by reviling its ordinances. Penalties: fine: deprivation; imprisonment; forfeiture. Or, by non-conformity to its worship: 1st, through total irreligion. Penalty: fine. 2dly, through Protestant dissenting. Penalty: suspended (conditionally) by the toleration act. 3dly, 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....... Page 43-65 67 68 2. In England, the law of nations is adopted, in its full extent, as part of the law of the land....... 8. 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: judgment of felony, without clergy ......68-73 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... ........ Page 76-81 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 foreigu 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. males, in both cases, are to be drawn and burned alive......... Fe ............................ CHAPTER VII. ROGATIVE............. 92 OF FELONIES INJURIOUS TO THE KING'S PRE 94 to 102 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 misdemeanours 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. ................................................. 98-102 CHAPTER VIII. OF PRÆMUNIRE.. ......... 103 to 11" 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 main tenance cf popish seminaries abroad, or 101 popisa priests in England. III. Molesting of purveyance or pre-emption. VIII. 8. 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......... 119 .120-121 Positive misprisions, or high misdemeanours and contempts, are, I. Maladministration 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..... 121-126 without clergy. II. Compelling prisoners to become approvers. Penalty: judg ment 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 misdemeanours 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. Theft bote. 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. Penalty infamy, fine, and imprisonment. XIX. False verdict. Penalty: the judgment in attaint. XX. Negligence of pub lic officers, &c. Penalty: fine and forfeiture of the office. XXI. Oppression by the magistrates. XXII. Extortion of officers. Penalty, in both: imprisonment, fine, and sometimes forfeiture of the office........ 128-141 CHAPTER XI. ...... OF OFFENCES AGAINST THE PUBLIC PEACE.... 142 to 158 Penal 1. Offences against the public peace are, I. Riotous assemblies to the number of twelve. II. Appearing armed, or hunting, in disguise. III. Threatening, or demanding any valuable thing, by letter. All these are felonies, without clergy. IV. Destroying of turnpikes, &c. ties: whipping; imprisonment; judgment of felony, with and without clergy. V. Affrays. VI. Riots, routs, and unlawful assemblies. VII. Tumultuous petitioning. VIII. Forcible entry and detainer. Penalty, in all four: fine, and imprisonment. IX. Going unusually armed. Penalty forfeiture of arms, and imprisonPenalX Spreading false news. ty: fine, and imprisonment. XI. Pretended prophecies. Penalties: fine; imprisonment; and forfeiture. XII. Challenges to fight. Penalty: fine, imprisonment, and sometimes forfeiture. XIII. Libels. Penalty: fine, imprisonment, and corporal punishment....... ment. CHAPTER XII. .142-15 OF OFFENCES AGAINST PUBLIC TRADE... 154 to 160 1. Offences against the public trade are, I. Owling. Penalties: fines; forfeitures; imprisonment; loss of left hand; transportation; judgment of felony. II. Smuggling. Penalties: fines; loss of goods; judgment of felony, without clergy. III. Fraudulent bankruptcy. Penalty: judgment of felony, without clergy. IV. Usury. Penalty: fine and imprisonment. V. Cheating. Penalties: fine; Imprisonment; pillory; tumbrel; whipping, or other corporal punishment; ransportation. VI. Forestalling. VII. Regrating. VIII. Engrossing. Penaltes, for all three: loss of goods; fine; mprisonment; pillory. IX. Monopolies, and combinations to raise the price of commodities. Penalties: fines; imprisonnent; pillory; loss of ear; infamy; and, sometimes, the pains of præmunire. X. Exercising a trade, not having served as apprentice. Penalty: fine. XI. Transporting, or residing abroad, of artificers. Penalties: Ene; imprisonment; forfeiture; incapacity ecoming aliens...... Page 154-160 2. Offences against the public police and economy, or domestic order of the kingdom, are, I. Those relating to clandestine and irregular marriages. Penalties: judgment of felony, with and without clergy. II. Bigamy or (more properly) polygamy. Penalty: judgment of felony. III. Wandering, by soldiers or mariners. IV. Remaining in England by Egyptians, or being in their fellowship one month. Both these are felonies, without clergy. V. Common nuisances: 