9. What are punishments? 7. Io. In whom was the right of punishing crimes against the law of nature vested by that law? 7, 8. II. What right has the temporal legislator to inflict discretionary penalties for crimes against the law of nature, or mala in se? 7, 8. 12. What right has he to inflict punishment for offences against the laws of society, or mala prohibita? 8. 13. When only is a legislature warranted in inflicting the punishment of death for offences of human institution? 9, 10. 14. Is it found by experience that capital punishments are more effectual in preventing crimes than lighter penalties? 10. 15. What is the end or final cause of human punishment? 11. 16. In what three ways is the end of human punishment effected? 11, 12. 17. By what must the measure of human punishment be determined? 12. 18. Why is not the lex talionis, or law of retaliation, in all cases an adequate or permanent rule of punishment? 12, 13. 19. Does the punishment of death with death proceed upon the principle of retaliation? 13, 14, 20. In what class of crimes is the lex talionis more proper to be inflicted than in any other; and, upon this principle, what was enacted by statute 17 Edw. III. c. 18; and how long was this the law? 14. 21. What are some general principles drawn from the nature and circumstances of the crime that may be of some assistance in allotting it an adequate punishment? 15, 16, 17. 22. Why is treason in conspiring the king's death punished with greater rigor than even actually killing any private subject? 15. 23. Why, generally, is a design to transgress not so flagrant an enormity as the actual completion of that design; and why then, in the case of a treasonable conspiracy, will the bare intention to kill the king deserve the highest degree of severity? 15. 24. Why is it in more cases capital for a servant to rob his master than for a stranger; what greater crime is it for a servant to kill his master than in another; why is it capital to steal above the value of twelvepence privately from one's person, and only transportation to carry off a load of corn from an open field; and why, in the island of Man, was it formerly only trespass to take away a horse or an ox, and capital misdemeanor to steal a pig or a fowl? 16. 25. What is the sentiment of the Marquis Beccaria as to severity of punishment? 17. 26. What does a multitude of sanguinary laws argue in a government? 17. 27. What is the evil of making no distincxion in the nature and gradations of punish ment? 18. 28. How many offences have been declared by act of parliament felonies without benefit of clergy: and why does so large a list, instead of diminishing, increase the number of offenders? 18, 19. CHAP. II.—Of the Persons capable of committing Crimes. 1. To what single consideration may all the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto be reduced? 20. 2. What two things must there be to constitute a crime against human laws? 21. 3. In what three cases does not the will join with act? 21. 4. What four species of defect in will fall under the first of these general needs; what two under the second; and what two under the third? 21, 22. 5. In what cases does the law privilege an infant under the age of twenty-one years; and in what under the age of fourteen only? 22. 6. By what is the capacity of doing ill measured, as the law has stood since the time of Edward the Third? 23. 7. At what age may an infant be guilty of felony; and though prima facie an infant shall be adjudged to be doli incapax under fourteen, yet with what proviso may he be convicted and suffer death under that age? 23, 24. 8. What is the rule of law as to lunatics which may be easily adapted also to idiots? 24. 9. If a man in his sound memory commit an offence, and before arraignment for it he become mad, why shall not he be arraigned for it; if after he have pleaded he becomes mad, why shall he not be tried; if after he be tried and found guilty, why shall not judgment be pronounced; and if after judgment, why shall execution be stayed? 10. But what if there be any doubt whether the party be compos or not; and what if a lunatic have lucid intervals of understanding? 25. II. How may madmen be restrained from going loose? 25. 12. Does drunkenness excuse a crime? 25, 26. 13. When is a man who commits an unlawful act by misfortune or chance excused from all guilt? 26, 27. 14. What ignorance or mistake excuses crime? 27. 15. What are the three species of necessity or compulsion which excuse crime? 28, 19. For what offences only is duress per minas an excuse? 30. 20. If a man be violently assaulted, and have no other possible means of escaping death but by killing an innocent person, whom may he kill? 30. 21. Where a man by the commandment of the law is bound to arrest another for any capital offence, or to disperse a riot, and resistance is made to his authority, whom may he even kill, and why? 31. 22. May a man in extreme want of food or clothing justify stealing either to relieve his present necessities? 