Page images
PDF
EPUB

specific and extensive remedy than can be had in ihe courts of law: as, by carrying agreements into execution, staying waste or other injuries by injunction, directing the sale of encumbered lands, kc. 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

{. The proceedings in the court of Chancery (to which those in the Exchequer, Sc. very nearly conform) are, I. Bill. II. Writ of subpoena; and perhaps injunction. III. Process of contempt;

Til., (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 442-45ft

CONTENTS OF THE ANALYSIS OF BOOK IV.

PUBLIC WRONGS.

lo which ire considered

I. The general nature of crimes, and punishment Chapter L

II The persons capable of committing crimes Ii

111 Their several degrees of guilt; as

f 1. Principals,

\2. Accessories Ill

IV. The several crimes (with their punishments) more peculiarly offending

[" 1. God and religion IV

2. The law of nations V

3. The king and government; viz.

fl. High treason VI

1 2. Felonies injurious to the prerogative VII

3. PriBmunire VIII.

[ 4. Misprisions and contempts IX.

. 4. The commonwealth; viz. offences againBt

fl. Public justice X.

2. Public peace XX

■ 8. Public trade XII

4. Public health,

6. Public economy XIII.

^ 5. Individuals ; being crimes against

f 1. Their persons; by

f 1. Homicide XIV.

\ 2. Other corporal injuries XV.

2. Their habitations XVI.

3. Their property - XVII.

V. The means of prevention; by security for

f 1. The peace,

\ 2 The good behaviour XVLIL

IVI. The method of punishment; wherein of

f 1. The several court s of criminal jurisdiction XIX.

\ 2. The proceedings there,

{1. Summary XX.

2. Regular; by

1. Arrest m AAl.

2. Commitment and bail XXIL

3. Prosecution; by

(" 1. Presentment,

2. Indictment,

3. Information,

[4. Appeal XXLTL

4. Process XXIV.

6. Arraignment, and its incidents XXV

■ 6" Plea, and issue XXVI

7. Trial, and conviction XXVII

8. Clergy XXVIII

9. Judgment, and attainder; which induce

s f 1. Forfeiture,

\ 2. Corruption of blood •. XXIX.

10. Avoider of judgment, by

{1. Falsifying, or reversing, the attainder > XXX.

2. Reprieve, or pardon XXXI.

11. Execution XXXII

ANALYSIS.

BOOK IV.*-0F PUBLIC WRONGS.

CHAPTER I

Of Tb» Nature Of Cbimeb. And Their PrnsHHiXT Page 1 to 12

1. In treating of publio wrongs may be considered, I. The general nature of crimes and punishments. II. The persons capable of committing crimes. III. Their several degrees of guilt. IV. The several species of crimes, and their respective punishments. V. The means of prevention. VI. The method of punishment..,,. 1

- A crime, or misdemeanour, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it 4

t Crimes are distinguished from civil injuries, in that they are a breach and violation of the public rights, due to the whole community, considered as a community 5

4. Punishments may be considered with regard to, I. The power, II. The end, IIL Themeasure,—of their infliction 7

6. The power, or right, of inflicting human punishments, for natural crimes, or such •s are mala in »<•, was by the law of nature vested in every individual; but, by the fundamental contract of society, is now transferred to the sovereign power: in which also is vested, by the s»me contract, the right of punishing positive offences, or such as are mala prohiiiia 7

6. The end of human punishments is to prevent future offences; I. By amending the offender himself. II. By deterring others through his example. III. By depriving him of the power to do future mischief 11

i The measure of human punishments must be determined by the wisdom of the sovereign power, and not by any uniform universal rule: though that wisdom may be regulated, and assisted, by certain general, equitable principles 12

CHAPTER II.

Or THE PlBSOSS CAPABLE OF COMMITTING

Ciims _ 20 to 88

1. All persons are capable of committing crimes, unless there be in them a defect of will; for, to constitute a legal crime, there must be both a vicious will and a vicious act 20

2. The will does not concur with the act, L Where there is a defect of understanding. II. Where no will is exerted. III. Where th« act is constrained by force

•ad violence 21

3. A vicious will may therefore be wanting, in the cases of I. Infancy. II. Idiocy, or lunacy. III. Drunkenness; which doth not, however, excuse. IV. Misfortune. V. Ignorance, or mistake of fact. VI. Compulsion, ot necessity; which is, 1st, that of civil subjection; 2dly, that of duress per minat; 3dly, that of choosing the least pernicious of two evils where one is unavoidable; 4thly, that of want or hunger; which is no legitimate excuse Page 22-82

4. The king, from his excellence and dignity, is also incapable of doing wrong.... 88

CHAPTER III.

