facias in detinue. III. Where money only is recovered; by writ of, 1st, capias ad satisfaciendum, against the body of the defendant; or, in default thereof, scire facias against his bail. 2dly, fieri facias, against his goods and chattels. 3rdly, levari facias, against his goods, and the profits of his lands. 4thly, elegit, against his goods, and the possession of his lands. 5thly, extendi facias, and other process, on statutes, recognizances, &c., against his body, lands, and goods CHAPTER XXVII. Page 412-425 tates Page on the oath of the party; which gives a jurisdiction in matters of account, and fraud. II. The mode of trial; by depositions taken in any part of the world. III. The mode of relief; by giving a more specific and extensive remedy than can be had in the courts of law as, by carrying agreements into execution, staying waste or other injuries by injunction, directing the sale of incumbered lands, &c. IV. The true construction of securities for money, by considering them mereiy as a pledge. V. The execution of trusts, or second uses, in a manner analogous to the law of legal es436-440 5. The proceedings in the court of Chancery (to which those in the Exchequer, &c. very nearly conform) are, I. Bill. II. Writ of subpoena; and perhaps, injunction. III. Process, of contempt; 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 Parlia 5. Public economy ANALYSIS. BOOK IV*.-OF PUBLIC WRONGS. 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 misdemeanor, 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, H. 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, principles CHAPTER II. 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 choosing 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. Page 21 22-33 33 34 to 37 7 OF PRINCIPALS AND ACCESSORIES 1. The different degrees of guilt in criminals are, I. As principals. II. As accessories 7 11 12 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 misdemeanors, 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 LIGION. CHAPTER IV. OF OFFENCES AGAINST GOD AND RE42 to 65 1. Crimes and misdemeanors, cogniza ble 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. 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 pu nishment. 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 CHAPTER V. Page 42 43-65 66 to 73 OF OFFENCES AGAINST THE LAW OF NATIONS 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: judg ment of felony, without clergy CHAPTER VI. OF HIGH TREASON 66 67 67 68-73 74 to 92 1. Crimes, and misdemeanors, more pe II. culiarly offending the king and his government, are, I. High treason 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. III. 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 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. Females, in both cases, are to be drawn and burned alive CHAPTER VII. 92 meanors 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 CHAPTER VIII. Page 98-102 103 to 117 OF PRÆMUNIRE 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 or abby 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. of purveyance or pre-emption. VIII. VII. Exertion Asserting a legislative authority in both or either house of Parliament. IX. Sending any subject a prisoner beyond sea. of allegiance and supremacy. X. Refusing the oaths Preaching, teaching, XI. speaking, in defence of the right of or advised 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. 103 115-117 OF MISPRISIONS AND CONTEMPTS, AF- 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 concealing what ought to be revealed. Positive, in committing what ought II. not to be done 3. Negative misprisions are, 1. 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 misdemeanors and contempts, are, I. Maladministration of public trusts, which includes the crime of peculation. 119 119 120-1 OF OFFENCES AGAINST PUBLIC JUS- TICE 1. Crimes especially affecting the commonwealth, 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 2. Offences, against the public justice, tenance. or 127 |