punishable with death, committed after a previous convic- TRANSPORTED BEYOND THE SEAS FOR LIFE, OR FOR ANY TERM NOT LESS THAN SEVEN YEARS, OR TO BE IMPRISONED FOR ANY TERM NOT EXCEEDING FOUR YEARS (WITH OR WITHOUT HARD LABOUR FOR THE WHOLE OR ANY PART OF THE IMPRISONMENT, AND WITH OR WITHOUT SOLITARY CON- FINEMENT, 7 & 8 G. 4. c. 28. s. 9.); AND IF A MALE, TO BE ONCE, TWICE, OR THRICE PUBLICLY OR PRIVATELY WHIPPED (IF THE COURT SHALL SO THINK FIT) IN ADDITION TO SUCH IMPRISONMENT: and in an indictment for any such felony committed after a previous conviction for felony, it shall be sufficient to state that the offender was, at a certain time and place, convicted of felony, without otherwise describing the previous felony; and a certificate contain- ing the substance and effect only (omitting the formal part) of the indictment and conviction for the previous felony, purporting to be signed by the clerk of the court, or other officer having the custody of the records of the court where the offender was first convicted, or by the deputy of such clerk or officer, (for which certificate a fee of six shillings and eight-pence, and no more, shall be de- manded or taken,) shall, upon proof of the identity of the racter of the person appearing to have signed the same. The 6 & 7 W. 4. c. 111. enacts, that it shall not be lawful, on the trial of any person for any such subsequent felony, to charge the jury to inquire concerning such previous conviction until they shall have enquired concerning such subsequent felony, and shall have found such person guilty of the same; and whenever in any indictment such previous conviction shall be stated, the reading of such statement to the jury as part of the indictment shall be deferred until after such finding as aforesaid: provided nevertheless, that if upon the trial of any person for any such subsequent felony as aforesaid such person shall give evidence of his or her good character, it shall be lawful for the prosecutor, in answer thereto, to give evidence of the indictment and conviction of such person for the previous felony before such verdict of guilty shall have been returned, and the jury shall inquire concerning such previous conviction for felony at the same time that they inquire concerning the subsequent felony. ALTERNATIVE.-Whenever, throughout the work, a sentence is in an alternative, as "with or without hard labour," "fine, or imprisonment, or both," &c., the decision of that alternative is of course in the discretion of the court pronouncing the judgment. AT THE WILL OF THE KING.-When these words occur in a sentence they do not signify any extra-judicial will of the sovereign, but such as is declared by his representatives the judges in his courts of justice. Voluntas regis in curiâ, non in camerâ. 1 Hale, P. C. 375.; 4 Bl. Comm. 121. AMERCEMENT. -There seems to be, says Kitchen, folio 214., a difference between amercement and fines: for fines, as they are taken for punishment, are certain, and grow expressly from some statute; but amercements are such as are arbitrarily imposed by officers, as those appointed upon oath to set pecuniary penalties upon offences. In Bacon's Abridgment, title Fines and Amercements, the description of an amercement is thus given :—“In the crimina majora there was at least a fine to the king, which was levied by a capiatur; but upon the less offences there was only an amercement, which was affeered, and for which a distringas, or action of debt, only lay." RANSOM. - Horne, in the “ Mirror of Justice," says, that ransom is the redemption of a corporal punishment due by law to any offence. Sir Ed. Coke, however (Co. Litt. 127. a.), declares that there is no difference between a fine and ransom in a legal understanding, for a fine makes an end of the business, and so does a ransom, because it redeems from imprisonment; and if they were different things it would follow, that where the books say that a man shall make a fine and ransom, they must be taken to intend that he ought to pay two different sums, fine and of which there is no precedent. Co. Litt. 127. a. But by others it is said, that where one is to make a ransom, the ransom shall be treble to the fine. Just. of the Peace, folio 142.; Dyer, 232. pl. 5. Cromp. RECORDING JUDGMEnt of Death.-By the 4 G. 4. c. 48. s. 1. it is enacted, that whenever any person shall be convicted of any felony, except murder, and shall by law be excluded the benefit of clergy in respect thereof, and the court before which such offender shall be convicted shall be of opinion that, under the particular circumstances of the case, such offender is a fit and proper subject to be recommended for the royal mercy, it shall and may be lawful for such court, if it shall think fit so to do, to direct the proper officer, then being present in court, to require and ask, whereupon such officer shall require and ask if such offender hath or knoweth any thing to say why judgment of death should not be recorded against such offender; and in case such offender shall not allege any matter or thing sufficient in law to arrest or bar such judgment, the court shall and may, and is hereby authorised to abstain from pronouncing judgment of death upon such offender; and instead of pronouncing such judgment, to order the same to be entered of record; and thereupon such proper officer as aforesaid shall and may and is hereby authorised to enter judgment of death on record against such offender in the usual and accustomed form, and in such and the same manner as is now used, and as if judgment of death had actually been pronounced in open court against such offender by the court before which such offender shall have been convicted. By the second section of the same statute it is enacted, that a record of every such judgment, so entered as aforesaid, shall have the like effect to all intents and purposes, and be followed by all the same consequences, as if such judgment had actually been pronounced in open court, and the offender had been reprieved by the court. RESTITUTION OF STOLEN PROPERTY.—The 7 & 8 G. 4. c. 29. s. 57. enacts, that if any person guilty of any such felony or misdemeanor as aforesaid, in stealing, taking, obtaining, or converting, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, shall be indicted for any such offence, by or on the behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his representative; and the court before whom any such person shall be so convicted shall have power to award, from time to time, writs of restitution for the said property, or to order the restitution thereof in a summary manner: provided always, that if it shall appear before any award or order made that any valuable security shall have been bonâ fide paid or discharged by some person or body corporate |
