CONCERNING CRIMINAL PLEAS WHICH BELONG TO THE CROWN.
Having thus far treated of those Civil Pleas which are discussed in Court, it remains for us to speak concerning Criminal Pleas. When, therefore, any one is charged with the King’s death, or with having promoted a sedition in the Realm or Army,[492] either a certain Accuser appears, or not. If no certain Accuser should appear, but the public voice alone accuses him,[493] then, from the first, the accused shall be safely attached, either by proper Pledges, or imprisonment.[494] The truth of the fact shall, then, be inquired into, by means of many and various inquisitions and interrogations, made in the presence of the Justices, and that, by taking into consideration the probable circumstances of the facts, and weighing each conjecture that tends in favor of the accused, or makes against him; because he must purge himself by the Ordeal,[495] or entirely absolve himself from the Crime imputed to him. But if on the trial by the Ordeal, a person is convicted of a Capital Crime, then the Judgment is of life and members which are at the King’s mercy,[496] as in other Pleas concerning Felony.
Should, however, a certain accuser appear in the first instance, he shall be attached by Pledges, if he can produce any such, to prosecute his Suit. But, if he is unable to adduce any Pledges, it is usual to trust to his solemn promise,[497] as in all Pleas concerning Felony. Yet is it customary in these cases to confide in a promise, least by exacting too hard a security, others might be deterred from making a similar accusation.[498] Security having been taken from the Accuser to prosecute his Plea, then, the party accused, is, as we have observed, usually attached by safe and secure Pledges; or, if he cannot produce any pledges, he shall be cast into Prison. But, in all Pleas of Felony, the Accused is generally dismissed on pledges,[499] except in a Plea of Homicide, where, for the sake of striking terror, it is otherwise enacted. The next step usually resorted to, is to appoint a day to the parties, pending which, the usual Essoins are allowed to be cast.
At length, the Accuser should propose his charge: that he had seen, or by some other proof in Court, that he perfectly well knew, that the Accused had conspired or done something against the King’s life; or to move a sedition in the Realm or Army; or to have consented, or given Counsel, or delegated an authority, towards effecting such object; and the Accuser should allege, that he was prepared to prove his charge, according to the direction of the Court.[500]
Should the accused, on the other hand, deny, in due manner[501] in Court, every thing the other had asserted, it is usual to decide the Plea by the Duel. And here it should be observed, that from the moment the Duel is waged, in Pleas of the kind we are now treating of, neither of the parties can add nor diminish any thing from the words employed in waging the Duel, or, in any other measure decline or recede from his undertaking, without being held as conquered, and liable to the penal consequences.
Nor can the parties be afterwards reconciled to each other, by any other mode, than the King’s License, or that of his Justices. But if the Appellor be conquered, he shall be amerced to the King, the nature of which has been sufficiently explained in a former part of this work.
What penalties also and infamy he shall incur, if conquered, have been sufficiently detailed. If the Accused be conquered, the Judgment that awaits him has been mentioned just before, to which may be added, the confiscation of all his Chattels, and the perpetual Disinherison of his Heirs.[502]
Every free Man of full age is admissible as an Accuser, in a prosecution of this kind. Should, however, a Minor bring an Appeal, he shall be attached, in the manner we have before stated. A Rustic[503] is also admissible; but a Woman shall not be received to make an accusation in any plea of Felony, unless in some particular instances, concerning which we shall presently speak. But the Accuser may, in Pleas of the kind we are discussing, decline the Duel, either on account of his age, or by reason of his being adjudged to have received a Mayhem.[504]
But the age of the party, in such a case, ought to be sixty years or upwards. Mayhem signifies the breaking of any bone, or injuring the head, either by wounding or abrasion. In such case, the Accused is obliged to purge himself by the Ordeal, that is, by the hot Iron, if he be a free Man—by water, if he be a Rustic.[505]
A plea, concerning the fraudulent concealment of Treasure Trove, is usually managed, in the manner and order above stated, where a certain Accuser appears.[506] But, if a Man is accused of this crime by the public voice only, it is not usual, according to the Law of the Land, for him to purge himself by the Ordeal,[507] although by the Assise a different course may be resorted to, unless he has been first convicted, or has confessed in Court, that he has found and taken some kind of Metal in the place in question.[508] But, if upon this fact the party be convicted, the presumption being against him, he shall be obliged to purge himself by the Ordeal, that he had not found or taken any more from the place in question. In other respects, the proceedings are as before stated.