Op Pbincipai-s And Accessories 81 to 87

1. The different degrees of guilt in criminals are, I. As principals. II. As accessories 81

2. A principal in a crime is, I. He who commits the fact. II. He who is present at, aiding, and abetting, the commission 81

8. An accessory is he who doth not commit the fact, nor is present at the commission, but is in some sort concerned therein, either before or after 85

4. Accessories can only be in petit treason, and felony: in high treason, and misdemeanours, all are principals 86

6. An accessory before the fact is one who, being absent when the crime is committed, hath procured, counselled, or commanded another to commit it 86

6. An accessory after the fact, is where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. Such accessory is usually entitled to the benefit of clergy; where the principal, and accessory 'before the fact, are excluded from it 87

CHAPTER IV.

Of Offences Against God And Religion...

42 to 66

1. Crimes and misdemeanours, cognizable by the laws of England, are such as more immediately offend, I. God, and his holy religion. II. The law of nations. III. The king and his government. IV. The public, or commonwealth. V. Individuals 42

2. Crimes more immediately offending God and religion are, I. Apostasy. For which the penalty is incapacity, and imprisonment. II. Heresy. Penalty for one species thereof: the same. III. Offences against the established church. ■ -Either. by reviling its ordinances. Penalties: fine; deprivation; imprisonment; forfeiture.—Or, by non-conformity to its worship: 1st, through total irreligion. Penalty: fine. 2dly, through Protestant dissenting. Penalty: suspended(conditionally) by the toleration act. 3dly, through popery, either in professors of the popish religion, popish recusants convict, or popish priests. Penalties: incapacity; double taxes; imprisonment; fines; forfeitures; abjuration of the realm; judgment of felony, without clergy; and judgment of high treason. IV. Blasphemy. Penalty: fine, imprisonment, and corporal punishment. V. Profane swearing and cursing. Penalty: fine, or house of correction. VL Witchcraft; or, at least, the pretence thereto. Penalty: imprisonment, and pillory. VII. Religious impostures. Penalty: fine, imprisonment, and corporal punishment. VIII. Simony. Penalties: forfeiture of double value: incapacity.

IX. Sabbath-breaking. Penalty: fine.

X. Drunkenness. Penalty: fine, or stocks.

XI. Lewdness. Penalties: fine; imprisonment; house of correction Page 43-65

CHAPTER V.

Or Offences Against The Law Of Nations

66 to 73

1. The law of nations is a system of rules, deducible by natural reason, and established by universal consent, to regulate the intercourse between independent states 66

2. In England, the law of nations is adopted, in its fall extent, as part of the law

of the land 67

8. Offences against this law are principally incident to whole states or nations; but, when committed by private subjects, are

then the objects of the municipal law 67

4 Crimes against the law of nations, animadverted on by the laws of England, are, I. Violation of safe-conducts. II. Infringement of the rights of ambassadors. Penalty, in both: arbitrary. III. Piracy. Penalty: judgment of felony, without clergy 68-73

CHAPTER VI.

Of High Treason 74 to 92

1. Crimes and misdemeanours more peculiarly offending the king and his government are, I. High treason. II. Felonies injurious to the prerogative. III. Prcemunirt. IV. Other misprisions and contempts 74

2 High treason may, according to the statute of Edward III., be committed, I. By compassing or imagining the death of the king, or queen consort, or their eldest son and heir; demonstrated by some overt act II. By violating the king's companion, his eldest daughter, or the wife of his eldest son. III. By some overt act of levying war against the king in his realm.