31, 32. 23. What one case is there in which the law supposes an incapacity of doing wrongs from the excellence and perfection of the person? 32, 33. CHAP. III. -Of Principals and Accessaries. 1. WHAT are the two different degrees of guilt among persons that are capable of offending? 34. 2. In what two degrees may a man be principal in an offence? 34. 3. Must the principal in the second degree be actually immediately standing by, within sight or hearing of the fact? 34. 4. In cases of murder committed in the absence of the murderer by means which he had prepared beforehand, is the murderer principal in the first or second degree, or accessary; and why? 34, 35. 5. Who is an accesary; and of what two kinds are accessaries? 35. 35. 6. Why are all principals in high treason? 7. In what crimes may there be accessaries? 36. 8. Why are all principals in petit larceny, and in all crimes under the degree of felony? 36. 9. If a servant instigate a stranger to kill his master, is he guilty of being accessary to petty treason? 36. 10. Who is an accessary before the fact? 36, 37 11. If A. command B. to beat C., and B. beat him so that he die, is A. accessary to the murder? 37. 12. If A. command B. to burn C.'s house, and he, in so doing, commit a robbery, is A. accessary to the robbery? 37. 13. If A. command B. to poison C., and B. stab or shoot him, is A. accessary to the murder? 37. 14. Who is an accessary after the fact; and what two things are necessary to make one? 37, 38. 15. Does the relief of a felon in gaol, with clothes or other necessaries, make a man an accessary after the fact? 38. 16. Who are made accessaries (when the principal felony admits of accessaries) by the statutes 5 Anne, c. 31, and 4 Geo. I. c. 11? 38. 18. What if the parent assist or receive the child, the child the parent, the brother the brother, the master the servant, the servant the master, the husband the wife, or the wife the husband, who have any of them committed a felony? 38, 39. 19. How are accessaries to be treated, considered distinct from principals? 39. 20. For what four reasons, then, are such elaborate distinctions made between accessaries and principals? 39, 40. 21. In what cases are accessaries after the fact, by the statutes, still allowed the benefit of clergy; and in what cases is that benefit of clergy denied to the principals and accessaries before the fact? 39. 22. Is an acquittal of receiving or counselling a felon an acquittal of the felony itself? 1. OF what five species are crimes and misdemeanors which are either directly or by consequence injurious to civil society and therefore punishable by the laws of England? 42, 43. 2. Of such crimes and misdemeanors as more immediately offend Almighty God by openly transgressing the precepts of religion either natural or revealed, what constitutes that guilt in action which human tribunals are to censure? 43. 3. What eleven crimes are of this species? 43, 44, 50, 59, 60, 62-64. 4. What is apostasy; and in whom only can it take place? 43 5. As a penalty for apostasy, what is enacted by statute 9 & 10 W. III. c. 32? 44. 6. What is heresy; what was the writ de hæretico comburendo; wl at did the statute 29 Car. II. enact as to heresy; and, as a peralty for heresy, what is enacted by the statute 9 & 10 W. III.? 44-46, 49, 50. 7. Of what two kinds are the offences against religion which affect the established church? 50. 8. What are the penalties for reviling the ordinances of the church by statutes 1 Edw. VI. c. 1, and 1 Eliz. c. 1 and 2? 50, 51. 9. Of what two classes are non-conformists; what penalties are imposed upon those of the first class by statutes 1 Eliz. c. 2, 23 Eliz. c. I., and 3 Jac. I. c. 4; and what are suspended by the statute 1 W. and M. st. 1, c. 18, commonly called the toleration act, confirmed by statute 10 Anne, c. 2, from which of those of the second class, with what three provisos? 52, 53. 10. What are dissenting teachers to subscribe in order to be exempted from the penalties of the statutes of Car. II. 13 & 14, c. 4, 15, c. 6, 17, c. 2, and 22, c. 1; and from what particular penalties of the first and third of those statutes (with what exceptions) 17. What if one wound another mortally, and, before death ensue, a person assist or receive the delinquent? 38. are they exempted by subscribing the declaration of the act 19 Geo. III.? 53, 54. II. What, by the same statute 1 W. and M., if any person shall wilfully, maliciously, or contemptuously disturb any congregation assembled in any church or permitted meet ing-house, or shall misuse any preacher or teacher there? 54. 12. But what does the statute 5 Geo. I. c. 4 enact as to any mayor's or principal magisrate's appearing at any dissenting meeting? 54. 13. Why do not the reasons for a general toleration of Protestant dissenters hold equally strong as to papists? 54, 55. 14. Into what three classes may papists be divided? 55. 