No. III.

the bond and con

thousand seven hundred and fifty-four, at Banbury in this county, the said Charles by his writing obligatory did acknowledge himself to be bound to the said William in the said sum of two hundred pounds of lawful money of Great Britain, to be paid to the said William whenever after the said Charles should be thereto required; nevertheless the said Charles (although often required) hath not paid to the said William the said sum of two hundred pounds, nor any part thereof, but hitherto altogether hath refused, and doth still refuse, to render the same; wherefore he saith that he is injured and hath damage to the value of ten pounds: and thereupon he brings suit, [and good proof] AND he brings here into court the writing Profert in curas obligatory aforesaid; which testifies the debt aforesaid in form aforesaid; the date whereof is the day and year before mentioned. AND the afore- Defence said Charles, by Richard Price his attorney, comes and defends the force and injury when [and where it shall behoove him,] and craves oyer of the said writing obligatory, and it is read unto him [in the form aforesaid:] he likewise craves oyer of the condition of the said writing, and it is Oyer prayed of read unto him in these words: "The condition of this obligation is such, dition, vizy to that if the above-bounden Charles Long, his heirs, executors, and adminis- perform an trators and every of them, shall and do from time to time, and at all award. times hereafter, well and truly stand to, obey, observe, fulfil, and keep the award, arbitrament, order, rule, judgment, final end, and determination of David Stiles, of Woodstock, in the said county, clerk, and Henry Bacon, of Woodstock aforesaid, gentleman, (arbitrators indifferently nominated and chosen by and between the said Charles Long and the above-named William Burton, to arbitrate, award, order, rule, judge, and determine of all and all manner of actions, cause or causes of action, suits, plaints, debts, duties, reckonings, accounts, controversies, trespasses, and demands whatsoever had, moved, or depending, or which might have been had, moved, or depending, by and between the said parties, for any matter, cause, or thing, from the beginning of the world until the day of the date hereof,) which the said arbitrators shall make and publish, of or in the premises, in writing under their hands and seals, or otherwise by word of mouth in the presence of two credible witnesses, on or before the first day of January next ensuing the date hereof; then this obligation to be void and of none effect, or else to be and remain in full force and virtue." WHICH being read and heard, the said Charles prays leave to imparl therein Imparance. here until the octave of the Holy Trinity; and it is granted unto him. The same day is given to the said William Burton, here, &c. At which day, to wit, on the octave of the Holy Trinity, here come as well the said William Burton as the said Charles Long, by their attorneys aforesaid; and hereupon the said William *prays that the said Charles may answer to his writ [*xxiii. and count aforesaid. And the aforesaid Charles defends the force and in- Plea: No such award. jury, when, &c., and saith that the said William ought not to have or maintain his said action against him; because he saith, that the said David Stiles and Henry Bacon, the arbitrators before named in the said condition, did not make any such award, arbitrament, order, rule, judgment, final end, or determination, of or in the premises above specified in the said condition, on or before the first day of January, in the condition aforesaid above mentioned, according to the form and effect of the said condition: and this he is ready to verify. Wherefore he prays judgment, whether the said William ought to have or maintain his said action thereof against him [and that he may go thereof without a day.] AND the aforesaid William saith that for any Replication, ting forth an thing above alleged by the said Charles in pleadings he ought not to be pre- a ward. cluded from having his said action thereof against him; because he saith, that after the making of the said writing obligatory, and before the said first day of January, to wit, on the twenty-sixth day of December, in the year aforesaid, at Banbury aforesaid, in the presence of two credible witnesses, namely, John Dew, of Chalbury, in the county aforesaid, and Richard Morris, of Wytham, in the county of Berks, the said arbitrators undertook the charge of the award, arbitrament, order, rule, judgment, final end, and determination aforesaid, of and in the premises specified in the condition aforesaid; and then and there made and published their award by word of mouth in manner and form following: that is to say, the said arbitrators did award, order, and adjudge that he the said Charles Long should forthwith pay to the said William Burton the sum of seventyfive pounds, and that thereupon all differences between them at the time of the making the said writing obligatory should finally cease and determine. An the said William further saith that although he afterwards, to

Continuance.

