By W. W. Ravenhitt, Esq. 



257 



2. Besides the 35 challenged without cause shewn, we may challenge any 

 against whom we can shew oause ; but the judge will declare whether it be a 

 sufficient cause or no. 



3. If any man hath named to the sheriff any one of the jurors remaining (by 

 any saving his sworn officers, whose duty it is) and if two can prove it, the in- 

 dictment and proceedings may be avoided by statute 11, Hen. IV., cap 9.* 



4. Wa must not immediately upon the reading of the indictment plead Not 

 Guilty, for then we can have no councill allowed, nor be admitted afterwards to 

 plead the illegality of the indictmsnt ; but so soon as we have heard the in- 

 dictment read, we may say, we conceive the indictment not sufficient in law, 

 and that therefore we desire councill to speak for us at law, and this before we 

 say Not Guilty. 



5. If the judge ask us, why the indictment is insufficient, seeming to deny us 

 councill we must say, it is neither grounded on the common law, nor statute, and 

 the judges are sworn to execute only the laws. 



6. If the indictment (as it will) do call the jury, jurors for the lord protector, 

 then again let us alledge, that we are not legally indicted, for there are no such 

 persons by the law of England ; for neither the common law, nor acts of par- 

 liament do know or acknowledge any jurors for the lord protector.f 



7. If any alteration be made in the indictment by the judges, then desire, that 

 the evidence to the grand inquest may be given at the bar in open court. 



8. If one of the grand inquest stands outlawed, it makes void the indictment; 

 and if we know any such, we may challenge them, and demand the indictment 

 to be vacated by virtue of a statute, 11 Hen. IV., cap. 9, and if the judges bid us 

 prove them to be outlawed, we may demand time, and we will bring it under seal. 



9. We may desire a copy of the indictment, though the judges positively deny 

 it and urge my lord Coke for authority. J 



10. If we can find any incertainty in the indictment, either in time or place, 

 let us alledge it against the sufficiency of the said indictment. 



11. If the indictment express not particularly some open deed we did in 

 levying war, except against it as insufficient, and still insist upon the assignment 

 of councill to argue the whole, because it is a scruple in law worthy of great debate. 



12. If the judges deny us councill tell them, others usually have had it and 



* The first three and the 6th and 8th refer to the jury. The Statute 11 Hen. IV. is correctly given- 

 standing mute as of malice, in times prior to the Act 7 & 8 Geo. 4., c. 28 s. 2, brought forfeiture of 

 goods, and " peine forte et dure ; " that statute however permits a Judge to order a plea of " not 

 guilty " to be entered under such circumstances. The judgment, peine fort et dure, was as follows : 

 " That the man or woman shall return to the place from whence he or she came, and there shall be 

 laid in some low and dark room, where he or she shall lie naked on the bare earth, without any 

 litter, rushes, or other clothing (save a small covering), and that he or she shall lie upon his or her 

 back, their heads and feet uncovered, and one arme shall be drawn to one quarter of the house with 

 a cord, and the other arme to another quarter, and in the same manner shall be done with his or her 

 legs ; and there shall be laid upon his or her body iron and stone ; so much as he or she may bear 

 and more ; and the next day following he or she shall have three morsels of Barley Bread without 

 any drink, and the second day he or she shall drink thrice of the water, that is next to the house of 

 the prison, (except running water), without any bread, and this shall be his or her dyet until he or 

 she shall be dead."— From the office of Clerk Assize, published in London, 1(>94. 



+ 5 and 6 challenge the Protector's Government, and the authority of the court, and are founded 

 on the argument that the Protector is not within the Statute of Treason. See p. 170, sup. 



i Lord Coke's authority did not prevent the necessity of a statute to remedy this grave defect in 

 our procedure for treason. 



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