specific and extensive remedy than can be had in the courts of law: as, by carrying agreements into execution, staying Faste or other injuries by injunction, directing the sale of encumbered lands, &c. IV. The true construction of securities for money, by considering them merely as a pledge. V. The execution of trusts, or second uses, in a manner analogous to the law of legal estates........ Page 436-440 6. The proceedings in the court of Chan cery (to which those in the Exchequer, &c. very nearly conform) are, I. Bill. II. Writ of subpoena; and perhaps injunction. III. Process of contempt ; viz., (ordinarily) attachment, attachment with proclamations, commission of rebellion, serjeant-at-arms, and sequestration. IV. Appearance. V. Demurrer. VI. Plea. VII. Answer. VIII. Exceptions; amendments; cross, or supplemental, bills, bills of revivor, interpleader, &c. IX. Replication. X. Issue. XI. Depositions taken upon interrogatories; and subsequent publication thereof. XII. Hearing. XIII. Interlocutory decree; feigned issue, and trial; reference to the master, and report; &c. XIV. Final decree. XV. Rehearing, or bill of review. XVI. Appeal to parliament....... ..Page 442-450 CONTENTS OF THE ANALYSIS OF BOOK IV. .............................. III I. The general nature of crimes, and punishment......................................... CHAPTER L II The persons capable of committing crimes.. III Their several degrees of guilt; as IV. The several crimes (with their punishments) more peculiarly offending 3. The king and government; viz. 2. Felonies injurious to the prerogative. 4. Misprisions and contempts.. 2. Public peace. .................................... ...................................................... ................................................... ..................................................................... ............ XI. 3. Public trade.. XII 4. Public health, 5. Public economy XIII. 5. Individuals ; being crimes against 1. Their persons; by s 1. Homicide.. XIV. 2. Other corporal injuries... XV. 2. Their habitations XVI. 3. Their property. XVII. V. The means of prevention; by security for 11. The peace, 12 The good behaviour........ XVIII. VI. The method of punishment; wherein of 1. The several courts of criminal jurisdiction XIX. 2. The proceedings there, 1. Summary. XX. 2. Regular; by 1. Arrest XXI. 2. Commitment and bail. XXII. 3. Prosecution ; by 1. Presentment, 2. Indictment, 3. Information, 4. Appeal........ XXIII. 4. Process ... XXIV. 5. Arraignment, and its incidents XXV 6 Plea, and issue XXVI 7. Trial, and conviction. XXVII 8. Clergy..... XXVIII 9. Judgment, and attainder; which induce 1. Forfeiture, 2. Corruption of blood..... XXIX. 10. Avoider of judgment, by s 1. Falsifying, or reversing, the attainder ...... XXX. 12. Reprieve, or pardon .... XXXI. 11. Execution ...... XXXII ..... .................................................. ......................................................... ....................................................... ....................................... ............................................. ............................................ ..................................... ............ ANALYSIS. BOOK IV.*-OF PUBLIC WRONGS. THEIR cuse....... CHAPTER I 3. A vicious will may therefore be wanting, Op THE NATURE OF CRIMES, AND in the cases of I. Infancy. II. Idiocy, or PUNISHMENT...... ..Page 1 to 12 lunacy. III. Drunkenness; which doth 1. In treating of public wrongs may be not, however, excuse. IV. Misfortune. considered, I. The general nature of V. Ignorance, or mistake of fact. VI. crimes and punishments. II. The per Compulsion, or necessity; which is, 1st, sons capable of committing crimes. III. that of civil subjection; 2dly, that of Their several degrees of guilt. IV. The duress per minas ; 3dly, that of choosing several species of crimes, and their re- the least pernicious of two evils where spective punishments. V. The means of one is unavoidable; 4thly, that of want prevention. VI. The method of punish or hunger; which is no legitimate exment.............................. 1 ............... Page 22-32 2. A crime, or misdemeanour, is an act com 4. The king, from his excellence and digmitted, or omitted, in violation of a nity, is also incapable of doing wrong.... 