ANALYSIS. BOOK IV*. - OF PUBLIC WRONGS. Page 1 4 5 2. The will does not concur with the act, I. Where there is a defect of understanding. II. Where no will is exerted. 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 chusing 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 22-32 33 7 OF PRINCIPALS AND ACCESSORIES 34 to 37 1. The different degrees of guilt in criminals are, I. As principals. II. As 7 11 12 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 misdemesnors, 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 excluded from it CHAPTER IV. OF OFFENCES AGAINST GOD AND RE 34 34 35 35 36 37 Page CHAPTER I. OF THE NATURE OF CRIMES, AND THEIR PUNISHMENT 1 to 12 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 misdemesnor, 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 him of the power to do future mischief 7. 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, prin ciples CHAPTER 11. OF THE PERSONS CAPABLE OF COMMIT- 20 to 33 1. All persons are capable of committing 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 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. Penalty: fine, or house of correction. IV. 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; incapacity. IX. Sabbath-breaking. Penalty: fine. X. Drunkenness. Penalty: fine, or stocks. XI. Lewdness. Penalties: fine; imprisonment; house of correction CHAPTER V. OF OFFENCES AGAINST THE LAW OF NATIONS. Page 42 43-65 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 66 67 67 culiarly offending the king and his government, are, I. High treason. II. Felonies injurious to the prerogative. III. Præmunire. IV. Other misprisions 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. II. 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 justices, 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 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. OF FELONIES INJURIOUS TO THE KING'S PREROGATIVE 87-92 92 94 to 102 1. Felony is that offence which occasions the total forfeiture of lands or goods at common law: now usually also punishable with death, by hanging; unless through the benefit of clergy 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 1. Crimes, and misdemesnors, more pe 68-73 74 to 92 2. Felonies injurious to the king's prerogative (of which some are within, others without, clergy) are, I. Such as relate to the coin as, the wilful uttering of counterfeit money, &c.: (to which head some inferior misde 94 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 of abbey 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. XIII. Unwarrantable undertakings by unlawful subscriptions to public funds CHAPTER IX. 115-117 3. Negative misprisions are, I. Misprision of treason. Penalty forfeiture and imprisonment. II. Misprision of felony. Penalty: fine and imprisonment. III. Concealment of treasure trove. Penalty fine and imprison ment 4. Positive misprisions, or high misdemesnors and contempts, are, I. Maladministration of public trusts, which includes the crime of peculation. 120-1 mony 2. Offences, against the public justice, are, I. Embezzling or vacating records, and personating others in courts 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 misdemesnors 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. Mamtenance. 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 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 magistrates. XXII. Extortion of officers. Penalty, in both: impri or 127 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 valuble 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 VII. 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. 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 præmunire. 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 are, I. Irregularity, in time of the 2. Offences, against the public police OF HOMICIDE CHAPTER XIV. Page 161-2 162-175 171 to 203 1. Crimes, especially affecting indivi- 2. Crimes against the persons of indi- 3. Homicide is, I. Justifiable. II. Ex- 4. Homicide is justifiable, I. By ne- 6. Felonious homicide is the killing of 161 to 175 7. Killing one's self, or self-murder, is where one deliberately, or by any un 1. Offences, against the public health, 176 177 178 178 182 188 lawful malicious act, puts an end to his own life. This is felony; punished by ignominious burial, and forfeiture of goods and chattels 8. Killing another is, I. Manslaughter. II. Murder 9. Manslaughter is the unlawful killing of another; without malice, express or implied. This is either, I. Voluntary, upon a sudden heat. II. Involuntary, in the commission of some unlawful act. Both are felony, but within clergy; except in the case of stabbing 10. Murder is when a person, of sound memory and discretion, unlawfully killeth any reasonable creature, in being, and under the king's peace; with malice aforethought, either express or implied. This is felony, without clergy; punished with speedy death, and hanging in chains, or dissection 11. Petit treason, (being an aggravated degree of murder), is where the servant kills his master, the wife her husband, or the ecclesiastic his superior. Penalty in men, to be drawn, and hanged; in women, to be drawn, and burned CHAPTER XV. OF OFFENCES AGAINST THE PERSONS Page 189 190 101 1. Crimes, affecting the private property 194 203 3. Simple larceny is the felonious tak- 4. Mixed, or compound, larceny, is that 205 to 219 5. Larcenies from the house, by day or night, are felonies without clergy, when they are, I. Larcenies, above twelve pence, from a church; or by breaking a tent or booth in a market or fair, by day or night, the owner or his family being therein;-or by breaking a dwelling-house by day, any person being therein; or from a dwellinghouse by day, without breaking, any person therein being put in fear;-or from a dwelling-house by night, without breaking, the owner or his family being therein, and put in fear. II. Larcenies, of five shillings, by breaking the dwelling-house, shop, or warehouse, by day, though no person be therein; or, by privately stealing in any shop, warehouse, coach-house, or stable, by day or night, without breaking, and though no person be therein. III. Larcenies, of forty shillings, from a dwelling-house or its out-houses, without breaking, and though no person be therein 1. Crimes affecting the persons of individuals, by other corporal injuries not amounting to homicide, are, I. Mayhem; and also shooting at another. Penalties: fine; imprisonment; judgment of felony, without clergy. II. Forcible abduction, and marriage or defilement, of an heiress; which is felony: also, stealing, and deflowering or marrying, any woman-child under the age of sixteen years; for which the penalty is imprisonment, fine, and temporary forfeiture of her lands. III. Rape; and also carnal knowledge of a woman-child under the age of ten years. IV. Buggery, with man or beast. Both these are felonies, without clergy. V. Assault. VI. Battery; especially of clergymen. Wounding. Penalties, in all three: fine; imprisonment; and other corporal punishment. VIII. False imprisonment. Penalties: fine; imprisonment; and (in some atrocious cases) the pains of præmunire, and incapacity of office or pardon IX. Kidnapping, or, forcibly stealing away the king's subjects. Penalty: fine; imprisonment; and pillory CHAPTER XVI. VII. 205-219 OF OFFENCES AGAINST THE HABITA- 6. Larceny from the person is, I. By privately stealing, from the person of another, above the value of twelve pence. IL By robbery; or the felonious and forcible taking, from the person of another, goods or money of any value, by putting him in fear. These are both felonies without clergy. An attempt to rob is also felony 220 to 222 7. Malicious mischief, by destroying 1. Crimes, affecting the habitations of individuals, are, I. Arson. II. Burglary 220 dikes, goods, cattle, ships, garments, fish-ponds, trees, woods, churches, chapels, meeting-houses, houses, out 229 229 229 239 239 241 VOL. II. 3 |