No. III. Protestando. Demurrer. rer. murrer. wit, on the sixth day of January, in the year of our Lord one thousand seven hundred and fifty-five, at Banbury aforesaid, requested the said Charles to pay to him the said William the said seventy-five pounds, yet (by protestation that the said Charles hath not stood to, obeyed, observed, fulfilled, or kept any part of the said award, which by him the said Charles ought to have been stood to, obeyed, observed, fulfilled, and kept) for further plea therein he saith, that the said Charles the said seventy-five pounds to the said William hath not hitherto paid; and this he is ready to verify. Wherefore he prays judgment, and his debt aforesaid, together with his damages occasioned by the detention of the said debt, to be adjudged unto him, &c. AND the aforesaid Charles saith, that the plea aforesaid by him the said William in manner and form aforesaid above in his replication pleaded, and the matter in the same contained, are in no wise *xxiv.] sufficient in *law for the said William to have or maintain his action aforesaid thereupon against him the said Charles; to which the said Charles hath no necessity, neither is he obliged, by the law of the land, in any manner to answer; and this he is ready to verify. Wherefore, for want of a sufficient replication in this behalf, the said Charles, as aforesaid, prays judgment, and that the aforesaid William may be precluded from having his action aforesaid thereupon against him, &c. AND the said Charles, acCauses of demur- cording to the form of the statute in that case made and provided, shows to the court here the causes of demurrer following, to wit: that it doth not appear, by the replication aforesaid, that the said arbitrators made the same award in the presence of two credible witnesses on or before the said first day of January, as they ought to have done, according to the form and effect of the condition aforesaid; and that the replication aforesaid is unJoinder in de certain, insufficient, and wants form. AND the aforesaid William saith, that the plea aforesaid by him the said William in manner and form aforesaid above in his replication pleaded, and the matter in the same contained, are good and sufficient in law for the said William to have and maintain the said action of him the said William thereupon against the said Charles; which said plea, and the matter therein contained, the said William is ready to verify and prove as the court shall award: and because the aforesaid Charles hath not answered to that plea, nor hath he hitherto in any manner denied the same, the said William as before prays judgment, and his debt aforesaid, together with his damages occasioned by the detention of that debt, to be adjudged unto him, &c. AND BECAUSE the justices here will advise themselves of and upon the premises before they give judgment thereupon, a day is thereupon given to the parties aforesaid here, until the morrow of All Souls, to hear their judgment thereupon, for that the said justices here are not yet advised thereof. At which day here come as well the said Charles as the said William, by their said attorneys; and because the said justices here will farther advise themselves of and upon the premises before they give judgment thereupon, a day is farther given to the parties aforesaid here until the octave of Saint Hilary, to hear their judg ment thereupon, for that the said justices here are not yet advised thereof. At which day here come as well the said William Burton as the said Charles Long, by their said attorneys. WHEREFORE, the record and matters aforesaid having been seen, and by the justices here fully understood, and all and singular the premises being examined, and mature deliberation being Replication in had thereupon; for that it seems to the said justices here that the said plea of the said William Burton before in his replication pleaded, and the matter therein contained, are not sufficient in law to have and maintain the action of the aforesaid William against the aforesaid Charles; THEREFORE IT IS CONSIDERED, that the aforesaid William *take nothing by his writ aforesaid, but that he and his pledges of prosecuting, to wit, John Doe and Richard Roe, be in mercy for his false complaint; and that the aforesaid Charles go thereof without a day, &c. AND IT IS FARTHER CONSIDERED, that the aforesaid Charles do recover against the aforesaid William eleven pounds and seven shillings, for his costs and charges by him about his defence in this behalf sustained, adjudged by the court here to the said Charles with his consent, according to the form of the statute in that case made and provided and that the aforesaid Charles may have execution thereof, &c. AFTERWARDS, to wit, on Wednesday next after fifteen days of Easter in this same term, before the Lord the King, at Westminster, comes the aforesaid William Burton, by Peter Manwaring, his attorney, and saith, that in the record and process aforesaid, and also in the giving of the judgment in the plaint aforesaid, it is manifestly erred in this, to wit, that the judgment Continuances. Opinion of the court. sufficient. *xxv.] Judgment for the defendant. Querens nihil capiat per breve. Amercement. Costs. Execution. General error assigned. : No. III. errors. afresh. aforesaid was given in form aforesaid for the said Charles Long against the aforesaid William Burton, where, by the law of the land, judgment should have been given for the said William Burton against the said Charles Long; and this he is ready to verify. AND the said William prays the writ of the Writ of scire said Lord the King, to warn the said Charles Long to be before the said Lord facias, to hear the King, to hear the record and process aforesaid; and it is granted unto him; by which the sheriff aforesaid is commanded that by good [and lawful men of his bailiwick] he cause the aforesaid Charles Long to know that he be before the Lord the King from the day of Easter in five weeks, wheresoever [he shall then be in England,] to hear the record and process aforesaid. if it shall have happened that in the same any error shall have intervened;] and further [to do and receive what the court of the Lord the King shall consider in this behalf.] The same day is given to the aforesaid