OF EXECUTION-(continued.)

PAGE.

... 418

4. an eligit, against goods and the possession of lands,....

5. an extendi facias, and other process, on statutes, recognizances, &c.,

against the body, lands and goods,.

..420-425

CHAPTER XXVII.

OF PROCEEDINGS IN THE COURTS OF EQUITY,......

...426-455

matters of equity which belong to the peculiar jurisdiction of the court of

chancery are:

some peculiar equity causes are heard in the exchequer and duchy court of

Lancaster,....

429

equity in its true and genuine meaning is the soul and spirit of all law,.

to set law and equity in opposition to each other will be found either wholly or to

a certain degree erroneous,.

that equity follows the law; that both interpret the law according to its spirit;

that both have the same object; that both follow rules and precedents, and

observe the same rules of property, evidence, &c.,.....

the essential differences between the courts of equity and of law are:

429

430

.430-436

1. the mode of proof, by a discovery on the oath of the party, which gives

jurisdiction in matters of account and fraud,...

2. the mode of trial, by depositions taken in any part of the world..

3. the mode of relief, by giving a more specific and extensive remedy

than can be had in courts of law,....

437

438

438

examples, specific performance, setting aside deeds, enjoining waste, &c., 438

4. the true construction of securities for money by considering them

merely as a pledge,..

439

5. the execution of trusts under nearly the same rules as would govern

the estate at law,....

439

which must bring all interested parties before the court,.

the proceedings in a suit in equity are:

1. the bill of complaint, in the nature of a declaration,.....

2. the subpoena, followed, if nec ssary, by attachment, &c., to compel

appearance,..

442

442

443

or against corporations, a distringas,

3. appearance,.......

444

445

4. demurrer, which corresponds to that at law,.

5. pleas, either to the jurisdiction, to the person, or in bar,.

446

446

6. answer, which is given upon oath,......

446

but defendant may plead, answer and demur to different parts of

the same bill,..

446

7. exceptions to answer for insufficiency,..

448

8. amendments of bill, bill of supplement, of revivor, of interpleader, &c.,.. 448

9. hearing upon bill and answer,..

feigned issue and trial; question of law for opinion of common law

No 1. proceedings on a writ of right patent.

2. proceedings in an action of trespass in ejectment by original in the king's bench.
3. proceedings in an action of debt in the court of common pleas removed into the
king's bench on writ of error.

BOOK IV. OF PUBLIC WRONGS.

CHAPTER I.

JF THE NATURE OF CRIMES AND THEIR PUNISHMENT,.

general division of the subject,....

......

PAGE.

1-19

1

2

5

5

the king the proper prosecutor for public offences,.

a crime or misdemeanor is an act committed or omitted in violation of a public law

either forbidding or commanding it,.......

....

the two terms properly synonymous, though "crimes " is used to denote the

more serious offences,.

crimes are distinguished from civil injuries in that they are a breach and vio-

lation of the public rights due to the whole community in its social aggre-

gate capacity,...

every public offence a private wrong and something more,

punishments and their purpose,.

the right to inflict them for offences mala in se is by nature in every indi-

vidual,........

in a state of society the right is transferred to the sovereign power,..

this power may also punish acts mala prohibita,..

the rightfulness of capital punishment considered,..

the purpose of punishment is to prevent future offences,....

this may be either, 1. by the amendment of the offender himself; 2.

by deterring others by his example; 3. by depriving him of the

power to do future mischief,..

11

the measure of punishment must be determined by the wisdom of

the legislative power,....

12

punishments unreasonably severe are to be avoided,....
the certainty rather than the severity of punishments deters,
they should be graduated to the offence,....

16

17

17

2677

CHAPTER II.

OF THE PERSONS CAPABLE OF COMMITTING CRIMES,.....

want or defect of will alone excuses from punishment for forbidden acts,.

to constitute crime there must be both a vicious act and a vicious will,..

the will does not join with the act:

1. where there is a defect of understanding,...

.20-33

2. where there is understanding and will, but not called forth at the time, as
in case of offences by chance or ignorance,.

3. where the act is constrained by outward force or violence,.

a vicious will may be wanting in cases of:

1. infancy; in certain cases of omission of duty, &c., one under 21 not being

punishable,...

but for breaches of the peace, &c., he is responsible at 14,...

under 7 one cannot be guilty of felony....

between 7 and 14 he is presumed incapable, but evidence of malice may

be given,.....

