Commentaries on the Laws of England

ing, in the cases of, I. Infancy. II. persons capable of committing crimes. Idiocy, or lunacy. III. Drunkenness ; III. Their several degrees of guilt.

which doth not, however, excuse. IV. The several species of crimes,

IV. Misfortune. V. Ignorance, or and their respective punishments._V. mistake of fact. VI. Compulsion, or The means of prevention. VI. The necessity; which is, Ist, that of civil method of punishment

1 subjection ; 2ndly, that of duress per 2. A crime, or roisdemeanor, is an act minas ; 3rdly, that of choosing the least

committed, or omitted, in violation of pernicious of two evils, where one is a public law, either forbidding or com

unavoidable ; 4thly, that of want or manding it

4 hunger; which is no legitimate ex3. Crimes are distinguished from civil

22-32 injuries, in that they are a breach and 4. The king, from his excellence and violation of the public rights, due to dignity, is also incapable of doing the whole community, considered as a

wrong

33 community 4. Punishments may be considered with

CHAPTER III. regard to, I. The power, II. The end,

III. The measure-of their infliction. 7 OF PRINCIPALS AND ACCESSORIES 34 to 37 5. The power, or right, of inflicting hu. 1. The different degrees of guilt in cri.

man punishments, for natural crimes, minals are, I. As principals. II. As or such as are mala in se, was by the

accessories

31 law of nature vested in every indivi- 2. A principal in a crime is, I. He who dual ; but, by the fundamental contract commits the fact. II. He who is pre. of society, is now transferred to the sent at, aiding, and abetting, the comsovereign power: in which also is

mission

34 vested, by the same contract, the right 3. An accessory is he who doth not com. of punishing positive offences, or such mit the fact, nor is present at the comas are mala prohibita

7 mission; but is in some sort concern6. The end of human punishments is to ed therein, either before or after 35

prevent future offences ; I. By amend. 4. Accessories can only be in petit ing the offender himself. II. By de

treason, and felony: in high treason, terring others through his example. and misdemeanors, all are principals 35 III. By depriving him of the power to 5. An accessory before the fact, is one do future mischief.

11 who, being absent when the crime is 7. The measure of human punishments committed, hath procured, counselled, must be determined by the wisdom of

or commanded another to commit it 36 the sovereign power, and not by any 6. An accessory after the fact, is where uniform universal rule: though that a person, knowing a felony to have wisdom may be regulated, and assist- been committed, receives, relieves, ed, by certain general, equitable, prin. comforts, or assists the selon. Such ciples

12 accessory is usually entitled to the be

Defit of clergy; where the principal,
CHAPTER II.

and accessory before the fact, are ex.
cluded from it

37 OF THE PERSONS CAPABLE OF COMMITTING CRIMES

20 to 33

CHAPTER IV. 1. All persons are capable of commit.

ting crimes, unless there be in them a OF OFFENCES AGAINST GOD AND REdefect of will; for, to constitute a

LIGION.

42 to 65 legal crime, there must be both a vi. 1. Crimes and misdemeanors, cogniza. cious will, and a vicious act

20 ble by the laws of England, are such

Page 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

42 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 (con. ditionally) by the toleration act. 3rdly, through popery, either in professors of the popish religion, popish recusants convict, or popish priests. Penalties : incapacity ; double taxes; imprison. ment; 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. 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. Pe. nalties : fine ; imprisonment; house of correction

43-65

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

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 ; demonstrat.
ed by some overt act. III. By violat.
ing the king's companion, his eldest
daughter, or the wise 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 co-un.
terfeit 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 al.
legiance, and reconciliation to the
pope, or other foreign power. II. To
ihe 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 mo.
ney to, the late pretender's sons; en-
deavouring 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 re-
lating to the coin, only to be drawn,
and hanged till dead. Females, in
both cases, are to be drawn and burned
alive

92
CHAPTER VII.
OF FELONIES INJORIOUS TO THE King's
PREROGATIVE

94 to 102 1. Felony is that offence which occa

sions the total forfeiture of lands or
goods at common law: now usually
also punishable with death, by hang.
ing; unless through the benefit of
clergy.

