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others through his example. III. By depriving him of the power to do future mischief.
Page 11 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. OF THE PERSONS CAPABLE OF COMMITTING CRIMES. 1. All persons are capable of committing crimes, unless there be in them a defect of will : for, to constitute a legal crime, there must be both a vicious will, and a vicious act.
20 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.
21 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; 3rdly, that of chusing the least pernicious of two evils, where one is unavoidable; 4thly, that of want or hunger; which is no legitimate excuse.
22-32 4. The king, from his excellence and dignity, is also incapable of doing wrong.
OF PRINCIPALS AND ACCESSARIES. 1. The different degrees of guilt in criminals are, I. As principals. II. As accessaries.
2. A principal in a crime is, I. He who commits the fact. II. He who is present at, aiding, and abetting, the commission. 34
3. An accessary 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.
35 4. Accessaries can only be in petit treason, and felony: in high treason, and misdemesnors, all are principals.
35 5. An accessary before the fact, is one who, being absent when the crime is committed, hath procured, counselled, or commanded another to commit it.
36 6. An accessary after the fact, is where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. Such accessary is usually entitled to the benefit of clergy; where the principal, and accessary before the fact, are excluded from it.
37 CHAPTER IV.
OF OFFENCES AGAINST GOD AND RELIGION. 1. Crimes and misdemesnors, cognizable by the laws of England, are such as more immediately offend, 1. God, and his holy religion. II. The law of nations. III. The king and his government. IV. The public, or common-wealth. V. Individuals. Page 42
2. Crimes more immediately offending God and religion, are, 1. 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 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.
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.
06 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 principally 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 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. 68-73
OF HIGH TREASON, 1. Crimes, and misdemesnors, more peculiarly offending the king and his government, are, I. High treason. II. Felonies injurious to the prerogative. III. Pramunire. 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. II. 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. adherence to the king's enemies. V. By connterfeiting 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. II). 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. OF FELONIES INJURIOUS TO THE KING'S PREROGATIVE. 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. 94
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 misdemesnors 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. Page 98-102
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.
103 2. Among these are, I. Importing popish trinkets. ll. 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 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 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 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. 115-117
CHAPTER IX. OF MISPRISIONS AND CONTEMPTS, AFFECTING THE KING AND
GOVERNMENT. 1. MISPRISIONS and contempts are all such high offences as are under the degree of capital.
119 2. These are, I. Negative, in concealing what ought to be revealed. II. Positive, in committing what ought not to be done. 119
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.
120-1 4. Positive misprisions, or high misdemesnors and conteinpts, are, I. Mal-administration 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.
CHAPTER X. OF OFFENCES AGAINST PUBLIC JUSTICE. 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 economy.
2. Offences, against the public justice, are, I. Embezzling or vacating records, and personating others in courts of justice. Penalty: judgment of felony, usually 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 misdemesnors 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.
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 magistrates. XXII. Extortion of officers.- Penalty, in both : imprisonment, fine, and sometimes forfeiture of the office. 128–141
OF OFFENCES AGAINST THE PUBLIC PEACE.
1. OFFENCES, against the public peace, are, I. Riotous assem