15. What are the penalties and disabilities of the first class of papists? 55. 16. What if any person send another abroad to be educated in the popish religion, or to reside in any religious house abroad for that purpose, or contribute to his maintenance when there? 55. 17. What if these errors be aggravated by apostasy or perversion? 55. 18. To what additional disabilities, penalties, and forfeitures is the second class of papists subject? 56. 19. What is the effect of refusing to make the declaration against popery enjoined by statute 30 Car. II. st. 2, when tendered by the proper magistrate? 56. 20. What are the penalties against the third class of papists; and of what are all persons harboring them guilty? 57. 21. Are these laws enforced now; and whence is their origin? 57. 22. In respect of whom is the statute 11 & 12 W. III. repealed to what extent by the statute 18 Geo. III. c. 60? 58. 23. But now, by statute 31 Geo. III. c. 32, from what Roman Catholics are all these restrictions and penalties removed; and how are Roman Catholic ministers, schoolmasters, and congregations tolerated? 58. 24. What do the corporation and test acts enact? 58, 59. 25. To whom does the statute 7 Jac. I. c. 2 apply a like test? 59. 26. What is blasphemy; and how is it punishable at common law? 59. 27. How are profane and common swearing and cursing punishable, by the statute 19 Geo. II. c. 21; and what is enacted against profanity on the stage, by statute 3 Jac. I. c. 21? 59, 60. 28. What is witchcraft, conjuration, enchantment, or sorcery; and what is declared as to it by statute 9 Geo. II. c. 5? 60-62. 29. How is the pretence to using witchcraft, telling fortunes, or discovering stolen goods by skill in the occult sciences, punished? 62. 30 Who are religious impostors; and how are they punishable? 62. 32. What other corrupt elections and resignations are punished by the same statute; and how? 63. 33. What is Sabbath-breaking; and how are what instances of it punishable by statutes 27 Hen. VI. c. 5 as to fairs or markets, 1 Car. I. c. I as to unlawful exercises, and 29 Car. II. c. 7 as to work? 63, 64. 34. How is drunkenness punished by statute 4 Jac. I. c. 5? 64. 35. When is lewdness an indictable offence; and how is it punished? 64, 65. 36. In what event may who be punished for having bastard children, by statute 7 Jac. I. c. 4; and how? 65. CHAP. V.-Of Offences against the Law of Nations. I. WHAT is the law of nations; and upon what principle is it founded? 66. 2. By what is this law enforced in England? 67. 3. What is the remedy for offences against this law by whole states and nations? 68. 4. What if the individuals of any state violate this law? 68. 5. What are the three principal offences against this law animadverted on as such by the municipal laws of England? 68. 6. How may the violation of safe-conducts, or passports expressly granted by the king or his ambassadors to the subjects of a foreign power in time of mutual war, be punished; strangers at sea, or in port, by statute 31 and what is enacted as to offences against Hen. VI. c. 4? 68-70. 7. What is enacted by the statute 7 Anne, C. 12 in order to enforce the law of nations as to the rights of ambassadors? 70, 71. 8. What is the offence of piracy by common statute of treasons, 25 Edw. III. c. 2; and law; how only is it punishable since the what offences are made piracy by statutes 11 & 12 W. III. c. 7, 8 Geo. I. c. 24, and 18 Geo. II. c. 30? 71-73. CHAP. VI.-Of High Treason. I. INTO what four kinds may those offences be distinguished which more immediately affect the royal person, his crown or dignity, and which are in some degree a breach of the duty of allegiance, whether natural and innate, or local and acquired by residence? 74. 2. What is treason, proditio; how is the appellation generally used by the law; and of what two kinds is treason? 74, 75. 3. Under what seven distinct branches are all kinds of high treason comprehended by the statute 25 Edw. III. c. 2? 76, 81-84. 4. Is a queen regent or a king consort within the words of the act; is a king de facto and not de jure; is a king de jure and not de facto; what is the true construction of the statute II Hen. VII. c. 1; and is a king who has resigned his crown, abdicated his government, or subverted the constitution, any longer the object of treason? 76–78. 31. Why is simony to be considered as an offence against religion; who are punishable for it by statute 31 Eliz. c. 6; and how? 62. 5. What is compassing or imagining the death of the king; and how must this act of the mind be demonstrated before it can possibly fall under any judicial cognizance? 78, 79. statute 1 Mar. st. 2, c. 6; and what one in consequence of the former, with regard to importing coin, by statute 1 & 2 P. and M. c. 11? 89. 27. Is it high treason to counterfeit foreign money taken here by consent? 89. 28. What instances of falsifying the coin are declared to be high treason by statutes 5 Eliz. c. II, and 18 Eliz. c. I? 90. 