94
2. Felonies injurious to the king's prero-
gative (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 hoad some inferior misde.

CHAPTER V.
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 in. dependent stales

66 2. In England, the law of nations is

adopted, in its full extent, as part of the law of the land

67 3. Offences against this law are prin.

cipally incident to whole states or nations ; but, when committed by private subjects, are then the objects of the municipal law

67 4. Crimes against the law of nations, animadverted on by the laws of Eng.

nd, are, I. Violation of safe-conducts. II. Infringement of the rights of ambassadors. Penalty, in both : arbitrary. III. Piracy. Penalty: judgment of felony, without clergy

68-73

CHAPTER VI. Or High TREASON

74 to 92 1. Crimes, and misdemeanors, more pe.

Page

meanors affecting the coinage may be

also referred). II. Conspiring or at.

tempting to kill a privy counsellor. III.

Serving foreign states, or enlisting

soldiers for foreign service. IV. Em-

bezzling the king's armour or stores.

V. Desertion from the kirg's armies,

by land or sea

98-102

CHAPTER VIII.

Usual penalties : banishment; fines;

imprisonment; disability. II. Con

tempts against the kiny's prerogative.

Penalty : fine and imprisonment. III.

Contempts against his person, and

government.

Penalty : fine, impri.

sonment, and infamous corporal pu-

nishment. IV. Contempts against his

title. Penalties : fine and imprison-

ment; or, fine and disability. V.

Contempts against his palaces, or

courts of justice. Penalties : fine;

imprisonment; corporal punishment;

loss of right hand; forfeiture 121-126

1. Præmunire, in its original sense, is

the offence of adhering to the tempo-

ral power of the pope, in derogation

of the regal authority. Penalty : out-

lawry, forfeiture, and imprisonment :

which hath since been extended to

some offences of a different nature 103

2. Among these are, I. Importing po-

pish trinketz. 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 parveyance 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, advised

speaking, in desence of the right of

any pretender to the crown, or in de-

rogation of the power of Parliament

to limit the succession. XII. Treat-

ing of other matters, by the assembly

of peers of Scotland, convened for

electing their representatives in Par-

liament. XIII. Unwarrantable un.

dertakings by unlawful subscriptions

to public funds

115-117

CHAPTER IX.

OF MISPRISIONS AND CONTEMPTS, AF.

FECTING THE KING AND GOVERN.

MEXT

119 to 126

1. Misprisions and contempts are all

such' high offences as are under the

degree of capital

2. These are, I. Negative, in conceal.

ing what ought to be revealed. II.

Positive, in committing what ought

not to be done

119

3. Negative misprisions are, 1. Mispri.

sion of treason. Penalty : forfeiture

and imprisonment. II, Misprision of

felony. Penalty : fine and imprison-

ment. III. Concealment of treasure

trove. Penally : fine and imprison.

ment

120-1

4. Positive misprisions, or high misde-

meanors and contempts, are, I. Mal.

administration of public trusts, which

includes the crime of peculation.

OF OFFENCES AGAINST PUBLIC Jus.

TICE

127 to 141

1. Crimes especially affecting the com-

monwealth, 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 eco-

nomy

127

2. Offences, against the public justice,

I. Embezzling, or vacating re.

cords, and personating others in courts

of justice. Penalty . judgment of fe.

lony, usually without clergy. II.

Compelling prisoners to become ap-

prover3. Penalty: judgment of felo-

ny. 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 bis

stolen goods. Penalty : the same as

for the theft. IX. Receiving stolen

goods. Penalties : transportation ;

fine; and imprisonment. X. Thest-

bote. XI. Cominon barretry, and su-

ing in a feigned name. XII. Main-

tenance. XIII. Champerty.---Penal.

ty, 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 : in-
famy; imprisonment; fine, or pillory ;
and, sometimes, transportation
house of correction. XVII. Bribery.
Penalty: five, 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 for-
feiture of the office. XXI. Oppres.
sion by magistrates. XXII. Extortion
of officers.--Penalty, in both : impri.

119

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