No. III.

Protestanilo.

Demurrer.

I.

murrer.

wit, on the sixth day of January, in the year of our Lord one thousan 1 seven hundred and fifty-five, at Banbury aforesaid, requested the said Charles to pay to him the said William the said seventy-five pounds, yet (by protestation that the said Charles hath not stood to, obeyed, observed, fulfilled, or kept any part of the said award, which by him the said Charles ought to have been stood to, obeyed, observed, fulfilled, and kept) for further plea therein he saith, that the said Charles the said seventy-five pounds to the said William hath not hitherto paid; and this he is ready to verify. Wherefore he prays judgment, and his debt aforesaid, together with his damages occasioned by the detention of the said debt, to be ad judged unto him, &c. AND the aforesaid Charles saith, that the plea aforesaid by him the said William in manner and form aforesaid above in his replication pleaded, and the matter in the same contained, are in no wise *xxiv.] sufficient in *law for the said William to have or maintain his action aforesaid thereupon against him the said Charles; to which the said Charles hath no necessity, neither is he obliged, by the law of the land, in any manner to answer; and this he is ready to verify. Wherefore, for want of a sufficient replication in this behalf, the said Charles, as aforesaid, prays judgment, and that the aforesaid William may be precluded from having his action aforesaid thereupon against him, &c. AND the said Charles, acJauses of demur- cording to the form of the statute in that case made and provided, shows to the court here the causes of demurrer following, to wit: that it doth not appear, by the replication aforesaid, that the said arbitrators made the same award in the presence of two credible witnesses on or before the said first day of January, as they ought to have done, according to the form and effect of the condition aforesaid; and that the replication aforesaid is unJoinder in de certain, insufficient, and wants form. AND the aforesaid William saith, that the plea aforesaid by him the said William in manner and form aforesaid above in his replication pleaded, and the matter in the same contained, are good and sufficient in law for the said William to have and maintain the said action of him the said William thereupon against the said Charles; which said plea, and the matter therein contained, the said William is ready to verify and prove as the court shall award: and because the aforesaid Charles hath not answered to that plea, nor hath he hitherto in any manner denied the same, the said William as before prays judgment, and his debt aforesaid, together with his damages occasioned by the detention of that debt, to be adjudged unto him, &c. AND BECAUSE the justices here will advise themselves of and upon the premises before they give judgment thereupon, a day is thereupon given to the parties aforesaid here, until the morrow of All Souls, to hear their judgment thereupon, for that the said justices here are not yet advised thereof. At which day here come as well the said Charles as the said William, by their said attorneys; and because the said justices here will farther advise themselves of and upon the premises before they give judgment thereupon, a day is farther given to the parties aforesaid here until the octave of Saint Hilary, to hear their judg ment thereupon, for that the said justices here are not yet advised thereof. At which day here come as well the said William Burton as the said Charles Long, by their said attorneys. WHEREFORE, the record and matters aforesaid having been seen, and by the justices here fully understood, and all and singular the premises being examined, and mature deliberation being heplication in had thereupon; for that it seems to the said justices here that the said plea of the said William Burton before in his replication pleaded, and the matter therein contained, are not sufficient in law to have and maintain the action of the aforesaid William against the aforesaid Charles; THEREFORE IT IS CONSIDERED, that the aforesaid William *take nothing by his writ afore said, but that he and his pledges of prosecuting, to wit, John Doe and Querens nihil ca- Richard Roe, be in mercy for his false complaint; and that the aforesaid Charles go thereof without a day, &c. AND IT IS FARTHER CONSIDERED, that the aforesaid Charles do recover against the aforesaid William eleven pounds and seven shillings, for his costs and charges by him about his defence in this behalf sustained, adjudged by the court here to the said Charles with his consent, according to the form of the statute in that case made and provided: and that the aforesaid Charles may have execution thereof, &c.

Continuances.

Opinion of the conrt

sufficient.

*xxv.]

Jedgment for the defendant.

it per breve.

Amercement.

Custs.

x-cution.