When any one is accused of Homicide,[509] the Judgment is regulated by, and proceeds on, the distinction before laid down. It should, however, be observed, that it is not usual to dismiss upon pledges a person accused of this Crime, unless in compliance with the King’s pleasure. But there are two species of Homicide. The first is called Murder which is secretly perpetrated—no one seeing—no one knowing of it,[510] save the person committing it, and his Accomplices, so that Hue and Cry[511] cannot be presently made after the Offenders, as ordained by the Statute[512] upon this subject.
To prosecute an accusation of this kind no one is admissible, unless he be of the blood of the deceased, and under such restrictions is this rule adhered to, that the nearer Heir shall exclude the more remote from the Appeal.[513]
There is also another species of Homicide, as appears from the general Term, which is called simple Homicide.
In this suit also no one is admissible to prove the Accusation, unless he be allied in blood to the deceased,[514] or be connected with him by the tie of Homage, or Dominion, so that he can speak of the death upon the testimony of his own sight. It should also be added, that a Woman[515] is heard in this suit, accusing any one of her Husband’s death,[516] if she speak as being an Eye-witness[517] to the fact, because Husband and Wife are one flesh. And a Woman is generally admitted to be heard, accusing any one of having committed an injury upon her person, as will be presently shewn. It is at the election of the accused either to abide by the Woman’s proof, or to purge himself by the Ordeal, from the crime imputed to him. A person accused of Homicide is sometimes compelled to undergo the legal Purgation, if he was taken in flight by a Crowd pursuing him, and this be regularly proved in Court by a Jury of the County.
The Crime of Burning[518] is proceeded upon, discussed and terminated, under the form and order we have described.
The Crime of Robbery[519] may also be passed over, as the suit has nothing to distinguish it from the others.
The Crime of Rape[521] is that with which a Woman charges a Man when she alleges, that he committed a violence on her person, whilst in the King’s peace.[522] A Woman, having suffered any such violence, is bound immediately, whilst the crime is recent, to go to the nearest village, and there state the injury to respectable Men, and shew the external marks of violence.[523] She should, in the next place, do the same thing to the Chief Officer of the Hundred; and, lastly, she should publicly complain of her injury in the next County Court. An accusation of this kind being made, the Judgment is as before laid down. A Woman, accusing any one of such a Crime, is heard in the same manner, as is usual concerning any other personal injury which has been offered her. But it should be understood, that it is at the Election of the Accused in such a Case, either to submit to the burthen of making Purgation, or to sustain the woman’s proof against him. It should likewise be remarked, that if any one be convicted in a suit of this kind, the Judgment will be similar to that in the foregoing suits. Nor will it suffice, after Judgment, if the Malefactor wish to take the Woman he has injured to Wife. For thus it would frequently happen, that Men of servile condition would, by reason of one pollution, bring perpetual disgrace upon Women of noble birth, or that Men of high rank would be disgraced by inferior Women, and thus dishonor their fair lineage. But, previously to Judgment, it is customary for the Woman and the accused to be reconciled, by means of a marriage between them; but this step is authorised by the License of the Prince, or that of his Justices, and the consent of the Parents.
The crime of Falsifying,[524] in a general sense, comprises under it many particular species. As, for example, false Charters—false Measures—false Money—and others of a similar description, which contain such a falsifying, on which a person ought to be accused, and, if convicted, condemned. The manner and order of prosecuting these different species of the crime may be sufficiently collected, from what has gone before. One thing, however, should be observed, that if a person be convicted of falsifying a charter, it becomes necessary to distinguish, whether it be a royal[525] or a private charter; because in the former case, the party, when convicted of this offence, shall be condemned, as in the crime of læse majesty. But, if the charter be a private one, then, the person convicted is to be dealt with in a milder manner, as in other inferior crimes of Falsifying, which are punished by the loss of members only, according to the will and beneficence of the princely disposition, as we formerly observed.
As to Thefts and other Pleas which fall within the Jurisdiction of the Sheriff,[526] as they are conducted and decided according to the various customs of different Counties, they fall not within the scope of my present plan, which is solely confined to the subject of the Chief Court.
The Book of the Laws of England is finished.