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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; reference to the master, and report; &c. XIV. Final decree. XV. Rehearing, or bill of review. XVI. Appeal to parliament...... ........................... Page 442-450

CONTENTS OF THE ANALYSIS OF BOOK IV.

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PUBLIC WRONGS.

To which are considered

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

......... CHAPTER L

I] The persons capable of committing crimes.............

III Their several degrees of guilt; as

1 1. Principals,

2. Accessories ............

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

1. God and religion...........................................

IV

2. The law of nations...........................

......

3. The king and government; viz.

1. High treason........

VI

2. Felonies injurious to the prerogative ................................

VII

13. Præmunire................

VIII.

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

4. The commonwealth ; viz. offences against

11. Public justice........

.........................

2. Public peace ...,

XI.

{ 3. Public trade ....

XII

4. Public health,

15. Public economy......

XIII.

15. Individuals; being crimes against

1. Their persons; by

s1. Homicide.......

XIV.

12. Other corporal injuries....

XV.

| 2. Their habitations ................................................

XVI.

| 3. Their property...............

XVII.

V. The means of prevention; by security for

51. The peace,

2 The good behaviour..........

XVIII.

VI. The method of punishment; wherein of

1. The several courts of criminal jurisdiction ...........

XIX.

12. The proceedings there,

s 1. Summary ..........

XX.

Regular; by

ri. Arrest .............

XXI.

2. Commitment and bail. ........

XXII.

3. Prosecution ; by

1. Presentment,

2. Indictment,

13. Information,

14. 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

5 1. Forfeiture,

12. Corruption of blood........

XXIX.

10. Avoider of judgment, by

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

XXX.

2. Reprieve, or pardon .........

XXXI.

| 11. Execution.....

XXXII

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ANALYSIS.

BOOK IV.*-OF PUBLIC WRONGS.
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...............

cuse........................................ 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 &

I 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

I nals are, I. As principals. II. As acceswhole community, considered as a com

sories............................................... munity.............................................

02. 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,

I sent at, aiding, and abetting, the comIII. The measure-of their infliction.....

mission ............................................. 6. 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 .............. 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 ...........................................

hath procured, counselled, or commanded 6. The end of human punishments is to

another to commit it ........................... 36 prevent future offences; I. By amending

6. An accessory after the fact, is where the offender himself. II. By deterring

a person, knowing a felony to have been others through his example. III. By

committed, receives, relieves, comforts, depriving him of the power to do future

or assists the felon. Such accessory is mischief ............................... ..............

usually entitled to the benefit of clergy; 1. The measure of human punishments

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...

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 CRIXES.

............... 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 crimo, public, or commonwealth. V. Indivithere must be both a vicious will and a

duals................................................ vicious act ......................................... 2. Crimes more immediately offending God 2. The will does not concur with the act, and religion are, I. Apostasy. For which I. 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........

against the established church. . .Either,

11

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ES..................

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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 | 3. High treasons, created by subsequent ally) by the toleration act. 3dly, through statutes, are such as relate, I. To papopery, 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 reconabjuration 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 the intercourse between

. and burned alive........ independent

92

............. 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 11. 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...... with death, by hanging ; unless through Crimes against the law of nations, ani the benefit of clergy.......... 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 clergy .........

............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.

Embezzling the king's armour or stores. liarly offending the king and his government are, I. High treason. II. Felonies

V. Desertion from the king's armies, by injurious to the prerogative. III. Pre

land or sea.....................................98-102 munire. IV. Other misprisions and con

CHAPTER VIII. tempts............................... .............. 2. High treason may, according to the sta OF PREMUNIRE. ............................... 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 sop and heir; demonstrated by some overt authority. Penalty: outlawry, forfeitact II. By violating the king's compa üre, 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

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99 popish priests in England. III. Molesting without clergy. II. Compelling prisonthe possessors of abbey-lands. IV. Act

ers to become approvers. Penalty: judging as broker in a usurious contract, for ment of felony. III. Obstructing the more than ten per cent. V. Obtaining any execution of process. IV. Escapes. V. stay of proceedings in suits for monopo