General error as*gned

AFTERWARDS, to wit, on Wednesday next after fifteen days of Easter in this same term, before the Lord the King, at Westminster, comes the aforesaid William Burton, by Peter Manwaring, his attorney, and saith, that in the record and process aforesaid, and also in the giving of the judgment in the plaint aforesaid, it is manifestly erred in this, to wit, that the judgment

No III

errors.

afresh.

aforesaid was given in for 1 aforesaid for the said Charles Long against the aforesaid William Burton, where, by the law of the land, judgment should have been given for the said William Burton against the said Charles Long; and this he is ready to verify. AND the said William prays the writ of the Writ of scire said Lord the King, to warn the said Charles Long to be before the said Lord facias, to her. the King, to hear the record and process aforesaid; and it is granted unto him; by which the sheriff aforesaid is commanded that by good [and lawful men of his bailiwick] he cause the aforesaid Charles Long to know that he be before the Lord the King from the day of Easter in five weeks, wheresoever [he shall then be in England,] to hear the record and process aforesaid, if it shall have happened that in the same any error shall have intervened;] and further [to do and receive what the court of the Lord the King shall consider in this behalf.] The same day is given to the aforesaid William Burton. AT WHICH DAY before the Lord the King, at Westminster, Sheriff's return Scire jeci. comes the aforesaid William Burton, by his attorney aforesaid; and the sheriff returns, that by virtue of the writ aforesaid to him directed he had caused the said Charles Long to know that he be before the Lord the King at the time aforesaid in the said writ contained, by John Den and Richard Fen, good, &c., as by the same writ was commanded him; which said Charles Long, according to the warning given him in this behalf, here cometh by Thomas Webb, his attorney. WHEREUPON the said William Error as sign saith, that in the record and process aforesaid, and also in the giving of the judgment aforesaid, it is manifestly erred, alleging the error aforesaid by him in the form aforesaid alleged, and prays that the judgment aforesaid for the error aforesaid, and others, in the record and process aforesaid being may be reversed, annulled, and entirely for nothing esteemed, and that the said Charles *may rejoin to the errors aforesaid, and that the court of the [*XXVI. said Lord the King here may proceed to the examination as well of the record and process aforesaid as of the matter aforesaid above for error assigned. AND the said Charles saith, that neither in the record and Rejoinder. In process aforesaid, nor in the giving of the judgment aforesaid, in any thing is there erred; and he prays in like manner that the court of the said Lord the King here may proceed to the examination as well of the record and process aforesaid as of the matters aforesaid above for error assigned. AND Continuance. BECAUSE the court of the Lord the King here is not yet advised what judgment to give of and upon the premises, a day is thereof given to the parties aforesaid until the morrow of the Holy Trinity, before the Lord the King, wheresoever he shall then be in England, to hear their judgment of and upon the premises, for that the court of the Lord the King here is not yet advised thereof. At which day before the Lord the King, at Westminster, come the parties aforesaid by their attorneys aforesaid. WHEREUPON, as Opinion of the well the record and process aforesaid, and the judgment thereupon given, as the matters aforesaid by the said William above for error assigned, being seen, and by the court of the Lord the King here being fully understood, and mature deliberation being thereupon had, for that it appears to the court of the Lord the King here, that in the record and process aforesaid, and also in the giving of the judgment aforesaid, it is manifestly erred, THEREFORE IT IS CONSIDERED that the judgment aforesaid, for the error afore- Judgment of the said, and others, in the record and process aforesaid, be reversed, annulled, reversed. and entirely for nothing esteemed; and that the aforesaid William recover Judgment for the against the aforesaid Charles his debt aforesaid, and also fifty pounds for his plaintiff. damages which he hath sustained, as well on occasion of the detention of the said debt, as for his costs and charges unto which he hath been put Costs. about his suit in this behalf, to the said William with his consent by the court of the Lord the King here adjudged. And the said Charles in mercy. Defendant

nullo est erratum

court.

Common Pleas

amerced.

SECT. 7. PROCESS OF EXECUTION.

