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CHAPTER I.

OF THE NATURE OF CRIMES, AND THEIR PUNISHMENT

1. In treating of public wrongs may be considered, I. The general nature of crimes and punishments. II. The persons capable of committing crimes. Ill. 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

2. A crime, or misdemeanor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it

3. 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

4. Punishments may be considered with regard to, I. The power, II. The end, III. The measure, of their infliction. 5. The power, or right, of inflicting human punishments, for natural crimes, or such as are mala in se, was by the law of nature vested in every individual; but, by the fundamental contract is now transferred. to the

of society, Sovereign power: in which also is vested, by the same contract, the right of purishing positive offences, or such as are mala prohibita

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

5. 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

CHAPTER II.

OF THE PERSONS CAPABLE OF COMMITTING CRIMES

1

2. The will does not concur with the act, I. Where there is a defect of understanding. II. Where no will is ex erted. III. Where the act is constrained by force and violence 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, or necessity; which is, 1st, that of civil subjection; 2ndly, that of duress per minas; 3rdly, that of choosing the least pernicious of two evils, where one is unavoidable; 4thly, that of want or hunger; which is no legitimate ex

cuse

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

CHAPTER III.

2!

22-33

33

7

11

12

1. All persons are capable of commiting 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

accessories

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

3. 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 4. Accessories can only be in petit treason, and felony in high treason, and misdemeanors, all are principals 5. An accessory before the fact, is one who, being absent when the crime is committed, hath procured, counselled, or commanded another to commit it 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 ea cluded from it

CHAPTER IV.

OF OFFENCES AGAINST GOD AND RE

LIGION.

31

42 to 65

1. Crimes and misdemeanors, cognizable by the laws of England. are such

As more immediately offend, 1. God, and his holy religion. II. The law of nations. III. The king and his go vernment. IV. The public, or commonwealth. V. Individuals 2. Crimes more immediately offending God and religion, are, I. Apostacy. 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. 2ndly, through protestant dissenting. Penalty: suspended (conditionally) by the toleration act. 3rdly, 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 pu nishment. V. Profane swearing and cursing. Penalty: fine, or house of correction. VI. 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; incapaci ty. IX. Sabbath breaking. Penalty: fine. X. Drunkenness. Penalty: fine, or stocks. XI. Lewdness. Penalties: fine; imprisonment; house of

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42

43-65

66 to 73

OF OFFENCES AGAINST THE LAW OF NATIONS 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

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

3 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

4. Crimes against the law of nations, animadverted on by the laws of England, are, I. Violation of safe-conducts. 11. Infringement of the rights of ambassadors. Penalty, in both: arbitrary. III. Piracy. Penalty: judg ment of felony, without clergy

CHAPTER VI.

OF HIGH TREASON

66

67

67

68-73

74 to 92

■ Cripies, and misdemeanors, more pe

II.

culiarly offending the king and his government, are, 1. High treason Felonies injurious to the prerogative. III. Præmunire. IV. Other mispri sions and contempts

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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. III. 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 jus tices, in the execution of their offices 76-87 3. 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 foreign 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

CHAPTER VII.

92

103 to 117

OF PRÆMUNIRE 1. Præmunire, 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 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 or ab by lands. IV. Acting as broker in an 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. XIlI. Unwarrantable undertakings by unlawful subscriptions to public funds

CHAPTER IX.

103

115-117

OF OFFENCES AGAINST PUBLIC JUS TICE 127 to 141

1. Crimes especially affecting the commonwealth, 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

2. Offences, against the public justice, are, I. Embezzling, or vacating records, and personating others in courts of justice. Penalty. judgment of fe lony, 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 misdemeanors 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. Cominon barretry, and su ing in a feigned name. XII. Maintenance. XIII. Champerty.-Penalty, in these four: fine and imprison ment. XIV. Compounding prosecu tions on penal statutes. Penalty: fine, pillory, and disability. XV. Conspiracy: and threats of accusation in order to extort money, &c. Penal ties: the villenous judgment; fine, imprisonment; pillory whipping; transportation. XVI. Perjury, and subornation thereof. Penalties: infamy; imprisonment; fine, or pillory; and, sometimes, transportation 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. Oppres sion by magistrates. XXII. Extortion of officers.-Penalty, in both mpr

or

1.27

142 to 153

OF OFFENCES AGAINST THE PUBLIC PEACE 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

CHAPTER XII.