Breach of prison. VI. Rescue. —Which lies. VI. Obtaining an exclusive patent

four may (according to the circumstances) for gunpowder or arms. VII. Exertion

be either felonies, or misdemeanours punof purveyance or pre-emption. VIII. ishable by fine and imprisonment. VII. Asserting a legislative authority in both Returning from transportation. This is or either house of parliament. ix. Send felony, without clergy. VIII. Taking reing any subject a prisoner beyond sea. wards to help one to his stolen goods. X. Refusing the oaths of allegiance and Penalty: the same as for the theft. IX. supremacy. XI. Preaching, teaching, or Receiving stolen goods. Penalties : transadvised speaking in defence of the right portation ; fine; and imprisonment. X. of any pretender to the crown, or in de Theftbote. XI. Common barretry, and rogation of the power of parliament to suing in a feigned name. XII. Maintenlimit the succession. XII. Treating of ance. XIII. Champerty. Penalty, in other matters, by the assembly of peers these four: fine and imprisonment. XIV. of Scotland, convened for electing their Compounding prosecutions on penal starepresentatives in parliament. XIII. Un tutes. Penalty: fine, pillory, and disWarrantable undertakings by unlawful ability. XV. Conspiracy; and threats of subscriptions to public funds .... Page 115-117 accusation in order to extort money, &c.

Penalties: the villenous judgment; fine; CHAPTER IX.

imprisonment; pillory; whipping; trans

portation. XVI. Perjury, and subornaOF MISPRISIONS AND CONTEMPTS, AFFECT

tion thereof. Penalties: infamy; impriING TIIE KING AND GOVERNMENT..... 119 to 126

sonment; fine, or pillory; and sometimes 1. Misprisions and contempts are all such

transportation, or house of correction. high offences as are under the degree of

XVII. Bribery. Penalty: fine, and imcapital... ............................................ 119

prisonment. XVIII. Embracery. Pe2. These are, I. Negative, in concealing

nalty: infamy, fine, and imprisonment. what ought to be revealed. II. Positive,

XIX. False verdict. Penalty: the judgin committing what ought not to be

ment in attaint. XX. Negligence of pubdone ................................................. 119

lic officers, &c. Penalty: fine and for3. Negative misprisions are, I. Misprision

feiture of the office. XXI. *Oppression of treason. Penalty: forfeiture and imprisonment. II. Misprision of felouy.

by the magistrates. XXII. Extortion of

officers. Penalty, in both : imprisonment, Penalty: fine and imprisonment. III.

fine, and sometimes forfeiture of the Concealment of treasure trove. Penalty :

office............................................. 128-141 fine and imprisonment....................120-121 4. Positive misprisions, or high misde

CHAPTER XI. meanours and contempts, are, I. Maladministration of public trusts, which includes OF OFFENCES AGAINST THE PUBLIC PEACE.... the crime of peculation. Usual penal

142 to 153 ties: banishment; fines; imprisonment;

1. Offences against the public peace are, disability. II. Contempts against the I. Riotous assemblies to the number of king's prerogative. Penalty : fine and twelve. II. Appearing armed, or huntimprisonment. III. Contempts against

ing, in disguise. III. Threatening, or his person and government. Penalty: demanding any valuable thing, by letter. fine, imprisonment, and infamous corpo

All these are felonies, without clergy. ral punishment. IV. Contempts against

IV. Destroying of turnpikes, &c. Penalhis title. Penalties: fine and imprison

ties : whipping; imprisonment; judgment ment; or, fine and disability V. Con

of felony, with and without clergy. V. tempts against his palaces, or courts of

Affrays. VI. Riots, routs, and unlawful justice. Penalties : fine; imprisonment;

assemblies. VII. Tumultuous petitioncorporal punishment; loss of right hand; ing. VIII. Forcible entry and detainer. forfeiture..........

............. 121-126 Penalty, in all four: fine, and imprison.

ment. IX. Going unusually armed. PeCHAPTER X.

nalty: forfeiture of arms, and imprisonOF OFFENCES AGAINST PUBLIC JUSTICE....

ment. X. Spreading false news. Penal127 to 141

ty: fine, and imprisonment. XI. Pre1. Crimes especially affecting the common

tended prophecies. Penalties: fine; impri

sonment; and forfeiture. XII. Challenges Wealth are offences, I. Against the public justice. II. Against the public peace.

to fight. Penalty: fine, imprisonment, III. Against the public trade. IV.

and sometimes forfeiture. XIII. Libels. Against the public health. V. Against

Penalty: fine, imprisonment, and corporal the public police, or economy................ 127

· punishment.................................... 142-153 2. Offences against the public justice are, I. Embezzling, or vacating, records, and

CHAPTER XII. personating others in courts of justice. OF OFFENCES AGAINST PUBLIC TRADE...154 to 160 Penalty: judgment of felony, usually | 1. Offences against the publio trade are,

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