1. Trial is the examination of the matter of fact put in issue

2. The species of trials are, I. By the record. II. By inspection. certificate. IV. By witnesses. By wager of battel. VI. By wager of law. VII. By jury

330

III. By

330

3. Trial by the record is had, when the existence of such record is the point in issue

4. Trial by inspection or examination is had by the court, principally when the matter in issue is the evident object of the senses

5. Trial by certificate is had in those cases, where such certificate must have been conclusive to a jury 6. Trial by witnesses (the regular method in the civil law) is only used on a writ of dower, when the death of the husband is in issue

7. Trial by wager of battel, in civil cases, is only had on a writ of right: but, in lieu thereof, the tenant may have, at his option, the trial by the grand assize

330

331

3. Where the issue is immaterial, or insufficient, the court may award are. pleader

4. Judgment is the sentence of the law, pronounced by the court, upon the matter contained in the record

395

395

336

6. Trial by wager of law is only had, where the matter in issue may be supposed to have been privily transacted, between the parties themselves, without the intervention of other witnesses 341

CHAPTER XXIII.

351 to 385

OF THE TRIAL BY JURY 1. Trial by jury is, I. Extraordinary; as, by the grand assize, in writs of right; and by the grand jury, in writs of attaint. II. Ordinary 9. The method and process of the ordinary trial by jury is, I. The writ of ve nire facias to the sheriff, coroners, or elisors; with the subsequent compul. sive process of habeas corpora, or distringas. II. The carrying down of the record to the court of nisi prius. III The sheriff's return; or panel of, 1st, special, 2ndly, common jurors. IV. The challenges; 1st, to the ar ray; 2ndly, to the polls of the jurors; either, propter honoris respectum, propter defectum, propter affectum (which is sometimes a principal challenge, sometimes to the favour), or, propter delictum. V. The tales de circumstantibus, VI. The oath of the jury. VII. The evidence; which is either by proofs, 1st, written; 2ndly, parol-or, by the private knowledge of the jurors. VIII. The verdict: which may be, 1st, privy; 2ndly, public; 3rdly, special

CHAPTER XXIV.

OF JUDGMENT, AND ITS INCIDENTS

351

351-385

386 to 399

). Whatever is transacted at the trial,

OF PROCEEDINGS IN THE NAture of APPEALS 402 to 411 1. Proceedings in the nature of appeals from judgment, are, I. A writ of attaint; to impeach the verdict of a jury: which of late has been superseded by new trials. II. A writ of audita querela; to discharge a judgment by matter that has since happened. IIL A writ of error, from one court of re cord to another; to correct judgments, erroneous in point of law, and not helped by the statutes of amendment and jeofails

402-406 2. Writs of error lie, I. To the court of King's Bench, from all inferior courts of record; from the court of Common Pleas at Westminster; and from the court of King's Bench in Ireland. II. To the courts of Exchequer Chamber, from the law side of the court of Exchequer; and from proceedings in the court of King's Bench by bill. III. To the house of Peers, from proceed. ings in the court of King's Bench by original, and on writs of error; and from the several courts of Exchequer Chamber

facias in detinue. III. Where money only is recovered; by writ of, 1st, capias ad satisfaciendum, against the body of the defendant; or, in default thereof, scire facias against his bail. 2dly, fieri facias, against his goods and chattels. 3rdly, levari facias, against his goods, and the profits of his lands. 4thly, elegit, against his goods, and the possession of his lands. 5thly, extendi facias, and other process, on statutes, recognizances, &c., against his body, lands, and goods

CHAPTER XXVII.

Page

412-425

tates

Page

on the oath of the party; which gives a jurisdiction in matters of account, and fraud. II. The mode of trial; by depositions taken in any part of the world. III. The mode of relief; by giving a more 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 incumbered 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 es436-448 5. The proceedings in the court of Chancery (to which those in the Exchequer, &c. very nearly conform) are, I. Bill. II. Writ of subpana; and perhaps, injunction. III. Process, of contempt; viz. (ordinarily) attachment, attachinent with proclamations, com. mission of rebellion, serjeant at arms, and sequestration. IV. Appearance. V. Demurrer. VI. Plea. VII. AnVIII. Exceptions; amend ments; 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 Parlia

swer.

ment

442-458

Page

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. III. 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 of society, is now transferred to the Sovereign power: in which also is vested, by the same contract, the right of punishing 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. III. By depriving hin 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

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, 1. 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.

21

22-33

33

34 to 37

7 OF PRINCIPALS AND ACCESSORIES 1. The different degrees of guilt in criminals are, I. As principals. II. As accessories

7

11

12

OF THE PERSONS CAPABLE OF COMMITTING CRIMES 1. All persons are capable of commitng crimes, unless there be in them a defect of will; for, to constitute a legal crime, there must be both a visious will, and a vicious act

20

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.

As more immediately offend, I. God, and his holy religion. II. The law of nations. III. The king and his government. 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 punishment. V. Profane swearing and cursing. Renalty: 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

correction

CHAPTER V.

Page

42

43-65

OF OFFENCES AGAINST THE LAW OF NATIONS 66 to 73

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. II. 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

▲ Crimes, and misdemeanors, more pe

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

Page

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 "6-87 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, import ing 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 87-95 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