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APPEAL TO LORDS.

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Lords is the last resort of the subject who thinks himself aggrieved, either by an interlocutory order or a final determination in the Court of Chancery; and it is effected by petition to that House. The petition in this case, as in that of a rehearing, must be signed by two counsel (of those engaged in the court below or on the appeal), who must certify that there is a reasonable cause of appeal; upon presenting which, and upon the appellant's entering into recognisances to pay all such costs as the House shall think fit to award, an order is made directing the respondent to put in his answers, which being done, either party may then apply to have the cause appointed for hearing; and the appellant and respondent are respectively to deliver their printed cases, signed by one or more counsel engaged in the court below or in the hearing of the appeal, and containing a narrative of the proceedings below, with so much of the proofs as the parties intend respectively to rely upon.

CHAP. XXXVII.

CRIMES.

[See 4 Black. Com. chaps. 1-3; 4 Steph. Com. chaps. 1—3.]

Having described the nature of civil injuries, and given some account of the modes by which they are to be redressed, we come now to consider the nature of public injuries, or crimes and misdemeanors.

A crime is a positive breach, or wilful disregard, of some existing public law, and is generally taken to mean those offences which amount to felony. Crimes can have no existence prior to the resolution to do some criminal act, and are punishable only when that resolution is capable of proof.

Misdemeanors.]- Misdemeanors are also acts committed or omitted in violation of a public law, either forbidding or commanding them; but they in general denote those offences that are under the degree of felony.

Felony.] - Felony, in its general acceptation, comprises every species of crime which occasioned at common law the forfeiture of land or goods; and this forfeiture most frequently happens in those

INFANTS, LUNATICS, ETC.

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crimes for which a capital punishment is or was liable to be inflicted. The definition of felony, therefore, is "an offence which occasions a total forfeiture either of lands or goods, or both, at the common law, to which capital or other punishment may be superadded, according to the degree of guilt."

Infants. Lunatics.- Married women.] - The guilt of offending against any law whatsoever, necessarily supposing a wilful disobedience, can never justly be imputed to those who are either incapable of understanding it, or of conforming themselves to it; and, therefore, neither infants under the age of discretion, idiots, lunatics, nor madmen, are primâ facie capable of guilt: but if it appear that an infant above the age of seven years has a capacity to discern between good and evil, he shall be capable of guilt according as his discernment appears, for malitia supplet ætatem; but the presumption shall be in favour of his innocence until he attains the age of fourteen years, at which period he is, as to the commission of crimes, supposed to have attained discretion, and his actions shall be subject to the same modes of construction as those of the rest of society; but within the age of seven years an infant cannot be punished for any capital offence, whatever circumstances of a mischievous disposition may appear; for, ex presumptione juris, he cannot have discretion; and against this presumption no averment shall be admitted. As to idiots and lunatics, they are not chargeable for their acts when committed under these incapacities, not even for treason. However, in order to make out a defence on the ground of insanity, it should be shown that the accused had not a sufficient degree of reason to know the nature and quality of the act he was doing, or

that he was doing an act that was wrong. So, also, if one who has committed a capital offence becomes non compos before conviction, he shall not be arraigned; and provision is made by the 39 & 40 Geo. 3, c. 94, for the impanelling of a jury to decide on the insanity where the party is about to be tried or to be discharged for want of prosecution. If a man become insane after conviction, he shall not be executed; but he that is guilty of any crime through his voluntary drunkenness, shall be punished for it as much as if he had been sober; and he who incites a madman to commit a crime is a principal offender, and as much punishable as if he had done it himself. A feme covert shall not suffer punishment for committing a bare theft, or burglary, or robbery (it is said by some), in company with or by coercion of her husband; neither shall she be deemed accessary for receiving her husband: but these exemptions do not extend to high treason, or to any criminal act done by herself alone. Persons also committing crimes by casualty or misfortune, by ignorance or mistake of fact, by compulsion or necessity, are not punishable; but all these circumstances of accident, necessity, or infirmity, must be satisfactorily made out by the party who relies upon them for his excuse, unless they arise out of the evidence adduced against him.

Persons guilty of crimes may be guilty either as principals in the first degree, as principals in the second degree, as accessaries before the fact, or as accessaries after the fact.

Principals.]-A principal in the first degree is he that is the actor or absolute perpetrator of the crime. A principal in the second degree is he who is present, aiding and abetting the fact to be done; which presence need not always be an actual immediate stand

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ing by, within sight or hearing of the fact; for there may be also a constructive presence, as where one commits a robbery or murder, and another keeps watch or guard at some convenient distance; and, indeed, wherever a person contributes to a felony, and no other person can be considered as a principal, he shall be so considered, unless he be clearly only an accessary.

Accessaries.]-An accessary is he who is not the chief actor in the offence, nor present at its performance, but in some way concerned therein, either before or after the fact committed. An accessary before the fact is one who, being absent at the time of the crime committed, doth yet procure, counsel, or command, another to commit a crime; and absence is absolutely necessary to make him an accessary; for if such procurer be present, he is guilty of the crime as principal. An accessary after the fact may be where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon; and by 7 & 8 Geo. 4, c. 29, s. 54, receivers of stolen goods are made accessaries after the fact, or they may be indicted for a substantive felony, and may be transported or imprisoned. In high treason there are no accessaries, but all are principals; so also in crimes under the degree of felony.

Having described the persons who may be punished for being guilty of crimes, and the degrees of guilt of which they may be capable, we shall proceed to enumerate the several crimes and misdemeanors known to the laws of England, and firstly, of offences against God and religion.

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