33 public law, either forbidding or commanding it.......... 4 CHAPTER III. Crimes are distinguished from civil OF PRINCIPALS AND ACCESSORIES.......... 31 to 37 injuries, in that they are a breach and 1. The different degrees of guilt in crimiviolation of the public rights, due to the nals are, I. As principals. II. As acceswhole community, considered as a com sories..... 81 munity.... 5 2. A principal in a crime is, He who 4. Punishments may be considered with commits the fact. II. He who is preregard to, I. The power, II. The end, sent at, aiding, and abetting, the comIII. The measure,- of their infliction..... 7 mission ..... 31 6. The power, or right, of inflicting human 3. An accessory is he who doth not commit punishments, for natural crimes, or such the fact, nor is present at the commisas are mala in se, was by the law of sion, but is in some sort concerned thereDature vested in every individual; but, in, either before or after....... 35 by the fundamental contract of society, 4. Accessories can only be in petit treason, is now transferred to the sovereign and felony: in high treason, and misdepower: in which also is vested, by the meanours, all are principals ....... ..... 36 same contract, the right of punishing 5. An accessory before the fact is one who, positive offences, or such as are mala being absent when the crime is committed, prohibita ... 7 hath procured, counselled, or commanded 6. The end of human punishments is to another to commit it 36 prevent future offences; I. By amending the offender himself. II. By deterring 6. An accessory after the fact, is where others through his example. III. By a person, knowing a felony to have been committed, receives, relieves, comforts, depriving him of the power to do future or assists the felon. Such accessory is mischief. .... 11 usually entitled to the benefit of clergy; 1. The measure of human punishments where the principal, and accessory before must be determined by the wisdom of the fact, are excluded from it 37 the sovereign power, and not by any uniform universal rule: though that wis CHAPTER IV. dom may be regulated, and assisted, by certain general, equitable principles...... 12 OF OFFENCES AGAINST GOD AND RELIGION... 42 to 65 CHAPTER II. 1. Crimes and misdemeanours, cognizable by OF THE PERSONS CAPABLE OF COMMITTING the laws of England, are such as more CRIMES... 20 to 33 immediately offend, I. God, and his holy 1. All persons are capable of committing religion. II. The law of nations. III. crimes, unless there be in them a defect The king and his government. IV. The of will; for, to constitute a legal crime, public, or commonwealth. V. Jndivithere must be both a vicious will and a duals...... 42 vicious act ...... 20 2. Crimes more immediately offending God 2. The will does not concur with the act, and religion are, I. Apostasy. For which 1. Where there is a defect of understand- the penalty is incapacity, and imprisoning. II. Where no will is exerted. III. ment. II. Heresy. Penalty for one speWhere the act is constrained by force cies thereof: the same. III. Offences and violence......... 21 against the established church. Either, by reviling its ordinances. Penalties : privy seal. VI. By counterfeiting the fine; deprivation; imprisonment; for- king's money, or importing counterfeit feiture. -Or, by non-conformity to its money. VII. By killing the chancellor, worship: 1st, through total irreligion. treasurer, or king's justices, in the exePenalty: fine. 2dly, through Protestant cution of their offices. Page 76–87 dissenting. Penalty: suspended(condition- 8. High treasons, created by subsequent ally) by the toleration act. 3dly, through statutes, are such as relate, I. To papopery, either in professors of the popish pists: as, the repeated defence of the religion, popish recusants convict, or po- pope's jurisdiction; the coming from bepish priests. Penalties: incapacity; double yond sea of a natural-born popish priest; taxes; imprisonment; fines; forfeitures ; the renouncing of allegiance and reconabjuration of the realm; judgment of ciliation to the pope, or other foreigu felony, without clergy; and judgment of power. II. To