Every chal

the legal

number shall

be void.

in every such case it shall be lawful for the court, if it shall so think fit, to order the proper officer to enter a plea of "not guilty" on behalf of such person; and the plea so entered shall have the same force and effect as if such person had actually pleaded the same.

III. And be it enacted, That if any person, lenge beyond indicted for any treason, felony, or piracy, shall challenge peremptorily a greater number of the men returned to be of the jury than such person is entitled by law so to challenge in any of the ground of some informality in the swearing of the witnesses who gave evidence before the grand jury, was again arraigned upon an indictment for the same offence, and refused to plead, alleging that he had been already tried: Littledale, J., and Vaughan, B., ordered a plea of not guilty to be entered for him, under this section. R. v. Bitton, 6 Car. & P. 92.

This section, however, clearly does not extend to the case of persons, who through insanity at the time of their arraignment, do not answer directly to the indictment or information; for they cannot be said to stand mute of malice, nor can it be said that they will not answer directly, &c. Nor does stat. 39 & 40 Geo. 3. c. 94. seem to extend to a case of this kind; for the first section extends only to cases where a prisoner is acquitted on account of insanity, which supposes that he pleaded and was tried; and the second section states that if, upon the trial of any person indicted, he shall appear to be insane, &c. and a man cannot be said to be upon his trial until he has pleaded. The usual practice, I believe, in such a case, is, where there is a doubt whether a prisoner, standing mute or not answering directly to an indictment, is not insane, a jury is charged to try whether he stands mute of malice or by the visitation of God; and if they find the latter, the prisoner is remanded until the next assizes, &c. It is very likely that the second section of the above statute, 39 & 40 Geo. 3. c. 94, was meant to have extended to a case of this kind; but it is generally understood not to do so, and that it is only in the case of an insane person pleading, and his plea recorded, that he can be disposed of under the provisions of that act. See R. v. Little, R. & R. 430.

As to the practice in the case of standing mute, &c. previously to this act, see R. v. Halton, Ry. & M., N. P. C. 78.

said cases: every peremptory challenge beyond the number allowed by law in any of the said cases shall be entirely void, and the trial of such person shall proceed as if no such challenge had been made.

another

IV. And be it enacted, That no plea, setting Attainder of forth any attainder, shall be pleaded in bar of crime, not any indictment, unless the attainder be for the same offence as that charged in the indictment.(2)

be

pleadable.

inquire of

lands, &c.,

V. And be it enacted, That where any per- Jury shall not son shall be indicted for treason or felony, the prisoner's jury impanelled to try such person shall not charged to inquire concerning his lands, tenements, or goods, nor whether he fled for such treason or felony.

nor whether he fled.

VI. And be it enacted, That benefit of clergy, Benefit of clergy abowith respect to persons convicted of felony, shall lished. be abolished; but that nothing herein contained shall prevent the joinder in any indictment of any counts which might have been joined before the passing of this act. (3)

nies only

shall be

VII. And be it enacted, That no person con- What felovicted of felony shall suffer death, unless it be for some felony which was excluded from the capital. benefit of clergy before or on the first day of the present session of parliament, or which hath been

(2) See upon the subject of autrefois convict, R. v. Bowman, 6 Car. & P. 337.

(3) See statute 6 Geo. 4. c. 25. s. 2, 4, ante, p. 176, 180.

Felonies not capital punishable under the

acts, if any, relating thereto; otherwise under this act.

The court may order

or shall be made punishable with death by some statute passed after that day.

VIII. And be it enacted, That every person convicted of any felony, not punishable with death, shall be punished in the manner prescribed by the statute or statutes specially relating to such felony; and that every person convicted of any felony, for which no punishment hath been or hereafter may be specially provided, shall be deemed to be punishable under this act, and shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years; 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.

IX. And with regard to the place and mode of imprisonment for all offences punishable under this act, (4) be it enacted, That where any peras part of the son shall be convicted of any offence punishable

hard labour or solitary confinement

sentence of

imprison

ment.

under this act, for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprison

(4) By the 8th and 10th sections.

ment with hard labour, as to the court in its discretion shall seem meet.

under sen

other crime,

of felony, the

sentence, to

after the ex

the first.

X. And be it enacted, That wherever sentence If a person shall be passed for felony on a person already tence for animprisoned under sentence for another crime, it be convicted shall be lawful for the court to award imprison- court may ment for the subsequent offence, to commence pass a second at the expiration of the imprisonment to which commence such person shall have been previously sentenced; piration of and where such person shall be already under sentence either of imprisonment or of transportation, the court, if empowered to pass sentence of transportation, may award such sentence for the subsequent offence, to commence at the expiration of the imprisonment or transportation to which such person shall have been previously sentenced, although the aggregate term of imprisonment or transportation respectively may exceed the term for which either of those punishments could be otherwise awarded.

for a subsequent felony.

XI. And whereas it is expedient to provide Punishment for the more exemplary punishment of offenders who commit felony after a previous conviction for felony, whether such conviction shall have taken place before or after the commencement of this act be it therefore enacted, That if any person shall be convicted of any felony, not punishable with death, committed after a previous conviction for felony, such person shall, on such subsequent conviction, be liable, at the discretion of the court, to be transported beyond the seas.

the subse

What shall be sufficient

proof of the first convic

tion.

for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, 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 imprisonForm of in- ment; and in an indictment for any such felony dictment for committed after a previous conviction for felony, quent 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 containing 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 demanded or taken) shall upon proof of the identity of the person of the offender, be sufficient evidence of the first conviction, without proof of the signature or official character of the person appearing to have signed the same; and if any such clerk, cate of con- officer, or deputy shall utter a false certificate of any indictment and conviction for a previous felony, or if any person, other than such clerk, officer, or deputy, shall sign any such certificate as such clerk, officer, or deputy, or shall utter any such certificate with a false or counterfeit punishment. signature thereto; every such offender shall be guilty of felony; and being lawfully convicted thereof, shall be liable, at the discretion of the

Uttering

false certifi

viction,