GEORGE the Second, by the grace of God, of Great Britain, France, and Writ of capias as Ireland King, Defender of the Faith, and so forth, to the sheriff of Oxford-satisfaciendum shire, greeting. We command you that you take Charles Long, late of Burford, gentleman, if he may be found in your bailiwick, and him safely keep, so that you may have his body before us in three weeks from the day of the Holy Trinity, wheresoever we shall then be in England, to satisfy William Burtor for two hundred pounds debt, which the said William Burton hath lately recovered against him in our court before us, and also fifty pounds, which were adjudged in our said court before us to the said William [xxvii Burton for his damages which he hath sustained, as well by occasion of the

detention of the said debt as for his costs and charges to which he hath been put about his suit in this behalf, whereof the said Charles Long is convicted, as it appears to us of record; and have you there then this writ. WITNESS Sir Thomas Denison," Knight, at Westminster, the nineteenth day of June, in the twenty-ninth year of our reign.

By virtue of this writ to me directed, I have taken the body of the within-named Charles Long, which I have ready before the Lord the King at Westminster, at the day within written, as within it is commanded me.

GEORGE the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriff of Oxfordshire, greeting. WE command you that of the goods and chattels within your bailiwick of Charles Long, late of Burford, gentleman, you cause to be made two hundred pounds debt, which William Burton lately in our court before us at Westminster hath recovered against him, and also fifty pounds, which were adjudged in our court before us to the said William for his damages which he hath sustained, as well by occasion of the detention of his said debt as for his costs and charges to which he hath been put about his suit in this behalf, whereof the said Charles Long is convicted, as it appears to us of record; and have that money before us in three weeks from the day of the Holy Trinity, wheresoever we shall then be in England, to render to the said William of his debt and damages aforesaid; and have there then this writ. WITNESS Sir Thomas Denison, Knight, at Westminster, the nineteenth day of June, in the twenty-ninth year of our reign.

By virtue of this writ to me directed, I have caused to be made of the goods and chattels of the within-written Charles Long two hundred and fifty pounds, which I have ready before the Lord the King at Westminster, at the day within written, as it is within commanded me.

COMMENTARIES

ON

THE LAWS OF ENGLAND.

BOOK THE FOURTH.

Of Public Wrongs.

CHAPTER I.

OF THE NATURE OF CRIMES, AND THEIR PUNISHMENT.

We are now arrived at the fourth and last branch of these commentaries which treats of public wrongs, or crimes and misdemesnours. For we may re member that, in the beginning of the preceding book, (a) wrongs were divided into two species: the one private, and the other public. Private wrongs, which are frequently termed civil injuries, were the subject of that entire book: we are now therefore, lastly, to proceed to the consideration of public wrongs, or crimes and misdemesnours; with the means of their prevention and punishment. In the pursuit of which subject I shall consider, in the first place, the general nature of crimes and punishments; secondly, the persons capable of committing crimes; thirdly, their several degrees of guilt as principals, or accessaries; *fourthly, the several species of crimes, with the punishment annexed to each by the laws of England; fifthly, the means of preventing their petration; and, sixthly, the method of inflicting those punishments which the law has annexed to each several crime and misdemesnour.

per

[*2

First, as to the general nature of crimes, and their punishment; the discussion and admeasurement of which forms in every country the code of criminal law; or, as it is more usually denominated with us in England, the doctrine of the pleas of the crown; so called because the king, in whom centres the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights belonging to that community, and is there fore in all cases the proper prosecutor for every public offence.(b)

The knowledge of this branch of jurisprudence, which teaches the nature, extent, and degrees of every crime, and adjusts to it its adequate and necessary penalty, is of the utmost importance to every individual in the state. For (as a very great master of the crown-law(c) has observed upon a similar occasion) no rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct, should tempt a man to conclude that he may not at somo time or other be deeply interested in these researches. The infirmities of the best among us, the vices and ungovernable passions of others, the instability of all human affairs, and the numberless unforeseen events which the compass of a day may bring forth, will teach us (upon a moment's reflection) that to know with precision what the laws of our country have forbidden, and the deplorable consequences to which a wilful disobedience may expose us, is a matter of universal concern.

(*) Book iii. ch 1.

(*) See book i. p. 268.

() Sir Michael Foster, pref. to rep.