OF THE SEVERAL MODES OF PROSECUTION. I. Presentment-Inquest of office. II. Indictment by a grand jury. Plea to the jurisdiction-Demurrer-Plea in abatement-Special pleas in bar; auterfois acquit; auterfois convict; auterfois attaint; and Trial-by parliament-by jury-Adjournment of-Copies of indictment, &c., in high treason-Copies of depositions in felony-of indictment and information in other cases-Challenges, peremptory and for cause -Evidence-Number of witnesses-Accomplices-Husband and wife -Depositions-Presumptions-Confessions-Dying declarations— Witnesses to character-Reservation of questions of law-Proceedings at the trial-Verdict-Conviction-Previous conviction of felony- Costs of prosecution-Restitution of stolen property-Speaking with Arrest of judgment-Pardon-Judgments generally-Fines-Consequences I. By avoiding the judgment-without writ of error-by writ of error- by act of parliament.- -II. By avoiding its execution-by reprieve INTRODUCTION. SECTION I. OF LAWS IN GENERAL. Definition of law-Law of nature-Law of nations-Municipal law-Regular forms of government-The British Constitution-Duty of the supreme power to make laws-The several parts of every law. LAW, in its general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey. This is the general signification of law; and in those creatures that have neither the power to think nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience. But laws, in their more con fined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behaviour. Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him on whom he depends, as the rule of his conduct. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker's will. This will of his Maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain laws for the perpetual direction of that motion ; B so, when he created man, and endued him with free-will to conduct himself in all parts of life, he laid down certain rules, whereby that free-will is regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws. These rules are the eternal, immutable laws of good and evil, to which the Creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. For he has so intimately connected, so inseparably interwoven, the laws of eternal justice with the happiness of each individual, that the latter cannot be obtained but by observing the former and if the former be punctually obeyed, it cannot but induce the latter. This rule of obedience may thus be reduced to one paternal precept, "that man should pursue his own true and substantial happiness." This is the foundation of what we call ethics or natural law; which, being coeval with mankind, is superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to its precepts; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original. : If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other rules than those prescribed by the law of nature. Neither could any other possibly exist: for a law always supposes some superior who is to make it; and in a state of nature we are all equal, without any superior but Him who is the author of our being. But man was formed for society; and is neither capable of living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a second kind of law to regulate this mutual intercourse, called the law of nations; which, as none of these states will acknowledge a superiority in the other, cannot be dictated by any; but depends entirely upon the rules of natural law, or upon mutual agreements between these several communities in the construction of which we have no other rule to resort to but the law of nature; being the only one to which all communities are equally subject and therefore the civil law very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium. Thus much I think it necessary to premise concerning the law of nature, and the law of nations, before treating of the principal subject of this section, municipal law; that is, the rule by which par ticular districts, communities, or nations are governed; and which is usually defined to be "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibit"ing what is wrong." It is a rule: not a transient, sudden order from a superior, to or concerning a particular person; but something permanent, uniform, and universal. An act of the legislature to attaint Titius of high treason, does not enter into the idea of a municipal law: it is spent upon Titius only, and is rather a sentence than a law. But an act to declare that the crime of Titius shall henceforth be deemed high treason, has permanency, uniformity, and universality, and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not, as we see proper: our obedience to the law depends not upon our approbation, but upon the maker's will. It is also called a rule, to distinguish it from a compact or agreement, for a compact is a promise proceeding from us, law is a command directed to us. Municipal law is also "a rule of civil conduct." The law of nature is the rule of our moral conduct. Municipal law regards man as a citizen, and bound to other duties towards his neighbour than those prescribed by the law of nature: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more, than that he do contribute, on his part, to the subsistence and peace of the society. It is likewise "a rule prescribed." Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to those who are to obey it. All laws should be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term "prescribed." But, further: municipal law is "a rule of civil conduct prescribed by the supreme power in a state;" it being obviously requisite to the very essence of a law, that it be made by the supreme power, the person or body in whom the sovereignty of the state is lodged. This may justify a short inquiry concerning the nature of society and civil government, the only true and natural foundations of which are the wants and fears of individuals. For though society may not have had its formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together, that demonstrates the necessity of this union, and is, therefore, the solid and natural foundation, as well as the cement, of civil society. This |