If by the decree either party thinks himself aggrieved, he may petition for a rehearing, whether the cause was heard before the chancellor himself, or the lords justices, or by the master of the rolls, or any of the vice-chancellors. For whoever may have heard the cause, it is the chancellor's decree, and must be signed by him before it is enrolled; which is done of course unless a rehearing be desired. Every petition for a rehearing must be signed by two counsel of character, usually such as have been concerned in the cause, certifying that they apprehend the cause is proper to be reheard. The rehearing takes place either before the lord chancellor, sitting alone, or before the lords justices of the Court of Appeal; at which time all omissions of either evidence or argument may be supplied. After the decree is once signed and enrolled, it cannot be reheard or rectified, but by bill of review, or by appeal to the House of Lords.

A bill of review may be had upon apparent error in judgment, appearing on the face of the decree; or, by special leave of the court, upon oath made of the discovery of new matter or evidence, which could not possibly be had or used at the time when the decree passed. But no new evidence or matter then in the knowledge of the parties, and which might have been used before, shall be a sufficient ground for a bill of review. And no bill of review can be brought after twenty years have elapsed from the enrolment of the decree.

An appeal to parliament, that is, to the House of Lords, is effected by petition to the House of Peers, and not by writ of error, as upon judgments at common law. This jurisdiction is said to have begun in 18 Jac. I., and it is certain that the first petition, which appears in the records of parliament, was preferred in that year; and that the first which was heard and determined, though the name of appeal was then a novelty, was presented in a few months after; both levelled against the Lord Chancellor Bacon for corruption and other misbehaviour. It was afterwards warmly controverted by the House of Commons in the reign of Charles II. But this dispute is now at rest; it being obvious to the reason of all mankind, that when the courts of equity became principal tribunals for deciding causes of property, a revision of their decrees, by way of appeal, became equally necessary as a writ of error from the judgment of a court of law. But no new evidence is admitted in the House of Lords upon any account; this being a distinct jurisdiction: which differs very considerably from those instances, wherein the same jurisdiction revises and corrects its own acts, as in rehearings and bills of review. For it is a practice unknown to our law, though constantly followed in the spiritual courts, when a superior court is

reviewing the sentence of an inferior, to examine the justice of the former decree by evidence that was never produced below.

Thus much for the general method of proceeding by bill in the courts of equity. It remains only for me to mention shortly a few of the other and less formal proceedings of this court. Thus, instead of filing a bill for administration, a creditor, legatee, or next of kin desiring to have the estate of any deceased person administered in Chancery, may apply directly to a vice-chancellor in chambers, his order having the same force and effect as a decree to the like effect made on the hearing of a cause. But even this course of proceeding is now unusual, for a distribution of the assets may be effected without any interference whatever by the court; as any executor or administrator, after giving such notice to creditors and others to prefer their claims, as would have been directed by the court in an administrative suit, may proceed to distribute the estate of the deceased among the parties entitled thereto, without incurring any liability for the assets so distributed, to any person of whose claim he shall have no notice at the time.

My space will not permit me to do more than allude to a great number of matters which are disposed of by the courts of equity upon interlocutory applications. These are simply requests addressed to the court, either orally or in writing, for its interference; and when made vivâ voce, are called motions: when in writing, petitions. Motions are either of course, or such as require no previous notice to the other side, and will be granted without any opposition being allowed; or they are special, that is, such as the court will exercise its discretion in granting, and which require to be justified by special grounds; although they may be made ex parte as well as upon notice. Of the former kind are applications for a writ ne exeat regno, or for an injunction to stay waste, matters of urgency, where the danger that threatens the applicant justifies the one-sidedness of the proceeding. But if there is no danger of the object of the motion being defeated by giving notice to the other side, the court will not permit such an application to be made. Petitions are also either of course or not of course. The latter require to be answered, and must therefore be served on the opposite party. A large class of petitions are those which are made under the various acts of parliament which have conferred on the Court of Chancery jurisdiction affecting more or less the rights of property; such as the acts relating to charities; the acts by which the court is authorized to supply the place of defunct, absent, recusant, or incapable trustees; the railway acts; and others of a similar nature, under which purchase or compensation moneys are directed to be paid into the Bank; the statute empowering the Court of Chancery to grant leases of settled estates,

or to confer leasing powers upon the trustees of such estates; the Drainage acts; the Unredeemed Stock act; and many others too numerous to mention, and to which the legislature is annually making additions. In these cases, the court may generally exercise the same powers as those which it possesses on a bill being filed; and this short and simple method of obtaining the interference of the court is, accordingly, in all cases which permit of it, that usually resorted to.

