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specific and extensive remedy than can be had in the courts of law: as, by carrying agreements into execution, staying waste 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; refer

to the master, and report; &c. XIV. Final decree. XV. Rehearing, or bill of review. XVI. Appeal to parliament......

.... Page 442-450

ence

CONTENTS OF THE ANALYSIS OF BOOK IV.

PUBLIC WRONGS.

To which are considered

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

.......................................... CHAPTER L

I] The persons capable of committing crimes.

li

III Their several degrees of guilt; as

1. Principals,

2. Accessories...

III

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.

(1. High treason.....

VI

2. Felonies injurious to the prerogative

VII

3. Præmunire....

VIII.

4. Misprisions and contempts.......

IX.

4. The commonwealth ; viz. offences against

(1. Public justice........

X.

XI.

3. Public trade.

XII

4. Public health,

5. Public economy.

XIII.

5. Individuals; being crimes against

11. 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

s 1. The peace,

(2 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

ri. 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

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

XXX.

2. Reprieve, or pardon....

XXXI.

11. Execution.......

XXXII

{2:

ANALYSIS.

BOOK IV.*-OF PUBLIC WRONGS.

cuse.

CHAPTER 1

3. A vicious will may therefore be wanting, Op THE NATURE OF CRIMES, AND THEIR

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 dig. mitted, or omitted, in violation of a

nity, is also incapable of doing wrong.... 33 public law, either forbidding or commanding it......

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 & crime is, I. He who 4. Punishments may be considered with

commits the fact. II. He who is preregard to, I. The power, II. The end, III. The measure, --of their infliction.....

sent at, aiding, and abetting, the com7 mission .....

31 5. 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

11 i. The measure of human punishments

usually entitled to the benefit of clergy;

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...

mischief .......

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 CRINES...........................................

.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 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,

vicious act....

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 pa popery, 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 recon· abjuration 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 and burned alive........

92 the intercourse between independent states..

66 2. In England, the law of nations is adopt

CHAPTER VII. 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......

99 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

.... 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.....

sellor. III. Serving foreign states, or ......... .......... 74 to 92 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.

V. Desertion from the king's armies, by ment are, I. High treason. II. Felonies

land or sea.....................

.98-102 injurious to the prerogative. III. Præmunire. IV. Other misprisions and contempts...........

74

CHAPTER VIII. 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

103 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

clergy.....

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-

ING TIE 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 his 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.
OF 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. III. Against the public trade. IV. Against the public health. V. Against the public police, or economy..

127 2. Offences against the public justice are,

I. Embezzling, or vacating, records, and personating others in co ts 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 barretry, and suing 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 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.

OF OFFENCES AGAINST THE PUBLIC PEACE....

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

CHAPTER XII. OF OFFENCES AGAINST PUBLIC TRADE... 154 to 160 1. Offences against the publio trade are,

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