6. What are held to be overt acts of treason in imagining the king's death? 79. 7. Are words spoken, treason? 80. 8. Are words written, treason? 81. 9. What does the phrase "the king's com- 29. What offences, as to implements of and panion" mean, to violate whom is declared preparations for coinage, are declared to be by the statute to be the second species of high treason by statute 8 & 9 W. III. c. 26, treason; and when is it treason in both par-made perpetual by 7 Anne, c. 25; and within ties? 81. what times must all prosecutions on this act be commenced? 90. 10. What is held as to the violation of a queen or princess dowager; and why? 81. 11. What offences of taking up arms does the third species of treason include? 81, 82. 12. To what does an insurrection to pull down all enclosures, all brothels, and the like, amount; and to what does a tumult to pull down a particular house or lay open a par ticular enclosure? 82. 13. What if two subjects quarrel and levy war against each other? 82. 14. When does a bare conspiracy to levy war amount to treason? 82. 15. How must the fourth species of treason, or that of adherence to the king's enemies, be proved? 82. 16. In what light is giving assistance to foreign pirates or robbers treason? 83. 17. Under what description is adherence or aid to our own fellow-subjects in actual rebellion at home treason? 83. 18. What is held as to relieving a rebel fled out of the kingdom; and why? 83. 19. In what events shall a man's joining 30. What species of coining is made high treason by statute 15 & 16 Geo. II. c. 28; but in what case shall the offender be pardoned? 91. 31. What offences are made high treason with a view to the security of the Protestant succession, with regard to the late Pretender or his sons, by statutes 13 & 14 W. III. c. 3, and 17 Geo. II. c. 39, and generally by statutes i Anne, st. 2, c. 17, and 6 Anne, c. 7? 91, 92. 32. What offences are made high treason by the statute 33 Geo. III. c. 27, called the traitorous correspondence act; and what else does the statute enact? 92. 33. Of what six parts does the punishment for high treason consist; but what parts may be discharged by the king? 92, 93. 34. How is the punishment milder for male offenders in case of coining? 93. 35. But is the punishment of females the same in treasons of every kind? 93. with either rebels or enemies, in the king- CHAP. VII.-Of Felonies injurious to the dom, be excused? 83. 20. To what offence does the taking wax which bears the impression of the great seal off from one patent and affixing it on another amount? 83, 84. 21. What money is meant by the statute to counterfeit which is the sixth species of treason? 84. 22. Which of the king's officers of justice are within the statute which declares the "slaying of them in their places doing their offices" treason? 84. 23. What does the act say as to "other like cases of treason or constructive treasons? 85. 24. Under what three heads are comprised the high treasons created by subsequent statutes and not comprehended under the description of statute 25 Edw. III.? 87. 25. In what three cases relating to papists is the offence of high treason declared to be committed, by the statutes 5 Eliz. c. 1, 27 Eliz. c. 2, and 3 Jac. I. c. 4; and what is the reason of distinguishing these overt acts of popery from all others which were considered in a preceding chapter as spiritual offences? 87, 88. 26. With regard to treasons relative to the coin or other royal signatures, what two offences are declared to be high treason by King's Prerogative. I. WHAT is felony, in the general acceptation of our English law? 94, 95. 2. What is the etymology of the word, according to Sir Henry Spelman; how is this etymology confirmed by the feodal writers; and wherefore are suicide, homicide, petit larceny, robbery, rape, and treason, felonies by the ancient law? 95-97. 3. As there are felonies without capital punishment, may capital punishments be in'flicted where the offence is no felony? 97: 4. But to what usage do the interpretations of the law now conform, and, in compliance therewith, in what light does the present commentator intend to consider felony? 98. 5. Of what five kinds are such felonies as are more immediately injurious to the king's prerogative? 98. 6. Of the various offences relating to the coin, as well misdemeanors as felonies, declared by a series of statutes, what are the several penalties for melting down sterling money, by statute 9 Edw. III. st. 2; for melting down current silver money, by statute 13 & 14 Car. II. c. 31; for importing false money; for forging any foreign coin, although it be not made current here by proclamation; for having to do with clippings or filings of the coin, for blanching copper for sale, or dealing in any malleable composition resembling gold, or buying, at a less rate than it imports to be of, any counterfeit or diminished milled money of this kingdom, not being cut in pieces, (an operation which is in what case directed, and in what cases allowed and required, by certain statutes to be performed;) for tendering any counterfeit coin, knowing it to be so; for doing so, having more in custody, or repeating the offence within ten days after; and for counterfeiting copper halfpence or farthings, or dealing in it (not being cut in pieces or melted) at a less value than it imports to be of? 98-100. 