pardon. ib. A pardon is as necessary for one who is indicted of homicide se defendendo, and confesses it, as for one who is found guilty se defendendo on an indictment for murder. Quare, if the person convicted be found to have fled, whether a pardon will save the forfeit ure. 581 ib. By 4 & 5 Will. & Mary, c. 8. robbers out of prison who shall discover two offenders so as they be convicted, shall be entitled to a pardon. 531. s. 3 By 6 & 7 Will. 3. c. 17. clippers, coiners, &c. discovering and convicting two offenders, are entitled to a pardon for all such crimes committed before the discovery. ib. s. 4 breakers, horsestealers, shoplifters, who shall discover two or more offenders, shall be entitled to a pardon. ib. s. 5 By 5 Ann. c. 31, burglars or housebreakers who shall convict two or more offenders, shall have 401 and a pardon of all felonies except treason and murder. 582. s. 6 By 8 Geo. 1, c. 18, any smuggler discovering and convicting two or more of his accompli ces, so as the value of the goods recovered by such discovery exceed 501. shall receive 401. and be entitled to a pardon. ib. By 25 Geo. 3. c. 57. accomplices discovering an offender in counterfeiting lottery orders, are entitled to a pardon. 532. notes in marg. Persons to whom the king has by special proclamation in the Gazette or otherwise promissed his pardon are entitled to it of legal right. ib. (N) In what manner an approver who convicts the appellee is entitled to a pardon. 532 An accomplice who makes a full and fair discovery, and gives evidence of all he knows, may, by analogy to the law of approvement, entitle himself to a recommendation to the king's mercy, but not to a pardon of legal right. ib. (N) 3 A justice of the peace cannot pardon an offender, and tell him he shall be admitted a witness for the king. ib. (N) 4 The king's bench will bail an accomplice who has entitled himself to the hope of mercy by the fairness of his discovery, in order that he may apply for the king's pardon. ib. THE NATURE OF A PARDON OF GRACE. 532 Wherever it may be reasonably intended that the king, when he granted the pardon, was not fully apprized of the heinousness of the crime, or the nature of the conviction for it, the pardon is void as being gained by imposition on the king. 533. s. 8 The law has intrusted the king with the high prerogative of pardoning, upon a special confidence that he will spare those ouly who ought, by the peculiar circumstances of their case, to be exempted from the general rules of the law. ib. Instances of pardons being void on the ground of the king being unacquainted with the true state of the case. ib. Anciently a pardon of all felonies included a pardon of all treasons. 534. s. 9 But a pardon of all felonies will not now pardon any felony coming within the general limitations of the pardon; and murder and rape are expressly excluded by 13 Rich. 2.: the reason of it. ib. It must appear by the pardon of a person attainted, that the king was acquainted with the attainder. ib. General pardons are usually made by act of parliament, and have of late very rarely been granted by the crown without a particular description of the offence intended to be pardoned. ib. By 10 and 11 Will. 3. c. 23. burglars, house-In what manner the precedents of pardons which which do not particularize the offence are to If a man be bound as surety for another to the be understood. 535 king for the payment of a debt, the pardon of the reason of it. A pardon to several, of all felonies done by them, without adding or any of them, is void; ib. s. 24 The king's graut of a protection, &c. to a felon, shall not operate as a pardon. ib. The law will not suffer a pardon to be carried beyond the express purport of it. By 27 Edw. 3. c. 2. in every pardon of felony, tune. 535. s. 12 ib. A pardon of all misprisions, trespasses, offences, and contempts, will pardon a contempt, a false return, striking in Westminster Hall, barratry, præmunire, and perhaps all offences not capital. 540. s. 26 is questionable, whether a general pardon of all trespasses extends to champerty or coufederacy. ib. s. 27 The king cannot pardon any offence, so far against the public good as to be indictable at common law, before it happens; and quare, if he can so pardon an offence made punishable by statute. ib. s. 28 shall only be granted when a man slayeth another in his own defence, or by misfor 536. s. 14 But it seems the king's pardon of any other homicide is good without a non obstante of this statute. ib. An outlawry in an appeal of death may be The king's grant to the keeper of a prison that pardoned so far as the public justice is con- he shall go free from all escapes, has been adcerned in it. ib. note in marg. judged to discharge a fine for a subsequent negligent escape; sed quære, but it will not pardon a voluntary escape. ib. s. 29 The king may discharge the possibility of an interest before it happens. By 13 Rich. 2. c. 1. no pardon shall be allowed 587. s. 17 ib. It ib. is a general rule, that the king cannot pardon an offence that is malum in se before it happens. 