IV. By adherence to the king's enemies.

V. By counterfeiting the king's great or

privy seal. VI. By counterfeiting the king's money, or importing counterfeit money. VII. By killing the chancellor, treasurer, or king's justices, in the execution of their offices Page 76-87

8. High treasons, created by subsequent statutes, are such as relate, I. To papists: as, the repeated defence of the pope's jurisdiction; the coming from beyond sea of a natural-born popish priest; the renouncing of allegiance and reconciliation to the pope, or other foreigu power. II. To the coinage or other signatures of the king: as, counterfeiting (or, importing and uttering counterfeit) foreign coin, here current; forging the sign-manual, privy signet, or privy seal; falsifying, &c. the current coin. III. To the Protestant succession; as, corresponding with, or remitting money to, the late pretender's sons; endeavouring to impede the succession; writing or printing in defence of any pretender's title, or in derogation of the act of settlement, or of the power of parliament to limit the descent of the crown 87-92

4. The punishment of high treason, in males, is (generally) to be, I. Drawn. II. Hanged. III. Embowelled alive. IV. Beheaded. V. Quartered. VI. The head and quarters to be at the king's disposal. But, in treasons relating to the coin, only to be drawn, and hanged till dead. Females, in both cases, are to be drawn and burned alive 92

CHAPTER VII.

Of Felonies Injurious To The Kino's Pre Rogative 94 to 102

1. Felony is that offence which occasions the total forfeiture of lands or goods at common law: now usually also punishable with death, by hanging; unless through the benefit of clergy 91

2. Felonies injurious to the king's prerogative (of which some are within, others without, clergy) are, I. Such as relate to the coin: as, the wilful uttering of counterfeit money, &c.: (to which head some inferior misdemeanours affecting the coinage may be also referred.) II. Conspiring or attempting to kill a privy counsellor. III. Serving foreign states, or enlisting soldiers for foreign service. IV. Embezzling the king's armour or stores. V. Desertion from the king's armies, by land or sea 98-102

CHAPTER Vin.

Or Pksmunire 108 to 11"

1. Praemunire, in its original sense, is the offence"of adhering to the temporal power of the pope, in derogation of the regal authority. Penalty: outlawry, forfeiture, and imprisonment: which hath since been extended to some offences of a different nature 101

2. Among these are, I. Importing popish trinkets. II. Contributing to the maintenance of popish seminaries abroad, or popish priests in England. III. Molesting the possessors of abbey-lands. IV. Acting as broker in a usurious contract, for more than ten per cent. V. Obtaining any stay of proceedings in suits for monopolies. VI. Obtaining an exclusive patent for gunpowder or arms. VII. Exertion of purveyance or pre-emption. VIII. Asserting a legislative authority in both or either house of parliament. IX. Sending any subject a prisoner beyond sea. X. Refusing the oaths of allegiance and supremacy. XI. Preaching, teaching, or advised speaking in defence of the right of any pretender to the crown, or in derogation of the power of parliament to limit the succession. XII. Treating of other matters, by the assembly of peers of Scotland, convened for electing their representatives in parliament. XIII. Unwarrantable undertakings by unlawful subscriptions to public funds...-Page 115-117

CHAPTER IX.

Of MISPRISIONS AND CONTEMPTS, AFFECT-
ISO Tub Kino 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

S. Negative misprisions are, I. Misprision of treason. Penalty: forfeiture and imprisonment. II. Misprision of felony. Penalty: fine and imprisonment. III. Concealment of treasure trove. Penalty: fine and imprisonment 120-121

4. Positive misprisions, or high misdemeanours 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 j corporal punishment; loss of right hand; forfciture 121-126

CHAPTER X.

Of Offences Against Public Justice....

127 to 141

1. Crimes especially affecting the commonwealth are offences, I. Against the public justice. II. Against the public peace. HI. Against the public trade. IV. Against the public health. V. Against the public police, or economy 127

1. Offences against the public justice are, I. Embezzling, or vacating, records, and personating others in courts of justice. Penalty: judgment of felony, usually

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 barratry, and Buing in a feigned name. XII. Maintenance. XIII. Champerty. Penalty, in these four: fine and imprisonment. XIV. Compounding prosecutions on penal statutes. Penalty: fine, pillory, 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 publie 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.

Of Offences Against The Public Peace....

142 to 163

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 imprisonment. 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 142-158

CHAPTER XII.

Of Offences Against Public Trade...154 to 160 1. Offences against the publio trade are,

« PreviousContinue »