In this manner are the several remedies given by the English law for all sorts of injuries, either real or personal, administered by the several courts of justice, and their respective officers. In the course, therefore, of the present volume we have, first, seen and considered the nature of remedies, by the mere act of the parties, or mere operation of law, without any suit in courts. We have next taken a view of remedies by suit or action in courts: and therein have contemplated, first, the nature and species of courts, instituted for the redress of injuries in general; and then have shown in what particular courts application must be made for the redress of particular injuries, or the doctrine of jurisdictions and cognizance. We afterwards proceeded to consider the nature and distribution of wrongs and injuries affecting every species of personal and real rights, with the respective remedies by suit, which the law of the land has afforded for every possible injury. And, lastly, we have deduced and pointed out the method and progress of obtaining such remedies in the courts of justice: proceeding from the first general complaint through all the stages of process to compel the defendant's appearance; and of pleading, or formal allegation on the one side, and excuse or denial on the other; with the examination of the validity of such complaint or excuse, upon demurrer: or the truth of the facts alleged and denied, upon issue joined, and its several trials: to the judgment, decree, or sentence of the law, with respect to the nature and amount of the redress to be specifically given; till, after considering the suspension of that judgment by proceedings in the nature of appeals, we have arrived at its final execution: which puts the party in specific possession of his right by the intervention of ministerial officers, or else gives him an ample satisfaction, either by equivalent damages, or by the confinement of his body who is guilty of the injury complained of.

BOOK THE FOURTH.

OF PUBLIC WRONGS.

CHAPTER I.

OF THE NATURE OF CRIMES; AND THEIR PUNISHMENT. General nature of crimes-and punishments-end of punishment-measure of punishment.

WE are now arrived at the fourth and last branch of these commentaries; the consideration of public wrongs, or crimes and misde meanors; with the means of their prevention and punishment. In the pursuit of which subject I shall consider, in the first place, the general nature of crimes and punishments; secondly, the persons capable of committing crimes; thirdly, their several degrees of guilt, as principals, or accessories; fourthly, the several species of crimes, with the punishment annexed to each by the laws of England; fifthly, the means of preventing their perpetration; and, sixthly, the method of inflicting those punishments which the law has annexed to each several crime and misdemeanor.

First, as to the general nature of crimes and their punishment; or, as it is more usually denominated, the doctrine of the pleas of the crown; so called, because the sovereign is supposed by the law to be the person injured by every infraction of the public rights of the community, and is therefore the proper prosecutor for every public offence.

I. A crime is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors, which, properly speaking, are mere synonymous terms. But in common usage the word "crimes" is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults are comprised under the gentler name of "misdemeanors" only; and are so designated, I may add, in contradistinction to felonies: the former class

comprehending all indictable offences which do not fall within the other, such as assaults, nuisances, non-repair of a highway, and the like.

The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this: that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals: public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties due to the whole community, considered as a community, in its social aggregate capacity. In all cases, therefore, a crime includes an injury; every public offence is also a private wrong, and somewhat more; it affects the individual, and it likewise affects the community. Thus murder is an injury to the life of an individual; but the law of society considers principally the loss which the state sustains by being deprived of a member, and the pernicious example thereby set for others to do the like. Robbery may be considered in the same view: it is an injury to private property; were that all, a civil satisfaction in damages might atone for it: the public mischief is the thing, for the prevention of which our laws have made it a felony. In these gross and atrocious injuries the private wrong is swallowed up in the public: and we seldom hear any mention made of satisfaction to the individual; the satisfaction to the community being so very great.

There are crimes, however, of an inferior nature, in which the punishment is not so severe but that it affords room for a private compensation also; and herein the distinction of crimes from civil injuries is very apparent. For instance, in the case of an assault, the aggressor may be punished criminally; and the party beaten may also have his private remedy by an action for damages. So, upon the whole, we may observe, that the law has a double view: viz., not only to redress the party injured, but also to secure to the public the benefit of society, by preventing or punishing every breach and violation of those laws, which have been established for the government and tranquillity of the whole.

II. The nature of crimes and misdemeanors in general being thus ascertained and distinguished, I proceed, in the next place, to consider the general nature of punishments, which are evils or inconveniences consequent upon crimes and misdemeanors; being devised, denounced, and inflicted by human laws, in consequence of disobedience or misbehaviour in those to regulate whose conduct such laws were respectively made. And herein we will briefly consider the power, the end, and the measure of human punishment.