1st, by annoyances or purprestures in highways, bridges, and rivers; 2dly, by offensive trades and manufactures; 3dly, by disorderly houses; 4thly, by lotteries; 5thly, by cottages; 6thly, by fireworks; 7thly, by eavesdropping. Penalty, in all: fine. 8thly, by common scolding. Penalty: the cucking-stool. VI. Idleness, disorder, vagrancy, and incorrigible roguery. Penalties: imprisonment; whipping; judgment of felony. VII. Luxury in diet. Penalty: discretionary. VIII. Gaming. Penalties: to gentlemen, fines; to others, fine and imprisonment; to cheating gamesters, fine, infamy, and the corporal pains of perjury. IX. Destroying the game. Penalties fines, and corporal punishment...... .162-175 4. Homicide is justifiable, I. By necessity, and command of law. II. By permission of law: 1st, for the furtherance of public justice; 2dly, for prevention of some for cible felony.... 5. Homicide is excusable, I. Per infortunium, or by misadventure. II. Se defendendo, or self-defence, by chance-medley. Penalty, in both: forfeiture of goods; which however is pardoned of course. 6. Felonious homicide is the killing of a human creature without justification or excuse. This is, I. Killing one's self. II. Killing another......... 7. Killing one's self, or self-murder, is where one deliberately, or by any unlawful malicious act, puts an end to his own life. This is felony; punished by ignominious burial, and forfeiture of goods and chattels......... 8. Killing another is, I. Manslaughter. II. Murder........ 9. Manslaughter is the unlawful killing of another; without malice, express or implied. This is either, I. Voluntary, upon a sudden heat. II. Involuntary, in the commission of some unlawful act. Both are felony, but within clergy; except in the case of stabbing......... 10. Murder is when a person of sound memory and discretion unlawfully killeth any reasonable creature, in being and under the king's peace; with malice aforethought, either express or implied. This is felony, without clergy; punished with speedy death, and hanging in chains or dissection 11. Petit treason (being an aggravated degree of murder) is where the servant kills his master, the wife her husband, or the ecclesiastic his superior. Penalty: in men, to be drawn and hanged; in women, to be drawn and burned........... CHAPTER XV. 178 182 188 189 190 191 194 208 OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS........ ........205 to 218 1. Crimes affecting the persons of individuals, by other corporal injuries not amounting to homicide, are, I. Mayhem; and also shooting at another. Penalties: fine; imprisonment; judgment of felony, without clergy. II. Forcible abduction, and marriage or defilement, of an heiress; which is felony: also, stealing, and deflowering or marrying, any woman-child under the age of sixteen years; for which the penalty is imprisonment, fine, and temporary forfeiture of her lands. III. Rape; and also carnal knowledge of a woman-child under the age of ten years. IV. Buggery, with man or beast. Both these are felonies, without clergy. V 229 to 247 1. Crimes affecting the private property of individuals are, I. Larceny. II. Malicious mischief. III. Forgery. 2. Larceny is, I. Simple. II. Mixed, or compound.. . Simple larceny is the felonious taking, and carrying away, of the personal goods of another. And it is, I. Grand larceny; being above the value of twelvepence. Which is felony; in some cases within, in others without, clergy. II. Petit larceny; to the value of twelvepence or under. Which is also felony, but not capital; being punished with whipping, or transportation.... Mixed, or compound, larceny, is that wherein the taking is accompanied with the aggravation of being, I. From the house. II. From the person.. 5. Larcenies from the house, by day or night, are felonies without clergy, when they are, I. Larcenies, above twelvepence, from a church;-or by breaking a tent or booth in a market or fair, by day or night, the owner or his family being therein; or by breaking a dwelling-house by day, any person being therein;-or from a dwelling-house by day without breaking, any person therein being put in fear;-or from a dwelling-house by night, without breaking, the owner or his family being therein, and put in fear. II. Larcenies of five shillings, by breaking the dwelling-house, shop, or warehouse, by day, though no person be therein; or by privately stealing in any shop, warehouse, coach-house, or stable, by day or night, without breaking, and though no person be therein. Larcenies, of forty shillings, from a VOL. II-B III. 229 229 229 239 6. Larceny from the person is, I. By pri vately stealing from the person of another, above the value of twelvepence. II. By robbery; or the felonious and forcible taking, from the person of another, goods or money of any value, by putting him in fear. These are both felonies without clergy. An attempt to rob is also felony 7. Malicious mischief, by destroying dikes, goods, cattle, ships, garments, fishponds, trees, woods, churches, chapels, meeting - houses, houses, out-houses, corn, hay, straw, sea or river banks, hop-binds, coal-mines, (or engines thereunto belonging,) or any fences for enclosures by act of parliament, is felony, and, in most cases, without benefit of clergy.. 