7. What is enacted by statutes 3 Hen. VII. c. 14, and 9 Anne, c. 16, as to felonies against the king's council? 100, 101. 8. In what cases is it made felony to serve foreign states, by statutes 3 Jac. I. c. 4, 9 Geo. H. c. 30, and 29 Geo. II. c. 17? 101. 9. What is enacted by the statute 31 Eliz. c. 4 as to felony in embezzling the king's armor or warlike stores; what effect upon this statute has that of 22 Car. II. c. 5; how are other inferior embezzlements and misdemeanors punished by several statutes; and what is enacted by statute 12 Geo. III. c. 24? IOI, 102. 10. What is enacted by statutes 18 Hen. VI. c. 19, and 5 Eliz. c. 5, as to desertion from the king's armies in time of war, | whether by land or sea; what effect upon this statute has that of 2 & 3 Edw. VI. c. 2; and how are other inferior military offences punishable by the same statutes? 102. CHAP. VIII.-Of Pramunire. 1. WHY is the offence of pramunire so called; and whence did it take its original? 103. 2. What does the statute of præmunire, 16 Ric. II. c. 5, enact; and who are also subjected to the penalties of præmunire by the statute 2 Hen. IV. c. 3? 112. 3. What offences are made liable to the pains of pramunire by the statutes of Hen. VIII. and Eliz.? 115. 4. To what penalty is the importing or selling mass-books or other popish books liable, by statute 3 Jac. I. c. 5, % 25? 115, 5. To what twelve other offences, some of which bear no relation to the original offence, have the penalties of præmunire been applied by various statutes? 116, 117. 6. How is the punishment of præmunire shortly summed up by Sir Edward Coke: except in the case of transgressing what statute may the king, by his prerogative, remit the whole or any part of the punish ment; and what does the statute 5 Eliz. c. I provide as to the consequences of an attaint by præmunire? 117, 118. CHAP. IX.-Of Misprisions and Contempts affecting the King and Government. 1. WHAT are misprisions (mespris) and contempts; and of what two sorts? 119. BOOK IV.-29. 2. Of what three kinds are negative mis· prisions? 120, 121. 3. What is misprision of treason; but what circumstances make this offender guilty of high treason? 120. 4. What positive misprision of treason is created by statute 13 Eliz. c. 2? 120. 5. What is the punishment for misprision of treason? 120. 6. What is misprision of felony; and how is it punished by the statute Westm. 1, 3 Edw. I. c. 9? 121. 7. What is the punishment for misprision of treasure-trove? 121. 8. Of what five kinds are positive misprisions, or contempts, and high misdemeanors, the last four consisting, in general, of such contempts of the executive magistrate as demonstrate themselves by some arrogant and undutiful behavior towards the king and government? 121-124. 9. What offences are included under the misprision of the mal-administration of such high officers as are in public trust and employment; and how is it usually punished? 121-122. IO. What are contempts against the king's prerogative? 122. 11. Whose duty is it, and when, to join the posse comitatus, or power of the county, according to the statute 2 Hen. V. c. 8? 122. 12. How are contempts against the king's prerogative punished? 122. 13. What are contempts and misprisions against the king's person and government; and how may they be punished? 123. 14. What are contempts against the king's and how are they punished? 123. title not amounting to treason or præmunire; 15. What offence is it, and how punishable by statute 13 Eliz. c. I, to maintain that the parliament ought not to direct the right of common laws of this realm not altered by the crown of England? 123. 16. What are the penalties inflicted by statute 1 Geo. I. st. 2, c. 13, for refusing or neglecting to take the oaths appointed by and yet acting or serving in a public office, statute for better securing the government, place of trust, or other capacity, for which the said oaths are required to be taken; and what if members, on the foundation of any college in the two universities, who by this statute are bound to take the oaths, do not register a certificate thereof in the college register within one month after? 123, 124. 17. What are contempts against the king's palaces or courts of justice; and how are they, a rescue from them, and an affray or riot near them, but out of their actual view, punishable? 124, 125. 18. How are threatening or reproachful words to any judge sitting in the courts punishable; and how is an affray or contemptuous behavior in the inferior courts of the king? 126. 19. How are such as are guilty of any injurious treatment to those who are immedi1869 |