541 Formerly it was held, that the king might dispense with a thing which, being lawful in its own nature, was only prohibited by act of parliament, so far as the public is concerned, excepting such dispensation introduced a great inconvenience. ib. The king cannot dispense with an act of parliaib. ment which gives a particular interest or right of action to a party grieved. If such a pardon be pleaded to the finding of ib. (N) ib. ib. The king's power of dispensing with statutes which intrench upon the prerogative examined. 542 The king could never dispense with a statute a a common informer, if commenced previous A pardon is of no manner of force, as to the leto the pardon. 544 gal effect of it, till it has passed the great seal. The king cannot discharge a recognizance of the peace before it is forfeited. ib, s. 50 The arrest of a person pardoned without notice is excusable, because arrests are for the public good. ib.s. 51 By 4 Geo. 1, c. 11. completely serving the term for which a convict may be transported shall have the effect of a pardon. ib. Quare, whether a pardon of a conviction of perjury, will enable the person pardoned to be a competent witness. ib. A pardon will not bar an appeal, except it be at the suit of the king, after the nonsuit of the party. ib.s. 35 If a pardon be granted of an appeal at the suit of the party, it shall not be allowed; except on a scire facias against the appellant, &c. ib. s 36, 37. In what manner an appellee must proceed to ib. s. 52 make a pardon of the appeal good. ib. A conviction, &c. during a session of parlia Quare, whether the king, upon an appeal of ment is discharged by an act passed during death, can pardon the burning in the hand, the same session which pardons the offence. if the appellee be convicted of mauslaugh548. s. 58 ter. 545 s. 39 No pardon, without express words, shall divest Where a statute gives a public punishment an interest vested by a precedent conviction for a private injury, the king may pardon or attainder. 549. s. 54 it. 545 A pardon prior to a conviction shall prevent The king's pardon will discharge any suit in any forfeiture, either of land or goods. ib. the spiritual court ex officio or pro reforma- In what manner a general pardon of all judgtione morum, or salute animæ. 546, s. 41 ments and executions shall operate. ib. s. 55 If the time of such a pardon be prior to A pardon of a crime which is made penal by the award or taxation of costs, it will dis- statute, and which also disables the party, charge them also; but not if the costs be tax- will discharge the penalty, but not the disaed. ib. s. 42 bility. ib. s. 56 A pardon of all contempts will pardon a per- The king's pardon cannot save corruption of sou imprisoned by excommunicato capiendo blood by attainder of treason or felony. ib, for non-payment of costs. ib. Quare, whether an excommunication can be discharged by the king's pardon. ib. s. 42 (N) 546 A pardon will not discharge a suit, either tem- By 12 and 13 Will. 3. c. 2. no pardon under 44 s. 57 A general pardon by parliament cannot be ib. In what marner those who plead a general pardon must shew they are not within the exceptions. ib. ib. | Where a man is within the general words of a statute pardon, which is qualified by subsequent provisoes, it is sufficient if he bring his case within such general words; for the exceptions in such provisoes ought to be shewn on the other side. ib. But the Court are ex officio bound to take notice of a general pardon of all persons, &c. without exception. ib. s. 61 Where certain crimes are excepted from a general pardon, there is no need to aver that the crime indicted is not one of them. 550 s. 62 After the impeachment is determined the king may pardon the offender. ib. The king may extend his mercy on what terms he pleases, and may annex a condi. tion, either precedent or subsequent, on the performance of which the validity of the par don depends. ib. s. 45 If the king pardons a man for felony whereof he stands indicted, &c. &c. and the man in fact never was indicted, the pardon is void, for the king appears to have been deceived. ib. Where a statute pardon excepts only one per- A pardon gives the subject of it a new capa city and credit; clears him from the infamy of his conviction; makes him a good witness; and enables him to maintain an action for calling him felon, &r. ib. A pardon of burning in the hand in manslaughter bath the same effect as burning in He who pleads a pardon under the great seal the hand would have had. 548. s. 49 ought |