the coinage or other sighigh treason. IV. Blasphemy. Penalty: natures of the king: as, counterfeiting fine, imprisonment, and corporal punish- (or, importing and uttering counterfeit) ment. V. Profane swearing and cursing. foreign coin, here current; forging the Penalty: fine, or house of correction. sign-manual, privy signet, or privy seal; VI. Witchcraft; or, at least, the pretence falsifying, &c. the current coin. III. thereto. Penalty: imprisonment, and To the Protestant succession; as, correpillory. VII. Religious impostures. Pe- sponding with, or remitting money to, nalty : fine, imprisonment, and corporal the late pretender's sons; endeavouring punishment. VIII. Simony. Penalties : to impede the succession; writing or forfeiture of double value: incapacity. printing in defence of any pretender's IX. Sabbath-breaking. Penalty: fine. title, or in derogation of the act of settleX. Drunkenness. Penalty: fine, or stocks. ment, or of the power of parliament to XI. Lewdness. Penalties: fine; impri limit the descent of the crown.............. 87-92 sonment; house of correction....... Page 43–65 4. The punishment of high treason, in males, is (generally) to be, I. Drawn. CHAPTER V. II. Hanged. III. Embowelled alive. IV. OF OFFENCES AGAINST THE LAW OF NATIONS Beheaded. V. Quartered. VI. The head 66 to 73 and quarters to be at the king's disposal. 1. The law of nations is a system of rules, But, in treasons relating to the coin, only deducible by natural reason, and esta to be drawn, and hanged till dead. Feblished by universal consent, to regulate males, in both cases, are to be drawn 92 the intercourse between independent and burned alive.......... states.............. 66 CHAPTER VII. 2. In England, the law of nations is adopt ed, in its full extent, as part of the law OF FELONIES INJURIOUS TO THE King's PRE of the land. ..... 67 ROGATIVE...... ........... 94 to 102 3. Offences against this law are principally 1. Felony is that offence which occasions incident to whole states or nations; but, the total forfeiture of lands or goods at when committed by private subjects, are common law: now usually also punishable then the objects of the municipal law...... 67 with death, by hanging; unless through 4 Crimes against the law of nations, ani- the benefit of clergy...... 94 madverted on by the laws of England, are, 2. Felonies injurious to the king's preroI. Violation of safe-conducts. II. In gative (of which some are within, others fringement of the rights of ambassadors. without, clergy) are, I. Such as relate to Penalty, in both: arbitrary. III. Piracy. the coin: as, the wilful uttering of counPenalty: judgment of felony, without terfeit money, &c.: (to which head some clergy. .68-73 inferior misdemeanours affecting the coin age may be also referred.) II. ConspirCHAPTER VI. ing or attempting to kill a privy counOF High TREASON ............................. 74 to 92 sellor. III. Serving foreign states, or 1. Crimes and misdemeanours more pecu enlisting soldiers for foreign service. IV. liarly offending the king and his govern Embezzling the king's armour or stores. ment are, I. High treason. II. Felonies V. Desertion from the king's armies, by land or sea.................... ..98-102 injurious to the prerogative. III. Premunire. IV. Other misprisions and con CHAPTER VIII. tempts................. 74 2. High treason may, according to the sta- OF PRÆMUNIRE. .103 to 11" tute of Edward III., be committed, I. By 1. Præmunire, in its original sense, is the compassing or imagining the death of the offence of adhering to the temporal power king, or queen consort, or their eldest of the pope, in derogation of the regal son and heir; demonstrated by some overt authority. Penalty: outlawry, forfeitact II. By violating the king's compa- ure, and imprisonment: which hath nion, his eldest daughter, or the wife of since been extended to some offences of a his eldest son. III. By some overt act of different nature ..... ..... 101 levying war against the king in his realm. 2. Among these are, I. Importing popish IV. By adherence to the king's enemies. trinkets. II. Contributing to the mainV. By counterfeiting the king's great or tenance of popish seminaries abroad, or : ............ ........ ......... ance. without clergy. II. Compelling prisoners to become approvers. Penalty: judgment of felony. III. Obstructing the execution of process. IV. Escapes. V. Breach of prison. VI. Rescue.—Which four may (according to the circumstances) be either felonies, or misdemeanours punishable by fine and imprisonment. VII. Returning from transportation. This is felony, without clergy. VIII. Taking rewards to help one to his stolen goods. Penalty: the same as for the theft. IX. Receiving stolen goods. Penalties: transportation ; fine; and imprisonment. X. Theftbote. XI. Common barretry, and suing in a feigned name. XII. Mainten XIII. Champerty. Penalty, in these four: fine and imprisonment. XIV. Compounding prosecutions on penal statutes. Penalty: fine, illory, and disability. XV. Conspiracy; and threats of accusation in order to extort money, &c. Penalties: the villenous judgment; fine; imprisonment; pillory; whipping; transportation. XVI. Perjury, and subornation thereof. Penalties: infamy; imprisonment; fine, or pillory; and sometimes transportation, or house of correction. XVII. Bribery. Penalty: fine, and imprisonment. XVIII. Embracery. Penalty: infamy, fine, and imprisonment. XIX. False verdict. Penalty: the judgment in attaint. XX. Negligence of public officers, &c. Penalty: fine and forfeiture of the office. XXI. *Oppression by the magistrates. XXII. Extortion of officers. Penalty, in both: imprisonment, fine, and sometimes forfeiture of the office...... ........ 128-141 CHAPTER XI. 142 to 153 1. Offences against the public peace are, I. Riotous assemblies to the number of twelve. II. Appearing armed, or hunting, in disguise. III. Threatening, or demanding any valuable thing, by letter. All these are felonies, without clergy. IV. Destroying of turnpikes, &c. Penalties : whipping; imprisonment; judgment of felony, with and without clergy. V. Affrays. VI. Riots, routs, and unlawful assemblies. VII. Tumultuous petitioning. VIII. Forcible entry and detainer. Penalty, in all four: fine, and imprison. ment. IX. Going unusually armed. Penalty: forfeiture of arms, and imprisonment. X. Spreading false news. Penalty: fine, and imprisonment. XI. Pretended prophecies. Penalties: fine; imprisonment; and forfeiture. XII. Challenges to fight. Penalty: fine, imprisonment, and sometimes forfeiture. XIII. Libels. Penalty: fine, imprisonment, and corporal punishment....... ......... 142-153 : popish priests in England. III. Molesting CHAPTER IX. ING TIIE KING AND GOVERNMENT.....119 to 126 1. Misprisions and contempts are all such high offences as are under the degree of capital 119 2. These are, I. Negative, in concealing what ought to be revealed. II. Positive, in committing what ought not to be done. 119 3. Negative misprisions are, I. Misprision of treason. Penalty: forfeiture and imprisonment. II. Misprision of felouy. Penalty: fine and imprisonment. III. Concealment of treasure trove. Penalty : fine and imprisonment..... ...... 120-121 4. Positive misprisions, or high misde meanours and contempts, are, I. Maladministration of public trusts, which includes the crime of peculation. Usual penalties: banishment; fines; imprisonment; disability. II. Contempts against the king's prerogative. Penalty: fine and imprisonment. III. Contempts against bis person and government. Penalty : fine, imprisonment, and infamous corporal punishment. IV. Contempts against his title. Penalties: fine and imprisonment; or, fine and disability V. Contempts against his palaces, or courts of justice. Penalties : fine; imprisonment; corporal punishment; loss of right hand; forfeiture.. 121-126 CHAPTER X 07 OFFENCES AGAINST PUBLIC JUSTICE.... 127 to 141 1. Crimes especially affecting the common wealth are offences, I. Against the public justice. II. Against the public peace. INI. Against the public trade. IV. Against the public health. V. Against the public police, or economy.. 127 2. Offences against the public justice are, 1. Embezzling, or vacating, records, and personating others in courts of justice. Penalty: judgment of felony, usually CHAPTER XII. OF OFFENCES AGAINST PUBLIC TRADE... 154 to 160 1. Offences against the publio trade are, |
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