No. III. Richard Morris, o' Wy.ham, in the county of Berks, the said arbitrators undertook the charge of the award, arbitrament, order, rule, judgment, final end, and determination aforesaid, of and in the premises specified in the condition aforesaid; and then and there made and published their award by word of mouth in manner and form following, that is to say, the said arbitrators did award, order, and adjudge, that he the said Charles Long should forthwith pay to the said William Burton the sum of seventy-five pounds, and that thereupon all differences between them at the time of the making the said writing obligatory should finally cease and determine. And the said William further saith, that although he afterwards, to wit, on the sixth day of January, in the year of our Lord one thousand seven hundred and fifty-five, at Banbury aforesaid, requested the said Charles to pay to him the said William the said seventy-five pounds, yet (by protestation that the said Protestando Charles hath not stood to, obeyed, observed, fulfilled, or kept any part of the said award, which by him the said Charles ought to have been stood to, obeyed, observed, fulfilled, and kept,) for further plea therein he saith, that the said Charles the said seventy-five pounds to the said William hath not hitherto paid; and this he is ready to verify. Wherefore he prays judgment, and his debt aforesaid, together with his damages occasioned by the detention of the said debt, to be adjudged unto him, &c. AND the aforesaid Charles saith, that the plea afore- Demurrer. said, by him the said William in manner and form aforesaid above in his replication pleaded, and the matter in the same contained, are in no wise sufficient in law for the said William to have or maintain his [*xxiv] action aforesaid thereupon against him the said Charles; to which the said Charles hath no necessity, neither is he obliged by the law of the land, in any manner to answer; and this he is ready to verify. Wherefore, for want of a sufficient replication in this behalf, the said Charles, as aforesaid, prays judgment, and that the aforesaid William may be precluded from having his action aforesaid thereupon against him, &c. AND the said Charles, according to the form of the statute Causes of in that case made and provided, shows to the court here the causes of demurrer. demurrer following: to wit, that it doth not appear, by the replication aforesaid, that the said arbitrators made the same award in the presence of two credible witnesses on or before the said first day of January, as they ought to have done, according to the form and effect of the condition aforesaid; and that the replication aforesaid is uncertain, insufficient, and wants form. AND the aforesaid William saith, that the plea Joinder m aforesaid by him the said William in manner and form aforesaid above demurrer. in his replication pleaded, and the matter in the same contained, are good and sufficient in law for the said William to have and maintain the said action of him the said William thereupon against the said Charles; which said plea, and the matter therein contained, the said William is ready to verify and prove as the court shall award and because the aforesaid Charles hath not answered to that plea, nor hath he hitherto in any manner denied the same, the said William as before prays judgment, and his debt aforesaid, together with his damages occasioned by the detention of that debt, to be adjudged unto him, &c. AND BECAUSE the justices here will advise themselves of and upon the Continuances premises before they give judgment thereupon, a day is thereupon given to the parties aforesaid here, until the Morrow of All Souls, to hear their judgment thereupon, for that the said justices here are not yet advised thereof. At which day here come as well the said Charles as the said William, by their said attornies; and because the said justices Lere will farther advise themselves of and upon the premises before they give judgment thereupon, a day is farther given to the parties aforesaid here until the octave of Saint Hilary, to hear their judgment thereupon, for that the said justices here are not yet advised thereof. At which day here come as well the said William Burton as the said Charles Long, by their said attornies. WHEREFORE, the record and Opinion ❤ matters aforesaid having been seen, and by the justices here fully understood, and all and singular the premises being examined, and mature deliberation being had thereupon; for that it seems to the said Replication justices here, that the said plea of the said William Burton before in insufficient his replication pleaded, and the matter therein contained, are not suffi : the court. No. III. [*XXV ] Judgment Querens ni- General eror assigned. Writ of Scire facias, to hear errors. Sheriff's return; Scire feci. cient in law, to have and maintain the action of the aforesaid William against the aforesaid Charles; THEREFORE IT 18 CONSIDERED, that the aforesaid William take nothing by his writ aforesaid, but that he and his pledges of prosecuting, to wit, John Doe and Richard Roe, be it mercy for his false complaint; and that the aforesaid Charles go thereof without a day, &c. AND IT IS FARTHER CONSIDERED,that the aforesaid Charles do recover against the aforesaid William eleven pounds and seven shillings, for his costs and charges by him about his defence in this behalf sustained, adjudged by the court here to the said Charles with his consent, according to the form of the