Volume I Part 11 (1/2)

If the princ.i.p.al offenders be fled,* or secreted from justice, in any case not touching life or member, the accessaries may, notwithstanding, be prosecuted as if their princ.i.p.al were convicted.**

* 1 Ann. c. 9. -- 2.

**As every treason includes within it a misprision of treason, so every felony includes a misprision, or misdemeanor. 1 Hale P. C. 652. 75S. 'Licet fuerit felonia, tamen in eo continetur misprisio.' 2 R. 3.10. Both princ.i.p.al and accessary, therefore, may be proceeded against in any case, either for felony, or misprision, at the Common law.

Capital cases not being mentioned here, accessaries to them will of course be triable for misprisions, if the offender flies.

If any offender stand mute of obstinacy,* or challenge preremp-torily more of the jurors than by law he may, being first warned of the consequence thereof, the court shall proceed as if he had confessed the charge,**

* 3E. I.e. 12.

** Whether the judgment of penance lay at Common law. See 2 Inst. 178.2. H. P. C. 321. 4 Bl. 322. It was given on standing mute: but on challenging more than the legal number, whether that sentence, or sentence of death is to be given, seems doubtful. 2 H. P. C. 316. Quaere, whether it would not be better to consider the supernumerary challenge as merely void, and to proceed in the trial. Quaere too, in case of silence.

Pardon and privilege of clergy shall henceforth be abolished, that none may be induced to injure through hope of impunity. But if the verdict be against the defendant, and the court, before whom the offence is heard and determined, shall doubt that it may be untrue for defect of testimony, or other cause, they may direct a new trial to be had.*

* 'c.u.m Clericus sic de crimine convictus degradetur, non sequitur aliapoe-na pro uno delicto, vel pluribus ante degradationem perpetratis. Satis enim sufficit ei pro pcena degradatio, quse est magna capitis diminutio, nisi forte convictus fuerit de apostatia, quia hinc primo degradetur, et postea per manum laicalem comburetur, secundum quod accidit in concilio Oxoni celebrato a bonas memoriae S.

Cantuaren. Archiepiscopo de quodam diacono, qui seapos- tatavit pro quadam Judaea; qui c.u.m esset per episcopum degradatus, statim fuit igni traditus per manum laicalem.'

Bract. L. 3. c. 9. -- 2. 'Et mesme eel jugement (i. e. qui ils soient ars) eye n't sorcers et sorceresses, et sodomites et mescreauntz apertement atteyntz.' Britt. c. 9.

'Christiani autem Apostatae, sortilegii, et hujusmodi detractari debent et comburi.' Fleta, L. 1. c. 37. -- 2. see 3 Inst. 39; 12 Rep. 92; 1 H. P. C. 393. The extent of the clerical privilege at the Common law, 1. As to the crimes, seems very obscure and uncertain. It extended to no case where the judgment was not of life or limb. Note in 2. H. P.

C. 326. This, therefore, excluded it in trespa.s.s, petty larceny, or killing _se defendendo_. In high treason against the person of the King, it seems not to have been allowed.

Note 1 H. P. C. 185. Treasons, therefore, not against the King's person immediately, petty treasons and felonies, seem to have been the cases where it was allowed; and even of those, not for _insidiatio viarum, depopulatio agrorum, or combustio domorum_. The statute de Clero, 25 E. 3. st. 3. c.

4. settled the law on this head. 2. As to the persons, it extended to all clerks, always, and toties quoiies. 2 H. P.

C. 374. To nuns also. Fitz. Abr. Coron. 461. 22 E. 3. The clerical habit and tonsure were considered as evidence of the person being clerical. 26 a.s.siz. 19 & 20 E. 2. Fitz.

Coron. 233. By the 9 E. 4. 28. b. 34 H. 6. 49. a. b. simple reading became the evidence. This extended impunity to a great number of laymen, and toties quoties. The stat. 4 H.

7. c. 13. directed that real clerks should upon a second arraignment, produce their orders, and all others to be burnt in the hand with M. or T. on the first allowance of clergy, and not to be admitted to it a second time. A heretic, Jew, or Turk, (as being incapable of orders) could not have clergy. H Co. Rep. 29. b. But a Greek, or other alien, reading in a book of his own country, might. Bro.

Clergie. 20. So a blind man, if he could speak Latin. Ib.

21. qu, 11. Rep. 29. b. The orders ent.i.tling the party were bishops, priests, deacons, and sub-deacons, the inferior being reckoned Clerici in minoribus. 2 H. P. C. 373. Quaere, however, if this distinction is not founded on the stat. 23.

H. 8. c. 1; 25. H. 8. c. 32. By merely dropping all the statutes, it should seem that none but clerks would be ent.i.tled to this privilege, and that they would, toties quoties.

No attainder shall work corruption of blood in any case.

In all cases of forfeiture, the widow's dower shall be saved to her, during her t.i.tle thereto; after which it shall be disposed of as if no such saving had been.

The aid of Counsel,* and examination of their witnesses on oath, shall be allowed to defendants in criminal prosecutions.

* 1 Ann. c. 9.

Slaves guilty of any offence* punishable in others by labor in the public works, shall be transported to such parts in the West Indies, South America, or Africa, as the Governor shall direct, there to be continued in slavery.

* Manslaghter, counterfeiting, arson, asportation of vessels, robbery, burglary, house-breaking, horse-stealing, larceny.

[NOTE F.]--Coinage for the United States

_On the Establishment of a Money Unit, and of a Coinage for the United States_.