CHAP. XXVI. Judgment convicted of treason. s. 1. Eng. s. 2. Women convicted of petit treason, c. to Of Judgment and its Consequences. THE judgment required by law to be given against against women women in cases of high treason or petit treason, is done away by the 30 Geo. 3. c. 48. Eng. which enacts, that 30 Geo.3. c.48. the judgment to be awarded against any woman, convicted of high treason or petit treason, or of abetting, procuring, or counselling any petit treason, shall not be that such woman shall be drawn to the place of execution, and be there burned to death; but that such woman shall be drawn to the place of execution, and be there hanged by the neck until she be dead. And by s. 2. if any woman, shall be convicted of petit, treason, or of abetting, procuring, or counselling any petit treason, such woman shall be liable to such further pains be sentenced, &c. and penalties as are specified with respect to persons victed of murder convicted of wilful murder, in the [*25 Geo. 2. c. 37. Eng.] ante p. 904, &c,; and the court before whom such woman shall be convicted, shall pass sentence at such time, and shall give such orders with respect to the time of execution, the disposal of the convict's body after execution, and all such other matters, as are directed to be given by said act, with respect to persons convicted of wilful murder. And by s. 4. whenever any woman shall be convicted of high treason, or petit treavicted of high son, or of abetting, procuring, or counselling any petit be liable to the treason, and judgment shall be given thereon according like forfeitures, c. as hereto to the directions of this act, then such woman being so attainted, shall be subject to such forfeitures, and corruption of blood, as if attainted of the like crime before as persons con S. 4. Women con treason, c. to fore. *31 Geo. 3. c. 17. Ir. here referred to in 36 Geo. 3. c. 31. Ir. the the passing of this act. The 36 Geo. 3. c. 31. Ir. is the 36 Geo.3.c.31. corresponding statute in Ireland. Ir. E. & I. II. The provision of the Great Charter, 9 Hen. 3. §. 2. c. 14. E. & I. respecting amercements, which regulates How men shall be amerced, and or influences the reasonableness of fines in criminal by whom. cases, is, that a freeman shall not be amerced for a small 9Hen. 3. c. 14. offence, but according to the quality of it, and for a great offence in proportion to the magnitude of it, saving to him his contenement; and a merchant likewise, saving to him his merchandize, [and any other's villain than the king's, saving his wainage.] And none of said amercements shall be assessed, but by the oath of honest and lawful men of the vicinage. Earls and barons shall not be amerced but by their peers, and according to the na ture of their offence. And no man of the church shall be amerced after the quantity of his spiritual benefice, but according to his lay tenement, and to the quantity of his offence. The 3 Edw. 1. c. 6. E. & I. also enacts, 5 Edw. 1. c. 6ẹ that no borough, city, town, or man, shall be amerced E. & I. without reasonable cause, and according to the quantity Amercements to of the trespass: viz. every freeman saving his contene- be reasonable. ment, a merchant saving his merchandize, [a villain saving his wainage,] and that by their peers. And by the 34 Edw. 3. c. 1. E. & I. fines which are to be made 34 Eiw. 3.c. 1. before justices for a trespass done by any person, shall F. & L. be reasonable and just, having regard to the quantity of the trespass, and the causes for which they be made. And it is declared by the Bill of Rights, 1 W. & M. st. 2. 1 w.& M.st.2. c. 2. Eng. that excessive fines ought not to be imposed, c. 2. Eng. nor cruel and unusual punishments inflicted; and fur- Fines and punther, that all grants and promises of fines and forfeitures ihments to be of particular persons before conviction, are illegal and void. moderate. 9 Hen.3. c. 22, E. & I. III. With respect to forfeitures; It was declared by §. 3. the Great Charter, 9 Hen. 3, c. 22. E. & I. that the Forfeitures of king should not hold the lands of persons convict of felons. felony, but a year and a day, and then that those lands should be delivered to the lord of the fee. And the 17 Edw. 2. st. 1. c. 16. E. & I. further declares or enacts, that the king shall have the goods of all felons attainted, and 17 Edw.2. st. 1. c. 1 6. E & I. s. 5. Eng. Forfeitures in high treason, and fugitives, wheresoever they be found. And if they then the land shall be re 26 Hen.8.c.13.26 Hen. 8. c. 13. Eng. enacts, (s. 5.) that every offender being convicted of any manner of high treason, by presentment, confession, verdict, or process of outlawry, according to the course of the [*common law,] shall forfeit to the king all such lands, tenements, and hereditaments, which such offender shall have of an estate of inheritance, in