statute in that case made and provided: and that the aforesaid Charles may have execution thereof, &c. AFTERWARDS, to wit, on Wednesday next after fifteen days of Easter in this same term before the Lord the King, at Westminster, comes the aforesaid William Burton, by Peter Manwaring, his attorney, and saith, that in the record and process aforesaid, and also in the giving of the judgment in the plaint aforesaid, it is manifestly erred in this; to wit, that the judgment aforesaid was given in form atoresaid for the said Charles Long against the aforesaid William Burton, where by the law of the land judgment should have been given for the said William Burton against the said Charles Long; and this he is ready to verify. AND the said William prays the writ of the said Lord the King, to warn the said Charles Long to be before the said Lord the King, to hear the record and process aforesaid; and it is granted unto him; by which the sheriff aforesaid is commanded that by good [and lawful men of his bailiwick] he cause the aforesaid Charles Long to know, that he be before the Lord the King from the day of Easter in five weeks, wheresoever [he shall then be in England,] to hear the record and process aforesaid, if [it shall have nappened 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.] 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 sain 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 Fer good, &c., as by the same writ was commanded him; which said Charles Long, according to the warning given him in this behalf, here 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 afore said 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 [*xxvi] 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 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 nay proceed to the examination as well of the record and process afo sesaid, 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 Engiand, 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 attornies aforesaid: WHEREUPON, as well the record and process aforesaid, and the judg ment 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 th: King Error as signed afresh. Rejoinder, In nullo est ratum. Continuance. Opinion of the cout No. III. Pleas re versed. nere, that in the record and process aforesaid, and also in the giving of the judgment aforesaid, it is manifestly erred, THEREFORE IT IS CONBIDERED, tha: the judgment aforesaid, for the error aforesaid, and Judgment of others, in the record and process aforesaid, be reversed, annulled, and the Common entirely for nothing esteemed; and that the aforesaid William recover against the aforesaid Charles his debt aforesaid, and also fifty pounds Judgment for his damages which he hath sustained, as well on occasion of the for the detention of the said debt, as for his costs and charges unto which he Plaintiff hath been put about his suit in this behalf, to the said William with Costs. his consent by the court of the Lord the King here adjudged. And Defendant the said Charles in mercy. Sect. 7. Process of Execution. amerced dum. GEORGE the Second, by the grace of God, of Great Britain, France, Writ of capra and Ireland King, Defender of the Faith, and so forth, to the Sheriff of ad satisfacien 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 [*xxvi | our said court before us to the said William Burton, for his damages which he nath 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 Westminster, the nineteenth day of June, in the twenty-ninth year of our reign. By virtue of this writ to me directed, I have taken the body of the Sheriff re within 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 com- Corpus. manded me. GEORGE the Second, by the grace of God, of Great Britain, France, Writ of For and Ireland King, Defender of the Faith, and so forth, to the Sheriff of facias Oxfordshire 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 hath recovered against nim, 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 r❤ tur; Fan goods and chattels of the within written Charles Long, two hundred fo and fifty pounds; which I have ready before the Lord the King at Westminster, at the day within written, as it is within commanded me. + The senior puisnè justice there being no chief justice that term. COMMENTARIES ON THE LAWS OF ENGLAND BOOK THE FOURTH. OF PUBLIC WRONGS (1). CHAPTER I. OF THE NATURE OF CRIMES, AND THEIR PUNISHMENT. We now arrived at the fourth and last branch of these Commenta ries; 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; secondly, the persons capable of committing crimes; thirdly, their several degrees of guilt, as principals, or accessaries; *fourthly, [ *2 ] the several species of crimes, with the punishment annexed to each by the laws of England; fifthly, the means of preventing their petration; and, sixthly, the method of inflicting those punishments, which the law has annexed to each several crime and misdemesnor. per. 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, be 'onging to that community, and is therefore in all cases the proper proseutor for every public offence (b). (a) Book III. ch. 1 (1) See in general, Staundford Pl. Cr.; hton 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 Crime. Starkie's Cim. ., Chitty's Crim. (b) See book I. p. 268. L.; and the proper titles in Vin. Ab., Com In the U. S. the several states enact nearly all the criminal laws. Congress passes suck as relate to the laws of nations, and as are ne cessary to enforce its powers under the con stitution. |