William Burton. AT WHICH DAY before the Lord the King, at Westminster, Sheriff's return. Scare feci. comes the aforesaid William Burton, by his attorney aforesaid; and the' sheriff returns, that by virtue of the writ aforesaid to him directed he had caused the said Charles Long to know that he be before the Lord the King at the time aforesaid in the said writ contained, by John Den and Richard Fen, good, &c., as by the same writ was commanded him; which said Charles Long, according to the warning given him in this behalf, here cometh by Thomas Webb, his attorney. WHEREUPON the said William Error as signed saith, that in the record and process aforesaid, and also in the giving of the judgment aforesaid, it is manifestly erred, alleging the error aforesaid by him in the form aforesaid alleged, and prays that the judgment aforesaid for the error aforesaid, and others, in the record and process aforesaid being may be reversed, annulled, and entirely for nothing esteemed, and that the said Charles *may rejoin to the errors aforesaid, and that the court of the [*xxvi. said Lord the King here may proceed to the examination as well of the record and process aforesaid as of the matter aforesaid above for error assigned. AND the said Charles saith, that neither in the record and Rejoinder. In process aforesaid, nor in the giving of the judgment aforesaid, in any thing is there erred; and he prays in like manner that the court of the said Lord the King here may proceed to the examination as well of the record and process aforesaid as of the matters aforesaid above for error assigned. AND Continuance. BECAUSE the court of the Lord the King here is not yet advised what judgment to give of and upon the premises, a day is thereof given to the parties aforesaid until the morrow of the Holy Trinity, before the Lord the King, wheresoever he shall then be in England, to hear their judgment of and upon the premises, for that the court of the Lord the King here is not yet advised thereof. At which day before the Lord the King, at Westminster, come the parties aforesaid by their attorneys aforesaid. WHEREUPON, as Opinion of the well the record and process aforesaid, and the judgment thereupon given, as the matters aforesaid by the said William above for error assigned, being seen, and by the court of the Lord the King here being fully understood, and mature deliberation being thereupon had, for that it appears to the court of the Lord the King here, that in the record and process aforesaid, and also in the giving of the judgment aforesaid, it is manifestly erred, THEREFORE IT IS CONSIDERED that the judgment aforesaid, for the error afore- Judgment of the said, and others, in the record and process aforesaid, be reversed, annulled, reversed. and entirely for nothing esteemed; and that the aforesaid William recover Judgment for the against the aforesaid Charles his debt aforesaid, and also fifty pounds for his plaintiff. damages which he hath sustained, as well on occasion of the detention of the said debt, as for his costs and charges unto which he hath been put Costs. about his suit in this behalf, to the said William with his consent by the court of the Lord the King here adjudged. And the said Charles in mercy. nullo est erratum. court. Common Pleas Defendant amerced. SECT. 7. PROCESS OF EXECUTION. GEORGE the Second, by the grace of God, of Great Britain, France, and Writ of capias ad Ireland King, Defender of the Faith, and so forth, to the sheriff of Oxford- satisfaciendum. shire, greeting. WE command you that you take Charles Long, late of Burford, gentleman, if he may be found in your bailiwick, and him safely keep, so that you may have his body before us in three weeks from the day of the Holy Trinity, wheresoever we shall then be in England, to satisfy William Burton for two hundred pounds debt, which the said William Burton hath lately recovered against him in our court before us, and also fifty pounds, which were adjudged in our said court before us to the said William [*xxvii. Burton for his damages which he hath sustained, as well by occasion of the No. III. Sheriff's return. Writ of fieri facias. Sheriff's return. detention of the said debt as for his costs and charges to which he hath been put about his suit in this behalf, whereof the said Charles Long is convicted, as it appears to us of record; and have you there then this writ. WITNESS Sir Thomas Denison,5 Knight, at Westminster, the nineteenth day of June, in the twenty-ninth year of our reign. By virtue of this writ to me directed, I have taken the body of the within-named Charles Long, which I have ready before the Lord the King at Westminster, at the day within written, as within it is commanded me. GEORGE the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriff of Oxfordshire, greeting. WE command you that of the goods and chattels within your bailiwick of Charles Long, late of Burford, gentleman, you cause to be made two hundred pounds debt, which William Burton lately in our court before us at Westminster hath recovered against him, and also fifty pounds, which were adjudged in our court before us to the said William for his damages which he hath sustained, as well by occasion of the detention of his said debt as for his costs and charges to which he hath been put about his suit in this behalf, whereof the said Charles Long is convicted, as it appears to us of record; and have that money before us in three weeks from the day of the Holy Trinity, wheresoever we shall then be in England, to render to the said William of his debt and damages aforesaid; and have there then this writ. WITNESS Sir Thomas Denison, Knight, at Westminster, the nineteenth day of June, in the twenty-ninth year of our reign. By virtue of this writ to me directed, I have caused to be made of the goods and chattels of the within-written Charles Long two hundred and fifty pounds, which I have ready before the Lord the King at Westminster, at the day within written, as it is within commanded me. 5 The senior puisné justice, there being no chief-justice that term. 332 COMMENTARIES ON THE LAWS OF ENGLAND. BOOK THE FOURTH. Of Public Wrongs. CHAPTER I. OF THE NATURE OF CRIMES, AND THEIR PUNISHMENT. We are now arrived at the fourth and last branch of these