turn; Scire

faci.

Error 9s

signed afresh.

In nullo est er ratum.

No. III. hear the record and process aforesaid, if [it shall have happened that in the same any error shall have intervened;] and farther [to do and receive what the court of the lord the king shall consider in this behalf.] Sherif's re- The same day is given to the aforesaid William Burton. At which day before the lord the king, at Westminster, 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, bere cometh by Thomas Webb his attorney. Whereupon the said William 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 said lord the king here may proceed to the examination as well of the record and process Rejoinder; aforesaid, as of the matter aforesaid above for error assigned. And the said Charles saith, that neither in the record and 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 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 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 aforesaid, and others, in the record and process aforesaid, be reversed, annulled, and entirely for nothing esteemed; and that the aforesaid William recover against the aforesaid Charles his debt aforesaid, and also fifty pounds for his 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 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.

Continuance.

Opinion of

the court.

Judgment of

the common pleas reversed.

Judgment for the Plaintiff. Costs. Defendant amerced.

Writ of ca

pas ad satis faciendum.

7. Process of Execution.

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 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 Burton, for his damages which he hath sustained, as well by occasion of the 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, * knight, at West

* The senior puisné justice; there being no chief-justice that term.

minster, the nineteenth day of June, in the twenty-ninth year of our No. III. reign.

By virtue of this writ to me directed, I have taken the body of the Sheriff's rewithin-named Charles Long; which I have ready before the lord the turn; Cepi king, at Westminster, at the day within-written, as within it is command- corpus. ed me.

George the second, by the grace of God of Great Britain, France, and Writ of Ireland king, defender of the faith, and so forth; to the sheriff of Oxford- Fieri facias. shire, 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 bath 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 Sheriff's regoods and chattels of the within-written Charles Long, two hundred and turn; fifty pounds; which I have ready before the lord the king at West- Furi feci. minster at the day within-written, as it is within commanded me.

COMMENTARIES

ON THE

LAWS OF ENGLAND.

BOOK IV.

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 misdemesnors. For we may remember that, in the beginning of the preceding book, (a) wrongs were divided into 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 misdemesnors; 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; se. condly, the persons capable of committing crimes; thirdly, their several degrees of guilt, as principals, or accessaries; fourthly, the se- [2] veral species of crimes, with the punishment annexed to 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 misdemesnor.

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 centers 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

(1) See in general, Staundford Pl. Cr.; Pulton de Pac. Reg.; Foster's Cr. L.; Hale P. C.; Hawk. P. C.; East's P. C.; Leach Cr. C.; Russell and Ry. Cr. C.; Russell and Mood. Cr. C.; Burn J.; Williams J.; and Dick. J.; Dickenson's Sessions; Russell on Crimes; Starkie's Crim. L.; Chitty's Crim. L.; and the proper titles in Vin. Ab., Com. Dig., and Bac. Ab., per tot.

state. (For as a very great master of the crown law (c) has observed up. on 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 researchThe 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.

es.

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 [3] universal; 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 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 ancient common law, when the reasons have ceased upon which those rules

were founded; from not repealing such of the old penal laws as are [4] 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 indif. ference 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 reme." dy 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 proc Sir Michael Foster, pref. to rep. d Baron Montesquieu, marquis Beccaria, &c.