2. idiocy or lunacy,...

3. drunkenness; which does not generally excuse,..

but may in cases where intent is the gist of the offence,.

4. misfortune or chance, without design,.

5. ignorance or mistake of fact,......

but ignorance of law is no excuse,.

6. compulsion, or inevitable necessity,..

as in case of wife coerced by husband,....

who, however, is not excused in murder, manslaughter or treason,.
nor in case of keeping a brothel,.

nor where she offends alone,...

threats or menances, which induce a fear of death or other bodily harm

may also excuse,......

also the necessity of choosing between two evils, as in case of homicide
by an officer in some cases where his authority is resisted,....
want of food, &c., not a legal excuse,.....

7. in case of the king, who is legally incapable of committing a crime,

VOL. II.-III

....

OR PRINCIPALS AND ACCESSORIES,.

CHAPTER III.

persons are guilty of crimes either as principals or accessories,....

a principal is either,

PAGR

.34-40

34

in the first degree, when he is the actor or absolute perpetrator of the crime, 34

in the second degree, when he is present aiding and a betting the fact to be

done,......

presence may be either actual or constructive,.

an accessory is one who neither commits the offence, nor is present, but is some

way concerned therein,....

....

....

34

34

35

35

1. accessories can only be in petit treason and felony; in high treasons and

misdemeanors all are principals,.

2. an accessory before the fact is one who, being absent at the time of the
crime committed, doth yet procure, counsel or command it to be done,.. 36

3. an accessory after the fact is one who, knowing a felony to have been com-

mitted, receives, relieves, comforts, or assists the felon,.

but the felony must be complete at the time of assistance given,

the wife is excused for concealing her husband,...........

4. accessories formerly liable to the same punishment as principals,.

and could not be tried till principal convicted........

but changes in these particulars are made by statutes,.

37

38

private vices not the object of municipal law, except as, by their evil example or

effects, they prejudice the community,.

offences punishable by the laws of England are those against, 1. God and his holy

religion; 2. the law of nations; 3. the king and his government; 4. the public,

or commonwealth; 5. the rights of individuals,.....

offences against God and religion are:

1. apostacy, punishable by certain incapacities and imprisonment,.

2. heresy, cognizable generally in spiritual courts,

3. reviling the ordinances of the church,......

or non-conformity to its worship,....

which is excused in case of dissenters,.

or professing the popish religion, &c.,....

the laws against papists considered,.....

60-62

4. blasphemy, or denial of the being or providence of the Almighty, or con-

tumelious reproaches of the Saviour,....

5. profane swearing and cursing,.......

6. pretending to use witchcraft or conjuration,.

7. religious impostures,......

...

8. simony, or the corrupt presentation of any one to an ecclesiastical benefice

for gift or reward,.

9. profanation of the Lord's day,

10. drunkenness,...

11. open and notorious lewdness or indecency,

including the having of bastard children,

CHAPTER V.

OF OFFENCES AGAINST THE LAWS OF NATIONS,...

.66-73

the law of nations is a system of rules deducible by natural reason and estab-

lished by universal consent, to regulate the intercourse between independ-

ent states,.

which in England is adopted by the common law as part of the law of the

land,...

offences against it are principally by whole states or nations, in which case

resort can only be had to war,.....

but when individuals violate it, the government under which they live should

take notice of the offence,.

the principal offences against the law of nations are:

1. violation of safe conducts or passports,..

2. infringement of the rights of ambassadors,...

3. piracy, or robbery and depredation upon the high seas,.

OF OFFENCES AGAINST THE LAWS OF NATIONS-(continued.)

which every nation may punish,....

certain other acts, including dealing in slaves, are statutory felonies,...72, 73

OF HIGH TREASON,.

CHAPTER VI.

......74-93

offences more immediately affecting the royal person, crown and dignity, are,

1. treason; 2. felonies injurious to the prerogative; 3. præmunire; 4. other mis-

prisions and contempts,.....

treason, under statute 25 Edw. III, may be either,

1. compassing or imagining the death of the king or queen consort, or their
eldest son and heir,......

by king is meant the king in possession,..

the compassing, &c., must be evidenced by an overt act,..

mere words not treasonable,......

.79-81

2. violating the king's companion, or eldest daughter unmarried, or wife of
king's eldest son and heir,.

3. levying war against the king in his realm,.

4. adhering to the king's enemies,..