241 248 8. Forgery is the fraudulent making or alteration of a writing, in prejudice of another's right. Penalties: fine; imprisonment; pillory; loss of nose and ears; forfeiture; judgment of felony, without clergy.. CHAPTER XVIII. 247 OF COURTS OF A CRIMINAL JURISDICTION... 258 to 277 1. In the method of punishment may be considered, 1. The several courts of criminal jurisdiction. II. The several proceedings therein........ 2. The criminal courts are, I. Those of a public and general jurisdiction throughout the realm. II. Those of a private and special jurisdiction........ 3. Public criminal courts are, I. The high court of parliament; which proceeds by impeachment. II. The court of the lord high steward; and the court of the king in full parliament: for the trial of capitally-indicted peers. III. The cour 258 26A of King's Bench. IV. The court of chivalry. V. The court of admiralty, under the king's commission. VI. The courts of oyer and terminer. VII. General gaoldelivery. VIII. The court of quartersessions of the peace. IX. The sheriff's tourn. X. The court-leet. XI. The court of the coroner. XII. The court of the clerk of the market......... Page 258-275 1. Private criminal courts are, I. The court of the lord steward, &c. by statute of Henry VII. II. The court of the lord steward, &c. by statute of Henry VIII. III. The university courts....... ..275-277 OF ARRESTS.. CHAPTER XXI. ..........289 to 295 Regular proceedings in the courts of common law, are, I. Arrest. II. Commitment and bail. III. Prosecution. IV. Process. V. Arraignment, and its incidents. VI. Plea and issue. VII. Trial and conviction. VIII. Clergy. IX. Judgment, and its consequences. X. Reversal of judgment. XI. Reprieve, or pardon. XII. Execution......... 2. An arrest is the apprehending, or restraining, of one's person, in order to be forthcoming to answer a crime whereof one is accused or suspected............... 289 8. This may be done, I. By warrant. II. By an officer, without warrant. III. By a private person, without warrant. IV. By hue and cry.... ....... CHAPTER XXII. 289 .289-295 1. Prosecution, or the manner of accusing offenders, is either by a previous finding of a grand jury, as, I. By presentment. II. By indictment. Or, without such finding, III. By information. IV. By appeal.... 2. A presentment is the notice taken by a grand jury of any offence, from their own knowledge or observation.... 3. An indictment is a written accusation of one or more persons of a crime or misdemeanour, preferred to, and presented on oath by, a grand jury; expressing, with sufficient certainty, the person, time, place, and offence.... 301 301 302 4. An information is, I. At the suit of the king and a subject, upon penal statutes. II. At the suit of the king only. Either, 1. Filed by the attorney-general ex officio, for such misdemeanours as affect the king's person or government; or, 2. Filed by the master of the crown-office (with leave of the court of King's Bench) at the relation of some private subject, for other gross and notorious misdemeanours. All differing from indictments in this: that they are exhibited by the informer, or the king's officer, and not on the oath of a grand jury. ......308-312 5. An appeal is an accusation, or suit, brought by one private subject against another, for larceny, rape, mayhem, arson, or homicide: which the king cannot discharge or pardon, but the party alone can release..... CHAPTER XXIV. 312 OF PROCESS UPON AN INDICTMENT......318 to 820 1. Process to bring in an offender, when indicted in his absence, is, in misdemeanours, by venire facias, distress infinite, and capias; in capital crimes, by capias only; and, in both, by outlawry...318-820 2. During this stage of proceedings, the indictment may be removed into the court of King's Bench from any inferior jurisdiction, by writ of certiorari facias: and cognizance must be claimed in places of exclusive jurisdiction................... 320 |