(Vol. v., pp. 32. 112.)
MR. JOHN GOUGH NICHOLS'S observations upon the reply you favoured me by
publishing upon this subject, require from me some few observations in
further support of it. When I wrote the article in question, I had not
had an opportunity of consulting the statute of 22 Hen. VIII. itself. In
making the assertion that, prior to the case of Roose, "there was no
peculiarity in the mode of punishment," I did so principally on the
authority of Blackstone, who says--
"Of all species of deaths the most detestable is that of poison,
because it can of all others be the least prevented either by
manhood or forethought, _and therefore_ by the statute of 22 Hen.
VIII. c. 9. it was made treason, and a more grievous and lingering
kind of death was inflicted on it _than the common law allowed_,
namely, boiling to death."
Upon a perusal of the statute (as published by you at p. 33.), I am
confirmed in my opinion that the statute _was_ "retrospective in its
enactments as against" Roose, and was more extensive in its operation
than (as MR. NICHOLS appears to consider) merely depriving the culprit
of the "advantage of his clargie." The Act, after reciting the facts of
the case, enacted that the particular act of poisoning should be deemed
high treason; and that the said "Richard" should be attainted of high
treason: and because that offence, then "_newly_ practised," required
_condign punishment_, it was further enacted, that the said Richard
Roose should be boiled to death without benefit of clergy.
If this particular punishment already existed for the crime stated in
the Act to be "new," why the necessity for thus particularising the mode
of punishment? The conclusion of the Act (differing much in the verbiage
from that part relating to Roose) confirms me in my opinion, for it
enacts that all future poisoners should not only be adjudged guilty of
high treason, and not be admitted to the benefit of clergy, _but also_
provides for the punishment in the mode in question.
With regard to the case instanced by MR. NICHOLS, in the 13th Hen., I
merely observe that it appears to have escaped the attention of
Blackstone, and others who have written upon the subject. Assuming that
case to have happened, a reference to the statutes of Henry of that
period might probably show that an Act was passed for the punishment of
that particular offence; but not extending further, it became necessary
to pass another, both specific and general, upon the occurrence of
Roose's case.
In support of my view as to the discontinuance of the punishment, vide
_Blackstone_, vol. iv. p. 96.
N.B. The date "1524" (third line from the bottom of second column, p.
112.) appears a misprint for "1542".