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viz., (ordinarily) attachment, attachment with proclamations, commission of rebellion, serjeant-at-arms, and sequestration. IV. Appearance. V. Demurrer. VI. Plea. VII. Answer. VIII. Exceptions; amendments; 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 parliament....... .... Page 442-45h
CONTENTS OF THE
BOOK IV.*-OF PUBLIC WRONGS.
OF THE NATURE OF CRIMES, AND THEIR PUNISHMENT...... ........... Page 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 misdemeanour, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it......
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..
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; 2dly, that of duress per minas; 3dly, that of choosing the least pernicious of two evils where one is unavoidable; 4thly, that of want or hunger; which is no legitimate exPage 22-32 4. The king, from his excellence and dignity, is also incapable of doing wrong....
OF PRINCIPALS AND ACCESSORIES..........31 to 37 1. The different degrees of guilt in criminals are, I. As principals. II. As 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 misdemeanours, 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
OF OFFences against God and RELIGION... 42 to 65 1. Crimes and misdemeanours, cognizable by the laws of England, are such 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. Apostasy. For which the penalty is incapacity, and imprisonII. 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. 2dly, through Protestant dissenting. Penalty: suspended (conditionally) by the toleration act. 3dly, 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. 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: incapacity. IX. Sabbath-breaking. Penalty: fine. X. Drunkenness. Penalty: fine, or stocks. XI. Lewdness. Penalties: fine; imprisonment; house of correction....... Page 43-65 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 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: judgment of felony, without clergy..
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. 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.............87-92 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 relating to the coin, only to be drawn, and hanged till dead. males, in both cases, are to be drawn and burned alive........
OF FELONIES INJURIOUS TO THE KING'S PRE .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..
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 misdemeanours affecting the coinage may be also referred.) II. Conspiring or attempting to kill a privy counsellor. III. Serving foreign states, or enlisting soldiers for foreign service. IV. Embezzling the king's armour or stores. V. Desertion from the king's armies, by land or sea......................................... .98-102
OF PRÆMUNIRE. ............103 to 11" 1. Præmunire, in its original sense, is the offence of adhering to the temporal power of the pope, in derogation of the regal authority. Penalty: outlawry, forfeiture, and imprisonment: which hath since been extended to some offences of a different nature 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 a 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.... Page 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 imprisonment.. ...........120-121
4. Positive misprisions, or high misdemeanours and contempts, are, I. Maladministration of public trusts, which includes the crime of peculation. Usual penalties: banishment; fines; imprisonment; disability. II. Contempts against the king's prerogative. Penalty: fine and imprisonment. III. Contempts against his person and government. Penalty: fine, imprisonment, and infamous corporal punishment. IV. Contempts against his title. Penalties: fine and imprisonment; or, fine and disability V. Contempts against his palaces, or courts of justice. Penalties: fine; imprisonment; corporal punishment; loss of right hand; forfeiture..
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 misdemeanours 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. Maintenance. 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, or 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 the magistrates. XXII. Extortion of officers. Penalty, in both: imprisonment, fine, and sometimes forfeiture of the office.......
OF OFFENCES AGAINST THE PUBLIC PEACE.... 142 to 153 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 valuable thing, by letter. All these are felonies, without clergy. PenalIV. Destroying of turnpikes, &c. ties: 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 imprison. ment. 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...... .142-153
OF OFFENCES AGAINST PUBLIC TRADE...154 to 160 1. Offences against the public trade are,