5. counterfeiting the king's great or privy seal,..

6. formerly, counterfeiting the king's money, or importing counterfeit money,
was treason,...

7. slaying the chancellor, treasurer, or a judge, in their places, during their
offices,.....

subsequent statutory treasons relating to papists, coining, and the protestant

succession,....

.....85-92

punishment of treason in case of males formerly, to be drawn, hanged, em-

bowelled alive, beheaded, quartered; the head and quarters to be at

the king's disposal,....

now modified so that the hanging be until death,..
of females, formerly to be burned, now to be hanged,..

92

92n

93n

CHAPTER VII.

OF FELONIES INJURIOUS TO THE KING'S PREROGATIVE,.

....94-102

felonies are such offences as at common law occasioned forfeiture of lands or goods 94

usually punished by death, unless clergy allowed,.....

97

those injurious to the king's prerogative are, 1. relating to the coin; 2. against

the king's council; 3. serving a foreign prince; 4. embezzling the king's

armor or stores; 5. desertion from the king's forces,....

.98-102

CHAPTER VIII.

OF PRÆMUNIRE,..

103-118

præmunire, in its original sense, is the offence of adhering to the temporal power

of the pope, in derogation of regal authority,.

defending the right of the pretender, or denying the right of parliament to

limit the descent of the crown,....

117

treating of other matters by the peers of Scotland, when convened to elect

representatives, .....

117

undertaking unlawful subscriptions,..

117

assisting at unlawful marriage in royal family,

117

punishment of præmunire, to be out of king's protection, lands and goods for-

feited, and imprisoned at the king's pleasure,...

118

VOL. II.-II.

OF MISPRISIONS AND CONTEMPTS AFFECTING THE KING and Government,.......119–126

misprisions are such high offences as are under the degree of capital, but nearly

bordering thereon,

119

....

119

these are: I. negative, in concealing what ought to be revealed; 2. positive, in

doing something which ought not to be done,....

negative are:

1. misprision of treason, consisting in the bare knowledge and conceal-

ment of treason, without assent thereto,....

120

2. misprision of felony, in the concealment of a felony which a man knows,

but never assented to,.

121

3. concealment of treasure-trove,..

121

positive are: 1, maladministration on public trusts, punished usually by im-

peachment,....

121

including embezzlement of public moneys,

122

2. contempts against the king's prerogative, as, by refusing him assistance,

neglecting to join the posse comitatus when required, receiving pen-

sion from foreign power, &c.,.. . . .

....

3. Contempts against the king's person and government, as, by speaking

or writing against them, &c.,..

122

123

4. contempts against the king's title, as, by heedlessly denying his right,

or refusing to take the oaths for securing the government,.

5. contempts against his palaces or courts of justice, as, by assaults therein,

threats to a judge, obstructing the administration of justice, &c., 124-126

123

CHAPTER X.

OF OFFENCES AGAINST PUBLIC Justice,........

.127-141

crimes specially affecting the commonwealth are: 1. against public justice; 2. against

public peace; 3. against public trade; 4. against public health; 5. against public

peace and economy,.

128

.....

offences against public justice are,

1. embezzling, vacating or falsifying records or personating others in courts of

justice,

7. returning from transportation before term expired,......

8. taking reward under pretence of helping the owner to stolen goods,.

9. receiving stolen goods, knowing them to be stolen,.

10. compounding felony,...

...

....

128

128

129

129

130

131

132

132

132

133

11. common barretry, or the frequent exciting and stirring up suits and quarrels, 134

or suing for fictitious plaintiff, or without authority,.....

134

12. maintenance, or an officious intermeddling with a suit which no way concerns

one, by maintaining or assisting a party to prosecute or defend it,....... 135

13. champerty, or a bargain to carry on the suit of another at the bargainor's

expense, and share the subject-matter if it is successful,..

16. perjury, which is the wilfully swearing false in a judicial proceeding in a

matter material to the issue or point in question, by a person to whom

a lawful oath is administered,..

137

and subornation of perjury,

137

17. bribery, which is the taking of an undue reward by one concerned in the

administration of justice to influence his official conduct,.....

139

or the offering such bribe,.....

140

18. embracery, which is an attempt to influence a jury corruptly,

140

19. false verdict of jurors, formerly punished,......

20. negligence of public officers in the administration of justice,

21. oppression and partiality in public officers,...

22. extortion by public officers,..

140

140

141

141