commentaries; which treats of public wrongs, or crimes and misdemesnours. For we may remember that, in the beginning of the preceding book,(a) wrongs were divided inte two species: the one private, and the other public. Private wrongs, which are frequently termed civil injuries, were the subject of that entire book: we are now therefore, lastly, to proceed to the consideration of public wrongs, or crimes and misdemesnours; 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 accessaries; *fourthly, the several species of crimes, with the punishment annexed to [*2 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 misdemesnour. First, as to the general nature of crimes, and their punishment; the discussion and admeasurement of which forms in every country the code of criminal law; or, as it is more usually denominated with us in England, the doctrine of the pleas of the crown; so called because the king, in whom centres the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights belonging to that community, and is therefore in all cases the proper prosecutor for every public offence.(b) The knowledge of this branch of jurisprudence, which teaches the nature, extent, and degrees of every crime, and adjusts to it its adequate and necessary penalty, is of the utmost importance to every individual in the state. a very great master of the crown-law(c) has observed upon a similar occasion) no rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct, should tempt a man to conclude that he may not at some time or other be deeply interested in these researches. The infirmities of the best among us, the vices and ungovernable passions of others, the instability of all human affairs, and the numberless unforeseen events which the compass of a day may bring forth, will teach us (upon a moment's reflection) that to know with precision what the laws of our country have forbidden, and the deplorable consequences to which a wilful disobedience may expose us, is a matter of universal concern. (e) Sir Michael Foster, pref. to rep. In proportion to the importance of the criminal law ought also to be the care and attention of the legislature in properly forming and enforcing it. It should be founded upon principles that are permanent, uniform, *and universal; *3] and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind: though it sometimes (provided there be no transgression of these external boundaries) may be modified, narrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern. And yet, either from a want of attention to these principles in the first concoction of the laws, and adopting in their stead the impetuous dictates of avarice, ambition, and revenge; from retaining the discordant political regulations, which successive conquerors or factions have established in the various revolutions of government; from giving a lasting efficacy to sanctions that were intended to be temporary, and made (as lord Bacon expresses it) merely upon the spur of the occasion; or from, lastly, too hastily employing such means as are greatly disproportionate to their end, in order to check the progress of some very prevalent offence: from some, or from all, of these causes, it hath happened that the criminal law is in every country of Europe more rude and imperfect than the civil. I shall not here enter into any minute inquiries concerning the local constitutions of other nations; the inhumanity and mistaken policy of which have been sufficiently pointed out by ingenious writers of their own.(d) But even with us in England, where our crown law is with justice supposed to be more nearly advanced to perfection; where crimes are more accurately defined, and penalties less uncertain and arbitrary; where all our accusations are public, and our *trials in the face *4] of the world; where torture is unknown, and every delinquent is judged by such of his equals against whom he can form no exception nor even a personal dislike;-even here we shall occasionally find room to remark some particulars that seem to want revision and amendment. These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the reasons have ceased upon which those rules were founded; from not repealing such of the old penal laws as are either obsolete or absurd; and from too little care and attention in framing and passing new ones. The enacting of penalties, to which a whole nation should be subject, ought not to be left as a matter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support such a bill; but be calmly and maturely considered by persons who know what provisions the laws have already made to remedy the mischief complained of, who can from experience foresee the probable consequences of those which are now proposed, and who will judge without passion or prejudice how adequate they are to the evil. It is never usual in the house of peers even to read a private bill, which may affect the property of an individual, without first referring it to some of the learned judges and hearing their report thereon.(e) And surely equal precaution is necessary when laws are to be established which may affect the property, the liberty, and perhaps even the lives of thousands. Had such a reference taken place, it is impossible that in the eighteenth century it could ever have been made a capital crime to break down (however maliciously) the mound of a fish-pond, whereby any fish shall escape; or to cut down a cherry-tree in an orchard.(ƒ)1 Were even a committee appointed but once in a hundred years to revise the criminal law, it could not have continued to this hour a felony, without benefit of clergy, to be seen for one month in the company of persons who call themselves, or are called, Egyptians.(g)2 (d) Baron Montesquieu. marquis Beccaria, &c. (f) Stat. 9 Geo. I. c. 22, 31 Geo. II. c. 42. The two acts inflicting this severe punishment are repealed, as far as regards the benefit of clergy, by 4 Geo. IV. c. 54, 1 & 2; and the offender or offenders, together with their accessaries, are liable, at the discretion of the court, to be transported or imprisoned. And see still more recent enactments with respect to these offences, in 7 & 8 Teo. IV. c. 30, ? 15, 19, 20.-CHITTY. 2 The 5 Eliz. c. 20, which introduced this crime and its severe punishment, is repealed |