142-153

OF OFFENCES AGAINST PUBLIC TRADE

154 to 160

1. Offences, against the public trade, are, I. Owling. Penalties: fines; forfeiture; imprisonment; loss of left hand; transportation; judgment of felony. II. Smuggling. Penalties: fines; loss of goods; judgment of felony, without clergy. III. Fraudulent bankruptcy. Penalty: judgment of felony, without clergy. IV. Usury. Penalty fine, and imprisonment. V. Cheating. Penalties: fine; imprisonment; pillory; tumbrel; whipping, or other corporal punishment; transportation. VI. Forestalling. VII. Regrating. VIII. Engrossing. Penalties, for all three: loss of goods; fine; imprisonment; pillory. IX. Monopolies, and combinations to raise the price of commodities. Penalties fines; imprisonment; pillory; loss of ear; infamy; and, sometimes, the pains of pramunire. X. Exercising a trade, not having served as apprentice. Penalty: fine. XI. Transporting, or residing abroad, of artificers. Penalties: fine; imprisonment; forfeiture; incapacity; becoming aliens

CHAPTER XIII.

154-160

OF OFFENCES AGAINST THE PUBLIC
HEALTH, AND THE PUBLIC POLICE
OR ECONOMY
161 to 175
Offences. against the pubac health,

are, I. Irregularity, in time of the plague, or of quarantine. Penalties: whipping; judgment of felony, with and without clergy. II. Selling unwholesome provisions. Penalties: amercement; pillory; fine; imprisonment; abjuration of the town 2. Offences, against the public police and economy, or domestic order of the kingdom, are, I. Those relating to clandestine and irregular marriages. Penalties judgment of felony, with and without clergy. II. Bigamy, or (more properly) polygamy. Penalty: judgment of felony. III. Wandering, by soldiers or mariners. IV. Remaining in England, by Egyptians; or being in their fellowship one month. Both these are felonies, without clergy. V. Common nuisances: 1st, by annoyances or purprestures in highways, bridges, and rivers; 2ndly, by offensive trades and manufactures; 3rdly, by disorderly houses; 4thly. by lotteries; 5thly, by cottages; 6thly, by fireworks; 7thly, by evesdropping.-Penalty, in all: fine. 8thly, by common scolding. Penalty: the cucking stool. VI. Idleness, disorder, vagrancy, and incorrigible roguery. Penalties: imprisonment; whipping; judgment of felony. VII. Luxury, in diet. Penalty discretionary. VIII. Gaming. Penalties: to gentlemen, fines; to others, fine and im prisonment; to cheating gamesters, fine, infamy, and the corporal pains of perjury. IX. Destroying the game. Penalties: fines; and corporal punishment

CHAPTER XIV.

Page

161

162-175

176 to 203

OF HOMICIDE 1. Crimes, especially affecting individuals, are, I. Against their persons. II. Against their habitations. III. Against their property

2. Crimes against the person of individuals, are, 1. By homicide, or destroying life. II. By other corporal injuries

3. Homicide is, I. Justifiable. II. Excusable. III. Felonious

4. Homicide is justifiable, I. By necessity, and command of law. II. By permission of law: 1st, for the furtherance of public justice; 2ndly, for prevention of some forcible felony 5. Homicide is excusable, I. Per infortunium, or by mis-adventure. II. Se defendendo, or self-defence, by chance-medley. Penalty, in both, forfeiture of goods: which however is pardoned of course

6. Felonious homicide is the killing of a human creature, without justification or excuse. This is, I. Killing one's self. II. Killing another 7. Killing one's self, or self-murder, is where one deliberately, or by any un

176

177

178

178

182

188