use or possession, within England, or any of the king's dominions, at the time of such treason committed, or any time after. [*Saving to every person, their heirs and successors, all rights, &c. which they shall have at the day of committing such treasons, or at any time before.] The 5 & 6 Edw. 6. c. 11. Eng. con5 & 6 Edw. 6. tains a similar clause. And the like clause is also con28 Hen. 8. c.7. tained in the 28 Hen. 8. c. 7. Ir. And the 33 Hen. 8. c. 20. Eng. further enacts (s. 2.) that if any person shall be attainted of high treason by the common laws or statutes of this realm, such attainder by the common law, shall be of as good effect, as if it had been done by aushall be of as thority of parliament; and the king shall have as much good force as by benefit by such attainder, as well of uses, rights, entries, act of parlia € 11. s. 9. Eng. 8. 4. Ir. 33 Hen.3.c.20. s. 2. Eng. Attainder of treason by the Common law ment, conditions, as possessions, reversions, remainders, and other things, as if it had been done and declared by authority of parliament; and shall be deemed and adjudged in actual possession of the lands, &c. and all other things of the offenders so attainted, which he ought to have if the attainder had been by authority of parliament, without any office or inquisition to be found of the same. Saving (s. 3.) to every person, &c. their 27 Fliz. c. 1. rights, &c. And the 27 Eliz. c. 1. Ir. also enacts (s. 9.) s. 3. s. 9. tr. that The words within the crotchets are not contained in the 5 & 6 Edw. 6, c. 11. Eng. that every offender being convict of any high treason by 1 Edw. 6. c. 12. s. 17. Eng. albeit any person shall be 1 Edw. 6. c.12. attainted of any treason, petit treason, misprision of s. 17. Eng. treason, murder, or felony, yet the wife of the person Wid ws of fe so attainted shall be endowable, and enabled to demand, lons, &c. shall be endowable. have, and enjoy her dower, in like manner as though her husband had not been attainted, convicted, or outlawed saving to every person, &c. their rights, &c. as they ought to have before or at the time of such attainder, &c. But the 5 & 6 Edw 6. c. 11. Eng. enacts, 5 & 6 Edw. 6. c.11.s. 13. Eng. (s. 13.) that the wife whose husband shall be attainted of treason, shall in no wise be received to demand or Widows of have dower of any the lands, &c. of any person at- of dower. tainted of treason, during the said attainder in force.* No statute in Ireland contains any similar provision to these of the 1 Edw. 6. c. 12. or 5 & 6 Edw. 6. c. 11.. supra. traitors barred The 1 Ric. 3. c. 3. E. & I. enacts, that no sheriff, underGoods of felons sheriff, escheator, bailiff of franchise, or other person, shall not to be seized till after convictake or seize the goods of any person arrested or impri- tion or attainsoned for suspicion of felony, before that such person der. 1 Ric. 3. c. 3. be E. & l. So much of the 7 Ann. c. 21. Eng. and 17 Geo. 2. c. 39. Eng. as put an end to forfeiture after the death of the Pretender and his sons, is repealed by the 39 Geo. 3. c. 93. Eng. be convicted or attainted according to law, or the same goods otherwise lawfully forfeited; upon pain to forfeit double the value of the goods so taken, to be recovered 31 Edv.3. st. 1. by action of debt. And by the 31 Edw. 3. st. 1. c. 3. c. 3. & L. E. & I. if any man (or town) be charged in the excheEstreats in the quer, by estreats of the justices, of the chattels of fuexchequer, hot gitives and felons, and will allege, in discharge, another discharged. which is chargeable, he shall be heard, and right done to the other. §. 4. IV. The provisions of the several statutes of jeofailes, which expressly except indictments or proceedings in criminal cases, have been already stated in a preceding part of this work. No other statute, therefore seems to relate to this head of "Judgment and its Consequences," or to the head of "Reversal of Judgment." In what cases E. & l. CHAP. XXVII. Of Reprieve and Pardon. WITH respect to the prerogative of the king in pardons shall be granting pardons: the 2 Edw. 3. c. 2. E. & I. recites, granted. that offenders have been greatly encouraged, because 2 Edw. 3. c. 2. the charters of pardon have been so easily granted in times past, of man-slaughters, robberies, felonies, and other trespasses; and therefore enacts, that such charters shall not be granted but only where the king may do it by his oath: viz. where a man slayeth another in his own defence, or by misfortune: which statute is confirmed by the 10 Edw. 3. st. 1. c. 2. E. & I. And the. 14 Edw. 3. st. 1. c. 15. E. & I. declares all pardons But this prerogac. 15. E. & 1. granted to the contrary to be void. tive of the king appears from the 13 Ric. 2. st. 2. c. 1. infra, to be afterwards extended or enlarged. The 27 10 Edve. 3.st. 1. c. 2. F. & l. 14 Edw.3.st. 1. Hen. 8. |